Jasper and Jasper

FAMILY COURT OF AUSTRALIA

JASPER & JASPER

[2014] FamCA 235

FAMILY LAW – CHILDREN – Interim – With whom the children live – With whom the children spend time – Where the mother alleges family violence perpetrated by the father against her – Balance of probabilities – Risk – Where the children are found to not be at unacceptable risk of physical or emotional abuse in the father’s care – Where the mother has prevented a relationship between the children and the father – Where orders provide for a reintroduction of time between the father and the children – Where the psychologist facilitating the reintroduction of time is ordered to prepare a report to the Court – Where the matter is adjourned for further hearing.

Family Law Act 1975 (Cth) ss 4, 61DA, 65DAC
Evidence Act 1995 (Cth) s 140

APPLICANT:

Mr Jasper

RESPONDENT:

Ms Jasper

INDEPENDENT CHILDREN’S LAWYER:

Boughton Legal

FILE NUMBER:

BRC

8022

2011

DATE DELIVERED:

9 April 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

21 May 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Anglin
Salvos Legal Humanitarian

COUNSEL FOR THE RESPONDENT:

Ms Cullen

SOLICITOR FOR THE RESPONDENT:

Lynch & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McAuley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Boughton Legal

Orders

That paragraph 5 of the Orders of Justice Forrest of this Court of 21 January 2014 is discharged.
That until further order the children, E born … 2004 and H born … 2009, continue to spend time with the father as is determined by Ms P, psychologist, after consultation with the mother and the father and the Independent Children’s Lawyer, but not necessarily with their unanimous agreement, in accordance with the balance of the Orders of 21 January 2014, with the aim of the process of therapeutic counselling and supervision as provided for in those Orders to be the reintroduction of the children to a regimen of gradually increasing unsupervised time with the father that ultimately reaches a level of frequency of each alternate weekend during school term and about half of the children’s school holidays.
That the Independent Children’s Lawyer shall provide a copy of these reasons for judgment to Ms P as soon as practicable for Ms P’s consideration and assistance in the process of therapeutic gradual reintroduction of the children to their father’s care.
That the proceedings are listed for further hearing before his Honour Justice Forrest at 10.00 am on Monday, 11 August 2014 before the making of final orders.
That the psychologist, Ms P, provide a written report on the progress of the therapeutic gradual reintroduction of the children’s time with the father and her expectations and recommendations as to the future of the process, such report to be delivered to the father, the mother and the Independent Children’s Lawyer and filed in these proceedings by the Independent Children’s Lawyer on or before 30 June, 2014.
That the reasonable cost of the written report that is to be provided pursuant to paragraph 5 of these Orders shall be met in equal shares by the mother and the father but only to the extent that the Queensland Legal Aid Office does not pay or contribute to the cost of it.
That until further order, the mother shall have sole parental responsibility for all “major long-term issues” (as that term is defined in the Family Law Act 1975) in relation to the children.
In exercising that sole parental responsibility in relation to the children:
(a)The mother shall advise the father, in writing, of the necessity to make a decision, her proposed outcome of such a decision, the reasons for her proposal and any documentation available to assist with the making of such decision and she shall invite from the father his response and suggestions;
(b)The father shall reply, in writing, to the mother within 14 days of receipt of her written advice pursuant to paragraph 8(a) hereof;
(c)The mother shall give genuine consideration to the father’s reply; and
(d)When the mother has made the decision, she shall write to the father within 7 days of making the decision and advise him of the decision she has made, the reasons for the decision and how she has considered the father’s response and suggestions in the making of the decision.
That the mother shall forthwith provide to the father full particulars of her residential and postal addresses and the father shall forthwith provide to the mother full particulars of his residential and postal addresses.
That until further order, the mother is restrained from denigrating the father, his current partner or any other member of his family to the children or within the hearing of the children.
That until further order, the mother shall continue to attend upon a psychologist for psychotherapeutic counselling and she shall advise the Independent Children’s Lawyer forthwith of the name, address and telephone number of the psychologist she intends attending upon and she shall keep the Independent Children’s Lawyer informed as to the frequency of such counselling sessions.
That the Independent Children’s Lawyer shall, as soon as is practicable, provide a copy of these reasons for judgment to the psychologist the mother advises her she is attending upon for psychotherapeutic counselling for that psychologist’s consideration and assistance in that psychotherapeutic counselling.
The Independent Children’s Lawyer shall arrange for Ms P to be available to give oral evidence at the further hearing of the matter at 10.00 am on Monday 11 August 2014 and such evidence shall be given by her by telephone unless ordered otherwise on the application of the mother or the father, any such application and supporting affidavit to be filed on or before 18 July, 2014.
That each of the mother and the father shall file and serve one affidavit of his and her evidence updating the Court on the progress of the re-introduction of the children to their father and their expectations and proposals for the future of the children’s relationships with each of their parents, such affidavits to be filed and served on or before 18 July, 2014.
The Independent Children’s Lawyer shall be entitled to file any further evidence she considers appropriate in the proceedings, such to be filed and served on or before 25 July, 2014.
The Independent Children’s Lawyer shall provide copies of each of the further affidavits filed by the mother and the father in the proceedings to Ms P for her consideration prior to giving evidence at the further hearing of the matter.
Each party has liberty to apply to the Court on the giving of 2 days written notice to the other parties.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8022 of 2011

Mr Jasper

Applicant

And

Ms Jasper

Respondent

REASONS FOR JUDGMENT

The parents of the children, E and H, cannot agree how to parent them. This is despite having been together as a couple for nineteen years, the last eight of which they were married.
E was born in August 2004 and H was born in May 2009. Their parents finally separated in August 2009 in fairly tumultuous circumstances. Unfortunately, the two children spent no time with their father from a few months after their parents’ separation until the time of the trial before me on 21 May 2013.
At the start of the trial, the mother sought sole parental responsibility for the children, an order that they continue to live with her and an injunction restraining the father from spending any time with or communicating with the children at all. The mother gave evidence that in her opinion it would be harmful for the children to even spend supervised time with their father.
The father told the Court that he just wanted to be involved in the children’s lives by spending time with them, but at the end of the trial he argued that the only way that these two children will be able to experience a relationship with him is if orders are made that they live with him. He gave evidence that the mother had denied him time with the children from soon after separation, despite his efforts to see them and have them spend time with him.
In September 2011, after not having seen the children for around two years and not even knowing where the mother and the children lived, he applied to the Federal Magistrates Court (as it then was) for orders that the children spend time with him and for Commonwealth Information orders so that he might be able to find them. After they were found and the mother appeared in the Court in February 2012 making serious allegations of abuse against the father, the proceedings were transferred to this Court and an Independent Children’s Lawyer was appointed.
On 20 February 2013, Principal Registrar Filippello ordered that the children begin spending supervised time with the father at B Contact Centre on a weekly basis. When the trial came on before me, the evidence established that none of those supervised visits had actually occurred, as on the first three occasions when the family had attended at the Centre, staff had determined not to force the contact to happen as E had presented apparently asserting a stated reluctance to spend any time with his father.
At the end of the trial, given the difficulty of the decision to be made, I reserved my decision. On 21 January 2014, whilst still reserved, I heard a further application by the father for the therapeutic, supervised re-introduction of the children to him by the independent psychologist, Ms P. The ICL supported the father’s application. On the occasion of that hearing, the mother did not oppose such therapeutic, supervised re-introduction of the children to the father. In fact, she asserted that it should happen.
At that time, I made orders that such therapeutic, supervised re-introduction of the children to the father take place as determined by Ms P, after consultation with the parents and the ICL, but not necessarily with their agreement, and that it not exceed two hours per week. I also made a notation that Ms P was to be informed that her interaction with this family was reportable and that she may be required to provide a report to the Court about its progress.
Having considered the matter further, I have determined that I will now direct Ms P to provide the Court with a report as to the progress of the re-introduction and that I will list the matter for further hearing in the not too distant future. At that further hearing, Ms P will be required to give evidence and to be available for cross-examination by the parties. The mother and the father will also be expected to give evidence updating the Court on the progress of the re-introduction of the children to their father and their expectations for the future of the relationships between these two children and their father.
These are my reasons for taking this course.

Some relevant background facts

The mother and the father commenced their relationship in 1989 when the father was 21 and the mother was only 16 years of age. According to the father, the mother moved in to live with him, with her parents’ consent, when she was around 17 to 18 years old. According to the mother, she moved in with him about one month after they met when she was still 16 years of age. I am satisfied nothing turns on the resolution of this difference of viewpoint.
The mother and her two sisters had been sexually abused by their own father over a period of several years as young children. She and her sisters, as young adults, had made complaint to the police about the abuse. The mother was involved in a covertly recorded “pretext” telephone conversation with her father in which he made admissions. Their father was prosecuted and tried for the offences and the mother was involved in giving evidence against him. He was convicted and sentenced to a term of imprisonment. The mother’s own mother was apparently aware of the sexual abuse perpetrated against her daughters at the time it was happening and blamed them, refusing to separate from their father. The mother did have some counselling around the time of her father’s trial to assist her to cope with the traumatic emotional impact of the substantial childhood abuse she had suffered at her father’s hand. I expect that the emotional impact of sexual abuse suffered by a little girl over several years of her childhood at the hands of her father, apparently tolerated by her mother, could not be overstated.
Around the time of her father’s trial, in 1995, the mother was admitted to hospital after having taken an overdose of sleeping tablets. There is significant dispute between the parties as to the circumstances of that event. The mother deposes in affidavit evidence to the father giving her two tablets to help her sleep. She deposes to having memory of waking up in the middle of the night feeling sick and going to the bathroom and then remembering nothing until she woke up in hospital. She deposes to the father telling her that she “took eight tablets” and that she “tried to kill” herself. She deposes to having tried to find the box where the medication came from when she came home from hospital but that it was nowhere to be found.
The father, in response to that, deposes that the mother was in the middle of the criminal proceedings against her father and had been given sleeping tablets to help her cope with the stress. He deposes to waking one night to find the mother in the bathroom “with the tablets”. He deposes to taking her to C Hospital with the tablets where they kept her in overnight and fed her charcoal “in order to make her vomit.”
Even though it is clear that the mother asserts this was an occasion when the father deliberately “drugged her”, it is noteworthy that the mother does not depose to when it was that she formed her opinion or belief that the father had drugged her on that occasion. She gives no evidence of opinion as to why he might have done that or what she did about it as a consequence of forming the opinion that he did do that. That, I am satisfied, is relevant to her veracity on the point.
At around that same time, the mother severed contact with her father and later with all other members of her family. She had none until after separation from the father. The father says that was on the advice of her counsellor and of her own volition after her family moved to the Sunshine Coast. The mother says it was at the father’s insistence. The mother formally changed her entire name, including her first name, at around the same time. The father says that was her decision and the mother says it was the father’s idea.
Both the mother and the father were gainfully employed during their relationship and they married in April 2001. E was born in August 2004. After his birth, both parents continued to work, utilising day care services to assist them in their care of the child.
The couple and their son were living in rental accommodation in Suburb A in the northern suburbs of Brisbane in and around 2008. Apparently unhappy with the relationship, the father formed another relationship with a young woman who was employed at the same workplace as him sometime in that year, 2008. However, before a separation from the mother occurred, the mother fell pregnant with their second child. Very early in the pregnancy, (such that it is not clear to me on the evidence that the father knew of the pregnancy at the time) the father told the mother of the relationship with this other woman. The mother did not want a separation and wanted him to commit to the relationship and stay with her and the children. He stayed in the family home with the mother but, not surprisingly, their relationship became very unhappy and quite tumultuous, with the mother suffering quite a deal of emotional upheaval. She deposes to having been prescribed a low dosage of valium to help her cope at this time, but in her affidavit evidence actually deposes to not having taken any of those tablets.
Their second child, H, was born prematurely in May 2009 at D Hospital by caesarean section at 30 weeks’ gestation and was immediately transferred to specialist care at C Hospital Department of Neonatology. She was transferred back to D Hospital in early June, 2005 for ongoing hospital care, with the mother involved in regular hospital visits and frequent expressing of breast milk for the baby’s consumption.
On 19 June 2009, the mother presented to a social worker at D Hospital after the father had driven her to the hospital to spend time with baby H. She is recorded in the D Hospital’s notes that were tendered into evidence as reporting that she had taken 12 tablets in an attempt to kill herself the night before, a day or so after the father told her that he wanted to separate from her and move in with his new partner who, incidentally, was only 19 years old. The first notes in respect to the mother’s presentation record that the tablets she took were diazepam. Later notes record that the tablets she reported taking were valium. She is also recorded in hospital records as having reported that she wrote a suicide note to the father before taking the overdose and that she had an intention to die. More hospital notes record that she reported that she had been suffering stress, related to her husband’s affair, for six months and that she had been depressed for most of the day, nearly every day for the three previous weeks, unable to do the activities of daily living and saying she had “nothing to offer anyone”. The notes significantly record that she has reported that she was “currently on valium pm which was prescribed by her gp 6 months ago.” There is no suggestion in any of the notes that the mother said anything about being prescribed valium but not taking any of it. I do not accept her affidavit evidence that she did not take any valium tablets after they were prescribed for her.
A provisional diagnosis of a severe major depressive episode without psychotic symptoms was made and the mother was transferred to the Mental Health Unit at F Hospital on 20 June 2009. Baby H was subsequently transferred to the neonatal ward at the same hospital so that the mother could continue to be involved in her care whilst an inpatient herself.
The F Hospital notes from that time that are in evidence record that the mother had some difficulties coping with the rules of the ward she was in with respect to mobile phone use in particular. It is also recorded that she was not happy having to have an escort to go with her when she went to the neonatal ward to visit baby H. The notes also record that on the first day in the F Hospital MHU the father visited the mother and that she was arguing loudly with him. It is recorded that the father believed the marriage was over but that the mother did not believe this and thought it could be salvaged. It is recorded that she was then wanting to discharge herself, go home, pack up her bags and go to live somewhere else, although she had no idea where. Consequently, there was a medical recommendation for her to be assessed under the Mental Health Act and made an involuntary patient as she was considered to present a risk to herself and possibly her child if she left hospital in the mental state she was in. She was so assessed by a psychiatrist on 20 June 2009.
The hospital notes record that the mother was saying that she loved the father and wanted her marriage to continue and wanted to spend time with him to talk about the future. Though over a few days, the notes record that the mother was becoming more accepting of the end of her marriage and was starting to express thoughts of moving out of the home into her place to take the children to. She was allowed out on day leave on 23 June and is recorded as having come back in a better frame of mind.

Over the next couple of days, the mother is recorded as having experienced abdominal pain and vomiting but is recorded as improving over a few days. She went on leave again on 25 June and stayed the night at home but came back on 26 June before simply discharging herself without medical approval on 27 June.
The records reflect that the mother was declared mentally fit to care for the baby on 29 June 2009 but on 1 July 2009 there are further notes that reflect the hospital staff members were still worried about her. Those notes of that day record that the mother was saying that she still wanted the marriage to continue but that she was needing a break from “wife life” and wanting to focus on “motherhood life”. Those notes record that she was thinking about moving into her own place closer to the father’s place of work “since she wants full contact between husband and kids”. There was no suggestion in any of the hospital’s notes put into evidence that she considered the father any risk to the children.
That same day, 1 July 2009, the F Hospital made a report of a reasonable suspicion of child abuse and neglect to the Child Safety Department as they reported that the mother had gone “absent without leave” and was remaining out of contact and was not going in to feed the baby. The records also reflect that on 3 July 2009 the mother went to the hospital and discharged baby H from the hospital “against medical advice.” However, there is also a note dated 4 July 2009 that the mother had been contacted that day and had reported that her baby was doing “really well” and that she would not be moving house until November, later in the year.
The F Hospital notes also record the mother was interviewed by a doctor and a nurse on 22 June 2009 whilst an inpatient. Those notes record that the mother reported that she could not understand what was happening in her marriage and that she had no notion that the husband was leaving her for another relationship. She is recorded as having reported that the father “had been a fantastic husband and father” and that his behaviour over the previous six months had been “out of character” for him, such that she thought he was going through a mid-life crisis. I consider this to be important evidence. It is completely inconsistent with the case she presents against the father to the Court.
F Hospital notes of 28 June 2009 record that mother as having said, in the presence of the father, “I never wanted to kill myself. I just needed help.”
All of the evidence I have just referred to from the hospital records that became an exhibit in the trial must be considered against the evidence of the mother and the father sworn to in their trial affidavits about the mother’s admission to hospital on 19 June, 2009.
The mother said there was a day around that time in mid-2009 when the father “was caring and made me a cup of tea before leaving.” She said that she “drank the tea and went to sleep.”
The mother’s next paragraph of evidence is as follows:
I recall later that night, I awoke and my bedroom door was closed and house was silent and dark. I walked out of my bedroom and past the study to the lounge room. As I passed the front door of the house I could hear talking outside. [The father] was on his mobile phone talking with someone. At the end of the call I heard him say that he loved the person on the phone, so I believe that he was talking to [his girlfriend]. I could hear that the conversation was about me. I heard him say “she’s in a deep sleep and by morning she will not be breathing, everyone will think she is selfish and nuts”. After I heard this I was confused and not sure what to do. For some reason I went into [E’s] room to see if he was there and OK. I recall that he was fast asleep. I then went back to my room and got back into bed. I heard [the father] end the telephone call and I went back to my bed numb and frozen. A couple of minutes later [the father] entered the room. The first thing that he asked me was if I had been out of bed and how long I had been awake. I told him that I had just woken up. He told me in an angry tone that I was selfish and pathetic. [The father] told me that I had tried to kill myself and had taken Valium. I told him that I would not have taken tablets. He told me that I had left a suicide letter. I demanded to see it and there was no letter. I asked [the father] why he hadn’t called an Ambulance and [the father] smirked and walked away. [The father] also took off my wedding rings and eternity rings which he kept for a period of time.
I am satisfied that the clear implication the mother wanted to convey with this evidence is that the father deliberately drugged her in an attempt to murder her. That is consistent with the case she presented to the family report writer and the psychiatrist who interviewed her in 2012.
The father responded to that paragraph of evidence in his own affidavit. He said that the mother took two valium tablets before she went to bed to help her sleep that night. He said that there was no conversation and he did not say the words that the mother said she heard him say when speaking to someone on the phone. He said there was no conversation of suicide and there was no letter of suicide left anywhere.
Another paragraph of the mother’s evidence a little after that is as follows:
The following morning I decided to see a social worker at [D] Hospital. I remember telling her that I took tablets the previous night and was told that I tried to kill myself. I then went to see [H]. One of the staff had offered to help me and I was transferred with [H] to [G] Hospital. Once I was there, I recall getting upset because once I was transferred to [G Hospital] I was told that I was being admitted to mental health.
The mother does not explain why she told the social worker that having regard to the paragraph of evidence that she gave that I set out above.
It is noted also that the mother was actually transferred to F Hospital not G Hospital. That was probably just an oversight on the part of the mother on preparation of the affidavit.
Another paragraph of the mother’s evidence includes the following:
Soon after the Doctor came in and we had a conversation. During this conversation, [the father] stood by the door with his arms crossed. I told the Doctor that I had taken the tablets and I blamed myself. As soon as I did this [the father] became immediately relaxed and came closer to the bed that I was sitting at. [The father] told the Doctor that I had left a suicide note. That Doctor asked me about this and as it was not true, I simply said that I love me [sic] children and that I take care of them.
The mother also deposed in her affidavit evidence to the father being abusive, controlling and violent to her and their child, E, during the marriage. She has deposed to multiple instances of alleged rape in humiliating and degrading circumstances, including in respect of the intercourse that led to the child, H’s conception. She deposes to the father having been violent and abusive to their son and not caring about him during the marriage. She deposes to him having placed a bottle of valium tablets on the kitchen bench and having said to her “here, just in case you want to kill yourself again.” She said he then “laughed and left the room”.
Interestingly, under cross-examination at the trial by counsel for the ICL, the mother asserted that she had simply told the social worker at D Hospital when she went to feed H that she was concerned about the quality of the milk because she had taken valium the night before. She said the social worker then got the doctor and she repeated the story that she had taken valium because the father was present and she was scared of him.
She said in her evidence that the father had told her that he had put the valium tablets in her cup of tea. She asserted that he had told her that he had put 12 valium tablets in her tea, although, curiously, she said he had not told her that until “way afterwards” when he was taunting her with the bottle of valium. She said that she had not told any of the hospital staff the truth that the father had told her that he had drugged her with valium tablets in her tea because she “didn’t know how he would react” and because she was scared of him.
The father denies all of these allegations. I accept his denials. His demeanour in Court and in the witness box was straight forward. He was not evasive when answering questions. There was no suggestion of overacting or being unduly defensive. The family report writer had, in her report, opined that his demeanour during interview was atypical of a violent perpetrator. I formed a similar impression of him from his time in the witness box and in the Courtroom in general.
With respect to the mother, the evidence she deposed to is not at all consistent with the things she is recorded as having said to hospital staff in the hospital records that are in evidence. Of course, it is not beyond the realms of possibility that the things the mother is recorded by hospital staff, at the two hospitals she was admitted to in June 2009, as having reported to them, could have been false and part of a façade that she was presenting to mask a violent, abusive, controlling relationship and an attempted murder. In that respect, I accept that women sometimes do not report violence in their relationships for various reasons, particularly when the relationship is still on foot and they want it to continue. I am, however, conscious of the need to be satisfied on the balance of probabilities that an alleged fact is true before determining that it is. In deciding if I am so satisfied I have regard to the gravity of the allegations the mother makes against the father and that these proceedings are about whether or not the children of these parties have a relationship with the father as well as all of the facts that emerge in the case.[1]
[1] Evidence Act 1995 (Cth) s 140.
I do not accept that the father raped the mother as she alleges he did. I do not accept that the father abused the child, E, as the mother alleges he did. I do not accept that the father drugged the mother as she alleges he did. I do not accept that the father attempted to murder the mother as she alleges he did. None of the mother’s behaviour or utterances observed and reported upon from those days is consistent with a woman who believed her husband had raped her many times in the past and had just tried to murder her.
There is no dispute that the marriage relationship between the mother and the father completely ended shortly after the mother and baby H went home from hospital in July 2009 and the mother left the family home with the children in August 2009. There does not appear to be any dispute that the father commenced cohabitation with the young woman he had been having the extra-marital relationship with at that time.
In her trial affidavit, the mother said that she and the children lived in a home in Suburb A, the same suburb of Brisbane as the family home had been in, until 21 November 2010. Critically, the mother said in her affidavit evidence that just before she left that home she remembers an occasion when the father came to her house and raped her again. She said this was “the final straw” for her and she knew that she had to get away from him. The mother said that she went to live in a domestic violence refuge on the Sunshine Coast “due to the continual violence and rape”. The mother said in her affidavit that there was a domestic violence protection order in place at the time that the father raped her. It will be seen, therefore, for this to be correct the alleged rape had to be after 26 October 2009.
Queensland Police Service (QPS) records were admitted into evidence at the trial. They reflect numerous complaints being made to the police by the mother in this matter through 2009 and 2010 as well as domestic violence protection orders having been made on her application. They reflect no apparent reluctance by the mother to complain to the police about the father’s actions, no matter what they were. There is not one reference in the QPS records to any complaint of physical violence or rape having been made against the father, most particularly after 26 October 2009.
The QPS records in evidence reflect the following:
a)The mother complained to the QPS on 22 October 2009 that the father’s new partner had that day wilfully damaged the windscreen on her car with a screwdriver at the rental home she was living in in Suburb A, had contacted her by telephone and had boasted about what damage a screwdriver could do;
b)The QPS confirmed on 23 October 2009 that the windscreen on the mother’s motor car was cracked;
c)The QPS interviewed the father’s new partner on 1 March 2010 and she denied going to the mother’s address, denied damaging the windscreen and denied making calls to the mother’s phone;
d)In March 2010, the QPS investigating officer considered it possible the mother’s complaint was vexatious and motivated by relationship issues;
e)The mother privately applied for a domestic violence family protection order against the father and obtained a temporary order on 26 October 2009 that was effective until 11 November 2009;
f)Another temporary order was made around 11 November 2009 that was effective until 2 December 2009;
g)A domestic violence family protection order was made on 2 December 2009 against the father in favour of the mother that was valid for a year. The orders were made with the consent of the father who offered no opposition to the application;
h)On 30 December 2009 the mother called the police and told them that she had concerns that the father knew where she and the children were living and that he “may attend and harm” the children;
i)On 29 January 2010, the mother reported the father to the police for contacting her on her mobile telephone on numerous occasions in alleged breach of the domestic violence protection order;
j)On 29 January 2010, the mother also complained to the police about the father’s new partner, alleging that on 16 September 2009 the father’s new partner had attempted to commit identity fraud, pretending to be the mother to get financial advantage;
k)On 6 April 2010, the mother complained again to the police that the father had been contacting her on her telephone in breach of the domestic violence order, threatening to abduct the children. She is recorded as having told the QPS that she was in the process of moving into a refuge, forced to because the father was not paying child support or her rent (nothing was recorded as having been said about violence or rape). The mother was advised to record any further telephone calls made by the father;
l)On 28 May 2010, the father was spoken to about the complaint against his new partner of identity fraud. He is recorded as having reported that he and his new partner went to pay for repairs to his car on the relevant date in September 2009 and that they applied for finance to pay for it as his wallet had been stolen and he did not have any identification. As he had no identification and could not complete the finance request, his partner did, but in her own name and using her own identification. The bank account that was referred to was a joint account of the father and the mother. He reported that he asked his partner to provide her details but to provide the joint account of him and the mother on the finance application. Police recorded satisfaction that at no point had the father’s partner pretended she was the mother. The investigation was closed as no offence had occurred;
m)On 22 June 2010, the father voluntarily attended at the Suburb I Police Station and participated in a recorded interview. He made admissions that he had contacted the mother in response to her calls to him in respect to the children but denied making any threats. The father was charged with 1 charge of breaching the domestic violence order;
n)In July 2010, the father was convicted in the Magistrates Court of breaching the domestic violence order and fined $50 with no conviction recorded;
o)On 13 October 2010, the father’s new partner complained to the police that the mother had been repeatedly calling her on her phone and abusing her and telling her that her “boyfriend is cheating on you” and that she would “die”. She complained that the mother had been calling her and abusing her at her place of employment as well;
p)On 20 October 2010, the police spoke to the mother who denied having ever made any calls to the father’s new partner;
q)On 4 December 2010 another temporary domestic violence order was issued against the father in favour of the mother;
r)On 15 December 2010, police contacted the father’s new partner who informed them that the abusive phone calls from the mother had stopped since police spoke to her in October 2010 and her complaint was withdrawn.
There is simply no reference in any of that material to any complaint by the mother that the father ever raped her during their relationship or, more particularly, at any time after separation in late 2009 or in 2010, as she has more recently alleged in her affidavit evidence. Those police records reflect the mother saying that she was being forced to move to a refuge because she was getting no financial assistance from the father. They make no reference at all to a need to move because of alleged violence or a recent rape.
Under cross-examination at the trial, the mother agreed that none of the domestic violence applications she had brought against the father made mention of any alleged rapes. The explanation that she gave for that was that the applications were done before she went to the Town J Police Station later in 2011 or 2012 and reported the rapes, something she was prompted to do after she had been receiving psychological counselling.
The mother was clearly very determined to make complaint to the police about the father and his partner in 2009 and 2010 for any action that she considered harassing or a breach of the domestic violence order she had against him. It is, I consider, totally remarkable that the mother would complain to police about the father calling her and texting her on the phone but not to complain to them about him raping her during this time as she alleges. It is remarkable that she complained to the police that she was being forced to move to a refuge because of the father’s lack of financial support but did not complain to the police about what she has later said in affidavit evidence was the act that ultimately forced her to move to a refuge: the alleged rape of her by the father.
There was evidence that the father voluntarily spoke to police at Town J about the allegations the mother had made of rape and that the police had determined not to investigate the complaints any further.
The father’s partner, in her affidavit evidence, said that after the mother and father separated in 2009, the mother called the father on numerous occasions and told him that if he did not leave the new partner he would never see his children again. The father’s partner asserted that the mother even told the father that she would “put the children in a cardboard box”. She said that this caused the father such concern that he contacted police and the Department of Child Safety and began to call the mother to find out how the children were. She said that it was these efforts that apparently led to the mother applying for the domestic violence order against the father.
The father’s partner asserted that the mother made so many harassing telephone calls to the father at his place of employment, abusing other employees in the process, that the father lost his job at that business.
The father’s partner asserted that the mother took her to court on the 13^th November 2009 for “harassment” in which the mother alleged she had ripped clothes, destroyed photographs and smashed her car windscreen. The father’s partner said all these allegations against her were false and that when she was waiting outside the courthouse for the matter to be called on, the mother came up to her and “basically sat on [her]” and said “why are you here? You are stealing husbands”. The father’s partner then said that she heard the mother “pretending” to be on her phone saying “she is ugly, she is anorexic. How could [the father] leave for something like that?” When the matter was called on, the Magistrate adjourned it to allow the father’s partner to get legal advice. When she went back to Court two weeks later, the mother did not even appear and her application against the father’s partner was dismissed.

Under cross-examination at the trial, the mother agreed that she had brought an application against the father’s new partner under the Peace and Good Behaviour Act. She said that she did not turn up to Court for the hearing of the application because she believed it would be a waste of time, so she just decided not to turn up.
The father’s partner gave affidavit evidence that she and the father had a baby boy in September 2011. At the time of the trial, they had another young baby born in early 2013. She gave affidavit evidence that she has never felt threatened by the father or had concerns for the father’s care of their child. She said he is “a fantastic father” who is very “hands-on” with their child. She gave affidavit evidence that in all the times the mother had spoken to her in the calls she received from the mother after the separation of the father and the mother, not once had the mother asserted to her that the father had been a violent, abusive husband and father. She said that the mother called her so much at that time that she had to change her own mobile number so as to stop the harassment.
The father is recorded in the family report that was prepared by the consultant family therapist at the instruction of the ICL, as having told her that he came and went from the family home a few times around the end of the relationship as he was “just trying to see the children”. He is recorded as reporting that he lost three jobs because of the mother’s harassing phone calls where she would ring up his place of employment and abuse staff and tell them he was not paying child support and doing nothing to help his children. He is reported as having said that his salary was going into their joint account at the time and that the mother was withdrawing it all. He is also recorded as having said that he received legal advice at the time about seeing the children that he considered was inconsistent and incorrect and he was left thinking he was not permitted to contact his son for a period of time.
He is reported as having told the report writer that he was, after a time, told that he could speak with E by telephone at 7:00 pm and that when he did call, he could hear the mother in the background saying “he is not your daddy, your daddy is dead, this is someone else, your daddy left you”. He also said that the mother would, in those early months, ask him to collect E from day care at the end of the day, but that when he arrived there to collect him he would already have been picked up by the mother. He said in evidence that when he went to the mother’s place to check she would just laugh at the fact that she had duped him. He also is recorded as having told the report writer that the mother would invite him to visit the children saying they were unwell and would then tell the police he was breaching the domestic violence order on these occasions that he went to her home to see them.
In his affidavit evidence, the father said that he did not telephone the mother as often as she alleges. He said that his parents would tell him that the mother had called them and asked them to get him to call her and that when he did the mother would hang up and then complain to the police about him.
It is clear on the evidence that the mother did not have the father’s mobile telephone number at this time after separation. I am satisfied that he did not give it to her as he did not want the mother contacting him as she was.
The mother said that she tried to arrange family dispute resolution through Relationships Australia and mediation through legal aid and that the father did not wish to participate. The father said that it was the mother who ignored the process of mediation and that Relationships Australia had informed him that the mother wanted absolutely no contact with him. I consider that I do not need to determine where the truth lies on this particular point.
The father said that the mother left her home in Suburb A without any notice to him and without information given to him about where she was going. He said that it took him nearly a year to locate her before he was able to go on with the proceedings in the Court.
The father attached to his affidavit evidence filed 1 November 2012, transcripts of text messages that he asserted had been received by his mother on her mobile telephone between 24 October 2009 and 26 March 2011. It was asserted the messages were from the mother. In the message of 24 October 2009, the sender said “he can c the kids at little athletics but he doesn’t go”.
The message of 5 December 2009 was as follows:
This is so painfull not 2 b with my husband and b a family 4 xmas. I love him so much. I dont want us 2 b alone 4 xmas. R we welcome?
In another message that same day, the mother acknowledged that the father had made two reports to the Department of Child Safety about his concerns for the children. That is consistent with the affidavit evidence of the father’s new partner that he had done so.
The content of subsequent messages makes it clear that the mother is then sending texts to the father as well as the father’s mother, but through his mother’s phone. That is consistent with the mother not having the father’s mobile phone number at the time.
The message of 30 March 2010, refers to the father’s new partner breaking up “a loving family”. The same day, another message says “its time the kids and I start a new life safe and away from cold [Jasper]. U can say goodbye forever.”
The message of 6 December 2010 includes “we now live in a shelter without any of our things. The hate my son has 4 all of u 4 doing this to us.” It goes on a little later “u will never abuse us or c us again. Rot in hell this Christmas.”
Critically, under cross-examination in the witness box, the mother fervently denied that she had been the author of those texts and denied that she had sent any of them. In fact, she asserted that she did not have a contact number for his mother. She asserted that his mother would agree with her that she had not sent those texts to her. However, she did not call the father’s mother to give such evidence. Later in her cross-examination by counsel for the ICL, the mother was shown the phone that received the text messages and agreed that the phone number the texts were received from was …56. She was shown a document from the QPS records that recorded her complaint to the QPS of 28 January 2010 in which it is recorded that the mother complained that the father had called her on “her mobile number …56.” She agreed that was her mobile phone number at the time. Nevertheless, she still fervently maintained that she did not send the texts to his mother and to him. She asserted that she had given the phone to the father’s sister to give back to the father at some point in time. She did not say exactly when she asserted that was. She accepted that she still had the phone when the messages of 24 October, 16 November, 18 November and 5 December 2009 were sent. She still denied that she sent those messages. She offered no suggestion at all as to who may have sent them if not her.
Through her counsel, the mother then actually conceded that nearly all of the messages that were transcribed on the attachment to the father’s affidavit were actually on the phone that was shown to her, received on the dates asserted and that they were received from the number that the mother agreed was her mobile phone number, at least until sometime when she says she gave the phone to the father’s sister. The mother’s counsel put to the father in subsequent cross-examination, presumably on instructions from the mother, that he had received that phone back in January 2010. He denied that. As I have already observed, the evidence reveals the mother complained to police in April 2010 that the father continued to call her in breach of the domestic violence order. There is no other evidence at all that supports a finding that the mother changed her mobile phone number in January 2010 so that the father would not be able to contact her. I do not accept that she did.
The father gave evidence that he had been given the mobile phone upon which the messages were received by his mother to use as evidence in his case if it was useful. As I just observed, the father denied that he had ever received a mobile telephone from the mother delivered to him by his sister. I accept his denial. I do not accept the mother’s evidence that she did not send those text messages. I find that she did and that she deliberately and steadfastly lied to the Court in her oral evidence when she maintained that she did not.
The text messages, sadly, were filled with despair and, increasingly as time went by, abuse. Importantly, I consider, they displayed an increasing determination by the mother to prevent the children having a relationship with the father and his extended family when it became totally clear to her that he would not be returning to her to reconcile their relationship. The earliest of the messages display the feelings of a person, devastated by the loss of her marriage relationship with a person she loved and had lived with for 19 years, desperately trying to salvage something from her loss. The content of the messages is completely inconsistent with belief by the author of the messages that her former partner had been controlling, violent and abusive, had repeatedly raped her and had attempted to murder her in a grotesque and callous way. Gradually, though, I am satisfied, the nature of the content changed to reflect determination for vengeance.

Other Independent Expert Evidence

The family report that I have already referred to was written in July 2012. The mother was represented at that time by the same firm of solicitors who represented her at the trial. Clearly, she had the benefit of their considered legal advice at that time.
The report writer recorded that the mother was “adamant” that the father would not add any nurturing … or anything that would make [the children’s] life better.” The mother is quoted in the report as saying “I could not tell you one positive thing that [the father] could bring into their lives… [he] does not have the ability to bring joy and love to their lives.” She is reported as having said that she would not facilitate supervised contact, saying that she would not hand them over for a visitation. Significantly, the report writer wrote that the mother reported that if the Court orders supervised contact she will abscond with the children so it does not occur. She is reported to have acknowledged awareness that such would have to be reported to the Court. The report writer was never challenged on the accuracy of that reporting. I accept the mother said that to the report writer.
During the trial, there was no expression of remorse for that statement to the report writer. There was no evidence of a change from that position given by the mother during the trial.
The report writer observed that the child, E, was a sweet boy who readily shared information about his school, friends and his interests. She noted that it is apparent that E has been given negative information about his father. When he was asked about his family he said the people in his family were his sister and his mother. When asked who his other parent was he is recorded as replying “I don’t have another parent”. When asked why not he replied “um, cause I don’t want one?” He went on to say that he used to have a dad.
The report writer went on to recommend that both parents undergo a psychiatric evaluation and refrained from making any other recommendations apart from recommending the parents complete a Parenting Orders Program.
In her oral evidence at the trial, the family report writer observed that she had seen in documents from the contact centre where supervised visits were meant to have taken place in the lead up to the trial, that the child, E, was observed as maintaining eye contact with his mother the whole time he was at the centre. The mother gave evidence that she tells the children they only have to go if they want to, although she did go on to say that she does encourage it. I do not accept that she was encouraging it at that time. The report writer recommended that supervised visits take place at a place where there is a firmer approach to making sure that the supervised contact visit happens. She even went on to express the view that this may be a case where the Court may have to place the children with the father for some time.
A psychiatrist, Dr R, saw the mother in August 2012. She is reported by the doctor as telling him that she wishes to move forward with her life and have nothing to do with the father as he would have nothing but a negative impact on the lives of her and the two children.
She is reported to have told the psychiatrist that she had been admitted to hospital twice in her life after overdoses, telling him she believed that she “may have been drugged by her husband.” As I have observed, by the trial, the mother expressed more certainty in respect of this belief.
In his concluding remarks, the psychiatrist expressed his own belief that the mother presents with “a constellation of symptomology sufficient to warrant a psychiatric diagnosis of Adjustment Disorder”. He recommended no treatment save for encouraging her to continue to have contact with her psychologist. He expressed a belief that she was of sound mind and “capable of maintaining a loving, nurturing relationship with her children.”
The same psychiatrist saw the father in December 2012. In his report, he records the father as having told him that he seeks no contact with the mother but “is extremely distressed that he lost contact with his children as he states he loves his children and [is] willing to fight in order that he have a meaningful role in their lives and that he is in regular contact with them.” He is recorded as saying that the mother has “used the holding of the children as a weapon to punish him for leaving the relationship.”
The father is recorded as having said that he “accepts and understands that it may be difficult for the children initially with regard to their contact with him and to this end proposes a graduated series of contacts so that the children get used to him and can come to understand and meet their half-siblings and from this a greater relationship and contact can occur between them.”
Dr R concluded by noting that the father understood that the children would require a graduated reintroduction to him. He observed that the father had indicated he was prepared to obey any rules the Court set such as supervision of contact at a neutral contact centre, but that he would like the opportunity to show the Court that he is a capable and loving father. The father is recorded as favouring a progression of time with the children eventually proceeding to unsupervised time so that the two older children can be introduced to their half-siblings in due course.
The doctor observed no evidence of symptoms sufficient to warrant a psychiatric diagnosis and expressed the belief that the father is of sound mind, stable and capable of having a loving and caring relationship with his children.
When the doctor was cross-examined by counsel for the mother, he was asked whether he had any views about the likely impact upon the mother’s parenting capacity if the children began spending any unsupervised time with their father. He answered by acknowledging that she may be anxious and distressed but he did not consider that he could say that would result in any impact on her parenting capacity.
I have no reason at all not to accept the opinion evidence of Dr R.
During her oral evidence in the trial, almost one year after she had been seen by the psychiatrist and the family report writer, the mother confirmed that she still believed that the father did not offer one positive thing to the life of the children and she continued to maintain that the children are at significant risk of harm if they spend time with the father.
At trial, the mother also presented the case that the child, E, has been diagnosed with Asperger’s Syndrome and that this is another reason why he should not spend time with his father. She asserted, in reliance upon a written report by a psychologist, Ms M, that the child had been diagnosed as such. However, the ICL tendered into evidence a copy of a letter dated 5 March 2013 from paediatrician, Dr S. That letter simply confirmed that the doctor had seen E and his mother on three occasions since September 2012 about Asperger’s and also Reactive Attachment Disorder but that “his diagnoses are as yet not completely clear” and that the child was continuing to be assessed by him and psychologist, Ms K.
I do not accept that any possibility that the child might have Asperger’s Syndrome is reason for him not spending any time with his father.

Some findings I make

I am, as I have already said, satisfied that the mother knowingly gave false evidence to the Court with her denials about the text messages sent to the father’s mother’s mobile phone. I am also satisfied that she knowingly gave false evidence to the Court in alleging in her affidavits and her oral evidence that the father had repeatedly raped her right throughout their relationship and again after separation during the time when he had formed a relationship with his new partner. I am also satisfied that the mother’s evidence about the father being physically abusive to their son during their marriage was knowingly false.
Further, I do not accept that the mother truly believes that the father intentionally “drugged” her with overdoses of prescription medicine in the mid-1990’s and in June 2009. I am satisfied that in June 2009 the mother presented to hospital in a state of severe crisis in her mental health and was reasonably and justifiably considered by expert medical and ancillary staff to be an immediate risk to her own wellbeing and the wellbeing of her children. I am quite satisfied that the father did not at any time deliberately and callously give the mother a drug overdose with intent to cause her death and that she deliberately gave false evidence when she deposed to having heard him say words that would suggest that he did.
I am satisfied all of this false evidence was given by the mother with the intent of convincing the Court that it is not in the best interests of the two children for them to spend any time with their father. I am satisfied in doing so the mother is motivated by anger and bitterness she continues to harbour towards the father for having ended their long marriage and not by the best interests of her two children.
I am satisfied that it is in the long-term best interests of the two subject children for them to have meaningful relationships with both of their parents. However, I am satisfied that both of these two young children, E now aged 9 and H now aged nearly 5, are clearly primarily attached to their mother. They have only known her sole care since August 2009 and I accept that H would have absolutely no memory at all of any time spent with her father. He is, I am satisfied, a stranger to her and the evidence suggests that E’s memories of his father have actually been seriously affected by the views of his mother. It could only be very emotionally traumatic for both E and H to remove them from their mother’s care and the world they currently know and to put them straight into their father’s care. I am satisfied that the father recognises that and has not really wanted to do that but rather has just pursued these proceedings so that he and the two children might be able to have relationships.
Clearly though, the father and his partner, albeit with two little children of their own relationship, have indicated a willingness to have the two subject children live with them if the Court is satisfied that it is the only way that the children can be assured of being able to develop a meaningful relationship with their father.

I do not consider that there is an unacceptable risk of the two subject children suffering physical or emotional harm in the care of their father as the mother asserts. I am satisfied that the real risk to these children is a very serious risk of emotional harm being perpetrated upon them by their mother if she continues to oppose and prevent them from having the chance to develop meaningful relationships with their father in circumstances where I am satisfied there is no rational basis for such continued opposition. I am concerned that some of that emotional harm may already have been suffered by these two children.

What orders should now be made?

At the end of the trial, counsel for the ICL submitted that the Court should consider two possible outcomes. The first was making interim orders that the children live with the father and spend no time with the mother, bringing the matter back for further consideration at a later date as to the time, if any, the children should spend with the mother. The second was that the children remain living with the mother and that there be intensive therapeutic reintroduction of the children to the father.
For the father, it was submitted, albeit with reluctance, that the children should live with him in the home he shares with his new partner and their two young children. The evidence revealed that to be in the Town L area, west of Brisbane. I am satisfied that, as the father works, much of the care of the children would fall on his new partner in these circumstances. A major difficulty with that is that the two children do not know her at this point in time either.
In final oral submissions made on behalf of the mother, the Court was informed that the mother agreed only that supervised time with the father on the Sunshine Coast was acceptable to her. She lives in Town N which lies between Town J and Town O, thus about two to three hours driving time from the father’s residence. However, as I observed at the outset of these reasons, when the matter came back before me whilst my judgment was still reserved, the Court was informed that the mother was at that point supportive of a therapeutic reintroduction of the two children to their father, facilitated by a psychologist, Ms P, who had been located by the ICL in response to my request when I reserved my judgment at the end of the trial. I immediately made orders for that to begin.
I am presently unaware as to how that reintroduction is progressing, but at this point in time I am satisfied that the very best outcome for these two children would be one where they are successfully reintroduced to their father, with the support of their mother, and where they are gradually introduced to his new partner and their two half-siblings and begin to spend increasing periods of unsupervised time with the father, his new partner and their half-siblings on a regular basis, such that before too long they are spending alternate weekends and around half of their school holidays with them. That way, they will be able to develop the meaningful relationships with him, his partner and their half siblings that are in their best interests.
I am extremely hopeful that this can be achieved in a relatively short space of time. Regrettably, I am not highly optimistic about the prospect of it being successfully achieved. I remain seriously concerned that the mother may not yet be totally committed to such an outcome. Frankly, I consider the seeds for the success of this outcome rest in her hands and the efforts she makes for it to work and for the children’s relationships with their father to be facilitated and encouraged.
Notwithstanding my lack of optimism, my consideration that it would be the best outcome for the wellbeing of these two children is determinative of the orders I make at this point in these proceedings. I can only hope that what is now in place leads to a successful establishment of meaningful relationships between the children and their father in such a way that allows them to continue to have meaningful relationships with their mother. I will order that the psychologist, Ms P, continue to work with the parents and the children as previously ordered to achieve a successful reintroduction of the children to their father and the establishment of a regimen of regular, unsupervised time in his care whilst continuing to live principally with their mother. I will order that Ms P prepare a written report, at the joint cost of the parties in the event that Queensland Legal Aid Office will not pay for it, to be delivered to the parties and filed by the ICL by 30 June 2014 and I will list the matter for further hearing at 10:00 am on 11 August 2014.
Of course, the mother must be aware that if when the matter comes back before me for further hearing, I am persuaded that the outcome that I have already said I consider would be the best outcome for these children is unable to be achieved because of the mother’s continued unreasonable and unjustified opposition to it, there could very well be little alternative but to make orders that the two children live with the father and spend minimal, if any, time with the mother. The mother could not want that to be the outcome.

What of parental responsibility?

Of course, when making a parenting order in relation to the two subject children, the Court must apply a presumption that it is in their best interests for their parents to have equal shared parental responsibility for them (s 61DA(1) of the Family Law Act 1975 (Cth) (the FLA)). However, I am only making interim orders at this point in time and if I consider that it would not be appropriate in the circumstances of the case for the presumption to be applied when making the orders I do not need to apply it.
It is clear to me that the mother is not likely, at this point in time, to be able to comply with the obligations that s 65DAC of the FLA imposes upon parents who are to share parental responsibility for a child under a parenting order. Those obligations include the obligation to consult with the other parent in relation to decisions to be made about a major long-term issue (as that term is defined in s 4 of the FLA) in relation to the child, the obligation to make a genuine effort to come to a joint decision about that issue, and, in my view, the obligation not to make such a decision unless it is jointly made.
Accordingly, I consider it would not be appropriate in the circumstances of this case for the presumption to be applied on the making of the interim orders that I make. I expect the mother will need some time to read and consider these reasons and my findings and my determination as to what I consider would be the best outcome for these children. I consider that she will need some professional help to come to terms with my findings and my reasons. I will order that she continue psychological therapy with the psychologist of her choice and that the ICL provide a copy of these reasons for judgment to that psychologist.
Of course, when I make final orders in the matter, I will have to apply the presumption unless I am satisfied by the evidence that it would not be in the best interests of the children for these parents to have equal shared parental responsibility for them.
In the interim period, I do consider that the mother should begin to become accustomed to the process of consulting with the father about major long-term issues in relation to the children and making a genuine effort to come to a joint decision about the issue. I will make orders that provide her with opportunity by having to at least communicate with the father and seek his input in respect of any such issues. However, as I appreciate that the father does not have a great understanding of the children’s current personalities and needs, the orders will still leave final responsibility for making the decision with the mother.
If, as I hope, the parents and the ICL, with the assistance of the psychologist, Ms P, are able to reach a resolution of this difficult parenting orders dispute in the period between now and 11 August, 2014, a jointly signed minute of the orders that they all ask the Court to make can be sent to the Court and the further hearing may be able to be avoided.
I make the orders set out at the outset of these reasons for judgment.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 9 April 2014.

Associate:

Date: 9 April 2014

[2014] FamCA 235

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