Keates & Featherston
[2021] FCCA 1762
•5 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Keates & Featherston [2021] FCCA 1762
File number(s): NCC 1639 of 2013 Judgment of: JUDGE TERRY Date of judgment: 5 August 2021 Catchwords: FAMILY LAW – parenting – children aged 12, 11 & 9 – where the parents have been at war since they separated in 2013 causing great harm for the children – where currently the Minister for Families, Communities & Disability Services has sole parental responsibility for the children and at his direction they live with the mother – where the mother, the Department and the Independent Children’s Lawyer all propose that after a transition period the Department will bow out and the children will live with the mother and she will have sole parental responsibility for them – where the father proposes that the children live with him and spend limited time with the mother – where the father and his family have relentlessly made baseless allegations that the mother has been assaulting and injuring the children and has permitted paedophiles to sexually abuse them – where the behaviour of the father and his family has compromised the children’s well-being and the mother’s parenting capacity – where even during short supervised visits the father and his family question the children about the care they are receiving from the mother – where the oldest child now refuses to spend time with the father – where the mother, the Department and the Independent Children’s Lawyer all propose that the children spend no time with and have no communication with the father – where the orders proposed by the mother, the Department and the Independent Children’s Lawyer are in the children’s best interest – orders made to that effect Legislation: Family Law Act 1975 (Cth), ss 4AB, 60CC, 61DA Cases cited: A & Fire and Rescue New South Wales (2018) NSWIRComm 1039
Mazorski & Albright (2008) 37 Fam LR 518
Rice & Asplund (1979) FLC 90-725
Number of paragraphs: 316 Date of last submission/s: 7 May 2021 Date of hearing: 30 November, 1, 2, 3, 4 December 2020, 22, 23, 24, 25 March, 6 & 7 May 2021 Place: Newcastle Counsel for the Applicant: Mr Guyder Solicitor for the Applicant: CPH Legal Counsel for the Respondent: Mr Graham (6 & 7 May 2021) Counsel for the Respondent: Mr Richards (30 November, 1, 2, 3, 4 December 2020, 22, 23, 24, 25 March 2021) Solicitor for the Respondent: Brazel Moore Lawyers Counsel for the Intervenor: Mr Guterres Solicitor for the Intervenor: Crown Solicitors Office Counsel for the Independent Children’s Lawyer: Mr Boyd Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Newcastle ORDERS
NCC 1639 of 2013 BETWEEN: MS KEATES
Applicant
AND: MR FEATHERSTON
Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Intervenor
ORDER MADE BY:
JUDGE TERRY
DATE OF ORDER:
5 AUGUST 2021
THE COURT ORDERS THAT:
1.All previous parenting orders relating to the children X born in 2008, Y born in 2010 and Z, born in 2012 (“the children”) are discharged.
2.For a period of 6 months from the date of these orders, the Minister for Families, Communities and Disability Services (“the Minister”) shall have sole parental responsibility for the children.
3.At the expiration of Order 2, Ms Keates (“the mother”) shall have sole parental responsibility for the children.
4.During the period in which the Minister has parental responsibility for the children, the children shall live as directed by the Secretary, Department of Communities and Justice (“the Secretary”) or their delegate.
5.The children shall otherwise live with the mother.
6.Mr Featherston (“the father”) shall spend no time with and have no communication with the children.
7.For a period of six months following the expiration of Order 2 the mother shall:
(a)Accept the guidance and reasonable directions of the Secretary or their delegate.
(b)Comply with all reasonable directions given by the Secretary or their delegate in relation to the care, welfare, and development of the children including directions as to engagement with services.
(c)Permit the Secretary or their delegate to conduct unannounced and announced home visits and access to the children.
(d)Advise the Secretary or their delegate of any change to her contact details (including telephone number) within 2 days of any change occurring and of any proposed change to her accommodation at least 21 days prior to any change occurring.
8.Pursuant to s. 68B of the Family Law Act 1975 for the personal protection of the children the father is restrained from attending the mother’s residence and the children’s schools and extra-curricular activities and is restrained from empowering any other person to do so.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Keates & Featherston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TERRY
Introduction
These proceedings concern X, 12, Y, 11, and Z, 9. Their parents separated in 2013 and they are casualties of the war between their parents which has been going on ever since.
Not long after fresh proceedings commenced in 2018 the Department of Communities and Justice (“the Department”) took the children into care and sought leave to intervene in the proceedings. Currently pursuant to an interim order made by this court the Minister for Families, Communities and Disability Services has sole parental responsibility for the children and at the direction of the Minister they live with the mother and spend time with the father for one hour each week.
At the end of the trial the mother, the Department and the Independent Children’s Lawyer all proposed that for either six or twelve months the Minister continue to have sole parental responsibility for the children and the children live as directed by the Minister.
They proposed that at the end of that period the mother have sole parental responsibility and the children live with her.
It was proposed that the children spend no time with and have no communication with the father.
The mother, the Department and the Independent Children’s Lawyer all submitted that the father and his family posed a risk of harm to the children because they had a fixed false belief that the mother was permitting men called Mr B and Mr C to sexually abuse the children and a fixed false belief that the mother had repeatedly assaulted and injured the children and was neglecting them.
Until the Department intervened this had resulted in the children being repeatedly taken to doctors and pressured to make disclosures and in members of the Featherston family vilifying the mother at the children’s school.
The mother said that it would deleterious to the children’s well-being for them to spend any time with the father. X did not want to, and while Y and Z did, they would be exposed to ongoing psychological harm if they did so.
The mother said that there was clear evidence that even supervised time between the father and the children provided no protection against the father questioning them and trying to get information to confirm his fixed false beliefs.
The mother’s counsel and the Department’s counsel submitted that the father’s relentless accusations and reports were a form of family violence which had worn the mother down and impacted on her parenting capacity and that was another reason why an order needed to be made for the children to spend no time with and have no communication with the father.
The mother said that since the Department had been involved she had co-operated with them and accepted their advice and she was confident that she would be able to properly care for the children and manage their behaviour once the Department ceased to be involved. The children’s current caseworker said as follows about the support that the Department proposed to offer to the mother during that period:
During the period that the Minister has parental responsibility for the children, it is intended that an intensive family preservation service will be engaged to provide support to the family through casework, home visits, offering referrals and case planning. Communities and Justice propose to engage the service D Therapy for this purpose. The Better Options program is a three-month service of intensive support. Two referrals would be made to allow for six months of support. Communities and Justice proposes that at the expiration of the six-month period, NDIS funding will be utilised to arrange for an D Therapy youth worker to continue providing support for Y.[1]
[1] Paragraph 53 of the Affidavit of Ms EMs E dated 24 November 2020.
The father sought an order that the children live with him and spend supervised time with the mother. In his filed documents he proposed that the supervised time occur on four occasions each year, but during his evidence he said that he would be prepared to agree to the children spending additional supervised time with the mother.
It was the father’s case that the mother had failed to properly attend to the children’s educational needs and to engage them in any extracurricular activities and had repeatedly assaulted and injured them and had encouraged them to lie and that they were unsafe in her care. He also alleged that she had permitted them to be sexually abused by Mr B and Mr C.
The father maintained that the mother had an alcohol use disorder, that she was incapable of managing Y’s behaviour, which posed a threat to X and Z, and that Z was starting to show similar escalating behaviours. He maintained that the mother had even recently left the children unsupervised which was a serious concern given Y’s behaviour to his siblings and that the maternal grandmother, who she sometimes called on to assist her, was not an appropriate carer for the children.
The father’s case was effectively that after the Department became involved in 2019 they became part of a conspiracy to protect the mother and hide what was happening for the children. He said they had failed to properly investigate complaints made by the children, failed to press charges against the maternal grandmother or take out an ADVO against her after an incident with Y, removed case workers if the children formed a rapport with them and were failing in their duty to look after the children.
This is a second round of litigation and I must be conscious of the Rule in Rice & Asplund,[2] but no party has ever suggested that it was inappropriate for the court to consider parenting arrangements for the children afresh.
[2] Rice & Asplund (1979) FLC 90-725
The evidence
The mother relied on her Affidavits filed on 28 February 2020 and 20 November 2020, and the Affidavit of the maternal grandmother, Ms F, filed on 28 February 2020.
The father relied on his Affidavits filed on 28 February 2020 and 19 November 2020, and the Affidavits of his brother, Mr G, his father, Mr H, his partner, Ms J, and Ms J’s sister Ms K, all filed on 28 February 2020.
The Department relied on the Affidavits of Ms E, the case worker who has been in charge of the family for some time which were filed on 28 February 2020 and 24 November 2020. The Department also relied on an Affidavit of Mr L filed on 30 November 2020. Mr L is a psychologist who has been involved with the mother and the children.
An expert report was prepared by Dr M, a Consultant Forensic, Child, Adolescent and Generalist Psychologist. His original report was dated 26 June 2019 and he prepared an addendum report dated 11 March 2020.
All of the witnesses were cross-examined.
There were also a large number of documents tendered in the proceedings.
There were problems with the evidence of all of the non-expert witnesses.
In respect of the mother there were contradictions between the evidence in her affidavit and the answers she gave in cross-examination about the issues of getting a locked box for the knives in her home and about putting a lock on Y’s bedroom door. However there were no major credit issues with the mother.
There were major credit issues with the father.
On a number of occasions he gave evidence which was simply not borne out by documents. For example he alleged that the Industrial Relations Commission handed down a decision on 1 June 2018 in which they noted that New South Wales Police Officers had failed to report and act on sexual assaults of children by serving New South Wales Police officers. The decision in A & Fire and Rescue New South Wales (2018) NSWIRComm 1039 makes no such findings. The only relevant part of that document is that the father was fined $5,200.00 in relation to his work performance and was reprimanded.
The father had absolutely no compunction about stating as fact things which later could not be supported by any evidence. For example, he alleged in his second affidavit that the mother had a new boyfriend who was a member of the ‘N Gang’. There was simply no evidence at all anywhere throughout the trial to support that allegation.
The evidence the father gave about the mother hitting X with her shoe changed and was embellished over time. In one of the father’s earlier affidavits he said that he observed the mother to hit X with a shoe. In an affidavit filed in February 2020, he said that X told him that was how she got a red mark on her arm. During cross-examination he agreed that he did not see it happen, and he even said that he did not hear X say that. He said X said it to the paternal grandparents, who took her to the doctor after she came on a visit to the father with a red mark on her arm.
The shoe incident was referred to by members of the Featherston family when they were interviewed by Dr M, and in those interviews the incident had become one where the mother had allegedly belted X with a shoe, resulting in a bruise and welt marks.
There were many examples of embellishment and inaccuracy in the evidence of Ms J. Her evidence about the reason she sought an ADVO against the mother in 2019 was contradictory. In her affidavit the only complaint she referred to in relation to the mother was that the mother had been trying to get Y to find out where Ms J and her ex-partner lived. Her sister, Ms K, gave evidence that Y was asked to do that in 2016, three years before the ADVO application was made.
During cross-examination Ms J said that she applied for the ADVO because the mother had been stalking her on social media. Mr G, who supported Ms J at the Local Court when she made the application, gave some even more grandiose evidence about why the application was made.
There were concerns about the evidence of the paternal grandfather, Mr H. When he was confronted in cross-examination about the difference between evidence he was giving about an incident at the children’s school and what was in school notes, he maintained that the school notes had been manufactured by the school. However, he gave evidence about another incident which involved the school and was asked to read the entry and agreed that it was accurate.
Mr H said in his affidavit that he put $50.00 at the canteen to assist the children to buy food because the mother was not giving them enough food to take to school. In cross-examination, he said he put it there because X and the boys were not getting breakfast.
The most serious credit issues of all were with the paternal uncle, Mr G. He told Dr M in April 2019 that he was on medical leave from his employer. He was, in fact, dismissed from the public service in 2015 or 2016. He swore in his affidavit that Mr B came to the door of the mother’s home to receive a registered letter in 2019. This was an outright lie. The documents attached to his own affidavit showed that the letter was collected at a post office.
During the course of the trial Mr G alleged that in 2012 when he was a public servant, he went to the home of Ms E, the children’s caseworker and removed her children because of an allegation that her partner had touched one of the children’s penises. Ms E said that this was a complete fabrication, and notwithstanding that Ms E denied it and that no independent evidence could be found to support it, the father and Mr G persisted with it to the end of the litigation. This false allegation can have had no other purpose than to try to intimidate Ms E and cause her to withdraw from involvement in the matter.
I will need to carefully consider the evidence about each matter in dispute but the fact that there are credit issue with a witness can be relevant to the findings the court makes about matters in dispute.
Background
The mother and father commenced living together in 1998. They separated on 17 June 2013, according to the mother, or 22 June 2013, according to the father, but nothing turns on which date is correct. They have three children: X born in 2008, Y born in 2010, and Z born in 2012.
The father was employed during the relationship and provided financial support for the family and the mother was the children’s primary carer.
At separation the children remained with the mother who moved into rented accommodation. The father commenced living with his brother, Mr G.
On 8 July 2013 the mother filed an application seeking parenting and property orders. Interim orders were made by consent for the children to live with the mother from midday on Sunday to midday on Thursday each week, and with the father from midday on Thursday to midday on Sunday.
The father continued to work full time and his brother, Mr G and his parents, Mr H and Ms O had a significant role in the children’s care when they were with the father, which included taking them to doctors, school and extra-curricular activities.
The parents could not agree about final orders and in due course a family report was prepared and the matter was listed for trial on 16 February 2015.
On the day the trial was due to commence information emerged that Mr B, a man with whom the mother had formed a relationship a short time before, had a history of sexual assault convictions. The mother was informed. She said she was previously unaware of it, and she said that she ended the relationship that day. The hearing did not proceed and the matter was adjourned to 20 October 2015.
On 20 October 2015 orders were made by consent finalising both the parenting and the property matter.
In relation to the parenting matter, it was ordered that the mother have sole parental responsibility for medical decisions about the children and that parental responsibility otherwise be shared. It was ordered that the children live with the mother and spend time with the father each alternate week from after school on Thursday until the commencement of school on Tuesday, which was five nights a fortnight.
Prior to the final orders being made the father had made numerous complaints that the mother was deliberately injuring the children. The shoe incident that I referred to earlier allegedly occurred in November 2013. The father also alleged among other things that the mother had hit and bruised X, hit Y with a spoon causing bruising, given X two black eyes and had repeatedly caused bruising to Y and Z’s legs, back, stomach and head. The children’s injuries had been repeatedly photographed and Y had been required to take part in a video.
The father also alleged that Mr B had sexually assaulted both X and Y and that a police officer called Mr C, who he alleged the mother was in a relationship with, had sexually assaulted X. On 1 January 2015 the Featherston family took X to a doctor and subjected her to a physical examination. The examination did not reveal anything of concern and X made no disclosures about having been sexually abused.
Allegations about Y being sexually abused were the subject of a JIRT investigation but risk of harm was not substantiated.
The final orders contained a restraint on the mother causing or permitting the children to come into contact with Mr B but importantly for the purposes of this decision it also contained the following restraints:
1.7 Each party is restrained from:
(a)Physically disciplining the children;
(b)Causing the children to be interviewed by a police or welfare authority otherwise than in case of a genuine emergency or as directed by the said authority;
(c)Causing the children to be photographed for the purpose of recording any alleged injury;
(d)Questioning or interviewing the children about persons or events occurring in the household of the other parent;
(e)Permitting any third party to do any of the things set out in this order.
…
1.9The father is restrained from taking the children to any medical practitioner, psychologist or associated health worker otherwise than in case of emergency or with consent of the mother and from causing or permitting any other person to do so.[3]
[3] Orders 1.7 and 1.9 of the Orders made on 20 October 2015.
After the 2015 orders were made X lived her paternal grandparents during the time she was to be with the father pursuant to the orders and Y and Z lived with the father and Mr G. I was told during the trial that the reason for this was that the mother had earlier made an allegation about the father behaving in a sexually inappropriate way with X and the father and his family formed the view that in order to protect the father from further allegations X should live with the grandparents rather than with the father. X spent time with the father and her siblings when the father was not working.
After final orders were made the paternal grandparents and Mr G continued to be heavily involved in the care of the children, including taking them to school and extracurricular activities and notwithstanding Order 1.9 above, taking them to the doctor.
In September 2015, shortly before the orders were made, the father had formed a relationship with Ms J. Ms J and the father have never moved in together but after the orders were made Ms J also began to take a role in the care of the children.
After the orders were made the father continued to repeatedly claim that the children had bruising and injuries caused by the mother. He also alleged that they were being neglected and that the maternal grandfather had mistreated Y.
Notwithstanding the order about the father being restrained from taking photographs of the children for the purpose of recording any alleged injury or taking them to the doctor except in the event of an emergency, this repeatedly occurred.
The father also formed the view that the mother had not ended her relationship with Mr B and that he had continued to visit her home and had sexually abused Y and X. There was also an allegation that the mother had drugged X to facilitate abuse by Mr B.
The father also continued to assert that X had been sexually abused by Mr C and he alleged that Mr C and another police officer, Mr P, were involved in child paedophilia.
Over the years numerous notifications were made, anonymously and not anonymously to the Department. Ms J, Mr G and the paternal grandparents also raised concerns about what was happening to the children at the children’s school. The father also said that he tried to report the allegations of abuse and sexual abuse to the police but they got angry with him and wouldn’t listen. However notwithstanding that the father had alleged for years that the children were being abused by the mother and sexually abused by people she was associating with and that the authorities would not help him he did not bring the matter back to court and when he was asked about that in the current proceedings he said it was because he thought he would not get justice in the Family Court.
The matter returned to court on 6 March 2018 because the mother filed an application seeking an order that she be able to change the children’s school from Suburb Q Primary School to U Primary School which was in the suburb next to Suburb Q Primary School and was closer to her home.
When that application came before the court the father said that he was opposed to the children changing schools, even though his residence was equally distant from both schools.
On 11 April 2018 the mother amended her application to seek an order for sole parental responsibility in addition to the order about the change of school.
The fact that the mother brought the matter back to court gave the father an opportunity to do something about his concerns. In the response he filed on 28 June 2018 he sought an order that he have sole parental responsibility for the children and that they live with him and spend no time with the mother for three months before progressing to supervised time with her each alternate weekend.
In his supporting affidavit he raised all of the allegations that I have referred to earlier and alleged that the children were at unacceptable risk of harm in the mother’s care.
On 8 August 2018 the mother amended her application again and sought orders that she have sole parental responsibility, that the children live with her and that they spend supervised time with the father for two hours per fortnight at a contact centre.
The father agreed to pay for the preparation of a private report, and on 21 February 2019 an order was made appointing Dr M to prepare a report.
Prior to the interviews for that report occurring however, the Department became involved in the matter.
It is apparent from the material produced on subpoena that Y had had behavioural issues for some time. There are reports in material produced by the school about his aggression to other students and his learning difficulties in 2017 and 2018. He began acting out at home, and the mother struggled to cope with his behaviour. It was reported that on occasions she would lock herself, Z and X in a room to protect them from Y when he was going on a rampage.
In early 2019 Y’s behaviour at home worsened. The mother said that he was swearing and hitting and kicking her and the other children. His behaviour at school also deteriorated. He was reported to be lashing out at teachers and students and threatening self-harm, hitting his head, stabbing himself with pencils and talking about committing suicide or hurting himself. On 13 March 2019 he was taken from school by ambulance to R Hospital after having a meltdown at school. On that occasion he said that he was not feeling safe with his father and he wanted to die.
Following that incident the Department began to have a look at what was happening in the family. Ms E said in her affidavit that from June 2013 to April 2019 the Department received 60 risk of harm reports about the family, and between February 2019 and March 2019 alone the Department received nine significant risk of significant harm reports about the children.
On 15 March 2019 caseworkers attended the mother’s home to do a safety assessment. They concluded that the children were safe with her although they expressed concerns about the children’s mental health and emotional wellbeing.
On 20 March 2019 caseworkers requested an interview with the father but he declined to cooperate and would not take part in an interview.
Problems with Y’s behaviour continued. There were further reports of him self-harming, including tying a rope and electrical cords around his neck. He again said that he did not want to live with his father and was scared of him.
On 28 March 2019 Y was admitted to R Hospital for an urgent mental health assessment because he was becoming increasingly distressed and talking of suicide. He was reported to be hitting his head, punching walls, throwing his body against walls and picking up items to stab himself in the face and neck.
On 28 March 2019 there was an incident at the children’s school involving Mr G and the paternal grandfather. They confronted the mother of a child who had allegedly pulled X’s ponytail and Mr G was subsequently charged with a number of offences including impersonating a police officer.
On 28 March 2019 the Department stepped in and assumed the children into their care. They placed them in the care of the mother and on 3 April 2019 they obtained an emergency Care and Protection order from the Children’s Court.
On 4 April 2019 the Department appeared in this court and sought leave to be joined as a party in the proceedings between the mother and the father. Interim orders were made on that day for the Minister to have parental responsibility for the children and for the children to live as directed by the Minister and spend time with each parent as directed by the Minister.
The Minister directed that the children remain living with the mother.
Between 28 March 2019 when the Department became involved and 11 July 2019 none of the children spent any time with the father save that X and Z saw him at interviews conducted by Dr M on 24 April 2019.
The Department formed the view that Y’s mental health was precarious and that it was not be appropriate for him to take part in the interviews.
Dr M’s report was released on 26 June 2019. He said that he did not recommend complete separation of the children from either the mother or the father (unless the mother was found to have an alcohol use disorder as alleged by the paternal family) and recommended that the court make an order for equal time provided that the mother did not have a raised CDT level indicating active excessive alcohol consumption.
This recommendation did not find favour with either parent or with the Department and the father was also concerned about the fact that Y had not been interviewed.
On 11 July 2019 the father commenced spending one hour with the children each Thursday supervised by D Therapy. It would appear from Ms E’s affidavit that the Department had formed the view that the father was a potential risk of harm to the children, and that was all the time the Department were prepared to agree to.
On 25 July 2019 Y was removed from the mother’s care because of continuing concerns about his violent behaviour within her home. The Department arranged for him to undergo assessments and on 18 October 2019 he was diagnosed with Autism Spectrum Disorder and ADHD. The Department applied for NDIS funding to provide some assistance for him in the form of occupational therapy and speech therapy and other interventions.
The Department put into place steps to transition Y back into the mother’s care and to give her support and education around boundary setting and managing the children’s behaviours. Y began spending increasing amounts of time with her and the other children, including time in her home, and on 28 October 2019 he returned to live with her with ongoing support from youth workers from S Centre.
On 25 October 2019 the father filed an application in a case seeking orders that X and Z spend equal time with each of the parents and that Y live with the father and spend supervised time with the mother. This application was opposed by the mother and the Department and on 11 December 2019 the father’s interim application was dismissed.
On 19 December 2019 the father ceased spending time with the children. The supervised time had been taking place in a park but the father and Ms J made many complaints about it. They complained there were not enough staff and that there was no-one to take X to the toilet, and they came into conflict with supervisors who then said that they felt threatened and withdrew their services.
The Department repeatedly asked the father to bring no more than two or three other people to any visit, a reasonable request given that the visits were meant to be for the father to spend time with the children and they were only for an hour, but the father insisted that Ms J, her three children, his brother Mr G, and both of the paternal grandparents attend, and the supervisors the Department provided found it impossible to properly supervise the time with all those people attending in a park and people going off in different directions.
As a result the Department decided that they would shift the supervision to an office. The father would not accept that this was appropriate notwithstanding his constant complaints about what had happened in the outdoor setting and he ceased to spend time with the children.
The Department continued to make the children available to spend supervised time with the father but he did not attend any visits between 19 December 2019 and 27 February 2020 when he resumed spending time with the children following a meeting on 18 February 2020.
In January 2020 Y commenced attending T School in a class which was considered to be suitable children with the issues with which he had been diagnosed. At the same time the Department, who had sole parental responsibility for the children, moved X and Z to U School.
The parties remained in dispute about what should happen on a final basis and the matter was listed for trial on 23 to 26 March 2020. An order was also made by consent for Y to be interviewed by Dr M and he prepared an addendum to his report on 11 March 2020.
At or about this time the COVID-19 crisis commenced and by 23 March 2020 the Court was not conducting face-to-face hearings but had begun to do hearings using the Microsoft Teams platform. This proved satisfactory throughout 2020 and it was proposed that this hearing be conducted in that way. However the father objected to that occurring and as a result the trial dates were vacated and the matter was listed for trial commencing on 30 November 2020.
The father’s visits with the children continued after the hearing was adjourned but on 4 May 2020 X would not attend. She subsequently attended on 14 May 2020 but there were some issues during that visit. Ms E said as follows in her affidavit:
On 14 May 2020, X attended a visit with her father, the paternal uncle, the paternal grandfather and Ms J. The report of the supervised visit indicated that during the visit, X was lying down with her head on the paternal grandfather and feet on the lounge and was speaking to him. The contact worker heard the paternal grandmother mention the word "Aboriginal" to X and then heard X stating: "But I’m not Aboriginal, I'm not black". The report indicated that X approached the contact worker and requested to call her mother. The contact worker heard X saying to her mother: "you know how I didn't want to see Dad? Well they made me, and now Pop keeps telling me I'm Aboriginal, and I'm not Aboriginal. Why does he keep saying that? Do I have to go back to school?" The contact worker observed that X was crying…
…
From 18 May 2020 X refused to attend any visits with the father. The Department tried to encourage her to go. Ms E said as follows in her affidavit:
During my interview with X on 2 June 2020…I spoke to her about spending time with her father and paternal family members. X said that she spoke to her nan and pop during visits and said. "dad doesn't really talk to me, but that's ok, because I've had enough of him". X said that she felt uncomfortable during a visit because her pop had told her that she was Aboriginal and her mother had told her that she was not. X said: "I don't like seeing any of them at all, because of the stuff they say". X said that her pop had talked about her weight and said she was "too skinny". X also said that she didn't like that Ms J took photos of them and said: "she puts them on Facebook and tries to make it look like they are a normal happy family". I asked X what was good about visits and she replied: "it is good when they don't happen".[4]
[4] Paragraphs 93 and 95 of Ms E’s Affidavit.
On 4 June 2020 X disclosed to a case worker that Y had punched her and threatened her with a knife. The mother said she was unaware of the incident but subsequently found two knives and two pairs of scissors in Y’s room. The Department felt that both children were depressed and that the mother was struggling to cope with the situation and they removed all three children from her care.
The children began residing in a house under the supervision of workers from D Therapy. The mother was permitted to spend time with them several times a week for a number of hours supervised by the youth workers, initially in an outdoor setting but from 10 October 2020 at their placement. The father continued to spend one hour a week with Y and Z and continued to insist on bringing a large number of family members with him, and that time continued to be problematic.
The trial commenced on 30 November 2020. It was listed for five days but it turned out to be an extremely lengthy trial and that was partly because of the very lengthy cross-examination of witnesses by the father’s counsel and the constant interruptions caused by his demands for the production of documents. On the fifth day, when the matter had to be adjourned, the father sought orders about the children, because it was clear that the Department were intending to transition them back to the mother’s care. He said that he was opposed to that and he also sought an order which would allow him to spend more time with the children.
An interim hearing was conducted but I did not accede to either of the father’s requests.
The Department proceeded with their plan to transition the children back to the mother’s care and in January 2021 they were again living with her.
The matter was listed for a further five days in March 2021. During that time cross-examination of most of the remaining witnesses took place and cross-examination of Dr M commenced. However during cross-examination of Dr M the father’s counsel took ill and the trial had to be adjourned to May 2021.
The father’s counsel was unable to resume the trial due to ill health and the father instructed new counsel who concluded the cross-examination of Dr M and Ms E and made submissions. At the end of the trial the parties’ positions were as I have outlined at the beginning of the judgment.
The parties circumstances
I am going to briefly touch on the parties’ circumstances before I make findings about the children’s best interests.
The mother is 53 and lives with the children in Suburb Q in a three-bedroom home.
The mother is an office worker at the Employer V and works five days a fortnight, and on the days she works she leaves home at 8.30am and returns at 5.00pm. Once every 12 weeks she needs to work on a Saturday.
The maternal grandmother lives two streets away from the mother and she is a source of support for the mother. Some issues were raised about the maternal grandmother which I will go into more detail when making findings about the children’s best interests but she continues to have some involvement with the children. She is somewhat restricted in what she can do because the paternal grandfather, Mr W, has dementia and cannot tolerate the noise of children in his home. Therefore when the maternal grandmother cares for the children she normally comes to the mother’s home.
When the hearing resumed in March 2021 Y had an NDIS worker who was coming to the home after he finished school and spending some time in the home with him until the mother returned from work and if I correctly understand the evidence X and Z go to the mother’s home after school and are in the home until she finishes work.
Y continues to attend T Public School. X and Z attended U Primary School during 2020. It is a couple of blocks from the mother’s home. X was due to commence high school in 2021 and I would presume, although I do not remember this being clarified, that she moved to AA School as planned, which takes students from U Primary School.
In September 2020, the mother formed a relationship with a man called Mr BB or Mr BB. They are not living together but Mr BB stays over. He was not called as a witness in the case but nothing adverse is known to the Court about him.
The father alleged, from the very beginning of the trial, that Mr BB was a member of the N Gang. He was never able to produce the smallest scrap of evidence to support this allegation. The Department undertook a police check after the mother’s relationship with Mr BB began and the only police entry for Mr BB is a driving charge in 2001. Mr BB has his own accommodation in City CC and has children of his own. It is unclear if there is any intention for Mr BB to ever move in with the mother.
The father is 47. He is a public servant for Employer DD. When the trial commenced in 2020 he was living with his brother, Mr G, in a five bedroom home in Suburb EE. Between the end of the hearing in December 2020 and the recommencement of the hearing in March 2021 that home was sold and the father is currently living with his parents, Mr and Mrs Featherston, in Town FF. Mr G also has a room in that home. The father was keen to emphasise that Mr G came and went.
The father commenced a relationship with Ms J in 2015. She has three children who were nine, eight and six at the commencement of the relationship. Ms J lives in Suburb GG and there was contradictory evidence during the hearing about when and if the father and Ms J might live together.
Ms J said that it was likely to happen once the proceedings were finished but that they would need to look for new premises if they had the father’s three children as well as her three children in their care.
The father was less forthcoming about when they might live together. He said that it would take at least a couple of months to work out what to do after orders were made and in the meantime the children would live with him. Initially he said they would live with him and his brother, Mr G, in the place in Suburb EE but now it would mean them living with him and his parents and with Mr G when he was there, in the house at Town FF. There is enough room in that house for that to occur.
The children’s best interests
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act 1975 set out the matters to which I must have regard in order to determine the children’s best interests.
The first primary consideration, in s. 60 CC (2) (a), is the benefit to the children of having a meaningful relationship with both of their parents.
The children have a meaningful relationship with their mother at present, in other words a relationship which is significant, important and valuable to them.[5]
[5] Mazorski & Albright (2008) 37 Fam LR 518
The father asked the court to make an order that the children spend limited supervised time with the mother in the future, which would put an end to them having a meaningful relationship with her. He alleged that this was necessary for their safety because the mother had repeatedly assaulted and injured them over a period of about eight years and had exposed them to sexual abuse.
The children do not currently have a meaningful relationship with the father. For the majority of the period since the Department intervened in the proceedings the children have spent one hour a week with him, and that has been in the company of numerous family members, and the father has often utilised the time to question the children.
The father sought an order that the children live with him which on his case would mean that a meaningful relationship would be restored between him and the children.
While the 2015 orders were in place the mother never tried to stop the children spending time with the father but his time with them dwindled away to almost nothing after the Department intervened and the mother made it very clear throughout the hearing that she did not want the children to have anything to do with the father or any of the Featherston family in the future. During cross-examination she said “I definitely believe they are bad people” and said that she did not think it was healthy that the children had any relationship with them.
The mother was asked when she had come to that view and she said it was when the father had started to make false allegations about her being associated with paedophiles and putting the children at risk.
That leads into the second primary consideration, in s. 60 CC (1) (b), which is the need to protect the children from physical or psychological harm from being subjected or exposed to abuse neglect and family violence. Pursuant to s. 60 CC (2A) the court must give greater weight to this consideration than to the consideration in s. 60CC (1) (a).
Whether the children are at unacceptable risk of being subjected to or exposed to abuse neglect of family violence in the mother’s care
The father detailed at considerable length in his affidavit numerous occasions when he alleged that the children had come to him with bruises, scratches, black eyes and the like and disclosed to him that the injuries had been deliberately caused by the mother.
The mother responded in detail to some of the allegations but she also denied generally that there was any truth in the allegations that she had deliberately harmed the children.
For a number of reasons I cannot be satisfied on the balance of probabilities that the mother has assaulted or injured the children.
First, some of the allegations about the mother having harmed the children were made by Mr G, a wholly discredited witness with a propensity to lie and make up evidence.
Second, the allegations are based on things the children have allegedly said to the father and his family (and I include Ms J in this description). Even if they have accurately reported what was said to them the children are caught in a high conflict situation and there is a very high chance that they have said things to please or because they have felt pressured.
During submissions Counsel for the Independent Children’s Lawyer referred to evidence by the paternal grandfather during cross-examination that when the children came to their home they would run in and tell him that the mother had not caused their bruises or cuts. He said however that by the end of the visit they were telling the truth and saying that the mother had hurt them. It is frankly incredible that the paternal grandfather cannot see what he and his family are doing to the children.
Third, the father and other members of the Featherston family may not be accurately reporting what was said to them. They are extremely hostile to the mother and were not witnesses of credit. The father’s story about the shoe incident changed markedly over time, and Z said as follows to Dr M:
..sometimes Dad tells fake things like Mum’s hurting us.[6]
[6] Dr M’s Report page 9 line 283
Fourth, it is open to me to find that the father is pressuring the children to be untruthful. Dr M reported as follows about his interview with Y in March 2020:
I asked Y about his father. Y said “I don’t want him to come (in) with me because he tells me to tell the doctor the truth”. He said, “I am afraid he will tell me to do (this)”. I asked how often Y saw his father. Y said every week. I asked what was that time like? Y said, “It’s good, I like playing with him…He keeps whispering in my ear that Mr B touched my rude parts – it didn’t happen”.[7]
[7] DR M’s Addendum Report page 3
Fifth, some of the injuries that were reported could have innocent explanations. The father and Mr G both formed the view that Z had been deliberately injured by the mother when they saw that he had some front teeth missing. When the father reported that to the police, they pointed out to him that given Z’s age, his teeth may have simply fallen out naturally. The father refused to accept that but it is an entirely plausible explanation for Z losing teeth.
Sixth, the children have not suggested to third parties that the mother is deliberately injuring them. When they were interviewed by caseworkers after the Department became involved, Z and Y said that their injuries have been caused by them fighting, and X and Z have also said on different occasions that Y has caused some injuries to them. These are entirely plausible explanations for bruising and scratching on children.
Seventh, the mother admitted causing one or two of the injuries, namely a couple of scratches or a nick, but she said they had been caused accidentally as a result of her having long fingernails. This is also a plausible explanation.
The father not only believes that the mother has assaulted and injured the children, he has been adamant in talking to caseworkers and was adamant during the trial that the mother may kill the children. In an interview with caseworkers in March 2019 he said that the children had suffered injuries since 2013 and he had over a 100 photos of the injuries. He said that he was concerned that the mother would cause serious injury to one of the children leading to their death and that he would be in the Coroner’s Court given evidence about the failure of the Department to protect the children.
During cross-examination, he was asked:
Do you believe the mother is trying to kill your children?
He responded:
I believe she is capable of it.
When asked about the fact that X, who is not seeing him at the moment, might resist living with him if an order was made for that to occur, he did not directly answer the question and said he would have to see, but she could not stay where she was and that she would end up dead in her mother’s care. He later said:
I have always believed the mother could kill the children. They could die at her hands.
The father has been claiming since the parties separated that the mother has been assaulting and injuring the children and he maintained at trial that she could kill them. It is a fixed false belief and it is a fixed false belief shared by other members of the Featherston family.
Another fixed belief of the father’s which is also not supported by the evidence, is that the mother continues to be in a relationship with Mr B, that Mr B continues to attend her home, that Mr B has sexually abused the children and that the mother has been complicit in that by ‘drugging’ X.
The mother met Mr B on a dating site in 2014. Mr B has convictions for child sex offences and he is a person of concern.
The mother said that he had never stayed at her home when the children were in her care and that he had never been left alone with the children. She said that when she first met him he seemed kind and that was why she persisted in a relationship with him. She said that when his criminal record was revealed to her in 2015 she immediately ended the relationship.
The mother agreed that there were a couple of occasions after that when she did have some contact with Mr B. She said that he came to her home on one occasion to collect a whipper snipper that he had left there, and she said that he mowed her lawn, but the children were not there. She also said she agreed to meet him in May 2015 but that was to get some information she needed for the proceedings. The mother was adamant that she had not breached the order made in March 2015 after the original trial was adjourned that the children not be brought into contact with Mr B.
There is simply no basis for me to find that the mother is being untruthful about that. The father has persistently alleged since 2015 that Mr B is still on the scene and that he has spent time at the mother’s home. There is simply no evidence to support that allegation and the evidence by Mr G about Mr B coming to the door of the mother’s house and collecting an item of registered mail in 2019 is false and fabricated. The father relied on a couple of things that the children had said but in this high conflict situation they are unreliable and I cannot use them as a basis for making a finding that the mother has continued to be involved with Mr B.
The father complained bitterly throughout these proceedings that he had made notifications to the Department and they had been ignored, but the Department did not ignore the allegations he made in 2015 and 2016 about Mr B. On 3 June 2015, between the revelation about Mr B in March 2015 and the consent orders being made in October 2015, there was a JIRT investigation into an allegation that Mr B had sexually inappropriately touched Y. Y was interviewed and did not disclose any sexual abuse.
Further notifications were made to the Department about Mr B, and on 16 November 2016 there was a further risk of harm report that he had been sexually abusing Y. Y was again interviewed, this time by a detective and a case worker. He made some statements about Mr B but sexual harm was not substantiated.
The father refuses to let go of this belief. In his affidavit filed on 28 February 2020 he said that in May 2018 Y allegedly said in a conversation with Mr G that Mr B had sexually abused X. He went on to say as follows:
I subsequently contacted Suburb HH Police and had the following conversation with a Police Officer:
Me:“Mr B has sexually assaulted my daughter X. I heard this from my son Y. There is a Court Order stopping him from being around the kids. Mr B is living there. You’ve done nothing to protect the kids, just to cover up your boss’s sexual assault on X”.
Police Officer: “If you hang onto the kids you will be arrested”. He then hung up on me.[8]
[8] Paragraph 76 of the father’s affidavit filed on 28 February 2020.
When Y was interviewed by Dr M in March 2020 he told him that his father kept whispering in his ear at supervised visits that Mr B had touched his rude part, but it did not happen.
The father persisted during the trial in trying to prove that the mother was lying when she said she had not recently spent time with Mr B. His counsel showed her a group picture of people taken in 2018 and it was put to her that two of the people in the group were herself and Mr B. The mother denied it. There was no foundation for the allegation and I cannot go behind her denial.
There is absolutely no basis for me to find that Y or X have ever been sexually interfered with, abused, touched, or anything else, by Mr B. There have been no admissions or disclosures by the children to any independent person, and this is another matter about which the father has a fixed false belief.
The father has also alleged that the mother has been allowing the children to be abused by a paedophile ring who were being protected by corrupt police. Dr M commented on this in his report. He said as follows:
It was not clear whether the paternal family’s beliefs about police corruption (involving a conspiracy covering up child abuse claims) were true for false. The beliefs were not bizarre. Though the beliefs sounded far-fetched, there was a possibility they were true.[9]
[9] Dr M’s report page 52 line 1672-1674.
In cross-examination that father said that he did not persist with his allegation that the children had been abused by a paedophile ring but he said that he did believe that a police officer named Mr C had sexually abused X. The basis for that belief was that he said that she had returned home in January 2015 with a red genital area and fingerprint bruising. He said that X told him that Mr C had touched her “down there” and he said that his parents had heard that disclosure. The father alleged that he believed that the mother had commenced a relationship with Mr C in 2013 before she separated from the father and had continued in that relationship until 2017.
Based on this belief the father, his parents and Mr G took X to a doctor in January 2015. She was subjected to a physical examination which did not reveal any signs of abuse and she made no disclosures. The doctor’s notes record that she was extremely distressed during this examination.
The mother said that she had never even met Mr C. She said she knew he was an officer at the Suburb HH Police Station and she had spoken to him on the telephone three or four times when making some reports. She said that when she read the father’s affidavit filed on 28 June 2018 in which he alleged that she had been having an affair with Mr C she rang him to tell him that, but she said that she had never met him in person. The mother was adamant about that throughout the trial and there is simply no evidence to contradict it.
The highest the father’s evidence went in support of an allegation that the mother knew Mr C and/or had an affair with him was that he alleged that he had seen the mother standing talking to someone in a police uniform around the time of separation.
I do not accept the evidence of the father or Mr G that they have ever seen Mr C with the mother, and I consider that this evidence, at least in the case of Mr G, has been fabricated. It might be that for some reason the father has fallen in with Mr G’s assertion that a person seen with the mother was Mr C, but I do not accept that evidence.
The father has also alleged that the mother had a sexual relationship with a police officer named Mr P who he asserts is a child abuser. The mother said she had not only had she never met him, she had never even spoken to him. The father does not accept the mother’s denials and in cross-examination he said, “I still believe the mother is in contact with sex abusers.”
The father is never going to let those allegations go. He rang the children’s school counsellor on 3 May 2018 and told them that the children had issues because they had been sexually abused by Mr C and his beliefs about the children being sexually abused have resulted in some very unfortunate incidents for the children, including Y being interviewed twice by JIRT and X being subjected to an intrusive internal examination.
The father made other allegations about the children’s safety in the mother’s care including allegations about lack of supervision and about the behaviour of the maternal grandmother. I will refer to those when making findings about the mother’s parenting capacity, but for the purposes of s. 60 CC (2) (b) of the Family Law Act 1975 I do not accept that the children are at unacceptable risk of harm in the mother’s care.
Whether the children are at unacceptable risk of being subjected to or exposed to abuse neglect or family violence in the father’s care.
The children are not at risk of neglect in the father’s care. The issues I need to consider are whether they are at risk of abuse or of being subjected to or exposed to family violence.
I will defer consideration of whether the children are risk of being subjected to or exposed to family violence until I make findings later in the judgment about whether he has perpetrated family violence.
The mother alleged that prior to separation the father assaulted the children, which comes within the definition of abuse in the Family Law Act 1975. She alleged that the father had been rough, aggressive and intolerant of bad behaviour and had physically harmed X and Y in quite a serious way. However she subsequently consented to the orders in 2015 and the father denied the allegations and the older allegations were insufficiently explored in cross-examination to allow me to safely make findings about them.
The mother did not allege that the children had complained to her about the father physically harming them since separation. Z and Y have complained to others about that however, in the context of having food forced into their mouths.
It might have been argued that the father’s campaign to prove that the mother had been assaulting the children and allowing them to be sexually abused had the capacity to cause the children serious psychological harm, which is a form of abuse as that term is defined in the Family Law Act 1975. However the mother, the Department and the Independent Children’s Lawyer did not frame their case in that way.
I am therefore going to consider the impact on the children of the father’s fixed false beliefs when considering his capacity to provide for the children’s needs. I will also come back to the allegations by Z and Y about being force fed, because another of the father’s fixed false beliefs is that the mother is starving the children.
Dr M prepared a report following interviews in April 2019 with the mother, the maternal grandmother, the Featherston family and X and Z, and he prepared an addendum to the report in March 2020 after interviewing Y.
At the beginning of the report he said that he had been asked to provide a psychiatric assessment of the parents, the children and the father’s new partner. He said he had done that and had also interviewed the paternal grandparents, the paternal uncle and the maternal grandmother and he made comments about their psychiatric state in his report as well.
Some of the things in the report cause me significant concern. One is the following passage:
If the Honourable Court found that the mother had coaxed, induced or compelled the children to refuse contact with the father and the father’s family, this may be considered emotionally harmful to the children. From the information available to the writer, there were probable indications that the mother had unconsciously discouraged the children to spend time with the father.[16]
[16] Lines 1720 – 1723 of Dr M’s Report.
The report was completed shortly after the children had been taken into care by the Department. They were not spending time with the father then but that was the decision of the Department. Up until late March 2019 the father had been spending time with the children in accordance with the 2015 orders for three and a half years. There is absolutely no evidence that the mother had ever coaxed, induced or compelled the children to refuse contact with the father and his family, or indeed that the children were refusing to do so at the time of the report interviews.
Another is that he referred a number of times in the conclusion section to his report to the possibility that the mother had alcohol use disorder. The only basis he had for being concerned about that was things the Featherston family had told him during their interviews, and it pervades his recommendations. He did not find that she had an alcohol use disorder but he kept saying “If she had this” and “If she had that”.
Dr M made the following recommendation:
…if the mother has confirmed alcohol use disorder (detected by a raised CDT level), then separation from the mother was clinically recommended until the mother has achieved sobriety for at least 6 months.
…
…For these reasons my recommendation would be for the Honourable Court to make Orders to have equal time between the parents, provided the mother does not have a raised CDT level, indicating active excessive alcohol use.[17]
[17] Page 56 and 57 of Dr M’s Report.
It is impossible to understand, even in the light of information in the report, why Dr M thought that could possibly be in the children’s best interests. He recognised that the mother and father had no capacity to communicate, and the hostility the father’s family had for the mother was on open display when he interviewed them.
Dr M commented in his report that the father presented as generally capable and willing to provide for the physical, emotional and intellectual needs of the children. It is impossible to understand how he came to that view when he listened at length to the father and his family informing him that the mother was starving and abusing the children and then interviewed the happy healthy children.
I cannot place weight on the recommendations in the report and in any event no party in the proceedings proposed equal time.
Conclusion
The father sought an order that the children live with him. Nothing in the evidence supports such an outcome.
If the children lived with the father they would be embedded in a family which holds a false fixed belief that they had been physically and sexually abused in the mother’s care, including by a man the mother has never even met and a false fixed belief that the mother has repeatedly assaulted and injured them. They would be living with a parent who completely lacks the capacity to provide for their emotional needs. It would be psychologically destructive for them and would be contrary to their wishes, entailing as it would, I am satisfied, an end to their relationship with their mother no matter what order I made.
In addition, there are the issues of the father refusing to accept Y’s diagnosis of autism, and the fact that X does not want to even spend time with him.
The only order the court could make is that the children live with the mother. They love her and are content to be in her care. This is borne out by what they said to Dr M, it is obvious from considering some of the things that Y said when he was taken into care initially, before all of the children were taken into care, and it is obvious from what he said to Dr M at the interviews in early 2020.
The mother has some parenting capacity issues. She has not handled Y’s behavioural issues well in the past. I cannot be certain what the future will hold in that regard but the mother has been willing to accept the assistance and recommendations of the Department about how to manage the situation.
There are some risks that the mother will not cope but putting the children with the father is not an alternative option. If the mother is unable to cope in the future, Y may again face the prospect of going into out of home care because there is no other place he can safely go.
The father would probably want unsupervised time if he could not have the children living with him but unsupervised time would be out of the question. All the old difficulties of the children being photographed, taken to doctors, feeling obliged to make disclosures to please the paternal family, and being exposed to the paternal family’s false fixed beliefs about the mother, would be there. It would be psychologically damaging for the children to put them back in that situation.
The other alternative is supervised time. No one asked me to make an order for supervised time but the court is not bound by the proposals of the parties and I need to consider whether it is an option. X does not want to see the father but the boys do, and supervised time would at least allow that connection to continue.
However even during supervised visits of one hour in duration the father has made an effort to garner complaints from the children about the mother, or used his observations of the children to make complaints. When he cannot find anything serious to complain about he complains about things that are less serious. A couple of his complaints from recent visits have been about the children having nits or Z telling him that the mother had used his child support money to buy a large TV.
Even close supervision of the father’s time will not stop the father making observations, jumping to conclusions and making complaints.
The Department asked the father, from the beginning, to avoid discussing certain topics with the children at the supervised visits. Ms E said as follows in her affidavit:
On 4 July 2019, Mr OO telephoned the father and Ms J to organise supervised time with the children. Mr OO informed the father that he should avoid discussing certain topics with the children, including the children’s mother, the potential safety concerns in the mother’s home and any other negative comments. The father informed Mr OO that he was agreeable to not raising those topics but he would not steer the conversations away from those topics if they came up…[18]
[18] Paragraph 113 of Ms E’s affidavit.
It is open to question whether the father has even abided by his agreement not to raise certain topics. I referred earlier to the fact that he asked X during her last visit how she came to have a bruise.
When the mother’s counsel asked the father in cross-examination about the fact that he continued to ask the children questions about Mr B, he responded:
Isn’t that what any caring parent would do?
When he was asked in cross-examination about the allegation he made that Y had been told by a case protection worker not to tell Dr M certain things and to hide them and about whether it was likely that caseworkers would say such a thing he responded
I believe they tell him that because if it comes out it would prove that I was telling the truth.
The father has a conspiracy mindset and nothing is ever going to change in that regard.
Making orders restraining the father from doing things would do no good. He repeatedly breached some of the 2015 orders.
X has not seen the father for 12 months so an order that no time occur is not going to be a change for her. Z and Y have expressed a wish to continue to see him but it would be wholly destructive for them if the time continued and they will have to be assisted to cope with the fact that it is not going to continue.
The Department proposed that the Minister continue to have parental responsibility for six months and that the mother then have sole parental responsibility for the children. The Department proposed that for the first six months after they ceased to have sole parental responsibility the mother agree to accept guidance and direction from the Secretary.
The Independent Children’s Lawyer proposed that the Minister retain parental responsibility for twelve months.
There is a general concern about the mother’s capacity to handle Y’s behaviour and it is important for the children that she is supported but she has shown herself willing to co-operate with the Department and I intend to make the orders proposed by the Department.
The Department proposed that an order be made restraining the mother from bringing the children into contact with Mr B. There is no doubt that this should not happen, but there is no evidence that it has happened since interim orders were made in 2015 and Counsel for the Independent Children’s Lawyer suggested that in light of the father’s fixed false belief about Mr B it might lead to contravention proceedings.
There is merit in that submission and as there is no evidence that it is a risk which needs to be guarded against with an order I do not intend to make the order.
The orders of the court will be as set out at the beginning of this judgment.
I certify that the preceding three hundred and sixteen (316) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Terry. Associate:
Dated: 5 August 2021
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