J and B

[2008] FamCA 184

FAMILY COURT OF AUSTRALIA

J & B [2008] FamCA 184

FAMILY LAW – CHILDREN – Long-running case – Orders for children to spend time with mother to be conducted in two phases – Findings of psychological abuse of children by mother due to her conviction of the father sexually abusing the children – Allegations of sexual abuse against the father rejected – Mother’s mental health

APPLICANT: Mr J

RESPONDENT: Ms B

INDEPENDENT CHILDREN’S LAWYER: Christine Vachon

FILE NUMBER: BRF 9948 of 1999

DATE DELIVERED: 14 February 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 14-18 January 2008,
4-5 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mrs Wendy Pack SC

SOLICITOR FOR THE APPLICANT: Bill Cooper & Associates

SOLICITOR FOR THE RESPONDENT: Respondent appeared on her own behalf.

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Dr Mark Sayers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Christine Vachon

Orders

1. The parties are hereby:

   (a)Restrained from either discussing or talking with the children (singly or together) or any third party in the likely hearing of the children about these Court proceedings, judgment or Orders; and

   (b)Required to remove a child from the presence of any third party who is talking or discussing these Court proceedings, judgment or Orders in the presence of the parent and likely hearing of one of the children (save as otherwise provided for in these Orders).

2. As and from 10:00 am on 19 March 2007, the children are to live with the Father.

3. From such time as the children commence to live with the Father pursuant to Order 2 herein the Mother is to spend time with the children by way of Phase 1 and Phase 2 of these Orders as follows:

   Phase 1

   (a)At a contact centre in northern Queensland capable of providing supervised time between the Mother and the children;

   (b)The Father and Mother are required to do all things reasonably required by the nominated contact centre to engage in any intake procedures;

   (c)The Father is to pay all the costs of the parties and children as may be charged by the contact centre in respect of any intake procedures and contact sessions between the Mother and the children;

   (d)The Mother and the children shall spend supervised time with each other at the contact centre on:

   (i)Not more than one (1) weekend each month for six (6) consecutive months to commence no earlier than 18 June 2008,

   (ii)On both the Saturday and Sunday of that one (1) weekend each month, and

   (iii)At such times on that weekend as may be nominated by the contact centre, but for not less than two (2) consecutive hours and not more than four (4) hours in total on each day of any given weekend;

   (e)After consulting with the contact centre as to its availability and prior to the first occasion of supervised time spent by the Mother with the children, the Father will nominate the dates of the one (1) weekend each month for each of the six (6) months and inform both the contact centre and the Mother of those dates in writing within seven (7) days of his consulting the contact centre in that regard;

   (f)The Father is to nominate the carrier and pay the air flight tickets for the Mother and provide those tickets, or equivalent means to enable her travel such as e-ticket numbers, to the Mother not less than seven (7) days prior to her travel;

   (g)The Father is to nominate and pay for motel accommodation for the Mother for two (2) consecutive nights on each weekend the Mother attends the contact centre to spend supervised time with the children;

   (h)The Father is only to nominate a motel that is equivalent to or better than 3-star accommodation in the current RACQ Accommodation Guide.

   Phase 2

4. On the completion of the six (6) months of supervised time spent between the Mother and the children pursuant to Order 3 herein the Mother is to spend unsupervised time with the children at all times as may be agreed between the parties in writing (including e-mail or SMS text) and failing agreement not less than as follows:

   (a)       At all times as the Father maintains his residence in the northern Queensland area:

   (i)On the first Saturday and Sunday of each month from between 9:00 am and 5:00 pm commencing on 3 January 2009;

   (ii)From the second Saturday in 2009 and thereafter on the second Saturday of each month, from 9:00 am on Saturday to 5:00 pm on the following day, Sunday;

   (iii)The time the Mother is to spend with the children pursuant to Order 4(a)(i)-(iii) herein is suspended during school holiday time;

   (iv)For the first half of all end-of-term school holidays (excluding Christmas school holidays) in 2009 and in all odd-numbered years thereafter commencing at 9:00 am on the first day the children are not required to attend school and concluding at 5:00 pm on the second Sunday of the holidays;

   (v)For the second half of all end-of-term school holidays (excluding Christmas school holidays) in 2010 and in all even-numbered years thereafter commencing at 9:00 am on the second Monday of the holidays and concluding at 5:00 pm on the day prior to the day the children are required to attend school;

   (vi)For the 2009 Christmas school holidays and in all odd-numbered years thereafter commencing at 9:00 am on the first Saturday of the holidays until 5:00 pm on 27 December that year;

   (vii)For the 2010 Christmas school holidays and in all even-numbered years thereafter commencing at 9:00 am on 27 December that year until 5:00 pm on the last Sunday of those holidays;

   (viii)All changeovers of the children between the Mother and the Father are to occur at a contact centre nominated by the Father, which may include a contact centre in Brisbane at the Father's discretion, with the Father to pay all costs as may be charged by the contact centre to either parent for that service;

   (ix)The nominated changeover dates and times are subject to the availability of the contact centre.

   (b)At all times after 1 January 2009 when the Father's residence is within 150 km of the Brisbane GPO:

   (i)If the Father is resident within 150 km of the Brisbane GPO as at 1 January 2009 then from 3:00 pm on the first Friday in January 2009 until 9:00 am on the following Monday (or Tuesday if Monday is a school holiday, public holiday, or pupil free day) and each alternate Friday thereafter; or

   (ii)If the Father becomes resident within 150 km of the Brisbane GPO after 1 January 2009 then the Father is to provide written notice to the Mother of his being so resident within 7 days of his moving to Brisbane, and the Mother is to spend time with the children from 5:00 pm on the first Friday after the service of that notice until 9:00 am on the following Monday (or Tuesday if Monday is a school holiday, public holiday, or pupil free day) and each alternate Friday thereafter;

   (iii)The time the Mother is to spend with the children pursuant to Order 8(b)(i)-(ii) herein is suspended during school holiday time;

   (iv)For the first half of all end-of-term school holidays (excluding Christmas school holidays) in 2009 and in all odd-numbered years thereafter commencing at 9:00 am on the first day the children are not required to attend school and concluding at 5:00 pm on the second Sunday of the holidays;

   (v)For the second half of all end-of-term school holidays (excluding Christmas school holidays) in 2010 and in all even-numbered years thereafter commencing at 9:00 am on the second Monday of the holidays and concluding at 5:00 pm on the day prior to the day the children are required to attend school;

   (vi)For the 2009 Christmas school holidays and in all odd-numbered years thereafter, commencing at 9:00 am on the first Saturday of the holidays until 5:00 pm on 27 December that year;

   (vii)For the 2010 Christmas school holidays and in all even-numbered years thereafter, commencing at 9:00 am on 27 December that year until 5:00 pm on the last Sunday of those holidays;

   (viii)All changeovers of the children between the Mother and the Father are to occur at the children's school save that if a changeover does not coincide or overlap with the children's hours of attendance at school then the changeover is to occur at a contact centre nominated by the Father with the Father to pay all costs as may be charged by the contact centre to either parent for that service;

   (ix)The nominated changeover dates and times are subject to the availability of the contact centre.

5. As to the Mother's communication with the children other than by spending time with them:

   (a)For one (1) month after the date of these Orders, there is to be no communication between the Mother and the children;

   (b)For one (1) month from the expiry of the prohibition in Order 5(a) the Father is to facilitate the telephone, e-mail, and written correspondence of the children with the Mother at the request of the children but the Mother is not to initiate any such form of communication with the children;

   (c)Thereafter, the Mother and the children are at liberty to communicate with each other in writing, by e-mail, SMS text, or telephone with the Father to use his best endeavours to facilitate any reasonable request of the children in that regard and the Mother to not communicate with the children by telephone, e-mail, SMS text, or writing on more than two (2) occasions each week.

6. In the event that within six (6) months of the date of these Orders, the Mother consults a registered health care provider (having a Medicare provider number) for the purposes of psychiatric treatment or counselling then on the presentation by her to the Father of all such medical or counselling bills as the Mother may incur during the first six (6) months from the date of these Orders (after all insurance rebates or refunds have been paid) then the Father shall be liable to reimburse the Mother, within thirty (30) days, the difference between the monies paid and the refund received.

7. For not less than the first six (6) months after the date of these Orders, the Father is to organise and pay for counselling services and support for the children, such services to be sourced from professionals in private practice apart from any school or other counselling support as the children may receive.

8. The Father is to have sole responsibility for all decisions regarding the children's long-term care, welfare, and development.

9. Each parent is to have sole responsibility for decision-making regarding the short-term care and welfare of the children whenever the children are in either parent's sole care.

10. Within fourteen (14) days of the children commencing to live with the Father, the Father is to provide the Mother:

    (a)With written notice of the school the children are to attend and its contact details; and

    (b)With written notice of the medical practice that the children will routinely attend and its contact details.

11. On or before 7 January 2009 the Father is to provide the Mother with all necessary written authorities, and in case of doubt these Orders shall serve as all necessary authority, for the Mother to obtain information from and discuss the welfare of the children with all the children's educational and health care service providers.

12. Within seven (7) days of these Orders:

    (a)Each parent is to provide the other with written notice (including e-mail or SMS text) of their postal address and telephone numbers (including mobile telephone numbers) and shall inform the other in writing of any changes to those details within seven (7) days of such change;

    (b)The Father is to provide the Mother with written notice (including e-mail or SMS text) of the children's residential address and shall inform the Mother in writing of any changes to those details within seven (7) days of such change.

13. The Father is to forward to the Mother, within seven (7) days of receiving same and at his expense:

    (a)Copies of all school reports, assessments of the children as may be commissioned by the school, school photographs, and school newsletters; and

    (b)Copies of all the children's pharmaceutical prescriptions and medical certificates or reports as come into the Father's possession, custody, or control.

14. For a period of not less than twelve (12) months from the date of these Orders neither party may file any application in respect of parenting orders relevant to the children, whether new orders or variation of these orders, without having first obtained the leave of the Court.

15. The Independent Children's Lawyer be discharged on the completion of the events in Order 2 herein.

IT IS NOTED that publication of this judgment under the pseudonym J & B is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 9948 of 1999

J

Applicant father

And

B

Respondent mother

REASONS FOR JUDGMENT

Introduction

1. This is an Application for Final Orders on the part of the Father in these proceedings in relation to two children of his association with the Respondent Mother.  This is a most unfortunate and sad case.  The parties were never married and the children that are the subject of this dispute are twins, born in June 1998.  The parties, whilst living together, separated in or about the month of January 1999 when the twins were approximately six months old.  Some 'contact' was enjoyed (as it then was) by the Applicant Father for a period with certain variations.  It is not intended to examine that history with any particular intensity.

2. The following reasons for judgment will first review the complicated history of the proceedings.  In summary, the case was first before Justice Jerrard in November 2001, and then Justice May for trial directions upon Justice Jerrard's appointment to the Queensland Court of Appeal.  Justice Lawrie held a second trial in 2002, which was unsuccessfully appealed by the Applicant Father to the Full Court.  The matter came on before me in November 2007, where both issue estoppel and Rice and Asplund were argued.  These issues were overcome and the bulk of the substantive trial took place in January 2008.

3. Second, the parties' written submissions are reviewed and regard had to the evidence tendered at trial. Third and finally, the reasons for judgment are articulated having regard to the presumption of equal shared parental responsibility and the s. 60CC factors as prescribed by the Family Law Act 1975 (Cth).

History of the Proceedings

The proceedings before Justice Jerrard

1. Over four days in November 2001, Justice Jerrard part-heard cross-applications from the parties to this matter for residence of the two male children of their marriage.  His Honour, in his reasons for judgment, noted that the matter had been listed for a mere three days.  Having run for four days and with no end in sight Justice Jerrard adjourned the matter to be heard in 2002.  His Honour noted that those initial four days were focused entirely upon whether or not the Applicant Father had engaged in sexual abuse of or constituted an unacceptable risk to the children.

2. Indeed His Honour expressly directed that the matters of alleged sexual abuse and unacceptable risk be considered as a preliminary point.  The learned Judge indicated at the time that there was sufficient evidence before the Court to come to conclusions upon it, and his Honour was satisfied that there was no evidence of either sexual abuse or unacceptable risk on the part of the Applicant Father towards the children.

3. Justice Jerrard was cognisant of the need to make interim orders in the matter and expanded the 'contact' regime between the children and their father.  In making those interim orders, his Honour had regard to the psychological risk that the Respondent Mother posed to the children, stating:[1]

   There is clearly an ongoing risk of psychological abuse to the children whilst remaining in their mother's care, resulting from the simple fact that she has persisted for some time with an increasingly firm conviction that the children's difficult, demanding, wearying, incredibly stressful behaviour can be explained by the pleasantly simple explanation that their father has abused them. … I think the fact that [the Respondent Mother] will continue in all likelihood to prefer the simple [explanation] which I consider to be wrong, does mean that these children are at risk of psychological abuse in her care.

   [1] J v B [2001] FamCA 1853 at [45] per Jerrard J.

4. Whilst the contact arrangement was not ordered to be supervised, his Honour made strong suggestion that the Applicant Father not be alone with the children during their stays with him so as to avoid future allegations of misconduct on his part.[2]  When the matter came before Justice May in April 2003, it was apparent that contact had proceeded as ordered and, in fact, had been enlarged to include holiday contact.[3]

   [2] Ibid at [49] per Jerrard J.

   [3] J v B [2003] FamCA 435 at [2] per May J.

The proceedings before Justice May

1. Justice Jerrard was appointed to the Queensland Court of Appeal in 2002 and was unavailable to hear the matter further.  Justice May heard the matter with a view to making directions as to how the trial should proceed in this event.  Her Honour relevantly ordered thus:

   (1)That the matter be set down for hearing as an 8 day trial, commencing at 10.00 am on 2 June 2003. …

   (4)That the MOTHER's evidence-in-chief pertaining to her allegations of the FATHER having sexually abused the children […], at the trial in this action be restricted solely to events or evidence that have occurred since 30 November 2001.

   (5)That the FATHER's evidence-in-chief be similarly restricted to events or evidence that have occurred since 30 November 2001.

2. Her Honour's reasons further stipulate that upon Justice Lawrie's hearing of the matter she is not to be bound by any findings of fact made by Justice Jerrard.[4]  With the greatest respect to her Honour Justice May, I consider that this view was inappropriate.  The matters that were found by Justice Jerrard were in fact final and he indicates as such, notwithstanding that the trial had not been completed.[5]  The only manner in which his findings could in any way be varied would be either an Order on appeal, or upon evidence being tendered of events subsequent to the findings that would convince his Honour that the initial findings were incorrect.

   [4] Ibid at [8] per May J.

   [5] J v B [2001] FamCA 1853 at [3], [42] per Jerrard J.

3. It is suggested that a wealth of authority exists, which invariably discourages Judges from making the distinct course Justice May suggested as to the nature of the hearing itself,[6] the binding effect of Justice Jerrard's findings of fact on subsequent Judges,[7] and that the evidence need not be re-heard before any new Judge.[8]  It is most unfortunate that Justice Lawrie incorrectly considered herself bound by the views expressed by Justice May, such view not being contained in any Order and thus not binding upon her.  It was remarked to counsel and the parties at the commencement of the final hearing in January 2008 that the Orders of Justice May omit this observation that is, however, contained in her Honour's reasons.[9]  It is certain that this matter would have proceeded differently were that not the case.  In any event the matter proceeded before Justice Lawrie.

   [6] See Re P's Bill of Costs (1982) 8 Fam LR 489; Jacobson v Ross [1995] 1 VR 337; Ashmore v Corp of Lloyd's [1992] 2 All ER 486.

   [7] See Bass v Permanent Trustee Co Ltd (1991) 198 CLR 334.

   [8] See Brennan v Brennan (1953) 89 CLR 129; Cavenett v Cavenett (1962) SASR 299.

   [9] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 32.

The proceedings before Justice Lawrie and the Full Court

1. The matter came on for hearing before Justice Lawrie pursuant to those Orders.  Justice Lawrie, after an extensive hearing, made Orders and subsequently – some eight months later – gave her reasons for judgment in which she accepted that there was no sufficient evidence for her to be satisfied that there was sexual abuse perpetrated upon the children by the Applicant Father, but that she was satisfied that there was an unacceptable risk and as a result thereof made the Orders that she did.[10]  The Orders were upheld on appeal to the Full Court.[11]

   [10] [2004] FamCA 439.

   [11] [2005] FamCA 1154.

2. At the trial before Justice Lawrie, however, Dr V expressed fears that the mother might abscond with the children.  After the Orders of Justice Lawrie came into force and effect, the mother unilaterally decided to remove the children from Queensland.  She secreted herself and kept the children out of the way in Melbourne for some period.  The concealment was to such an extent that she forced false identities unto the children, changing their names and enrolling each of them in different schools, forging the certificates necessary to do so.  The mother made it impossible for the Applicant Father to enjoy any form of spending time with his children in accordance with the Orders made by Justice Lawrie.

3. Eventually the mother's whereabouts were discovered and a warrant issued for her arrest, returnable before Justice Cronin in early 2007.  As a result both she and the children returned to Queensland and the instant proceedings were pressed.

The Instant Proceedings

The initial hearing

1. The initial hearing began on 19 November 2007 and concluded on 21 November 2007.  It was initially raised by counsel for the Respondent Mother, Mr Robin Slade Jones, that the Applicant Father was estopped from bringing his Application for Final Orders by the judgment of Justice Lawrie, which it was said finally determined that he – the Applicant Father – posed an unacceptable risk to the children.  After considered legal argument, and despite the fact that the Applicant Father was unrepresented at this stage, the question of estoppel was dispensed with.

2. The difficulties raised by the rule established in In the Marriage of Rice and Asplund required a consideration of the circumstances of the case.[12]  In accordance with current authority,[13] the matter was not considered as a threshold issue but was considered during the course of argument.  For the reasons discussed below, it is apparent that sufficient evidence of a significant change in circumstances has been put before the Court, such that the Applicant Father's application can be heard.

   [12] (1978) 6 Fam LR 570.

   [13] In the Marriage of Bennett (1990) 14 Fam LR 485.

   Estoppel by judgment

3. Despite Justice May's reluctance to find an issue estoppel had been raised in these proceedings at her directions hearing in relation to the judgment of Justice Jerrard by counsel for the Children's Representative, as he then was,[14] the matter was raised by counsel for the Respondent Mother in argument during the instant proceedings as per Justice Lawrie's judgment.[15]  Dr Sayers of counsel for the Independent Children's Lawyer, however, disagreed.[16]  As the Applicant Father was unrepresented at this stage of the proceedings, he had understandably little to contribute by way of legal argument.  Having regard to the intricacy of the legal argument, however, it was strongly suggested to him that he acquire appropriate advice on the point.[17]

   [14] J v B [2003] 435 at [5] per May J.

   [15] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 20 November 2007) 6.

   [16] Ibid 40-44.

   [17] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 21 November 2007) 7.

4. Dr Sayers proposed three alternative avenues for the progression of the matter.  First, that notwithstanding that an estoppel is raised in respect of Justice Lawrie's judgment, the facts and evidence at issue in the instant proceedings are sufficiently different that the estoppel does not operate to deny the hearing of this application.[18]  These differences included that the children were six years older; could now be equipped with defensive skills and strategies; are at a more mature, advanced developmental stage; that the Applicant Father has re-partnered with a vigilant and impressive partner, fully aware of the previous allegations; and that the mother is mentally unwell.  On this basis, Dr Sayers contended that whilst the principle of issue estoppel does exist in this jurisdiction and operate in this case at large, it does not apply in respect of this application because of the changes in circumstances referred to previously.

   [18] Ibid 5-7.

5. Second, Dr Sayers asserted that estoppel by judgment can apply in this jurisdiction in certain instances, but that for public policy reasons it ought to be found that it does not operate in this case.  Authority for that proposition was tendered in the form of In the Marriage of Schorel,[19] where it was stated by the Full Court:

   Public policy, upon which estoppel is based, does not support the use of that doctrine within this jurisdiction – at least in its jurisdiction in relation to the custody of children.  The court had a clear obligation to concern itself with the welfare and interests of the child or children concerned and may not allow that duty to be circumscribed by what are basically technical rules of evidence.

   [19] (1990) 14 Fam LR 105 at 115 per curiam.

6. The English case of Re Be (Minors) (Care Proceedings: Issue Estoppel) was also referred to in this regard.[20]  That case outlined certain matters that a trial Judge ought to consider in determining the persuasiveness of arguments for the application of issue estoppel in children's cases.

   [20] [1997] Fam 117.

7. Third, it was suggested that notwithstanding the potential for an issue estoppel to arise in the instant circumstances, that the matter would more properly be considered in the context of Rice and Asplund.  The matter proceeded along this last proposal for reasons set out separately below.  In any event, it was apparent – having regard to the public policy reasons outlined in the cases referred to – that whilst it may be entirely possible for an issue estoppel to arise on the facts as presented, that there were compelling reasons to disallow it in the instant case.

   The rule in Rice and Asplund

8. Chief Justice Evatt, with whom Senior Justice Pawley and Justice Fogarty concurred, stated in Rice and Asplund:[21]

   The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based.  It should not lightly entertain an application to reverse an early custody order.  To do so would be to invite endless litigation for … change is an ever present factor in human affairs.  Therefore, the court would need to be satisfied by the application … that there is some changed circumstances which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material ….  It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served.  These principles apply where the original order is made by consent or after a contested hearing.  The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.

   Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. …  One of these factors is the length of time the child has been in a particular situation.  Another is any earlier decision of the court, and the reason for that decision.  The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors.  While the court should given weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interests of the child.  These are matters which cannot be determined by any fixed or absolute standard. (my emphasis)

   [21] (1978) 6 Fam LR 570 at 572-573 per Evatt CJ.

9. Whilst the issue of Rice and Asplund was not raised by anyone at the Bar table, it is upon the trial Judge to have regard to the principles therein where the circumstances of the case so demand.[22]  As was explained to the parties when the matter originally came on for hearing during November 2007,[23] there was sufficient evidence before the Court that prima facie the circumstances have changed significantly that warrant a revisiting of the parenting orders in operation.  That change is that the Respondent Mother's mental condition poses a significant danger to the children in her care,[24] as evidenced by expert testimony that is reviewed below.

   [22] Hungerford and Tank [2007] FamCA 637.

   [23] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 21 November 2007) 47.

   [24] See, for example, In the Marriage of Houston and Sedorkin (1979) FLC 90-699 where it was held that a change in the mental illness of a party is a significant change for the purposes of the principle.

10. It was thus resolved that the Applicant Father was at liberty to press his Application for Final Orders.  At the conclusion of the initial hearing in November 2007, it was agreed amongst the Bench and the legal representatives that it was suitable for the matter to be listed for a new defended hearing.  The matter was accordingly listed for January 2007.

The intervening period

1. At the conclusion of the three days in November 2007, it appeared necessary to afford the Applicant Father and the children the opportunity to become reacquainted with one another, insofar as they had not seen each other for some time.  There were also concerns expressed by Ms B to the effect that the children should be in the possession of a person other than the Respondent Mother, which prompted the Orders so made.[25]

   [25] Annexure B to Affidavit of Ms RM, J v B (Family Court of Australia, Bell J, 26 November 2001).

2. To facilitate the arrangements, the Respondent Mother's brother – the children's uncle – agreed to allow the children to reside with him for the time being, with the consent of the Applicant Father.  The consent Orders were to the effect that the Applicant Father would spend supervised time with the children at the courts complex supervised by a Family Consultant.  In addition, having been suitably impressed by the Applicant Father's wife, orders were made to allow him to spend time with his children outside of the court setting for an outing at South Bank.

3. Subsequent to an initially promising spending time session, at a following session with their father, under the supervision of Ms R at the Commonwealth Law Courts complex, the children apparently rejected the opportunity and purported to leave the Child Dispute Services area of the complex.  Thereafter, the Applicant Father declined to press the further scheduled outing at South Bank for fear that the children might run away there to their risk.[26]

   [26] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 6-7.

4. It was brought to the attention of the Court at the commencement of the final hearing that, apparently as a result of information received from the Department of Child Safety, the Respondent Mother and the uncle consensually decided to prima facie breach the Orders made.  The children were returned to the Respondent Mother once the children's uncle refused to retain possession of the children upon learning of the adverse finding by the Department.[27]

   [27] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 189.

The final hearing

1. The Father's Application for Final Orders was filed 24 January 2005.  The matter does not fall within the Less Adversarial Trial process.  On that basis it has remained for its duration an adversarial proceeding and, as a consequence, the rules of evidence apply with full rigour.[28]  In accordance with Rice and Asplund, this was a hearing de novo.  As Chief Justice Evatt stated therein: "While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child."[29]  These reasons for judgment are based solely upon the evidence that was tendered to the Court during the proceedings before me, commencing in November 2007 and concluding, finally, at the beginning of February 2008.

   [28] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 238.

   [29] In the Marriage of Rice and Asplund (1978) 6 Fam LR 570 at 572-573 per Evatt CJ (Pawley SJ and Fogarty J, concurring).

2. As a matter of establishing the parameters of the proceedings, various points need to be settled.  First, it was indicated by the Bench to the parties that the final hearing in January 2008 incorporated the days heard during November 2007, and that the evidence and argument thereto formed part of the hearing de novo.[30]  Second, there was neither evidence before the Court in the instant proceedings about neither any anal injury on the part of either child, nor past or present allegations of sexual abuse that fall to be considered in this case.[31]  Third, given that the Applicant Father has not spent any time with the children unsupervised since the Orders of Justice Lawrie, there has been no opportunity for the commission of sexual abuse upon the children since the time of the original allegations, such that no fresh allegations can be made.[32]  Fourth, the Department of Child Safety has also "deleted the outcome of substantiated risk of sexual harm of the children by their father".[33]  Having considered the totality of the evidence before the Court, and having particular regard to the matters just stated, I am not satisfied that there is sufficient evidence before the Court that the Applicant Father has sexually abused the children as alleged or that he poses an unacceptable risk to the children.

   [30] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 21 November 2007) 36.  See also Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 62-63; Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 173.

   [31] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 265.

   [32] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 21.

   [33] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 20 November 2007) 114.

The applicant father's case

1. The Applicant Father, whilst not represented at the initial hearing, was represented by Mrs Pack of Counsel at the final hearing in January 2008.  In the Applicant Father's case, the Applicant Father himself, his present wife, his son of another relationship, and his mother were called.  The evidence of his son and mother is not referred to in any depth.  His son corroborated the practice of concealing pornographic magazines at the Applicant Father's residence,[34] discussed below, and made observations in respect of the anxiety experienced by the children before and after contact.[35]  His mother testified to witnessing behaviour on the part of the children, nuzzling the crotch of a teddy bear, on a particular occasion.[36]

   [34] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 160-161.

   [35] Ibid 162.

   [36] Ibid 165.

   Applicant Father

2. During the November 2007 hearing, the Applicant Father emphatically denied the allegations made against him by the Respondent Mother.[37]  During the January 2008 proceedings, however, Dr Sayers for the Independent Children's Lawyer focused his questioning on the possibility of an innocent explanation for the reported observations made by the children, and the extent to which the Applicant Father was prepared to alter his behaviours as a result of the accusations made during the course of the proceedings.[38]

   [37] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 20 November 2007) 38.

   [38] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 192-208.

3. In particular, the Applicant Father was careful to note that he needed to change behaviours in relation to appearing naked in front of the children for fear that such conduct might be misconstrued in light of the subsisting allegations:[39]

   I don't want to be accused of any allegations and I would be most particular that they wouldn't see me walking around without undies or boxer shorts on.

   [39] Ibid 193.

4. Dr Sayers also raised concerns in respect of pornographic magazines that were, as admitted by the Applicant Father, kept at his residence.  During the course of his testimony, however, the Applicant Father recalled the procedure by which the magazines were removed from the reach of the children prior to their attendance at the residence and, further, stated that such magazines were no longer at the premises.[40]

   [40] Ibid 195-196.

5. The Applicant Father conceded that he is prepared to move to south-east Queensland eventually and willing to financially support the necessary changes should the children live with him.[41]  Dr Sayers explicitly called upon the Applicant Father to affirm that notwithstanding adverse psychiatric evidence of the Respondent Mother's mental health he would devote both time and money to ensuring that she received some form of counselling or assistance.[42]

   [41] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 20 November 2007) 26-30.

   [42] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 208.

6. During the November 2007 proceedings, Mr Slade Jones of Counsel for the Respondent Mother cross-examined the Applicant Father.  The substance of that cross-examination was to reveal that whilst the Applicant Father admits to a violent relationship with the mother of one of his other children,[43] he expressly denied assaulting either the Respondent Mother or the children.[44]  It was noted at this point also that the Applicant Father now has an amicable relationship with his eldest son, who testified in these proceedings, and his mother.[45]  Notwithstanding the fact that the Applicant Father has fathered four children, however, Mr Slade Jones caused him to concede that he has no previous full-time parenting experience, neither of the subject children nor the other two children.[46]

   [43] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 20 November 2007) 14.

   [44] Ibid 13-14.

   [45] Ibid 24.

   [46] Ibid 34-35.

7. The Respondent Mother, in her cross-examination of the Applicant Father in January 2008, sought to impeach his capacity as a parent.  Through her questioning, she alleged ulterior motives in withholding child support (which he now pays),[47] queried why he had not delivered presents for the children when he knew of their address,[48] and expressed concerns about him riding unsafely with the children on a ride-on lawn mower.[49]  These concerns, however, were allayed by testimony from the Applicant Father as to safety restraints.[50]  The Respondent Mother also questioned the Applicant Father about the extent to which the children were reticent in demonstrating affection toward him in the past, which he disagreed with.[51]

   [47] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 84.

   [48] Ibid 88.

   [49] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 124.

   [50] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 235.

   [51] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 110.

1. Of great importance, Dr Sayers of Counsel asked the Applicant Father about the behavioural changes demonstrated by the children in front of Dr WN as opposed to the one successful contact session supervised by Ms R.  Prior to that one successful session, the children were in the care of the Respondent Mother's brother, their uncle, after the conclusion of proceedings in November 2007.[52]  After the successful session and before their appointment with Dr WN, the children had been returned to the Respondent Mother.  At the interview with Dr WN the children were accusatory and evasive.  As was exchanged between Dr Sayers and the Applicant Father in cross-examination:

   DR SAYERS:             And you understand that to be a causal connection, you don't just see that as coincidental, do you?

   WITNESS:                No, I don't.

   Nor do I consider it a coincidence.

   [52] Ibid 179.

   Applicant Father's present wife

2. The Applicant Father called his present wife as a witness in his case.  His counsel did not choose to examine her, but she was cross-examined by the Respondent Mother whose questions irrelevantly focused on the personal relationship between the Applicant Father and the witness, and her potential involvement in the transfer of funds pursuant to previous contact orders.[53]  The cross-examination also briefly touched upon the role the witness would play in the children's lives on the hypothetical assumption they ultimately came to live with the Applicant Father.[54]

   [53] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 239-244.

   [54] Ibid 245-246.

3. Under cross-examination from Dr Sayers, the Applicant Father's present wife clearly indicated to the Court that she considered certain behaviour admitted by the Applicant Father under cross-examination – namely walking around the house in an unacceptable state of undress, if not completely naked – to be inappropriate in light of the allegations that have been made.  She also indicated that she would intervene were such an occurrence to happen if the children were to live with the Applicant Father.[55]

   [55] Ibid 246.

4. Further, the Applicant Father's present wife confirmed that she would be open to relocating to the Gold Coast eventually, as reported by the Applicant Father, so that the children would be better positioned to have an ongoing relationship with the Respondent Mother, should the children live with the Applicant Father.[56]

   [56] Ibid 247-248.

The respondent mother's case

1. As noted previously, the Respondent Mother was legally aided and was represented by Mr Robin Slade Jones of Counsel.  At the commencement of the proceedings in January 2008, however, Mr Michael Drysdale of Counsel, instructed by Legal Aid Queensland, appeared to seek leave to be excused on the basis that the Respondent Mother had withdrawn her instructions.[57]  That is, notwithstanding that a grant of aid had been made, the Respondent Mother chose not to engage Legal Aid Queensland to represent her.  Instead she represented herself and sought leave for a McKenzie friend to be appointed, which is discussed in greater detail below.

   [57] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 1.

2. There are concerns, as expressed by the witnesses for the Independent Children's Lawyer below, that Justice Lawrie's decision has entrenched the Respondent Mother's views.  Throughout the course of her argument the Respondent Mother drew upon the decisions made by Justice Lawrie and sought to advance her case in reliance of the authority with which that decision is imbued.  It is necessary to reinforce, however, that as a hearing de novo under the auspices of Rice and Asplund, any previous findings of fact are not binding upon the arbiter of fact in the instant proceedings.

3. The Respondent Mother sought to rely upon any number of witnesses but was faced with the prospect that her counsel at the initial hearing had withdrawn all of the affidavits except her own.[58]  As noted below, some witnesses were unavailable or did not wish to be called.  In addition, some were more properly called by the Independent Children's Lawyer.  One, Ms P, was challenged by Mrs Pack of Counsel for the Applicant Father for lack of expertise, who was ultimately not allowed to be called.[59]  On the balance the Respondent Mother relied upon herself, her father, and her mother.

   [58] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 20 November 2007) 1.

   [59] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 254.

4. It is not purported to examine the testimony advanced by the Respondent Mother's witnesses in any depth, save for herself.  It seems from the testimony of her parents that their purpose was merely corroborative.  Nothing of particular substance was obtained during the course of their examination.  It is necessary as a preliminary matter, however, to address the matter of Dr D.

   Dr D

5. Dr D was not successfully called by the Respondent Mother as a witness in her case, though she indicated on the first day of the final hearing in January 2008 that his evidence was fundamental to the findings made by Justice Lawrie.[60]  The legal framework attendant upon Dr D’s non-appearance in the proceedings is dealt with in respect of the Respondent Mother's written submissions on the matter.  It is considered necessary, however, having regard to the weight attributed to Dr D’s evidence at the trial before Justice Lawrie, to labour the point – oft repeated throughout the course of these reasons – that it was fully explained to the Respondent Mother that it was upon her to ensure the attendance of Dr D, and that the guidance offered to her from the Bench met the standards identified by the Full Court in Re F (Litigants in Person Guidelines).[61]

   [60] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 24.

   [61] (2001) 27 Fam LR 517.

6. At the commencement of proceedings in January 2008, Mrs Pack of Counsel for the Applicant Father drew the Court's attention to the fact that the Respondent Mother had not been furnished with a copy of the Re F guidelines.[62]  The Court adjourned over the lunch break, during which time the Respondent Mother was asked to consider and fully inform herself with the guidelines.  Upon resuming proceedings, the Respondent Mother reported to the Bench that she had in fact been served and understood the Re F guidelines.[63]

   [62] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 31.

   [63] Ibid 57.

7. Upon reviewing the list of proposed witnesses at the commencement of the trial, it was raised by Dr Sayers for the Independent Children's Lawyer that the Respondent Mother had subpoenaed Dr D,[64] but it transpired that he had in fact been subpoenaed by the Independent Children's Lawyer herself, who was not pressing the matter.[65]  It was revealed, however, that the Respondent Mother herself was not relying upon him as a witness either.[66]  In this relation I informed the parties of the empty value of Dr D’s evidence otherwise:[67]

   His work – his paper – his evidence … is weightless because he is available to be called and if he is available to be called by the person allegedly relying upon his evidence and he's not, I am entitled to be bold.

   The Respondent Mother agitated that she wished to attempt to serve him with the subpoena again to compel his attendance.  The Bench informed her that it was upon her to ensure his appearance at Court.[68]

   [64] Ibid 39.

   [65] Ibid 40.

   [66] Ibid 52.

   [67] Ibid 53.

   [68] Ibid.  See also Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 175.

8. On the third day of the trial, the Bench announced to the parties thus:[69]

   There is no evidence from [Dr D].  There appears as though there is going to be little likelihood because he won't come, according to [the Respondent Mother], and Dr Sayers has – the independent children's lawyer has found the same thing.  If there is no evidence from [Dr D] … There's no evidence of there – of any question of interference anally with these children, acceptable evidence, let's put it that way.  There is evidence from the mother where she says "This is what happened", but there's no clinical evidence.  Perhaps I should put it that way, specialist evidence.  I'm just making that clear now and this is the third day of the trial.

   [69] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 238.

9. Later that same day, the question of Dr D was raised once again.  It was remarked to the parties:[70]

   Dr [D] is the only person, as I understand it, of the experts, who says that there was some injury to the anus of both or one? …  There is no evidence that there's been any injuries to the boys' anuses, either of them, as it stands at present.  The only evidence that will be put before me, as I understand if I allow it, is Dr [D’s] notes.  And what weight do they have if I know he's available and won't come to give evidence?  One would've thought I can be bold and say, how can I put any weight upon him at all?  I just can't understand it.  … I will not allow them in at this stage.

   [70] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 265.

10. In any event, Dr D never appeared before the Court to testify and his notes were never admitted into evidence.  To overcome the difficulties in respect of the unavailability for Dr D to be cross-examined on his evidence, Dr Sayers purported to put before the Court segments of the transcript of proceedings before Justice Jerrard in relation to disclosures of sexual abuse and sexualised behaviour.[71]  Those segments were not admitted into evidence either.  Therefore, notwithstanding that the Respondent Mother was afforded every opportunity to present Dr D for examination at Court, she was unable to effect his appearance and his evidence of sexual abuse was not before the Court.  To that end, it is reiterated that there were no findings of sexual abuse whatsoever presented to the Court.

    [71] Ibid 269-70.

    Respondent Mother

11. During examination-in-chief by Mr Slade Jones of Counsel at the initial hearing in November 2007, the Respondent Mother conceded attempting to tape the contact sessions due to concerns over Ms R’s objectivity,[72] which she raises again in her written submissions.  She also remarked that the Applicant Father threatened to kill her and that the children were exposed to and aware of such threats, which explained the children's feigned enjoyment of contact sessions with their father: to protect the Respondent Mother.[73]

    [72] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 20 November 2007) 66.

    [73] Ibid 67.

12. Under cross-examination from the Applicant Father, appearing in person at the initial hearing, the Respondent Mother stated that the children themselves have reported feigning enjoyment at contact sessions to her.[74]  She also relayed reports from the children that the Applicant Father and his son, who testified in his case, engaged in sexually inappropriate behaviour whilst the children were at the Applicant Father's residence.[75]

    [74] Ibid 70, 73.

    [75] Ibid 77.

13. The cross-examination of the Respondent Mother by Mrs Pack of Counsel for the Applicant Father was focused on demonstrating internal inconsistencies in the evidence presented by her over the course of the proceedings.

14. Mrs Pack referred the Respondent Mother to notes prepared by the contact centre attended during 2005 where the reporter, in direct quotes, notes one of the children stating: "'I did what I was told and wet myself' or something similar".[76]  The reporter also noted an instantaneous positive change in the children's attitude and behaviour upon the Respondent Mother's departure from the contact centre.[77]  The witness conceded that this account may well be true.[78]  Mrs Pack also queried the Respondent Mother on the omission from the contact centre reporter's notes of the abusive and violent response from the children upon being forced to attend contact visits alleged by the witness previously.[79]

    [76] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 281-282.

    [77] Ibid 288.

    [78] Ibid 290.

    [79] Ibid 291.  See also Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 20 November 2007) 103.

15. Mrs Pack put before the witness various pieces of evidence that demonstrated that what she was relaying as the reports of the children were entirely inconsistent with reality, but the Respondent Mother refused to accept that the children might not have been reporting accurately to her, if indeed they were doing so at all.  This evidence included the contact centre notes just described,[80] as well as mobile phone records of the Applicant Father that clearly demonstrated that he was not in Melbourne at the time the children purported to have sensed his presence.[81]

    [80] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 294.

    [81] Ibid 302-303, 235.

16. It was in relation to this reported seeing and hearing of the Applicant Father in Melbourne, in circumstances where it is objectively demonstrated that he could not have been so present, that Mrs Pack suggested that the children themselves were delusional.[82]  It was revealed by the witness that the changing of the children's names was in accession to their expressed wishes for fear that the Applicant Father would hunt them down in Melbourne.[83]  Indeed, the Respondent Mother defended her absconding to Victoria based upon compliance with the wishes of the children.[84]

    [82] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 17 January 2008) 326.

    [83] Ibid 328-329.

    [84] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 319.

17. Mrs Pack proceeded to explore the period between 2003 and 2005 during which time there was no contact between the children and the Applicant Father.[85]  The witness conceded that prior to 2003, the children were not delusional, did not experience anxiety attacks, and did not suffer from nightmares of their father trying to kill their mother.[86]  These threats, she alleges, were made when the children were mere babies, which she says the children still remember.[87]  The witness also conceded that it was not until this period that the children were violent and naughty, trashing their room and the like.[88]

    [85] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 17 January 2008) 334.

    [86] Ibid 331-332.

    [87] Ibid 402-403.

    [88] Ibid 334-336.

18. At various times during her cross-examination of the Respondent Mother, Mrs Pack called upon the witness to explain inconsistencies in her testimony.  These included the belatedly-prepared chronology she purported to rely upon in the proceedings, and the one she furnished upon the Abused Child Trust.[89]  Dr Sayers, in his cross-examination of the witness, again put it to her that the chronologies were different.[90]  The witness did not provide much by way of explanation on that occasion either.  In addition, Mrs Pack referred to different accounts of the toys used in the previously alleged sexual abuse in sworn statements of the witness.[91]

    [89] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 298, 302.

    [90] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 17 January 2008) 405-420.

    [91] Ibid 371-374.

19. It was also put to the Respondent Mother that she has continually resisted contact between the Applicant Father and the children.  For example, it was put by Mrs Pack that she cancelled contact despite the receipt of conduct money from the Applicant Father.[92] The witness was also examined in relation to her evasiveness in organising what were consensual contact sessions in 2003,[93] and that as far back as 2000 the Respondent Mother had indicated to a social worker that she did not wish there to be any contact.[94]

    [92] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 16 January 2008) 315.  See also Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 17 January 2008) 337.

    [93] Ibid 350-358.

    [94] Ibid 362.

20. The substance of the conclusion of Mrs Pack's cross-examination focused on the Respondent Mother's inclination to tape record events.  The witness tape recorded disclosures made by the children in her presence,[95] but no such disclosures were made to the police when they interviewed the children.[96]  There was also a further recording of the children in 2002 tendered that clearly evidenced the Respondent Mother interrogating the children using what are indisputably leading questions in relation to the alleged sexual abuse.[97]

    [95] Ibid 376-380.

    [96] Ibid 391.

    [97] Ibid 393-395.

21. Dr Sayer's cross-examination of the Respondent Mother appeared to question her parenting ability and the extent to which she has and will facilitate a relationship between the children and their father as a result of her delusions (that is, as reported by the expert witnesses).

22. Under cross-examination at the November 2007 hearing, the Respondent Mother expressed concern at Ms R’s supervision of the Applicant Father's time spent with the children.[98] These concerns ranged from alarm at her occasional absence from the location of the time spent as reported by the children,[99] to allegations of prejudgment against the Respondent Mother.[100]  In contrast to her admission under examination from her own Counsel, however, the Respondent Mother was evasive as to questioning concerning the recording of contact sessions, instead suggesting that the recording was an accident.[101]

    [98] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 20 November 2007) 79.

    [99] Ibid 83.

    [100] Ibid 85-86.

    [101] Ibid 84-85.

23. Notwithstanding argument from Dr Sayers that the Respondent Mother's explanation of the children's favourable reaction to their father at contact sessions is a new creation,[102] the Respondent Mother maintained that the children fear that the Applicant Father will kill their mother.[103] The Respondent Mother expressed concern that the children's complaints are not being taken seriously,[104] and that the assessments made by both Ms B and Ms R of the absence of fear in the children are not to be believed.[105]  Despite evidence that militated against Dr Sayers' argument as to new creation – a single prior reference to the explanation[106] – it was pressed by him that the Respondent Mother's intention has always been to cease contact between the children and the Applicant Father.[107]

    [102] Ibid 88.

    [103] Ibid 95.

    [104] Ibid 100.

    [105] Ibid 102.

    [106] Ibid 113.

    [107] Ibid 111.

24. During cross-examination on the last day in January, Dr Sayers alleged that the Respondent Mother had edited her story in her more recent chronologies, and that the contemporaneous diaries that she had prepared were destroyed so as to disallow any comparison.[108]  The Respondent Mother stated on both counts that she was merely acting upon the advice of others, her legal representatives in the first instance, and the now-deceased Dr W in the second.

    [108] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 18 January 2008) 420-430.

25. Dr Sayers also questioned the Respondent Mother, in relation to the relocation to Melbourne, to the effect that she failed to provide any form of counselling for the children to prepare them for the apparently traumatic experience that awaited them on their – as she contends – inevitable return to Queensland.[109]  She claimed not to have the financial means, which Dr Sayers suggested was a reference to the Applicant Father's non-compliance with child support payments, though the witnessed denied this.[110]  Ultimately, however, the Respondent Mother stated that she did not consider that the children needed counselling at all.[111]

    [109] Ibid 438-440.

    [110] Ibid 439.

    [111] Ibid.

26. In concluding his cross-examination of the Respondent Mother, Dr Sayers read into the record a passage from the Child Concern Report Summary prepared by the Department of Child Safety that precipitated the return of the children to the Respondent Mother in breach of the Orders I made in November 2007.  He stated:

    The notifier [Ms R] stated that the mother has then said, in front of the boys, that she had never agreed to this arrangement.  The mother appeared convinced that she had not agreed to any of this and had not been obliged to bring the children to the supervised sessions or even to the Court-ordered psychiatric appointments the previous day.  The mother appeared to be either deliberately lying or out of touch with reality.  [Ms R] has serious concerns for the psychological wellbeing of the boys in the care of the mother.

1. In this regard reference is made to the numerous occasions throughout the course of the proceedings where the Respondent Mother admitted that she did in fact consent to those interim arrangements.[112]

   [112] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 21 November 2007) 50-54; Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 49; Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 149.

The Independent Children's Lawyer's case

1. The Independent Children's Lawyer's case was presented on 4-5 February 2008.  The crux of Dr Sayer's case for the Independent Children's Lawyer was stated briefly by him on the final day of argument in November 2007 thus:[113]

   … if the mother then now is assessed as mentally unwell; if the mother now continues to say the same things as she did then about the allegations, then the quality of her perceptions is an important factor in assessing the gravamen of the potential risk.

   [113] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 21 November 2007) 23.

2. Dr Sayers of Counsel called upon various persons of specialised knowledge in the matter, including Ms DN, Ms FD, Dr C, Ms R, Dr W, Ms B, and Dr V.  It is only purported to review the evidence of the latter four witnesses in any detail, however, as the testimony of those four are directed to the instant situation, as opposed to the historical development of the case.  It is nonetheless necessary to note that I have had due regard to and have fully considered the evidence of all witnesses called in this matter in coming to the conclusions that I have.

   Ms R

3. During examination by Dr Sayers for the Independent Children's Lawyer, Ms R confirmed the observations made in the family report she prepared in this matter, dated 13 November 2007, and as a result of supervised sessions between the Applicant Father and his children since 19 November 2007.  Of particular note is the following quotations expressly confirmed by Ms R:[114]

   It's highly unlikely that [the children] will have a meaningful and positive relationship with their father if they continue to live with their mother.

   That is a significant statement, which as discussed below bears heavily on the s. 60CC factors that must be considered. It is also confirmed by the other persons of specialised knowledge who were called by Dr Sayers.

   [114] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 4 February 2008) 3.

4. Dr Sayers again quoted from Ms R’s family report to the following effect:[115]

   The children would be quite traumatised initially by such a change and would need counselling to deal with this.

   Ms R explained that in her experience in the jurisdiction it is generally difficult for children to transition from one parent to another, particularly given the strong – albeit not "emotionally positive" – connection the children have with the Respondent Mother.[116]  It was as a result of this connection that Ms R considered that it might in fact be a positive factor for the children to be initially located some distance from the Respondent Mother, having regard to the very real possibility that the children might return to her of their own accord despite any Orders to the contrary.[117]

   [115] Ibid.

   [116] Ibid.

   [117] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 4 February 2008) 4.

5. Ms R also considered that should such adverse Orders be made that any time spent by the children with the Respondent Mother should be supervised for a period of approximately six months, having primary regard to all parties' progress in therapy and counselling.[118]  That said, Ms R admitted under examination from Dr Sayers that the Respondent Mother's influence on the children's mental health was beyond her area of expertise.[119]  It is in that regard that I consider the evidence of the medical practitioners put before the Court below.

   [118] Ibid 5.

   [119] Ibid.

6. Under cross-examination by Mrs Pack for the Applicant Father, Ms R identified the "anticipatory anxiety" and its manifestation as physical illness that the children experience prior to and at the commencement of spending time with the Applicant Father, which she attributes to the "emotional cues" they pick up from the Respondent Mother, as "emotional abuse".[120]  Emotional abuse that, she reports, has intensified during 2006 and 2007.  Indeed, whilst the use of the term alienation has fallen into disrepute, Ms R stated that the children "severely and seriously have a strong alignment to one parent and against the other."[121]

   [120] Ibid 9-10.

   [121] Ibid 11.

7. The Respondent Mother questioned Ms R extensively about other possible causes of the anticipatory anxiety she described in the children, which Ms R conceded could occur.[122]  As it was later made clear to the Respondent Mother by the Bench, however, "this is a Court not very particularly interested in possibilities, but probabilities."[123]  The Respondent Mother further queried Ms R as to whether or not she considered that any action on her part – that is, the Respondent Mother – could be considered to have prompted that anxiety to which Ms R replied:[124]

   I'm not aware of what you say to the boys when they're not with you, but the behaviours that I observe appear to indicate that there is some prompting of them to expect something to occur, and they then appear to change once they're in the child care setting.

   [122] Ibid 12.

   [123] Ibid 17.

   [124] Ibid 13.

8. Ms R further noted that the anxiety the children appeared to experience noticeably escalated after the Respondent Mother and the children returned from Melbourne, having absconded after the delivery of Justice Lawrie's Orders.[125]  In contrast to the heightened anticipatory anxiety, however, Ms R went on to state – in response to allegations that her reporting was "coloured", "influenced", or "prompted" by the Applicant Father's suggestions of brainwashing by the Respondent Mother – the following:[126]

   I've been watching the interactions with these boys over a long period of time and I've seen some genuine … in my opinion, genuine fun, exuberant, exciting times that these boys have had with their father that are not to me consistent with children who are fearful of their father or who are pretending to have a good time with their father.  There have been many occasions when the boys have volunteered to do things and to play certain games which have involved physical interaction with their father that need not have occurred, but they have occurred.

   [125] Ibid 15.

   [126] Ibid 16.

9. The Respondent Mother was particularly inclined to attribute the behaviours of the children to triggered memories, but Ms R rebuffed any such suggestion in the following terms:[127]

   I wouldn't expect that if a memory of something that was fearful to them would be triggered, that that would then make them play more with their father or behave more exuberantly, or looks as though they're enjoying themselves with their father.  I would have thought if a memory was triggered it might result in the opposite.

   [127] Ibid 16.

10. The Respondent Mother cross-examined Ms R with respect to the incident at Child Dispute Services at the Commonwealth Law Courts complex in Brisbane on 21 December 2007.  Ms R conceded that the children, on that one occasion, indicated to her that they did not wish to continue with the future sessions that had been scheduled, but that at the very previous session the children had stated they wished to go for a swim with the Applicant Father at South Bank.[128]  At that point, I interjected and confirmed with Ms R that during the prior session the children were still in the care of their uncle, whereas the children had been returned to live with the Respondent Mother on 17 December 2007, just prior to the latter session.  Ms R explicitly confirmed the vast difference in the behaviours presented by the children.[129]

    [128] Ibid 28.

    [129] Ibid.

11. In concluding her cross-examination, the Respondent Mother asked of Ms R: "how do you propose to get [the memories of sexual abuse and threats against their mother's life] out of their heads to be able to have a meaningful relationship with the father?"[130]  Ms R responded, "The more positive time that they spent with a parent, the more likely they are to have positive experiences and positive memories to build upon with that particular parent."[131]

    [130] Ibid 33.

    [131] Ibid.

12. Upon re-examination by Dr Sayers for the Independent Children's Lawyer, Ms R articulated her concerns about the strengthening of the children's fears in spite of their recent positive experience with the Applicant Father thus:[132]

    In my opinion the memories appeared to be being reinforced rather than being able to perhaps gradually fade, if those memories were of fear of their father, that were – there were real fears.  It appeared that those fears were becoming stronger, which didn't match with them spending more time with their father and my watching them have positive experiences with them.  It just didn't fit.

    [132] Ibid 36.

    Dr WN

13. Dr WN is a specialist child, adolescent, and family psychiatrist who prepared a psychiatric report regarding the subject children.[133]  Whilst Dr WN did not conduct a formal psychiatric assessment of either parent, he "interviewed each parent in order to determine if there were any reasonable grounds to think there might be psychiatric disturbance from a … psychiatric point of view."[134]  Dr WN reported that neither parent present as being psychiatrically disturbed,[135] but acknowledged that his assessment was necessarily short given the events described elsewhere.  In discourse with the Bench, and upon questioning from Dr Sayers, Dr WN confirmed that a change in the primary caregiver of the children would be "emotionally traumatic" for the children given their attachment to the Respondent Mother.[136]

    [133] Ibid 1.

    [134] Ibid 2.

    [135] Ibid.

    [136] Ibid 5.

14. In any event, Dr WN conceded that notwithstanding the fact that he was of the belief that he had undertaken an effective psychiatric assessment of the children, he would have pause to reconsider his view that there was no concern with the children living with either party from a psychiatric perspective.[137]  It was specifically put by Dr Sayers thus:[138]

    … if his Honour found there was no physical risk to the children in the care of the mother but there was a risk to their emotional wellbeing in the care of their mother, would that make a difference in the circumstances where his Honour also found there was no risks at all in the care of the father?

    Dr WN stated that it would "depend upon the severity of the emotional risk and the likely consequences."[139]

    [137] Ibid 4.

    [138] Ibid 5.

    [139] Ibid.

15. Dr WN was queried by the Respondent Mother in cross-examination as to whether or not he considered there to be any evidence of coaching of the children.  Dr WN replied:[140]

    I could not really come to a conclusion whether there might have been some coaching with a rather severe form of abuse that was alleged by one child, [WB], and how it was maintained as the only issue to talk about essentially through the interview, so I wondered whether he had been coached to stay on track with that, but I did not come to a conclusion.

    [140] Ibid 10.

16. Dr WN also made mention that he had made no positive finding himself in respect of abuse on the part of the Applicant Father.  He relevantly stated: "I have not, until this time, come to an opinion that the father is an abusive person.  Now, I am open to persuasion by any facts that are present in the Court".[141]  It is noted that Dr WN, in all the opinions he expressed during the course of his testimony, expressed the view that he was entirely open to change his apparently tentative perspective having regard to the limited exposure he had to the parties and the children, and any other evidence that might be presented before the Court, including contrary findings by other experts.

    [141] Ibid 14.

    Ms B

17. Ms B’s evidence was primarily directed to the initial period during which preceded the matter being heard by Justice Jerrard by way of comparison to the present state of affairs.  In that regard it is sufficient to refer to affidavit evidence filed 9 February and 27 November 2001, which were put before the Court in the instant proceedings.

18. Ms B was of the opinion that the Respondent Mother's accounts were quite plausible until she started discussing her concerns about the Applicant Father having any contact whatsoever with the children, at which time her reasoning became difficult to follow.[142]  Specific reference was made by Ms B to the Respondent Mother's position before Registrar Spelleken where she expressed the view "that she would ideally like [the Applicant Father] to have no contact whatsoever with the children because she was 'again internally terrified about what he might do to them in retaliation'".[143]

    [142] Annexure B to Affidavit of Ms RM, J v B (Family Court of Australia, Jerrard J, 9 February 2007) [6.8.2].

    [143] Ibid [8.2.6].

19. The thrust of Ms B’s assessment during 2001, however, when the original allegations were made against the Applicant Father is in accordance with the views espoused by Ms R – whose evidence appears above – and Dr V, whose evidence follows and who also examined the parties and the children over the course of these proceedings.  Those views, as stated by Ms B in the first family report, are thus:[144]

    … others of [the Respondent Mother's] concerns, namely the concerns about possible sexual abuse, paedophilia, and even bestiality are extreme and do not appear to be well-founded.  Obviously [the Respondent Mother] has been unable to obtain any substantive medical evidence to support these serious concerns.  Should [the Applicant Father] have been engaging in any sexually inappropriate behaviour with the boys, which was physically painful or frightening for them, I would have expected there to be some evidence of this in the way that the boys related to him.  In my opinion, there was not.

    Ms B significantly continues:[145]

    There is a very real risk, in my opinion, of the boys being alienated against their father by their mother.  Her attitude to the boys referring to their father as "daddy" only because he demanded it of them is evidence of this.

    [144] Ibid [12.2.5].

    [145] Ibid [12.2.9].

20. Ms B also prepared a family report, which was filed on 25 October 2002, wherein she states: "The mother has clearly not accepted [Justice Jerrard's] findings or the opinions of most of the medical and other experts involved."[146]  Indeed, Ms B went so far as to maintain her stance against the Respondent Mother – suggesting that she may be diagnosed with Delusional Disorder-Persecutory type – in opposition to Dr V’s apparently alleviated concerns at the time.[147]

    [146] Annexure B to Affidavit of Ms RM, J v B (Family Court of Australia, Lawrie J, 25 October 2002) [8.2.2].

    [147] Ibid [8.2.2], [8.2.6].

21. It should be noted in this regard that during the course of the proceedings the Respondent Mother raised concerns expressed by Dr W, the deceased medical practitioner, that Ms B was biased against the Respondent Mother.[148]  It was relied upon by the Respondent Mother that Justice Lawrie came to that conclusion in the following terms: "[Dr W] read the family reports and thought that Ms [B] was biased in accepting uncritically what the father told her and making suppositions which favoured him."[149]  I would note that Dr W’s evidence is not before the Court in these proceedings and, in any event, I am not bound by the findings of Justice Lawrie.  There is no evidence to persuade the Court that Ms B was, but more importantly is, biased against the Applicant Father.

    [148] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 140.

    [149] Ibid 142.

    Dr V

22. Dr V is a medical practitioner who prepared three reports for the purposes of these proceedings.[150]  Dr V, whilst noting that the question of whether or not the children are at risk from the Applicant Father is "the important issue", he also states that the children have an unhealthy and anxious attachment to the Respondent Mother contingent upon their adopting a particular attitude toward the Applicant Father,[151] expanding upon the observations made by Dr WN.

    [150] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 5 February 2008) 2.

    [151] Ibid.

23. Dr V explains the Respondent Mother's mental state in an explicit departure from the views relied upon by Justice Lawrie in her reasons for judgment in the following terms:[152]

    I would have to say that the mother's beliefs have that fixity and, moreover, they … influence her behaviour to a significant extent, such as taking the children to Melbourne.  And more – and furthermore, there is evidence from the data that she actually distorts reality.  It's not exaggeration.  … This is actual distortion of reality.  That she knows things occur at the … supervised contact which are clearly not what is occurring. …  So the impression I get is that this is not mere exaggeration or hyperbole but actual distortion and that … makes me think that there is a more ominous process than mere socio-culturally determined belief.

    [152] Ibid 3.

24. During examination-in-chief by Dr Sayers, Dr V affirmed upon questioning from the Bench that in 2001 he had speculated that there was a "theoretical risk" that the Respondent Mother would abscond with the children.[153]  That said, Dr V clarified his evidence in the proceedings before Justice Lawrie to the effect that having regard to that theoretical risk it appeared that insofar as the Respondent Mother had complied with all the extant Orders as per Justice Lawrie that his concerns about her mental health might have been unfounded.[154]

    [153] Ibid 5.

    [154] Ibid.

25. Alarmingly, Dr V prophesised again the potential consequences that might arise given the distorted beliefs he attributes to the mother thus:[155]

    … from a psychiatric point of view, … if a parent believes absolutely, with great conviction, that cannot be reasoned, that cannot be contradicted, that their children are at risk of sexual abuse if they're in the care of another parent, then it is difficult to see how they would allow contact to occur and, if contact was forced, … there would have to be the possibility, however remote and theoretical, of unfortunate occurrences.

    The "unfortunate occurrences" were canvassed between the witness and the Bench in a knowing exchange.  Dr V, though not in so many words, indicated that in such circumstances there would be scope for believing that the Respondent Mother, holding such beliefs as she does, would resort to "the extreme course", as described by the Bench.[156]

    [155] Ibid 6.

    [156] Ibid.

26. Under cross-examination from Mrs Pack, Dr V considers but ultimately dismisses a diagnosis of shared delusions between the Respondent Mother and the children, ultimately concluding that "it would seem to me that the mother is, in fact, distorting what she believes the children said or making up what the children said."[157]  The Respondent Mother in her cross-examination of the witness, however, agitated the diagnosis of shared delusion, which Dr V absolutely rejected.[158]

    [157] Ibid 8.

    [158] Ibid 9.

27. In the face of pleas of the Respondent Mother's actions in absconding to Melbourne as reasonable for "a normal mum" in light of the children's distorted reality, Dr V presented a damning critique of her conduct.  His very forceful statements were thus:[159]

    No, I disagree.  If a mother heard their children having – describing auditory hallucinations, olfactory hallucinations, living in fear, she ought to conclude that they are very ill. …  [A] normal mum … ought to conclude that the children are very ill.  They're distorting reality.  They're psychotic.  She would take them to a doctor. …  [C]hildren hearing voices and having olfactory hallucinations, living in fear, constitutes a medical emergency. …  That's a very serious state of affairs. …  The children are very sick indeed.

    [159] Ibid 10-11.

1. Notwithstanding that, under cross-examination by the Respondent Mother, Dr V concedes that her conduct might be attributable to that of a protective parent;[160] he also noted that explanations put forward by the Respondent Mother for previous observations made by Dr V – that is, that she is responsible for the children's sexualised behaviour and the children's disclosures – were "quite possible".[161]  He was not pressed further on this point.

The Parties' Submissions

[160] Ibid 22.

[161] Ibid 23.

The applicant father and the Independent Children's Lawyer

1. The written submissions prepared by the respective counsel for the Applicant Father and the Independent Children's Lawyer have been examined in detail and both documents have informed the reasons contained herein.  This includes having regard and reference to the subpoenaed material tendered before the Court during the course of proceedings.  Due to the Respondent Mother's status as a litigant in person, however, the balance of this section is directed to addressing the matters raised in her written submissions.

The respondent mother

1. It is particularly important to address the concern raised in the Respondent Mother's submissions insofar as she has been self-represented for the duration of the final hearing.  It is noted, however, that she was represented at the initial hearing of the Applicant Father's fresh application by Mr. Robin Slade Jones of counsel, instructed by Legal Aid Queensland, and that the Respondent Mother chose of her own volition to disengage Legal Aid Queensland and represent herself.

   Preparation of written submissions

2. Notwithstanding the substantive absence of legal representation during these proceedings, the Respondent Mother's written submissions are couched in references to legal authority.  It is admittedly uncommon for self-represented litigants to prepare submissions with such apparent familiarity of the law.  It is noted in this regard that the Respondent Mother sought to have a next of friend appointed to assist her in these proceedings.[162]  The Bench promptly corrected the Respondent Mother, noting that a McKenzie friend was something different,[163] but that an assistant would be suitable to undertake clerk-like activities.  It was emphasised that the assistant was not to provide legal advice or assistance with the law – as contrasted to a McKenzie friend – and it was sought from the Respondent Mother that the candidate she proposed had no legal training or experience whatsoever.  The Respondent Mother replied in the negative.[164]  Notwithstanding that the request was refused it is apparent that the Respondent Mother has nonetheless acquired the assistance of someone with a passing acquaintance of family law.

   [162] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 30-31.

   [163] McKenzie v McKenzie [1970] 3 All ER 1034.

   [164] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 30-31.

3. Despite the Respondent Mother's attempt to direct the Court's attention to academic literature generally, and social science literature specifically, these materials fall beyond the scope of material that can be considered.  As noted above, these proceedings are not convened under the Less Adversarial Trial regime and, as such, the rules of evidence continue to apply to this hearing.  Even if these were LAT proceedings, it is difficult to conceive of circumstances where such literature would weigh upon the mind of a trial Judge in any event.  As the cases identified by the Respondent Mother indicate, the materials ought and do inform the decision-making processes of the Family Court at large, but they are neither evidence nor law and cannot be tendered in the course of proceedings.  A review of the cases cited shows that the research articles purportedly relied upon were in fact the subject of challenge on appeal on the basis that they were improperly relied upon.  These scholarly sources are not possessed with legal authority and cannot serve to support the arguments the Respondent Mother purports to advance.

4. To ensure that justice is seen to be done as well as actually done, it is prudent that the questions of law scattered throughout the Respondent Mother's written submissions be addressed briefly.  It is reiterated that the academic material the Respondent Mother seeks to rely upon in advancing her arguments are insufficient to attract the attention of this Court and, as such, any contentions so made will not be considered in the discussion that follows.

   Delay and unavailable witnesses

5. At various instances in her written submissions, the Respondent Mother contends that the Applicant Father's delay in bringing his fresh Application for Final Orders has in effect caused her substantial prejudice and rendered the possibility of a fair trial moot.[165]  In particular, the Respondent Mother refers to the unavailability of witnesses in the instant proceedings for whatever reason.[166]

   [165] Written Submissions of Respondent Mother, J v B (Family Court of Australia, Bell J, 5 February 2008).

   [166] Ibid 1.

6. Despite any provision in the Family Law Rules 2004 (Cth),[167] a Judge of the Family Court may exercise the inherent power to control the proceedings before the Court.  Thus:[168]

   Although the Family Court is a creature of statute it is a Court of Record and has inherent powers in appropriate circumstances.  Those are powers which arise as a necessary adjunct to the existence of the court itself, and such as are necessary to control and regulate the proceedings before it and to avoid injustice.

   It is a long-recognised incident of that inherent power of a court to dismiss proceedings for want of prosecution.[169]  That is, "[w]hen the delay is prolonged and inexcusable, and is such as to do grave injustice to one side or the other or to both, the court may in its discretion dismiss the action straightaway".[170]  In considering whether to exercise the discretion to dismiss an action for want of prosecution, regard must be had to the length of the delay, the impact upon the applicant, any prejudice caused to the respondent, and the extent to which the possibility of a fair trial has been compromised by the delay.[171]

   [167] See r 11.06.

   [168] Re P's Bill of Costs (1982) 8 Fam LR 489 at 493 per Evatt CJ and Fogarty J.

   [169] Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229.

   [170] Ibid at 246 per Lord Denning MR.

   [171] Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229.

7. It is appropriate to consider in turn the concerns the Respondent Mother raises in respect of the witnesses she appears to have wished to have called, but failed to do so in the course of the proceedings.  First, Dr W, who unfortunately has passed away during the intervening years,[172] already entered a statement in the previous proceedings.[173]  The sworn statement of Dr W was admissible in the instant proceedings as such notwithstanding that Dr W himself was unavailable for cross-examination.  Had the statement been tendered in the instant proceedings, argument as to weight would have been heard, but the question is now irrelevant.  The Respondent Mother, fully informed of the responsibility upon her to present testimony in support of her case to the Court (and represented by Mr Slade Jones of Counsel at the time) ultimately chose not to seek leave to tender the affidavit of Dr W.

   [172] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 21 November 2007) 48.

   [173] Ibid 49.

8. Second, similar arguments dispense with the assertions made by the Respondent Mother in respect of Ms ST, who the Respondent Mother alleges was unable to be located,[174] and Dr D and the Respondent Mother's brother and his wife, who did not wish to appear at Court to testify. In responding to a cause of action it is upon the Respondent Mother in this case to present whatever evidence she believes will best advance her case. The parties have at their disposal the subpoena mechanism of the Court that compels the attendance of witnesses under threat of contempt of Court.[175]  The Bench was fully aware of the Respondent Mother's self-represented status and, mindful of the Re F guidelines, she was properly informed of the availability of the subpoena process but chose not to use it.[176]

   [174] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 44-45.

   [175] James v Cowan; Re Botten (1929) 42 CLR 305.

   [176] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 175.

9. Whilst the Respondent Mother contends, for the reasons referred to above, that she will be deprived of a fair trial if the Application for Final Orders were allowed to proceed, the matters raised in her written submissions to that effect are insufficient to arouse the Bench to act in these circumstances.  I am not satisfied that the possibility of a fair trial would be compromised by the absence of the evidence referred to.  Further, it is unfortunate that the delay of some years was not a consequence of the Applicant Father's conduct but rather the extended duration between hearings and the delivery of the respective judgment and Orders.[177]

   [177] The reasons for judgment of Justice Lawrie were delivered nine months after the hearing, and the reasons for judgment of the Full Court were delivered thirteen months after the hearing.

   Refusal to admit tendered appeal books

10. The Respondent Mother correctly states that upon tendering the appeal books to the Court for reception into evidence she was denied.[178]  It is necessary to reiterate that the immediate proceedings are not a re-hearing of the appeal that was before the Full Court.  It is a fresh trial, completely anew.  The appeal books were refused on the basis that the constituent documents – affidavits, reports, transcripts – were all available to be tendered in their own right.  Much of the documentation had, in fact, been tendered by the other parties to the proceedings.  Further, Dr Sayers of Counsel for the Independent Children's Lawyer prepared an indexed digest of the appeal books that was distributed to the parties so that they could more easily locate any individual documents that they wished to tender.[179]  It was upon the Respondent Mother to identify those particular documents that best advanced her case and tender those before the Court.

    [178] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 5 February 2008) 11-13.

    [179] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 14 January 2008) 14.

11. To the extent that the Respondent Mother refers to appeal books in the course of her written submissions, regard is only had to that material that has otherwise been tendered to the Court.  That is, where the Respondent Mother refers to a document contained in the appeal books, which has not independently and of itself been put before the Court, that evidence has not been admitted and no argument can be led in respect of it.  Those matters raised by the Respondent Mother to that end have not been considered.

    Challenging the objectivity of Ms R’s report

12. In the course of her written submissions the Respondent Mother sets out a disjointed impeachment of Ms R, alleging that Ms R was not objective in the observations and assessments made.  In addition, throughout the course of her cross-examination of Ms R, the Respondent Mother sought to adduce evidence from the witness that she was somehow biased against the Respondent Mother.[180]  Yet as Ms R observed during cross-examination by the Respondent Mother she engaged in and reported on conversations with both the Applicant Father and the Respondent Mother from time to time on occasions surrounding the commencement of spending time between the Applicant Father and the children.[181]

    [180] See, for example, Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 4 February 2008) 20.

    [181] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 4 February 2008) 16.

13. The Full Court in Newlands v Newlands clearly stated the benefit and importance of evidence deposed to by Family Consultants in the following terms:[182]

    The weight and importance to be attached to the evidence of a family consultant is subject of well settled authority. While ultimately the decision of what is in the best interest of a particular child is that of the trial judge who has the benefit of seeing all of the witnesses and considering all of the evidence, the evidence of, and important recommendations made by, a family consultant require careful examination by the trial judge.

    [182] (2007) 37 Fam LR 103 at 122 per curiam.

14. Ms R is an experienced Family Consultant with the court and her testimony is not to be dismissed lightly.  The entirely useful observations and assessments that she has made whilst the proceedings have subsisted are consistent with those made by the independent experts that have been put forward by the parties, as the discussion elsewhere demonstrates.  There is absolutely no substance in the Respondent Mother's allegations against Ms R and the challenge must therefore fail.

    Discussion of Briginshaw principles

15. The Respondent Mother, in her submissions, proceeds to analyse the legal framework attendant to the burden of proof in civil cases; that is, the balance of probabilities.  She refers to the High Court decision in Briginshaw v Briginshaw.[183] The standard is now found in s. 140 of the Evidence Act 1995 (Cth). It is not purported to discuss the Respondent Mother's submissions in this respect in any substance, but merely to acknowledge the emphasis placed upon it by her. It is hereby noted that the Court is fully aware of the necessary standard to be applied with respect to facts to be proven, and has discharged its obligations in that respect in accordance with the principles the Respondent Mother refers to.

    Findings of sexual abuse, hearings de novo and present and future unacceptable risk posed by the Applicant Father

    [183] (1938) 60 CLR 336.

16. The matter is discussed more fully later in these reasons, but it is necessary to note that the Respondent Mother raises concerns in relation to the role of the Court in this hearing de novo in respect of findings against the Applicant Father.  At the initial hearing in November 2007, it was made clear to the parties that the matter would be heard afresh in its entirety.[184]  On the basis that the Applicant Father had overcome the Rice and Asplund hurdle and was not estopped from re-litigating the issues, the inquiry in the present proceedings was expressly directed to determining whether the Applicant Father was engaged in sexual or other abuse of the children, or the Applicant Father posed an unacceptable risk to the children into the future.

    [184] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 21 November 2007) 36.

17. No evidence was tendered as to present sexual abuse.  It was admitted by both parties, however, that the Applicant Father only had supervised contact, as it then was, with the children during the period prior to the instant proceedings.  It is an inference open on the facts that the Applicant Father lacked the necessary opportunity to commit the abuses alleged and, absent complaint from the supervising parties, it cannot be inferred that any abuse took place.  Absent any evidenced complaint of sexual abuse it is difficult to articulate how the Applicant Father might pose an unacceptable risk into the future.  The discussion and analysis that follows addresses these points in greater detail.

Discussion and Analysis

The best interests of the child and shared parental responsibility

1. It is pertinent to have initial regard to the applicable law in determining the best interests of the child and, consequently, the living arrangements that will ultimately come to pass. Section 60CA of the Family Law Act 1975 (Cth) provides that "a court must regard the best interests of the child as the paramount consideration" in making a parenting order. By virtue of s. 60CB of the Act, in determining the best interests of the children regard must be had to the considerations expressed in s. 60CC. It has been held by the Full Court that in order to discharge the obligation to provide sufficient reasons, trial Judges need only set out the evidence upon which they rely and their reasoning thereto in respect of those s. 60CC factors that are relevant to the case at hand.[185]

   [185] A & A: Relocation Approach (2000) 26 Fam LR 382.

   The benefit to the child of having a meaningful relationship with both of the child's parents

2. It is clear from the changed provisions that the Parliament of the Commonwealth of Australia believes that there is a prima facie benefit to a child having a meaningful relationship with both of its parents.  This is a compelling consideration in the present case insofar as the Applicant Father has been denied any kind of relationship with his children for many years.  It is the children, however, who have lived without a father or suitable male role model, and would benefit from a relationship with him.  The children would also, of course, benefit from a meaningful relationship with their mother, but one must question how meaningful any relationship with the Respondent Mother would be given her exacerbated condition.  That said, it is imperative for the successful implementation of any parenting orders that issue with this judgment that the children continue to have some involvement with their mother, though any communication or time spent must be carefully monitored.

   The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

3. Reiterating the holding of Chief Justice Evatt in Rice and Asplund to the effect that a subsequent adjudicator is not bound by the previous findings of fact when hearing a case de novo,[186] and only on that understanding, are the observations of Justice Lawrie in assessing the Respondent Mother's credibility as a witness, particularly as the font of the children's accounts, referred to. Her Honour commented:[187]

   If she is not motivated by some disorder, as the psychiatrists seem to indicate, then the reason for her adoption of her stance may well be that what she is reporting as to the children’s behaviour, statements, physical condition and health, is accurate, and that she is doing what she sees as her duty to do everything she can to protect the children from harm. (author's emphasis)

   [186] In the Marriage of Rice and Aspund (1978) 6 Fam LR 570 at 572-573 per Evatt CJ.

   [187] J v B [2004] 439 at [69] per Lawrie J.

4. That is, Justice Lawrie was minded to think that the psychiatrists, at the hearing before her Honour, were minded to suggest that the Respondent Mother was not motivated by some disorder.  In their testimony, both Ms B and Dr V did in fact express concerns about the Respondent Mother's mental well-being.  These experts attested to the possibility that if the Respondent Mother were in fact tainted by some kind of delusional illness whereby she maintains a belief that the sexual abuse occurred notwithstanding surmountable evidence to the contrary, she would pose a serious risk to the children's psychological health and would foreclose the possibility of any kind of meaningful relationship developing between the children and their father.

5. Further, whilst the Respondent Mother was unrepresented for much of the instant proceedings, mention was made during the course of the trial in cognisance of the guidelines promulgated by the Full Court in Re F (Litigants in Person Guidelines).[188]   Concern was expressed by the Bench that the Respondent Mother had not led evidence of Dr D, whose testimony appeared to be fundamental to Justice Lawrie's finding in her favour.  The Bench indicated to the Respondent Mother that a subpoena could issue to Dr D to compel his attendance, but she declined the opportunity.[189]   On that basis I am confident in concluding as I have on the evidence available to the Court.

   [188] (2001) 27 Fam LR 517.

   [189] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 15 January 2008) 175.

1. This is not an appeal from Justice Lawrie's decision and I am not minded to frame my reasons in response to, or in assessment of, her Honour's own findings and conclusions.  That notwithstanding, her Honour placed much weight upon the Respondent Mother's credibility as a witness moving from the first premise that she was not psychologically unsound.  That can no longer be said with any degree of certainty.  Expert evidence presented in the instant proceedings clearly demonstrates that not only is the Respondent Mother severely mentally unwell at present, but that illness has developed and become all the more consuming since her original appearance before Justice Lawrie.  In light of this evidence, one can only conclude that the allegations made at the first proceedings are, whilst possibly founded in reality, the questionable outgrowth of an unsound and dangerous mind.  On that basis, in the absence of any evidence before the Court in the instant proceedings as to the original sexual abuse allegations against the Applicant Father beyond the continued assertions of the Respondent Mother, I cannot make a finding that the children will be subject to or exposed to abuse from their father at this time or into the future.

2. As alluded to above, however, there is considerable evidence that if the children remain in the care of the Respondent Mother they will be subject to severe psychological harm.  It is a matter close to certain, particularly having regard to Dr V’s testimony delivered under cross-examination from the Respondent Mother herself insofar as she considers her behaviour to be that of a normal mum acting as a protective parent, whereas Dr V clearly states that the children's psychiatric condition amounts to a medical emergency that the Respondent Mother chose not to act upon.

3. It is immediately apparent that the children must be removed from the care of their mother despite the findings made in respect of the secondary considerations under s. 60CC, outlined below.

   Any views expressed by the child

4. The Respondent Mother has relayed in the course of her evidence put to the Court the views of the children not to spend time or communicate with their father.  It is questionable, however, to what extent those views can be said to have formed independently of the Respondent Mother's now hysterical influence.  Dr V, during his testimony, explicitly informed the Court that the children are themselves suffering from severe psychological illness as a consequence of the ongoing emotional abuse that the Respondent Mother has apparently unwittingly afflicted upon the children over these many years.  Dr V expressly stated:[190]

   No, I disagree.  If a mother heard their children having – describing auditory hallucinations, olfactory hallucinations, living in fear, she ought to conclude that they are very ill. …  [A] normal mum … ought to conclude that the children are very ill.  They're distorting reality.  They're psychotic.  She would take them to a doctor. …  [C]hildren hearing voices and having olfactory hallucinations, living in fear, constitutes a medical emergency. …  That's a very serious state of affairs. …  The children are very sick indeed.

   [190] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 5 February 2008) 11-12.

5. Further, Dr WN, under cross-examination by the Respondent Mother, stated that it was appropriate to disregard the views of the children in these circumstances given their age.  He justified that response in the following terms: "Generally speaking … the younger the child the more one can in a sense disregard their wishes because they adjust to a new situation quite well."[191]  Dr WN did note that the experiences the children have had might have propelled their maturity so as to form fixed points of view, and considered it an "open question" as to the ultimate impact upon the children.[192]

   [191] Transcript of Proceedings, J v B (Family Court of Australia, Bell J, 4 February 2008) 12.

   [192] Ibid.

6. Having regard to the age of the children at 9 years old, however, the uncertain circumstances that attend upon the relaying of those views to the Court, and the serious concerns of the independent experts as to the mental well-being of the children themselves, any such views expressed by the children must ultimately carry less weight than they might otherwise.

   The nature of the relationship of the child with each of the child's parents

7. The children have an extremely close connection with their mother, who has cared for them for many years.  That strong bond is tainted, however, by the manner in which the Respondent Mother has precluded the development of a relationship between the children and their father.  The relationship between the Applicant Father and his sons can only be described as unfortunate.  He has had little interaction with his children during the course of this years-long litigation because of the adverse findings previously made.  Unfortunately, the Respondent Mother is largely responsible for the venomous climate that the parties now find themselves in.

8. In making the Orders that issue, a central object is to rebalance the relationships between the children and each of their parents, individually and taken together, to promote the healthy mental development of these children.  The boys must be afforded a genuine opportunity to cleanse themselves of the psychological torment that is their mother's mental illness, and to reconnect and develop a paternal relationship with the Applicant Father.  At the same time, however, there must be a commensurate dilution of their relationship with the Respondent Mother.  The mental control that their mother has exerted for many years has left them confused and befuddled in their perceptions of reality.  It is hoped that the realignment between their respective parental relationships will facilitate the healing process.

   The willingness and ability of each of the child's parents to facilitate, and encourage, a close and meaningful relationship between the child and the other parent

9. There is a continuing obligation upon the resident parent to encourage and facilitate a close and meaningful relationship between the children and the non-resident parent.  Unfortunately there is every reason to believe that the Respondent Mother is entirely unwilling and incapable to comply with that obligation.  The Respondent has instructed the children from a young age to refer to their father by his first name, thereby distancing him from his parental station.  Notwithstanding her previous undertaking not to leave the jurisdiction, the Respondent Mother absconded to Melbourne with the children, where she enrolled the children at different schools under false names.

10. During the interim period between November 2007 and January 2008 where Orders were in place to provide for the Applicant Father to spend time with his children, who he had not seen for many years, the children fled from the facilities in the court complex.  This was despite prior interactions between the children and their father that proved promising.  In disregard for his undertaking to the Court, the Respondent Mother's brother and the children's uncle – who had offered to care for the children during the interim period as agreed by both parties – returned the children to the Respondent Mother following the incident.  The result of that action was to render the interim orders futile: the South Bank excursion, discussed above, did not go ahead.   It is apparent that the Respondent Mother has a strong influence over the children but does not choose to utilise that influence to encourage a positive relationship with their father.

11. Whilst the interim period did not reflect well on the Respondent Mother, it did allow for positive omission by the Applicant Father.  In his failure to insist upon the South Bank excursion, he demonstrated an astute understanding of the delicate dynamic at play – that any untoward pressure or force on his behalf will ultimately fortify the children's apparent reluctance to engage him as a father figure.  The Applicant Father's continued pursuit of a parental role in his children's lives, however, is noted.  He has expressed what are perceived to be sincere views in support of maintaining and promoting a meaningful relationship between the children and their mother should he become the resident parent.  In this regard the Applicant Father appears cognisant of the fact that failure to do so would only further damage an already crippled relationship between himself and his children.

    The likely effect of the changes in the child's circumstances, including the likely effect on the child of any separation from either of his parents

12. The separation of the children from their mother will be excruciatingly traumatic for both parties, and for the Applicant Father who will not present well to the children as a consequence.  There will be an ongoing need for counselling and psychiatric intervention for all parties to this litigation.  Whatever steps are taken, however, it will be an unmitigated disaster.  The expert commentary put before the Court has clearly indicated that any removal of the children from the current resident parent will have devastating consequences.  That said, however, the same experts have indicated that it is what must be done in the circumstances.  The testimony of the expert counsellors, social workers, and psychiatrists whose evidence is before the Court is compelling and persuasive.  There will be a horrific transition period for all concerned, but as long as the children remain in the care of the Respondent Mother they are at risk of ongoing emotional and psychological abuse, and there will exist no hope whatsoever for any meaningful relationship between the Applicant Father and his children.

    The capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs

13. Notwithstanding the psychological concerns that have been the subject of much of this hearing, the Respondent Mother has served as a competent mother and has provided for the children as needed.  That said, however, the psychological issues are very concerning and raise serious doubts as to the emotional and intellectual contribution that the Respondent Mother has made to the children's developmental needs.  It is noted in this regard that concerns have also previously been made as to the Applicant Father's ability to provide for the emotional well-being of the children because of the aggravated, hostile environment in which their relationship necessarily finds itself.

14. On the balance, however, there is a decisive factor that places the Applicant Father in a better position to provide for the children as contemplated by this consideration.  That factor is his present wife, who presented as a competent and compelling witness, fully informed of the previous allegations and certainly aware of the instant case.  In contrast, the Respondent Mother has never re-partnered.  There is no stabilising influence while the children are in their mother's care.  At the very least, if the children are to be in the residential care of the Applicant Father, his present wife can act as a counterbalance and an outside influence upon the children.  Despite these complimentary observations, however, step-parents often face severe difficulties in blended families.  This will be a matter for the Applicant Father and his wife to navigate.

    Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

15. These proceedings have endured over the course of almost ten years.  There must be an endgame.  There must be a conclusion.  There must be finality.  The parents of these two children must rise above this conflict and focus on the best interests of their children, as the Court has endeavoured to do.  The best interests, however, are not served by languishing in litigation over the duration of their teenage years and adolescence.  There is no doubt that the Respondent Mother will not accept this decision or the reasons for it.  There is no doubt that the Respondent Mother will appeal the decision.  There is no doubt that the Respondent Mother will make every effort to re-litigate the decision.  Assuming for argument's sake that these orders and the reasons supporting them are adequate, the Respondent Mother will need to overcome the rule in Rice and Asplund just as the Applicant Father has done in these proceedings.    Were she to do so, it would be entirely appropriate to reconsider the matter.  Until such time, however, it is imperative for the well-being of all involved that the proceedings cease as soon as possible.

The presumption of equal shared parental responsibility

1. Section 61DA of the Act relevantly provides that absent abuse of the child or family violence, there is a presumption that it is in the best interests of the child that both parents have equal shared parental responsibility for the child.  It is absolutely imperative, however, to take notice of the fact that no evidence whatsoever of sexual abuse by the Applicant Father unto the children has been put before the Court in these proceedings.  That is, notwithstanding the allegations and evidence put before their Honours Justice Jerrard and Justice Lawrie in the proceedings before them, in this hearing de novo there were no fresh allegations of sexual abuse made against the Applicant Father by the mother – understandably given the cessation of contact some years ago – and no new evidence in respect of the original allegations.

2. Therefore, in the absence of evidence of sexual abuse by the Applicant Father, and an unwillingness to accept the allegations of the mother as persuasive, there exists no positive basis for either a finding that such abuse occurred in the past, or that there is an unacceptable risk it will occur into the future. In such circumstances, the presumption in s. 61DA of the Act applies, which provides that it is in the best interests of the child that the parents hold equal shared parental responsibility. "Abuse" is not restricted to sexual abuse, however, and it is suggested that if the children continue to live with the Respondent Mother, she will – possibly unwittingly but nonetheless assuredly – poison the children against their father. The evidence that speaks to this point is reviewed above in respect of the relevant s. 60CC factors. This amounts to psychological abuse and is sufficient to rebut the legislative presumption.

Concluding Remarks

1. Having regard to the tortuous history of these proceedings, and the observations made previously and by fellow Judges of this Court, it is entirely probable that the Respondent Mother will appeal the Orders made in the instant case, as she is entitled to do so.  Upon hearing such an appeal, however, it is hoped that the learned Full Court will be cognisant of the following comments made by his Honour Justice Kirby of the High Court, which are quoted at length:

   [I]t will not always be possible for judges, explaining their opinions, to express all of the conclusions that lead them to the evaluative and partly intuitive conclusion required in the particular case.  Any exposition of judicial reasons explaining such factual findings are "inherently an incomplete statement of the impression which was made upon [the judge] by the primary evidence".

   In reflecting upon the role of a court exercising appellate jurisdiction, as the High Court was in this sitting, Justice Kirby continued:

   The court is reviewing for error the application of an extremely short passage of a statute enacted by the Australian Parliament, invoked by reference to the detailed facts proved in evidence at the trial.  The passage ultimately calls forth a factual conclusion.  In the end, that comes down to the application to the facts of the simple words of the English language.

   Whilst the High Court was interpreting the provisions of an intellectual property statute, the observations made by Justice Kirby are resonant of appellate practice generally.  His Honour cautioned:

   Before this court disturbs such a factual conclusion, it should remember that, in terms of statute, the issue was not as complicated as legal ingenuity and judicial verbosity … have sometimes made it seem in the past.  As we have said in another context, courts must be wary of the professional danger that "attends the formulation of principles and doctrines and all reasoning a priori in matters which in the end are governed by the meaning of the language in which the Legislature expressed its will".

2. Having due regard to the enormity of material filed and testimony entered, one cannot hope to canvass in minute detail all the evidence and argument put before the Court.  It is remarked to that end that the monstrous history of this case – scarcely short of a decade – has necessitated an incisive and focused analysis on the factual turning points raised in the instant proceedings.  It is suggested that it is entirely sufficient that the trial Judge be satisfied on the weight of the evidence considered in its entirety that the "best interests of the children" lay as ordered.  The best endeavours have been employed to demonstrate the nuanced reasoning underlying those conclusions.  It is anticipated that for the benefit of the parties, the profession, the public, and the Full Court that the reasons contained herein are not merely sufficient, but compelling.

3. Notwithstanding Justice Jerrard's comments at the initial discrete hearing of the sexual abuse allegations against the Respondent Mother that "there is no evidence of a conclusive nature that the mother will be unable in the future to accept the decision of the Court and to allow the children to love their father and to have unsupervised regular contact with him",[193] the learned Judge prophesised a "ghastly choice" that might fall upon the Court, namely:[194]

   … that either the children only have a relationship with their father and live with him and have their mother absolutely abandon them on the one hand, or on the other only live with and have a relationship with their mother, and be allowed by her to force upon them an abandonment of their relationship with their father.

   [193] J v B [2001] 1853 at [48] per Jerrard J.

   [194] Ibid.

4. I fear, however, that I am now affronted with that ghastly choice.  One can only hope that with the benefit of ongoing psychological intervention that the children can enjoy fulfilling relationships with both parents.  For the reasons outlined above, I make the Orders as attached to these reasons.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell.

Associate: 

Date:  19 March 2008