Isaac and Isaac
[2016] FCCA 2397
•14 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ISAAC & ISAAC | [2016] FCCA 2397 |
| Catchwords: FAMILY LAW – Parenting – Application for a Recovery Order by the Father for the parties’ two children – in circumstances where there is a long history of proceedings – where the Mother alleges psychological and physical abuse by the Father towards the children. HELD – parties’ two children to live with the Father and spend supervised time with the Mother. |
| Legislation: Family Law Act 1975 (Cth), ss.67Z, 69ZW |
| Cases cited: Rice & Asplund (1979) FLC 90-725 |
| Applicant: | MR ISAAC |
| Respondent: | MS ISAAC |
| File Number: | DGC 400 of 2012 |
| Judgment of: | Judge Bender |
| Hearing date: | 9 September 2016 |
| Date of Last Submission: | 9 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 14 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Williams |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | Not Applicable |
ORDERS
All previous parenting orders be discharged.
The Father have sole parental responsibility for the children X born (omitted) 2001 (‘X’) and Y born (omitted) 2005 (‘Y’).
X and Y live with the Father.
The Mother and the Father forthwith do all things and sign all documents necessary to make application to Berry Street Children’s Contact Service in (omitted) (‘the Contact Centre’) to enable supervised time to take place between the Mother, X and Y.
Upon a place becoming available at the Contact Centre, the Mother spend supervised time only with X and Y at the Contact Centre on such days and times as may be facilitated by Berry Street for a period of six months.
The Mother be restrained from contacting (including by text message, Facebook, Skype or phone call) X or Y when they are in the Father's care until the commencement of time pursuant to Order 9 herein.
The Mother is hereby restrained by injunction from attending at either of X and Y’s school at any time when either X or Y are present or at any of their extra-curricular activities until the commencement of time pursuant to Order 9 herein.
The Father is authorised is to provide a copy of these Orders to the principal of X and Y’s school/s and the manager of any of their sporting teams.
Upon the expiration of supervised time pursuant to Order 5 herein, X and Y communicate and spend time with the Mother as follows:
(a)each alternate weekend from after school Friday to before school Monday; and
(b)as otherwise agreed between the parties in writing.
The Father forthwith enrol and complete a Parenting Adolescents Program at LifeWorks Relationship Counselling and Education Services, P: (omitted).
The Mother is hereby ordered to do all things necessary to immediately erase any recordings taken by her or X during the conference with the Family Consultant on 1 September 2016 and is prohibited from copying them or making copies of same available to any other persons or on social media.
In the event the parties agree X shall live with the Mother:
(a)any time X spends with Y shall take place at the Contact Centre or at the Father’s home until the commencement of time pursuant to Order 9 herein; and
(b)X shall spend time with the Father as agreed between Y and the Father.
The Mother be and is hereby restrained from taking X or Y, or either of them, to any counsellors, therapists, psychologists without the Father’s written consent.
The Mother and Father shall not use any form of physical punishment on X or Y, or either of them.
That MR ISAAC, born (omitted) 2001 and Y, born (omitted) 2005 are restrained from leaving the Commonwealth of Australia.
That Mr Isaac (“the Father”) and Ms Isaac (“the Mother”) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the said children X, born (omitted) 2001 and Y, born (omitted) 2005 from the Commonwealth of Australia.
IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until the Court orders its removal.
This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 12 of the Family Law Regulations)
The Father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the Mother to or in the presence or hearing of the said children or any of them and from permitting any other person so to do.
The Mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
The Father be permitted to provide a copy of these orders to any medical, speech therapist or other treating professional of X or Y.
The Mother be permitted to receive school reports for X or Y directly from their schools at her expense.
Both parties be and are hereby restrained from discussing these proceedings or showing X or Y documents in these proceedings or permitting any other person to do so.
Both parties follow the recommendations of any treating paediatrician or other professional in relation to Y's diagnosed learning difficulties.
Each party provide the other with at least 28 days advance written notice of any intended change to their residential address or telephone number.
The Father keep the mother informed of:
(a)any serious illness, injury or other significant condition of either X or Y;
(b)any medical emergencies involving X or Y as soon as practicable;
(c)any treating professional in relation to Y's learning or behavioural issues.
All extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Isaac & Isaac is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 400 of 2012
| MR ISAAC |
Applicant
And
| MS ISAAC |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter comes before the Court as a result of an urgent Application in a Case filed by the Father in which he is seeking a recovery order for the parties’ two sons X born (omitted) 2001 (‘X’) and Y born (omitted) 2005 (‘Y’).
In response to the urgent Application in a Case, the Mother filed a Response and Contravention Application on 29 August 2016 in which she seeks Orders that X and Y remain in her care on the basis that they are at risk of ongoing physical and emotional abuse from the Father and his partner.
Background
This matter has an extensive history in this Court, the Childrens’ Court and the Magistrates’ Court.
After a seven day defended hearing Judge O’Sullivan handed down a 120 page judgment on 24 June 2013 and made the following Orders:
(1)All previous parenting Orders be discharged.
(2)The father have sole parental responsibility for the children X, born (omitted) 2001 and Y, born (omitted) 2005 (“the children”).
(3)The children live with the father.
(4)Subject to paragraphs 5, 6, 7, 8 and 9 herein the children spend time and communicate with the mother as agreed in writing between the parents.
(5)The mother forthwith attend upon a psychiatrist for the purposes of assessment and treatment and the mother comply with all reasonable directions and recommendations of the said psychiatrist.
(6)The mother provide the said psychiatrist referred to in paragraph 5 herein with copies of the following reports:
(a)Psychiatric report prepared by Dr T dated 26 July 2012 relating to the mother and the father.
(b)Family Report prepared by Dr N dated 5 September 2012.
(c)Supplementary Family Report prepared by Dr N dated 12 March 2013.
(d)A copy of the Reasons for Judgment together with a copy of these Orders.
(7)The mother provide the father with a report from the said psychiatrist confirming the psychiatrist’s diagnosis, prognosis, treatment and the mother’s compliance with prescribed medication.
(8)The mother provide the father with a report from the said psychiatrist to confirm the mother’s mental health does not adversely affect her capacity to parent the children.
(9)The mother authorise the said psychiatrist to communicate directly with the father regarding, inter alia, the mother’s diagnosis, prognosis and treatment.
(10)As soon as practicable but in any event within 48 hours the Independent Children’s Lawyer and Dr N meet with the children for the purpose of informing the children about these Orders.
(11)The Independent Children’s Lawyer provide Dr N with a copy of the Reasons for Judgment and Orders made herein.
(12)The mother be and is hereby restrained from taking the children, or either of them, to any counsellors, therapists, psychologists without the father’s written consent.
(13)The mother and father shall not use any form of physical punishment on the children, or either of them.
(14)That MR ISAAC, born (omitted) 2001 and Y, born (omitted) 2005 are restrained from leaving the Commonwealth of Australia.
(15)That Mr Isaac (“the father”) and Ms Isaac (“the mother”) their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the said children X, born (omitted) 2001 and Y, born (omitted) 2005 from the Commonwealth of Australia.
(16)IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch list until the Court orders its removal.
(17)This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 12 of the Family Law Regulations)
(18)Within 7 days of the date of these Orders the mother provide the father with the children’s passports and the passports be retained by the father.
(19)The father, his servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the mother to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
(20)The mother, her servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the father to or in the presence or hearing of the said children or any of them, and from permitting any other person so to do.
(21)That subject to these orders the mother otherwise be restrained from contacting (including by text message, Facebook, Skype or phone call) the children when they are in the father's care unless she obtains his prior written consent.
(22)The father be listed forthwith as the emergency contact person at the children's school and he provide a copy of these orders to the school and any other school the children or either of them attend.
(23)The father be permitted to provide a copy of these orders to any medical, speech therapist or other treating professional of the children.
(24)The mother be permitted to receive school reports for the children directly from the children’s schools at her expense.
(25)That both parties be and is hereby restrained from discussing these proceedings or showing the children documents in these proceedings or permitting any other person to do so.
(26)That both parties follow the recommendations of any treating paediatrician or other professional in relation to Y's diagnosed learning difficulties.
(27)That each party provide the other with at least 28 days advance written notice of any intended change to their residential address or telephone number.
(28)The father keep the mother informed of:
(a)any serious illness, injury or other significant condition of either of the children;
(b)any medical emergencies involving the children as soon as practicable;
(c)any treating professional in relation to Y's learning or behavioural issues.
(29)The Independent Children’s Lawyer provide a copy of these Orders to the Victorian Magistrates’ Court at the Moorabbin Justice Centre to be placed on the intervention order proceedings file, case number (omitted).
(30)Subject to the above the Order for the appointment of the Independent Children’s Lawyer be discharged.
(31)Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
(32)All extant applications be otherwise dismissed and removed from the Pending Cases List.
In his lengthy judgment, Judge O’Sullivan set out in some detail the background to the history of the matter in paragraphs 4 – 53 of his judgment. Whilst lengthy, they will be reproduced here as they are of relevance to the matter that is before the Court at this time.
Background
4. Before doing so it is timely to set out the background facts and procedural history.
5. On the basis of the uncontentious or agreed background facts in the parties’ affidavits, an agreed chronology was prepared which was marked as an exhibit in these proceedings. However where in these reasons there is a statement of fact those are, unless otherwise specified, findings of fact.
6. The father is aged 45 and the mother is 37 years of age. The mother has lived overseas in (country omitted) and (country omitted). In 1997 the father arrived in Australia and shortly thereafter his first marriage ended. In March 2000 parties commenced cohabitation. On (omitted) 2001 the eldest child, X was born. X is now aged 11. There were proceedings for intervention orders in 2002.
7. On (omitted) 2003 the parties married. In late 2003, 2004 and again in 2005 there was police involvement with the parties following family violence complaints. On (omitted) 2005 the second and youngest child, Y was born. Y is now aged 7.
8. In 2006 X commenced school initially at a (omitted) primary school then at (omitted) Primary School followed by (omitted) Primary School after a dispute involving the mother and another family at the former school led to an intervention order being made against the mother. Police involvement with the parties due to domestic violence complaints continued in 2006, 2007 and 2009.
9. On 8 October 2011 the father moved out of the matrimonial home.
10. On 4 January 2012 Senior Constable A applied for an interim intervention order for the mother and the children with the father named as the respondent. On 30 January 2012 the interim intervention order was granted in favour of the mother and the children.
11. On 14 February 2012 the father commenced these proceedings by filing an initiating application which was abridged to be heard on 14 March 2012.
12. On 25 February 2012 the mother and the children made statements to the police. On 27 February 2012 at the hearing into the intervention order at the Magistrates’ Court a final order was made by consent of the parties (without admissions) and the children’s names were removed from the order.
13. One day later the mother made a further application to vary the intervention order to include the children’s names again. On 28 February 2012 the children were formally interviewed by the police.
14. On 3 March 2012 X attended upon Mr L, psychotherapist to commence therapy and continued to attend on a fortnightly basis.
15. On 14 March 2012 the father’s initiating application had its first return date before this Court at Dandenong. On that day both parties were represented and the Court made interim consent orders. The Court also made orders for the parties and the children to attend a section 11f child inclusive conference on 3 April 2013, a conciliation conference was listed on 21 May 2012 and the matter was adjourned for mention on
3 April 2013.16. On 2 April 2012 the intervention order hearing was held at the Moorabbin Magistrates’ Court. A final intervention order was made by consent, without admissions, including the children and the order contained the usual exemption for orders made under the Act. That order expired on 27 February 2013.
17. On 3 April 2012 the proceedings commenced by the father returned before this Court for hearing. On that day the section 11f conference was held with the children and an oral report was provided to the Court by the family consultant. The Court made orders for the appointment of an Independent Children’s Lawyer and the Department of Human Services was requested to intervene in the proceedings. The matter was adjourned for mention on 7 May 2012. The Department did not intervene.
18. On 7 May 2012 the matter again returned to this Court for hearing. By this time the Independent Children’s Lawyer was on the record, both parties were represented there were interim orders made by consent. There were orders that both parties obtain psychiatric assessments and for a family report to be prepared. The Court also made orders and directions for final hearing in relation to both parenting and property. The proceedings were adjourned to 14 November 2012 for final hearing on both parenting and property.
19. On 8 May 2012 the father was charged by the Victoria Police for criminal damage to the former matrimonial home, 4 counts of recklessly causing injury, animal cruelty and unlawful assault.
20. The father was also charged with breaching the intervention order as a result of Skype messages to X between
31 January 2012 and 15 February 2012.21. On 24 and 25 July 2012 the parties attended upon Dr T for the purposes of psychiatric assessments. On 26 July 2012 the psychiatric reports prepared by Dr T were released to the parties. On 3 August 2012 the parties then attended for interviews with Dr N for the purpose of preparing the family report.
22. On 8 August 2012 X ceased attending upon Mr L.
23. On 21 August 2012 the parties attended a Conciliation Conference at Dandenong pursuant to the orders made on 14 March 2012. The parties entered into final property orders by consent at the Conciliation Conference.
24. On 5 September 2012 Dr N’s family report was released to the parties which recommended immediate resumption of the children’s time with the father.
25. On 19 September 2012 the father’s criminal charges came before the Moorabbin Magistrates’ Court. All of the charges against the father were withdrawn by police save for the charge of breach of intervention order in relation to the Skype messages to X, to which the father pleaded guilty and received no conviction.
26. In late September 2012 there was correspondence between the solicitors for the parties and the Independent Children’s Lawyer. No agreement was reached on what time the children should spend with the father.
27. On 10 October 2012 the mother’s lawyer wrote to the father’s lawyer proposing the commencement of unsupervised time with the children. An agreement was reached and on 13 October 2012 the father commenced spending unsupervised time with the children from 1.30 pm to 5.30 pm, followed by 3 further events on 14 October 2012, 20 October 2012 and 21 October 2012 for the same duration.
28. On 23 October 2012 the father filed an amended initiating application seeking inter alia that the children live with him. On 27 October 2012 both children spent unsupervised time with the father from 1.30 pm to 5.30 pm.
29. On 28 October 2012 the father was concerned that X may have been attempting to record a conversation with him using a recording device in his pocket. X refused to spend time with the father. Y spent time with the father from 1.30 pm and 5.30 pm.
30. On 2 November 2012 the children spent overnight time with the father. On 5 November 2012 the mother made a complaint to the police while the children were in the father’s care claiming the children were scared and needed to be returned to her. The police spoke to the children and did not take any action.
31. On 14 November 2012 the parenting proceedings returned to this Court. Both parties were represented and there were interim consent orders for inter alia the parties to have equal shared parental responsibility, the children to live with the mother and spend time with the father each alternate weekend and every Wednesday evening. On 14 November 2012 orders and directions for final hearing on parenting issues were also made including an order for the preparation of an updated report. The final hearing date was subsequently relisted.
32. On 16 to 19 November 2012 both children spent time with the father from after school Friday until the commencement of school on Monday in accordance with the interim consent orders.
33. The father collected the children from school on 21 November 2012 and spent overnight time with the children until the commencement of school on Thursday morning in accordance with the interim consent orders.
34. The children spent the weekend with the father on 30 November 2012 until 3 December 2012 and the children were returned to school at the commencement of school on Monday morning pursuant to the interim consent orders. On 5 December 2012 the father attended the children’s school to collect them and X was not happy about going to spend time with his father. The mother arranged to collect X from school and only Y spent time with the father.
35. On 12 December 2012 X spent time with the father. There was as an incident at (omitted) beach. This was the last time X spent time with the father.
36. On 14 December 2012 the mother took the children to (omitted) Police Station. X made a statement alleging violence against him which the father denied. The police contacted the father and advised him that the children would not be spending time with him for the weekend occurring on 14 to 17 December 2012.
37. An application was made for a variation of the intervention order on behalf of the mother on 14 December 2012. That application said:
“The victim in this incident is the son of the respondent and AFM. During a consensual custodial visitation approximately 2 weeks ago the AFM’s son and his younger brother were at the respondent’s house. Both boys were playing a game using a hand held console. The respondent has walked up to X and hit him across his head. The hit was unprovoked and X had a headache for two days as a result. On Wednesday the 12th of December 2012 the respondent has picked up X and his brother after school. Took them swimming down at (omitted). For some reason the respondent has told X not to go near his brother. X has found a large star fish on the beach, he has asked the respondent if he could show his brother. The respondent has given his consent, as X has turned away the respondent has kicked X, this has resulted in bruising to his leg. X is scared to go with his father on visits. When spoken to X breaks down and cries for fear of more assaults. Police and the AFM are seeking a variation to the original intervention order to exclude X from any visitation by the respondent (Family Law Court). Please remove the clause that allows family access.”
38. The reason given for the application to vary the intervention order referred to above was:
“I seek to:
Have the order varied to exclude the respondent from having any visitation or access rights to 11 year old X pursuant to clause 9 of the existing orders. As well as suspending the current Family Law Court order pursuant to 68R of the Family Law Act.
The reasons/grounds for the application are:
During visitation pursuant to the Family Court Orders the respondent has walked up to 11 year old X and hit him across the head. X had a headache for 2 days as a result. On 12 December 2012 the respondent has kicked X resulting in a bruise to his leg. X is scared of his father and is in fear of more assaults. Confirmed by police interview.”
39. On 19 December 2012 the application to vary the intervention order came before the Victorian Magistrates Court. An interim order, naming the mother and the children as affected family members, was made ex parte by Magistrate Barrett against the father in the following terms:
“The Court orders that the respondent must not:
1.Assault, harass, threaten, intimidate or commit family violence against the protected person(s) at any time. Note: The Family Violence Protection Act 2008 denies family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or well being of that family member or another person. Family violence includes behaviour that cases a child to hear or witness or otherwise be exposed to the effects of these behaviours.
2.Intentionally damage any property of the protected person(s) or threaten to do so.
3.Attempt to locate, follow the protected person(s) or keep them under surveillance.
4.Publish on the internet, by email other electronic communication any material about the protected person(s) including social sites.
5.Contact or communicate with a protection person by any means including phone, text and email.
6.Approach or remain within 10 metres of a protected person.
7.Go to or remain within 200 metres of (omitted) or any other place where a protected person lives, works or attends school or child care.
8.Get another person to do anything the respondent must not do under this order.
9.The respondent may:
(a) do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements; if made after today and in contemplation of this application, but subject to paragraph 10 of interim.
(b) communicate with a protected person through a lawyer or mediator; or police.
(c) arrange and/or participate in counselling or medication; or
(d) go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property by phone arrangement But only if the respondent does not commit family violence while doing so.
10.Further order that no child contact pursuant to s91(1) and (2) of the Family Violence Protection Act & on the basis of the evidence before the Court and being satisfied that the safety of a child may be jeopardized by contact with the respondent – the respondent must not:
(a) live in the same place as; or
(b) spend time with or have contact with; or communicate with X protected by this order until further order of a court made after consideration of this application and conditions of this family violence protection order.
11. OTHER order:
That pursuant to paragraph 14 of the interim order made by the Federal Magistrates Court of Australia on 14 November 2012 that the Independent Children’s Lawyer speak to the children, and is granted liberty to make any submissions deemed appropriate on the return date.
This intervention order expires on 7/1/2013, unless extended or varied prior to that time. The current interim intervention order will remain in place until this final intervention order is served on the respondent.” (emphasis added)
40. The father was not at that hearing and did not consent to the order. The father was served with the interim intervention order that evening. On the same day the father attended the children’s school to the collect the children in accordance with the interim consent orders. The mother was also present at the children’s school. X left with the mother. The father took Y home with him. The Police did not remove Y from the father’s care.
41. On 20 December 2012 the father filed an application in a case seeking that the children reside with him. That application was listed for hearing on 25 March 2013. On 21 December 2012 the mother also filed an application in a case seeking to suspend the interim consent orders made on 14 November 2012 in relation to X and that X attend counselling. That application was also listed for hearing in this Court on
25 March 2013.42. On 22 December 2012 the father collected Y from school and spent time with him in accordance with the interim consent orders. The child X did not spend time with the father. The father returned Y to the mother’s care on 1 January 2013. This was the last occasion the child Y spent time with the father.
43. The application to vary the intervention order was listed for mention in the Moorabbin Magistrates’ Court on 8 January 2013. That hearing was adjourned for a contested hearing before Magistrate Barrett on 21 January 2013.
44. On 10 January 2013 the mother, who was by this time unrepresented, sent an email to the father’s lawyer stating that she consented to the father spending time with Y from
15 January 2013 to 27 January 2013 provided that the father returned Y for 21 and 22 January 2013 so that he can attend a wedding. The father agreed to those arrangements.45. On 15 January 2013 the mother failed to attend changeover with Y for Y to spend time with the father.
46. On 21 January 2013 the parties return to the Moorabbin Magistrates’ Court for a contested hearing over the intervention order. The variation application was dismissed and the following orders were made:
“The following person/s are protected by this order:
First Named Affected Family Member – Isaac, Ms Isaac
Second Named Affected Family Member -Isaac, (sic) Y
Third Named Affected Family Member – Isaac, (sic) X
The Court orders that the respondent must not:
1.Assault, harass, threaten, intimidate or commit family violence against a protected person(s) at any time. Note: The Family Violence Protection Act 2008 denies family violence as behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates a family member and causes that family member to feel fear for the safety or well being of that family member or another person. Family violence includes behaviour that cases a child to hear or witness or otherwise be exposed to the effects of these behaviours.
2.Intentionally damage any property of the protected person(s) or threaten to do so.
3.Attempt to locate, follow the protect person(s) or keep them under surveillance.
4.Publish on the internet, by email or other electronic communication any material about the protected person(s) including social sites.
5.Contact or communicate with a protected person by any means including phone, text and email.
6.Approach or remain within 10 metres of a protected person.
7.Go to or remain within 200 metres of (omitted), or any other place where a protected person lives, works or attends school or childcare.
8.Get another person to do anything the respondent must not do under this order.
9.The respondent may:
(a)do anything that is permitted by a Family Law Act order, a child protection order or a written agreement about child arrangements;
(b)communicate with a protected person through a lawyer or mediator; or police
(c)arrange and/or participate in counselling or mediation; or
(d)go to the home of a protected person, in the company of a police officer or a person chosen by the applicant, to collect personal property by phone agreement BUT ONLY IF the respondent does not commit family violence while doing so.
This interim intervention order will last until final order, unless varied or revoked; or if the application is withdraw.” (emphasis added)
47. As will be clear from the above, this last order removed the purported suspension of the interim parenting orders made in November 2012 in this Court. The proceedings in the Moorabbin Magistrates’ Court were adjourned sine die pending the outcome of these proceedings.
48. On 24 January 2013 the father filed a contravention application which was listed on 25 March 2013. On 26 January 2013 the father attended the children’s school to collect them. The mother was already in attendance at the children’s school and took the children home with her.
49. On 31 January 2013 the mother took the child X to see Ms L. X attended approximately weekly after this.
50. On 5 February 2013 the mother filed an application in a case which sought to “withdraw” the orders made on 14 November 2012, for the mother to have sole parental responsibility and for the children’s time with the father to be supervised at a contact centre. The mother also sought orders for the children to attend counselling and for their names to be removed from the Airport Watch List.
51. The child X attended upon Ms L for the last time on 7 March 2013. On that day, the mother’s current solicitors filed a notice of address for service.
52. On 12 March 2013 an updated family report was prepared by Dr N and released to the parties.
53. The father filed a further amended initiating application on 22 March 2013. The father sought in his application for the children to live with him and spend time with the mother in accordance with Dr N’s recommendations. The Independent Children’s Lawyer filed an outline of case on 27 March 2013. The mother filed further affidavits in support and an outline of case on 28 March 2013.
Less than six months after Judge O’Sullivan handed down his decision the parties, X and Y were again embroiled in litigation, this time in the Childrens’ Court. The sequence of events that occurred during this period were summarised in the Father’s submissions that were filed in relation to further Federal Circuit Court proceedings on 27 May 2015 and are reproduced below:
9 and 10 November 2013
Father permits the maternal grandparents to have the children for the weekend. Maternal grandparents permit the Wife to be present. Children, in particular X, exhibit unsettled behaviour on their return.
17 November 2013
X refuses to do his homework and runs away from the home to his maternal uncle’s home and the maternal grandparents take him to (omitted) Police Station. Police report to DHS who attend the Husband’s home and remove Y and put him in the maternal grandparent’s care.
18 November 2013
Children’s Court hearing. Magistrate orders the children to remain in the care of the maternal grandparents with each parent to have access.
22 November 2013
Children’s Court contested hearing. Magistrate Orders that the children be returned to the Husband’s care. Order for the Children’s Court Clinic to assess whether the children should spend time with the Wife. Wife to have supervised access.
5 February 2014
Children’s Court hearing and release of Children’s Court Clinic report. Orders that the children remain in the Husband’s care.
12 February 2014
Children’s Court consent orders made for the Wife to see the children each Tuesday and Thursday from after school until 7.15pm, by phone at reasonable times and at school events. Wife ordered not to take the children to professionals unless in an emergency or with the consent of DHS.
20 February 2014
Children’s Court Conciliation Conference at which DHS indicate that they no longer have protective concerns and want to withdraw their application. Wife refuses to agree. Proceedings adjourned for 8 weeks to allow the Wife to make an application to the FCC to vary the orders. Notation to the orders to that effect.
1 April 2014
Children’s Court hearing at which Wife says she will not make an application to the FCC. Magistrate refuses to allow DHS to withdraw their application without the Wife’s consent.
8 May 2014
Children’s Court hearing at which the Wife again says she will not make an application to the FCC and the Magistrate refuses to permit DHS to withdraw its application without the Wife’s consent. Matter is listed for a Directions Hearing on 28 July 2014 and a seven day contested hearing
27 June 2014
Husband applies to the FCC for orders.
6 July 2014
Wife is served with the Husband’s FCC application.
31 July 2014
Wife files a Response in FCC proceedings seeking to dismiss the Husband’s Initiating Application.
4 August 2014
FCC proceedings adjourned to 24 October 2014.
24 October 2014
FCC orders listing the matter for mention on 26 February 2015, directions for filing of material, s69ZW report requested from DHS and for documents to be released by them.
2 November
2014Husband files Amended Initiating Application seeking Dr T assess the Wife and for her to follow his treatment recommendations and s69ZW(2) order for information and documents from DHS.
7 November 2014
Husband files Amended Initiating Application seeking final parenting orders.
20 November 2014
Wife files Amended Response to Initiating Application and Affidavit seeking parenting orders including shared equal parental responsibility.
24 November 2014
Children’s Court hearing at which DHS granted leave to withdraw their application and mutual Undertakings by the Husband and the Wife until
26 February 2015 that the contact between the Wife and the children will continue and there be specific time over the long summer holidays unless the parties agree otherwise or there are FCC orders to the contrary.26 February 2015
FCC orders appointing an ICL, listing the
matter for interim hearing at Dandenong on
24 June 2015 and directions for filing amended applications/response and outline of submissions.24 June 2015
Interim hearing in FCC at Dandenong.
As can be seen from the chronology set out in the preceding paragraph, the Father instituted proceedings in the Federal Circuit Court in order to have the matter removed from the Children’s Court jurisdiction as the Mother refused to institute such proceedings.
In response to the Father’s application, the Mother filed a Response in which she sought that the parenting orders made by Judge O’Sullivan in June 2013 be revisited and that Y and X be returned to her care.
In response to this application the Father argued that the Mother’s application to revisit the parenting orders should be dismissed pursuant to the rule in Rice & Asplund (1979) FLC 90-725. It was this application that was listed for hearing before Judge O’Sullivan on
24 June 2015.
In his written reasons handed down on 25 June 2015, His Honour in paragraphs 33-35 summarises the Mother’s case as follows:
33. I have considered the evidence on which the mother relies, noting that it now contains evidence from a psychiatrist in Sydney, Dr V. The affidavit on which the mother relies from Dr V annexes a medicolegal psychiatric report to a solicitor in Sydney who has never been on the record in these proceedings in relation to the mother from February 2014, and then a letter from the same psychiatrist to a Dr W in (omitted) regarding the mother from November 2014.
34. Along with the documentation attached to her affidavit filed 19 June 2015, in her affidavit filed 11 June 2015 the mother annexed the documents referred to above and also a report from a Children’s Court clinic in January 2014 as well as other medical documents from 2013. The mother’s earlier affidavits filed 20 November 2014 and 13 February 2015 also annexed that material.
35. The mother’s affidavits claimed repeatedly that the change in circumstances was a different psychiatric opinion on her and that the Children’s Court clinic (which was in a different court) provided a different opinion on her mental health, what should be the arrangements for the children and what she said the children wanted. I note also the claims made in the mother’s affidavit filed on 20 November 2014.[1]
[1] See affidavit filed 20 November 2014.
In paragraph 36 and 37 of his judgement Judge O’Sullivan states the following:
36. In Isaac & Isaac [2013] FCCA 136 over the course of 354 paragraphs, the Court explained why the June 2013 orders, made for those reasons, were in the children’s best interests. That decision was not appealed. The issues the mother raises now are many of the same issues raised in those proceedings.
37. The Department of Health and Human Services’ report provided to this Court in 2014, and referred to in the ex tempore decisions in October 2014[2] and again in February 2015[3] noted the children were stable in the father’s care. The Department of Health and Human Services had no concerns about that continuing. The evidence the mother relies on from Dr V is not definitive or even determinative of what is in the children’s best interests.
[2] Isaac & Isaac (No. 2) [2015] FCCA 3174
[3] Isaac & Isaac (No. 3)[2015] FCCA 1747
In paragraphs 39 and 40 of his judgment His Honour notes the Independent Children’s Lawyer’s position was that the proceedings should be dismissed on the basis of the rule in Rice & Asplund (1979) FLC 90-725 as the Mother had not made out a sufficient change in the children’s circumstances and in any event it was not in the children’s best interests for the June 2013 orders to be revisited.
In paragraph 45 of his judgment, His Honour held as follows:
45. In this case having regard to the reasons in Isaac & Isaac [2013] FCCA 136, the principles for the application of the rule in Rice & Asplund, and even accepting what the mother says about what Dr V says I am not satisfied there are changed circumstances. Nor am I satisfied there is a real likelihood that a change to the June 2013 orders would follow from the changed circumstances that the mother relies on. Even if such a change did follow, I am not satisfied any change would be of such a scope as to warrant the imposition of yet more litigation upon these children.
Accordingly, His Honour held as follows:
…in the circumstances of this case, including its long litigation history, adopting the language of His Honour Justice Warnick in SPS & PLS (supra), it is more powerfully in the best interests of these children in their particular circumstances to not allow the proceedings to continue.
Despite the 2013 Orders and the decision of Judge O’Sullivan in June 2015, for at least two years the parties agreed to an arrangement whereby X and Y spent regular time with the Mother being each alternate weekend and one evening during the week despite the Mother not having complied with Order 5 of the 24 June 2015 Orders that she attend upon a psychiatrist for the purposes of assessment and treatment.
On 26 May 2016 X and Y came home from dinner with the Mother at around 8.30pm.
The Father had received an email complaint from X’s school regarding his behaviour at school that day. It is the Father’s evidence the school principal had also called him to discuss X’s behaviour.
It is the Father’s evidence that when he tried to speak to X about the complaint from school, X became aggressive and starting yelling that he wanted to live with his Mother. It is the Father’s evidence that he tried to prevent X from leaving the house and that X kicked the door to his bungalow off its hinges and ran off to the street where the Mother was waiting in her car to take X back to her house.
On 29 May 2016 the Mother took X to the Police Station and X made a statement to the Police. In that statement X alleges that the Father confronted him about the call from his school, that he got angry with his Father and said he wanted to live with his Mother, that his Father was pushing him, yelling at him, threatening to hit him, refusing to let him leave the house, that he rang his Mother to come and get him and had finally managed to get away from the Father and now lives with the Mother.
As a result of the statement made by X to the Police, the Father has been charged with breaching the 2013 Interim Intervention Order and with unlawful assault of X. These matters were listed before the Magistrates’ Court of Victoria for Mention on 12 September 2016.
As can be seen from the background to the matter that was set out in the judgment of Judge O’Sullivan on 24 June 2013, the Interim Intervention Order taken out by the Mother for the protection of herself and Y and X on 21 January 2013 was adjourned sine die by the Moorabbin Magistrates’ Court pending the outcome of the proceedings that were then before the Federal Circuit Court.
It is the Father’s evidence that he had not realised that this Order has remained ongoing since that time and that he was the subject of an Intervention Order.
After X’s move to the Mother’s care, the Father did not permit Y to spend time with the Mother. It is his evidence that he was concerned the Mother would try to influence and pressure Y to move to her care or otherwise cause him to make a false report to the Police.
On Sunday 21 August 2016 the Father woke at around 8.30am to discover that Y was not at his home. The Father contacted the police when he was unable to find Y and they attended his home at about 10.00am. The police rang the Mother who advised that Y was with her.
It was after Y went to the Mother’s home that the Father’s urgent recovery application was filed.
The Father’s application came before the Court on 30 August 2016. On that date orders were made for the parties, X and Y to attend for an urgent Child Inclusive Conference pursuant to Section 11F of the Family Law Act 1975 (Cth) on 1 September 2016 and for the matter to otherwise come back before the Court on Friday 9 September 2015.
Ms C
Ms C is a Family Consultant with the Federal Circuit Court and she conducted the Child Inclusive Conference with the parties, X and Y.
Ms C prepared a Child Inclusive Conference memorandum to Court dated 5 September 2016 and also gave brief viva voce evidence on 9 September 2016.
In the memorandum to Court under the heading ‘Risk Issues’ Ms C states the following:
·X aged 15 years and the eldest child made allegations to the police in May 2016 that the father assaulted him physically and verbally abused him, when he wanted to leave the father’s home and go to live with his mother after an argument.
·Y aged ten years reported at this interview that he was scared of his father and he had hit on the head with a spoon when he did not pour milk on his sister’s breakfast cereal.
·Ms Isaac reports a history of verbal and physical violence by the father to her and the children.
Under the heading ‘Children Ms C summarises her discussions with X and Y as follows:
·X has been living with his mother since an incident on 29 May 2016 when after an argument with his father he left and went to his mother’s home.
·The writer enquired about the incident when X left the father’s home and went to his mother’s home. X said he and his father were having a discussion about X being in trouble at school. X has reportedly been rude to teachers, not listening or concentrating with his grades dropping. X said “Dad was siding with the school and not me.”
·When enquiry was made about his views regarding parenting arrangements, X spoke on behalf of his brother and said “we want to live with Mum.” The writer informed X whilst he could make known his wishes for Y the Court may not share his view. In discussion regarding if X was to live with his mother what time he would spend with his father, X said “it is Y’s decision whether he sees Dad or not,” but I know I 100% that I prefer to live with Mum.”
·X has filed a complaint of assault with the police regarding his father.
·Y has not been at his father’s home since 21 August 2016 when he reportedly disappeared from his father’s home. Police follow up with the mother, was that the child Y was with her. It is a concern that the mother did not think to notify the father that Y was with her as he would have been worried.
·The mother appears to manage the children’s lives when they are not with her. Mr Isaac reported that she bought X a small fridge for his room at his home and then proceeded to stock it with food every week. This behaviour by the mother is considered undermining and controlling. Mr Isaac said he requested the mother stop bringing food to the home. He also found numerous lolly wrappers and half -drunk slurpees under Y’s bed, which he believes are from Ms Isaac providing him with food.
·X reported that he did not feel safe with his father. He said “he swears at me and my brother and pushes me and there are more violent situations with my Dad, he pushed me in the ribs with his fist……do you know what I mean?” Further exploration with X about the reported harm he suffers in the father’s home and at the hands of his father is that “he is unfair, he beats us, and Dad didn’t back Y up when she [Ms I, father’s partner] hit Y, he chokes me and pulls my hair.” X was rude and unforgiving towards his stepmother. X continued with a litany of complaints about the food in the paternal home in that it was no good or enough.
·X said “my wish has always been to live with Mum.” According to X his mother provides for him, that he wakes up with a clear mind, they go out together.
·Y advised he is aged ten and a half and that he plays (hobby omitted) and is in Year 4 at school. In discussion with Y about what led to him “running away” to live with his mother and brother, he said “I left because everyone was mean to me, last week I didn’t pour the milk for my stepsister and my Dad hit me on the top of my head with a spoon.” Y said “he [father] scares me.” Y recalled another incident in the long summer holidays of 2014/2015 which had a rehearsed quality to it, and also told to the writer by X. Y said he was hit or slapped by Ms I [father’s partner]. He said “My brother he took me out of the car and put me somewhere else.” X indicated in his interview, it is his job to protect Y.
·Y, like his brother, indicated he does not like his stepmother or her daughter.
·According to the father the police did not intervene or assist him to recover the children to his care.
·Mr Isaac has been charged with breaching an Intervention Order which he claims he did not know existed as it was from January 2013, nonetheless the Order did and does exist.
·The children are saying they do not want to go back to live with their father
Under the heading ‘Co-parenting Relationship Ms C stated the following:
·This relationship appears embittered and lacks any effective communication regarding the needs of the children.
·The issues that were presented at this interview are not dissimilar to those when the family reports were undertaken in 2012/2013 and also in previous reports to DHHS. X in particular, claims an unhappy relationship with his father who he indicated he is scared of and who has reportedly physically abused him.
·Y is younger and he decamped on Sunday 21 August 2016, from the father’s home to live with his mother and brother. It remains unclear how much assistance Y may have had from the mother and X to leave the paternal home.
·Mr Isaac denies that he physically hurt X, but acknowledges that he did try and stop him from leaving the home. The father denies that he knew X was injured after playing sport and deliberately did not take him to the doctors for assistance and scans.
·The mother is clearly a powerful influence on the children and her capacity and willingness to support and facilitate the children maintaining a relationship remains a question for further exploration. Despite the ensuing years of the children living with their father and spending time with their mother, X has not been happy and now in middle adolescence he is asserting his right to make decisions regarding his choices. X has been living with the mother since the end of May 2016.
·In the Playroom during brief observation Y and his father were talking and it seemed to be agreed that Y wanted to spend time with his father this coming weekend to celebrate both father’s day and for Y to attend the presentation of awards at his (hobby omitted) club. This was discussed with the mother who readily agreed to Y spending time with his father. When in the Playroom preparing to leave, Ms Isaac asked Y what he wanted to do and put forward the suggestion that he could come home on Saturday night and go back on Sunday. This appeared to confuse Y who looked worried and immediately agreed in a tiny voice that his mother should come and collect him on Saturday.
·After further discussion the parties agreed that the mother would take Y to McDonald’s in (omitted) on Saturday 9.00am and be collected at same place at 6.00pm on Sunday evening on 4 September 2016.
In conclusion, under the heading ‘Future directions’ Ms C in her written memorandum stated that:
·On the basis of the history of this dispute, the continued allegations by X that his Father physically abuses and the current report to the Department of Health and Human Services regarding both X and Y, no future directions are possible.
Ms C also stated in her memorandum that pending the outcome of the investigations by the Department of Health and Human Services and the Police of the allegations made by X, the children should remain with the Mother, that X is at an age where his views should be considered and that given his stage of development it is impossible to insist that he spend time with his Father.
On 8 September 2016, a Response to the Section 67Z Notice of Child Abuse was received from the Department of Health and Human Services. Their report was a follows:
8 September 2016
Re: SECTION 67z Notice of Child Abuse, Family Violence or Risk of Family Violence: Matter of DGC 400/2012 – ISAAC
I would like to acknowledge receipt of the Section 67Z in relation to the above mentioned matter, for X and Y, received by this Office on 29 August 2016.
Please be advised that the Department of Human Services Child Protection have provided a response to a previous Section 69ZW request, dated 23 December 2014.
The current Notice of Risk and Affidavit obtained by both
Ms Isaac (Mother) and Mr Isaac (Father) have been assessed and there appears to be no new information to suggest that the children are at significant risk of harm in the care of either parent, therefore the Department of Human Services will not be taking any further action at this time.There have been a total of three Child Protection notifications received to The Department of Health and Human Services post 67W (sic) response dated 23 December 2014.
30/05/2016 – 15/06/2016 Intake and Assessment
A report was received due to concerns that X has been allegedly physically harmed and verbally abused by Mr Isaac. This incident resulted in X self-placing at Ms Isaac home with the wish to remain in Ms Isaac’s care. It is known to Child Protection that this incident is currently being investigated by Victoria Police. Child Protection closed the matter at intake and assessment with no concerns for X in Ms Isaac’s care.
22/06/2016 – 5/07/2016 Intake and Assessment
A report was received raising concerns around Mr Isaac breaching both the Intervention Order and the Family Law Court Orders pertaining to Family Violence behaviours displayed by Mr Isaac towards both X and Y and Ms Isaac. The details provided allege controlling and manipulative behaviours, medical neglect, physical and psychological abuse. The details in this report are similar to previous report dated 30 May 2016. Child Protection closed this matter, with the knowledge that the living arrangements for X in Ms Isaac’s care are directly against the current FLC orders. However X was assessed as not being at significant risk of harm in Ms Isaac’s care, similarly Y residing in
Mr Isaac’s care also raised no immediate safety concerns.21/08/2016 – 24/08/2016 Intake and Assessment
A report was received due to concerns that Y had run away from Mr Isaac’s care to reside with Ms Isaac due to concerns that Y was being verbally, emotionally and physically abused by Mr Isaac. It is believed Y has since been in the care of Ms Isaac along with older sibling X. Ongoing concerns have been raised in relation to welfare matters arising for Ms Isaac in being able to provide basic care for both X and Y, whilst continued custody and Family Law Court matters were raised. Child protection has no immediate safety concerns for X and Y in the care of either Mr Isaac or Ms Isaac. Y and X were not assessed as at immediate risk of harm and the matter closed at intake and assessment phase.
Current report: 29th August 2016
The current report outlines concerns for the children, X 15 years old and Y 10 years old in the care of Mr Isaac. Concerns raised to Child Protection allege that both X and Y been subject to physical abuse, emotion and psychological harm by Mr Isaac. Similarly counter allegations have been raised that both X and Y are at risk of psychological harm in the care of Ms Isaac (sic). There is no new information to suggest that further protective intervention is required and no significant or immediate safety concerns rose for either parent or their ability to care for both children.
It is noted that X and Y are of an age and stage whereby they are able to verbally express their wishes in their living situation.
Given the matter is currently before the Federal Circuit Court, should the Court wish (sic). An 11F Family report can be made and further liaison can occur with the Child Protection Family Law Court Liaison. The matter remained at Child Protection Intake and Assessment Phase and closed on or around the 8th September 2016.
When giving her viva voce evidence, the response of the Department of Health and Human Services was explained to Ms C. She was therefore asked whether she was now in a position to make any recommendations to the Court about the future living arrangements for X and Y.
It was Ms C’s evidence as follows:
Originally I had two possible future directions. One is to return both children and to wait and see whether X would in fact leave again and the other is to return Y and for Y to spend time with his Mother in a supervised contact centre for a period of between three to six months. The reason for that, your Honour, was because it seems clear that it is very difficult for Ms Isaac to support the children having a relationship with their Father. If X wanted to spend time with his brother that it occurs at the Father’s home or at the supervised contact centre.
Ms C described the incident between X and the Father as a typical adolescent argument about school and other issues and noted that with an adolescent boy, matters quickly escalate going from zero to a hundred in less than thirty seconds.
Ms C expressed concern that an issue of discipline between the Father and a fifteen year old adolescent boy had been used by the Mother as the basis to empower X to defy his Father and to return to her care.
Ms C expressed real concerns about how Y arrived at the Mother’s place from the Father’s home and posited the only rational explanation was he did so with direct assistance from the Mother and possibly X.
Ms C was also very concerned that the Mother did not contact the Father to advise him that Y was with her and to therefore appropriately relieve the Father of what would understandably have been his genuine panic when Y disappeared.
Counsel for the Father asked Ms C whether it was worth a chance to give X, despite his age and expressed wish to live with the Mother, the opportunity to live with Y and his Father and see whether he would comply with such an order without the possibility of the Mother, for a period of time, undermining the Father’s authority.
It was Ms C’s response that her original future direction was for this to happen although she acknowledged that she is cognisant of X’s age and developmental state and the fact that he has already voted with his feet.
Ms C noted that X is also very protective of his brother. Ms C suggested that it may be that despite his express wish that he wants to live with his Mother and brother, if orders were made that Y remain with the Father, X would do so in the belief that he needs to protect his brother.
During the Mother’s cross examination of Ms C it was revealed that unbeknown to Ms C, both the Mother and X had recorded their interviews with her using their mobile phones.
When the inappropriateness and possible illegality of that behaviour was put to the Mother, she explained that she had recorded the interview to ensure that the truth of what had been said by the report writer was able to be verified by her and put before the Court.
When asked whether she had told or encouraged X to record his interview with the report writer, the Mother adamantly denied that she had told X to do so and that it had been his idea.
The Mother asked Ms C why she had not included in her list of risks to the children as set out in her memorandum her complaint that the Father engaged in illegal activities with X and Y allowing Y to hold a rifle and X to drive behind the wheel and to smoke marijuana.
Ms C confirmed that the Mother had raised these allegations with her but that given they were not contained in any of her affidavit material and were unable to be verified, she had not included them in her memorandum.
Ms C agreed that the Mother had put to her in interview her proposal that X and Y live with her and spend regular time with the Father. The Mother asked Ms C to confirm her response to the Mother’s proposal in their discussions and why she did not include in her memorandum the Mother’s proposals in this regard.
It was Ms C’s evidence that in response to the Mother’s suggestion to her she would allow regular time between X, Y and the Father, she had indicated to the Mother that historically the Mother would make proposals for X and Y to spend time with the Father and would then not follow through in ensuring that those proposals took place and as such she had concerns about the Mother’s capacity to facilitate a relationship with the children and their Father.
The Mother challenged Ms C’s neutrality and suggested that she had already made up her mind in relation to this matter prior to the interview taking place on the basis of all the material she had read relating to the previous proceedings before this Court.
Ms C’s response was as follows:
Part of my training in my role here at the Court is to provide their Honours with information that is not biased and is presented from both parties from the childrens perspectives. But primarily my role is to focus on the children and what is going to be their best interests and to convey that as logically and intelligently as I can to the Court.
The Mother asked Ms C why she believed it was in the best interests of the children to be in the Father’s care and to not spend any time with her for a period of six months in circumstances where she has not abused the children, there has been lots of false allegations against her and where there are serious allegations made of the Father physically and verbally abusing X and Y and exposing them to the illegal activities she alleges the Father encourages X and Y to engage in.
Ms C’s response was as follows:
I have made that future direction to Her Honour because, after interviewing and meeting the children, the Father and yourself, I believe that it would be – it is very difficult for you to facilitate a relationship and that the children have been living with their Father and he has provided for them and they have had time with you, regular time as I understand it, in that time. The Orders of 2013 state the children should live with their dad and it appears to me from my interviews and assessment that nothing has really altered in the two years since those orders were made. It is more of the same. I think if the time is supervised, then Y will be safe. It will be a structured environment and he will not have to emotionally worry about whether he is doing the right thing.
Submissions
The Father
It was submitted by Counsel on behalf of the Father as follows:
The orders, your Honour, that were made, as the family report writer conveniently stated, were that the mother have psychiatric treatment as a precursor to her seeing the children, and that was, as I recall, order 5 of the orders of Judge O’Sullivan on 24 June 2013. That order was, with particularity:
The mother forthwith attend upon a psychiatrist for the purposes of assessment and treatment, and the mother comply with all reasonable directions and recommendations of the said psychiatrist.
That has not been complied with, and there is no evidence in any material that she has provided to the court that she has complied with such obligation. What the mother has done at the highest level is engaged a psychiatrist in Sydney, with no reasonable explanation as to why a Sydney psychiatrist is involved, but, in any event, she has engaged a psychiatrist in Sydney to provide some indication that on the basis of information that has been provided to him, effectively by the mother and a couple of the mother’s supporters, that the mother does not at the present stage suffer from a psychiatric illness. Your Honour, that provision of that report does not, in my submission, overcome the prescribed orders of Judge O’Sullivan.
What occurred was – to the father’s credit, was that he allowed the mother to have time, and unfortunately that time has been a disaster in relation to these children because of the undermining nature of what has occurred, which has, again, been amplified by the family report writer.
The mother’s conduct today, and with the family report writer, is extremely alarming. What the mother has done is recorded, quite illegally, the process, but, in my submission, you cannot accept what the mother has said to you in relation to X’s involvement in that recording process. X quite clearly has been encouraged by the mother to record his own interview with the family report writer, which is (1) illegal; (2) totally improper; (3) involves the child in the litigation; (4) is an abuse of the child, and (5) is not in the child’s best interests that he has been so involved. And quite clearly he knows that the mother is engaged in such activity, and in that regard it is clearly an abuse of this young boy.
The only hope, your Honour, that X and Y have is to be returned to the father, and that – for the mother’s undermining involvement to be ceased. The only way that that can occur in this case, your Honour, is by a total prohibition of the mother having any contact with either child in any function that they participate in. The mother should not be allowed to contact the school. She should not be able to contact the teachers. She should not be able to contact the medical practitioners that are involved with the children. If the children are involved in any extra-curricular activities, the mother should not be able to contact those people, because with the mother in this case, any opportunity that she has she will use to undermine the father and to coerce and try and control the children in such a way that it undermines their stability, undermines their capacity to function in a normal way and concentrate on their schooling, their education and on being responsible young men.
The mother must be restrained from contacting the children by any means, telephone, electronic means, Facebook communication, any type of communication whereby she is able to exert influence, authority or attempt control in relation to these children to their – and completely contrary to their best interests.
This case has escalated today because of the mother’s conduct in recording, because of her involvement of the child X in that, and what she has done and said of an escalating nature. I don’t want to go back to what was said in the reports, but I must say this: The example of what the mother is prepared to do in this case cannot be stated any better than when she swears an affidavit complaining about the father. She, then, goes to the family report writer and makes the most outrageous suggestions that the father is engaged in giving one or both of the children marijuana. That’s the epitome of this conduct that is referred to in the previous psychiatric reports and family reports that there is a pattern of behaviour of escalation of allegations which are unfounded, and you make the allegations, and continue to make the allegations, whether they’re true, false or otherwise, and the impact of those allegations – and it’s quite clear now that X is aware of those allegations being made, yet X doesn’t make those allegations to anybody, the police, the family report writer, no one.
That escalation of behaviour is extremely, in my submission, disturbing. It’s extremely dangerous. It lacks any insight. In fact, it’s almost the opposite. It is a deliberate course of conduct which is escalating and to the detriment of these two children. So on that basis, your Honour, our position is this, that the children should be brought to court, if possible this afternoon. These orders should be explained by the family report writer. The children – the mother should leave the children with the father. The father take the children home. And, in that event, the children can have peace. And, in my submission, that should be for a very long time. The only salvation these boys are going to have is for a very gradual controlled reintroduction to their mother after a significant period where the boys can settle and remain in peace. Six months, in my submission, is an appropriate period of time in this case because of the serious matters that have occurred.
The mother’s time should only be reintroduced in a supervised environment, and it should be on the basis, your Honour, that she complies with order 5 of the orders, namely, that she get some psychiatric treatment – not assessment – treatment, and that a psychiatrist provides a report that indicates that she has so engaged, she’s compliant with treatment, and then, and only then, she should be in a position where she is able to reintroduce and have communication with children.
The Mother
It is submitted by the Mother as follows:
Your Honour, I would like to state that these are the father’s sought orders. This is the father’s wanting. This has been an ongoing domestic family violence. If you look at the reports given to Dr N before assessment, before O’Sullivan, they have not been acknowledged. There are hospital reports. There is a history of domestic violence. There has been no allegation that I’ve put across to the children, alienation of such. The mental illness has been raised on the seventh day of trial by Dr T that I have to admit to schizophrenia. It does not say that in his reports. He does not have any symptoms of that. That is just they’ve framed me of a mental illness to do what the father wants. The father does not want the mother to be seeing the children. That is the whole concern.
The evidence that I’ve brought to court should be looked at. The children are safe and not at risk of psychological harm in being in my care. It has not been proven that the allegations by the father and his barrister that are viewing in this court. The allegations that Ms C has stated, even though it is a recording, that is – it’s substantial evidence that I can’t – I’m stuck in between. That’s the only way I can prove that this has been going on a long time. The court has not heard the fairness and the evidence of our matters. It has only been formed a view of this – basically, a light of me of some sort of unhealthy and mental and alienating the children, which is false.
I do not agree of having the children – not seeing the children for six months, because that would be a psychological damage for the children, and they have gone through a lot. There are current pending charges for the father.
…
So it is a very – it – it’s – it’s very difficult to try to prove what is going on in the home, and, basically, your Honour, it has been for 15 years, very long years, that my children have been exposed to violence. I didn’t press charges in the earlier days, but there are evidence there in my affidavit from Judge O’Sullivan’s time of being present in our case, and also evidence stating how the father gave visitations and accesses info in the affidavit attached one year of just arrangements for the children. I would ask the court if they could thoroughly look through the documents before making a decision and an order, because it’s very difficult to compete to the professional people that have had a different opinion. There has been no evidence, and I can provide a transcript of the father being on a witness stand that he…
But what I would like to say, the allegation of me not giving the children to the father is a false allegation, and he has – the father has lied to the court stating that I didn’t give the children to him, and that needs to – to be rectified before making a decision of me not seeing the children again. And so that I ask that the children remain in my care for such further evidence.
…
He was only in the interview for 10, 15 minutes, and the struggle for me to get him to court the other day, he didn’t want to go. He didn’t want to speak to anyone. He didn’t attend to school the next day when Ms C spoke to him, because he felt that nobody believed him, and he was degraded. These children have been speaking to a lot of police members, people at school, psychologists, you know. They’ve never been believed before. The child has been arrested to the hospital after the father choked him a year ago, and then he was arrested because he wanted to commit suicide by still staying with the father.
…
I’m – period from in the marriage and also after the marriage for the children’s sake, because, basically, he has come to court and he has lied about he doesn’t punish the kids, but he admits on the witness stand that he pulls a belt out and finds it funny. He’s constantly covering and denying the abuse towards the children. Little known to myself, that’s the last point, but I will make sure that I would prove this, the fact that all this is just bullying and trying to be controlling of me using the children as a tool to punish me further after our marriage. But the domestic violence is exposed to the children.
If you put the children back into the father’s care, things will happen. They will keep on running away. They will keep voicing, and one day it will be evidential evidence, because the father denies the abuse. X is at that stage where he’s 15. It is dangerous for him, because they’re both very loud.
The Mother sought to rely upon a letter from Dr V, consultant psychiatrist of (omitted), New South Wales in support of her contention that she has no mental health or psychiatric issues.
When the matter was before Judge O’Sullivan for what I will term the Rice & Asplund argument, the Mother placed before His Honour medico-legal psychiatric reports prepared by Dr V in February 2014 and November 2014. In these reports Dr V opined that the Mother has no evidence of major mental illness at this stage and that her functioning has improved over the last few months. Dr V stated that consequently he did not see any reason for the Mother to see a psychiatrist for the purpose of treatment.
In the judgment of Judge O’Sullivan of 25 June 2015, His Honour held at paragraph 37 that the evidence the Mother relies upon from Dr V is not definitive or even determinative of what is in the children’s best interest.
In the correspondence from Dr V dated 8 September 2016 addressed to Dr J of the (omitted) Medical Centre, Dr V again states that at the moment the Mother does not show any evidence of major mental illness and that his assessment is consistent with his previous review and the findings of his previous reports. Dr V states at the moment the Mother does not need any psychotropic medication as she copes with her current predicaments reasonably well.
The Mother seeks to rely on the reports of Dr V as proof she has no psychiatric illness and therefore X and Y should live with her. Further she argues there is no necessity for her to undertake psychiatric therapeutic treatment prior to spending unsupervised time with either X or Y.
Conclusion
This is an extremely sad matter which has a longstanding history of litigation through the Court system.
It is submitted on behalf of the Father that the Mother has established a pattern of making false or exaggerated claims of abuse by the Father against the Mother, X and Y and of then coercing X, in particular, to make false allegations to the police and to the Department of Health and Human Services, all in the endeavour to undermine X and Y’s relationship with the Father and to have X and Y live with her.
It is submitted on behalf of the Father that the most recent events that gave rise to the current application before the Court is yet another chapter in the ongoing litany of false allegations made by the Mother. It is argued the Mother has once again encouraged and facilitated X making false allegations against the Father to the Police and has coerced and facilitated X and then Y in moving from the Father’s care.
It is submitted on behalf of the Father that the Mother’s allegations against the Father were the subject of a seven day final hearing before Judge O’Sullivan in 2013. At the conclusion of that hearing His Honour was satisfied that the Father had not in any way subjected X or Y to abuse and that it was the Mother who was at risk of harm to the children because of her ongoing psychological and emotional abuse arising from her continued allegations against the Father to which she made X and Y a party.
Further allegations were raised by the Mother within six months of His Honour’s decision and those allegations were dealt with both in the Children’s Court and again in the Federal Circuit Court. They too were found to be baseless and as such X and Y remained in the Father’s care.
There is no doubt in my mind that on the evening of 26 May 2016 the Father and X got into a heated argument. X is a fifteen year old adolescent male who had been misbehaving at school to the extent that the school had found it necessary to contact the Father.
When the Father sought to raise this issue with X he became defensive, accused the Father of not supporting him and as Ms C noted the situation escalated from zero to a hundred in thirty seconds. X contacted his Mother who, rather than saying “sort it out with your Father son”, drove to the Father’s home picked X up and took advantage of this situation to remove X from the Father’s home and to continue to undermine the relationship between X and the Father.
Some three months later Y ran away from the Father’s home on the pretence that the Father had tapped him on the head with a spoon when he was rude to his step-sister. There is little doubt that the Mother and possibly X were complicit in this action and I am satisfied that the Mother, as she did with X picked Y up from within the vicinity of the Father’s home.
The Mother is adamant that the Father physically, emotionally and psychologically abuses X and Y and that the Courts have ignored all the evidence that she has previously placed before them as to this abuse and therefore the decisions to leave X and Y with the Father were wrong.
The Mother challenges the evidence of the experts that were before Judge O’Sullivan in 2013 and was so mistrustful of the process that she illegally recorded her interview with Ms C and, I am satisfied, encouraged X to do the same.
In the closing submissions made by the Father’s Counsel he summarised this behaviour of the Mother in encouraging X to tape his interview with Ms C as being illegal, totally improper, involving the child in the litigation, an abuse of the child and not in the best interests to be so involved.
I agree with the submissions of the Father’s Counsel in this regard. It is of concern that the Mother could see nothing wrong in X being encouraged to record his interview with Ms C or that in so doing she was inappropriately involving him in the proceedings, encouraging him to undertake an illegal activity and was continuing to embroil him in her ongoing campaign against the Father.
What was also of concern was the allegations the Mother raised for the first time with Ms C and again in the Courtroom on 9 September 2016 when she alleged that the Father was engaging in illegal activities such as allowing Y to hold a gun, X to drive a car and allowing and encouraging X to use Marijuana. None of these allegations were contained in the Mother’s voluminous affidavit material that was filed in these proceedings nor are they allegations that X has ever raised with any of the external agencies to which he has been taken by the Mother or with the report writer.
It is the recommendation of Ms C, strongly supported by the Father, that the only way the Mother’s ongoing pattern of behaviour can be disrupted and X and Y be afforded an opportunity to have a proper relationship with the Father without it being undermined by the Mother is for X and Y to return to the Father’s care and for there to be a period of six months of no time followed by a time of supervised time only to break the cycle.
It is the submission of the Father that unsupervised time should only recommence when the Mother provides proof of genuinely engaging in therapeutic psychiatric treatment so that she is able to develop insight into the inappropriateness of her ongoing campaign to undermine the relationship between X, Y and the Father.
There is no doubt in my mind that the Mother believes the Father abuses X and Y. She is unable to see that the altercation between X and his Father on 26 May 2016 was not out of the ordinary and was the response of an adolescent boy to being confronted by his Father for inappropriate behaviour at his school.
It is of interest that the one thing that the Mother did say that resonated with me is that X and the Father are quite loud. I imagine there are times when they do butt heads. Parenting an adolescent male can be challenging but the Mother would appear to lack insight into this reality and rather than encouraging X to work through things with his Father, takes advantage of that reality to continue her campaign to undermine the father-son relationship.
In light of the findings made by Judge O’Sullivan and the Children’s Court and the recommendations of Ms C, I am of the view that the only way forward in this matter is to make Orders in the terms recommended by Ms C which is to have X and Y immediately return to the Father’s case and for there to be application by both parties to enrol at Berry Street in (omitted) for supervised time to take place for a period of six months.
Given the delays at the contact centre at this time the practicality of this Order is that there will be a period of “no time” between X, Y and the Mother before that supervised time takes place which will allow things to settle down in the Father’s household.
In order for X and Y to have some respite from the highly conflicted relationship in which they have found themselves since their parents separation, it is also apparent there needs to be a prohibition on any form of electronic communication between themselves and the Mother until such time as unsupervised time starts. Orders will be made accordingly.
It will also be necessary that the Mother be restrained from attending at either boys’ schools when X and Y are present or their extra-curricular activities. Orders will be made in those terms together with permission for the Father to provide a copy of these Orders to the principals of Y and X’s schools and the managers of their sporting teams.
In relation to the Mother’s and X’s recordings of their interviews with Ms C, Orders will be made requiring the Mother to erase all such recordings and prohibiting her from copying them or making copies of same available to any other persons or on social media.
It is somewhat of an understatement to say that X in particular is going to be very unhappy with this order. I accept that he would prefer to live with his Mother.
In these circumstances a senior Family Consultant of the Federal Circuit Court will be requested to explain these Orders to X and Y and to outline the rationale behind them.
Given that X is now fifteen and a half and has already voted once with his feet, it is accepted that he may well refuse to comply with these Orders. The Father is realistic enough to recognise this as was apparent from the submissions made by his Counsel on his behalf.
It is important, however, that X be given every opportunity to understand the Orders and every opportunity to be encouraged to comply with them.
In the event that X refuses to comply with the Orders, it will be important for he and Y to see each other. It is not my intention to make specific orders in relation to how that time is to take place other than to set out that any time X spends with Y will either take place at the contact centre with the Mother or on the basis that X spends time with Y at the Father’s home.
Whilst the Father proposes there to be no time between the Mother, X and Y until she undertakes therapeutic psychiatric treatment, I will not make an Order in those terms. The Mother does not accept it is necessary, will not do it and if she did it would have little effect given she is not committed to it. Rather it is hoped a twelve month “moratorium” will enable the relationship between X and Y and the Father to become sufficiently settled so that it cannot be undermined by the Mother when unsupervised time commences.
Finally, whatever may have been the reality behind the altercation between X and the Father on 26 May 2016, it is very clear that there are problems in their relationship. As was noted, parenting adolescent boys is not easy. X already is and Y will be an adolescent before too long. In this case the Father will clearly benefit from enrolling and completing a Parenting Adolescents Program and orders will be made for him to do so.
The Mother in this case is again seeking to ventilate parenting matters. Other than the altercation on 26 May 2016 she raised many, if not most, of the allegations made by her that have been dealt with by Judge O’Sullivan in his decision of 23 June 2013 and 26 June 2015.
As this decision has addressed the 26 May 2016 incident I do not intent to allow this question of X and Y’s living arrangement to be further litigated as to do so cannot be seen to be in any way in the best interests of X and Y.
The Mother’s Contravention Application filed 29 August 2016 is, with respect, misguided and is not in the appropriate form.
Accordingly, the Mother’s Initiating Applications and Contravention Applications and the Father’s Application in a Case are dismissed and this matter removed from the list of pending cases.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 14 September 2016
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