Laurent and Mullam
[2018] FCCA 1644
•25 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAURENT & MULLAM | [2018] FCCA 1644 |
| Catchwords: FAMILY LAW – Parental responsibility – no time with father – mother’s implacability – pressure on children – father’s changed circumstances – mother’s parenting ability – order children live with mother notwithstanding concerns. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC(2) & (3), 61DA, 65DAA & 65DAC |
| Applicant: | MR LAURENT |
| Respondent: | MS MULLAM |
| File Number: | ADC 2136 of 2012 |
| Judgment of: | Judge Mead |
| Hearing dates: | 30 March 2016, 31 March 2016, 1 April 2016, 9 June 2016 and 10 June 2016 |
| Date of Last Submission: | 10 June 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 25 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr McQuade |
| Solicitors for the Applicant: | Daniel John Lawyers |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Ms Fuda |
| Solicitors for the Independent Children's Lawyer: | Denise M Rieniets & Associates Pty Ltd |
ORDERS
That all previous orders made herein be discharged.
That the mother have the sole parental responsibility for [X] born 2005 and [Y] born 2007.
That the said children live with the mother.
That the mother facilitate [X] and/or [Y] spending time with the father if they express a wish to her to do so, and on such terms and such conditions as the children may request and as agreed between the parties.
That the mother provide to the father copies of all and any end of term or end of school year reports for both children together with photographs of both children taken on or before about 30 June and 31 December each year.
That the mother forthwith advise the father in the event of either [X] or [Y] suffering serious accident or significant ill health such that they are hospitalised, with such information to be provided within 24 hours of any such period of hospitalisation by way of SMS text message.
That all extant applications be otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Laurent & Mullam is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 2136 of 2012
| MR LAURENT |
Applicant
And
| MS MULLAM |
Respondent
REASONS FOR JUDGMENT
Introduction
The children the subject of these proceedings are [X] aged eleven at the time of trial and [Y] aged nine at the time of trial.
The parties commenced litigation with respect to parenting issues in June 2012. On 7 November 2013 the proceedings were finalised by way of a consent order. Unfortunately by early 2014 the parties were again in dispute. The trial commenced in March 2016 and concluded in June 2016.
I sincerely apologise to the parties, the children and the Independent Children’s Lawyer for the delay in the delivery of these reasons and order. I stress that the delay in my delivery has not impacted on any on my reasoning on decision.
Background
In June 2012 the father filed an application seeking final parenting orders with respect to [X] and [Y]. He sought an order that the children live with each parent on a week-about basis and that the parties have equal shared parental responsibility for the children.
In the mother’s response she sought that she have sole parental responsibility for the children, that they live with her and spend time with their father in accordance with their wishes.
The parties had commenced a relationship when the mother had come to Australia from (country omitted) with her two children from a previous marriage in 2004. At that time, the father, who had also been born in (country omitted) but who had come to Australia to live in 1982, was living in Melbourne with his family. He had a daughter from a previous relationship who initially lived in Melbourne and then later in Adelaide with her mother.
The parties married on 2004. They separated on 30 April 2012. By that time the parties had lived at Suburb E in South Australia from approximately December 2006.
In the father’s affidavit in support of his initial June 2012 application he deposed to “considerable disharmony in the relationship for some time prior to separation” and made allegations of violence towards him by the mother, leading to police reports. He deposed to the mother leaving the former matrimonial home and removing the children from their schools on 30 April 2012.
The father deposed to having been in receipt of a disability pension due to work injuries from approximately 1993, to the mother not working during the period of the marriage, to him having a good relationship with each of the children and to having been their primary caregiver and attending to all of their everyday needs. He also deposed to delivering the children to and from school.
In response the mother deposed to a history of control and violence towards her during the period of the relationship and marriage, to the father severely curtailing her freedom of movement and to the father drinking heavily to the state of intoxication several times each week.
She deposed to the parties frequently arguing, to the father becoming more aggressive and argumentative when under the influence of alcohol and to the father suffering from a depressive disorder. The mother deposed to trying to protect the children from the arguments and from the verbal abuse towards her by the father in the presence of the children.
The mother deposed to having to seek medical attention on three occasions as a result of physical abuse towards her by the father, and to the abuse, both verbal and physical, frequently occurring in front of the children, although not being directed at them. She deposed to police attending at the home but to her not taking further action in an endeavour not to further anger the father.
She deposed to the father controlling her social interaction away from the family home and forcing her to have sexual intercourse even when she did not wish to do so, with the last such event occurring in January 2012.
She alleged the father viewed sexually explicit and pornographic material on the internet and that he took explicit photographs and video footage of her posing and performing sexual acts. She said she participated under duress and was afraid of consequences if she refused to comply with the father’s requests.
The mother deposed to being pressured by the father to engage in sex acts with he and another male contemporaneously and said she agreed to do so in circumstances where she feared a refusal would result in physical abuse.
She deposed to feeling degraded and abused by the father when forced by him to perform sexual acts in accordance with what he was watching in pornographic videos, and to being too frightened to refuse his request.
The mother alleged that she sought medical assistance and was prescribed anti-depressants as a result of her low mood arising from the father’s attitude towards her and said she was assisted by that medication.
She deposed to being responsible for all of the children’s day-to-day and long-term needs at the time including taking them to school, playing with them and ensuring that they were fed, bathed and clothed.
The mother alleged the father become increasingly isolated and spent most of his time in the home, showing little interest in the children and not participating in the parenting role.
On 31 August 2012 an order was made for the two children to spend time with the father supervised at the Suburb B Children's Contact Service. A report from the children’s contact service was filed by the father’s solicitor on 3 June 2013 and on 25 June 2013 an order was made for the preparation of a Family Report.
The court noted on that occasion that further supervised times for the children with their father at the Suburb B Children's Contact Service were available if the court so ordered or the mother consented. No further interim orders were made on that occasion for the children to spend time with the father.
A Family Report was prepared by Family Consultant Ms D and released on 19 August 2013.
At the next hearing on 7 November 2013 the court made final parenting orders by consent.
The order provided for the parties to have equal shared parental responsibility for the children, for the children to live with the mother and spend time with their father on alternate weekends from after school Friday until the commencement of school Monday and from after school Wednesday until the commencement of school Thursday in each other week.
Orders were made in relation to handover arrangements, the school to be attended by the children, communication between the parties and for the parties to do all things necessary to facilitate the attendance of the children at therapeutic counselling as recommended in the Family Report.
The report was not challenged by either of the parties, who elected to resolve issues by consent. It did however raise serious concerns about the dynamics between the parties both during the period of the relationship and post separation, and the possibility that the children experienced some level of pressure from the mother to align to her point of view of the father.
It referred to both parties’ history of depression and anxiety and the capacity of both parents to provide for the children’s emotional and physical needs in the early years of their lives.
The report referred to particular concern about [X]’s presentation, including her lack of educational progress and social isolation at her school.
There were concerns expressed by Family Consultant Ms D as to [Y]’s health, which had allegedly led to hospital attendances because of headaches and vomiting. These issues were observed by the report writer during the family report interviews.
Concern was expressed as to the level of the mother’s cooperation with the supervised time visits at the Suburb B Children's Contact Service and the question of whether the mother was attempting to influence the children’s views.
Against that background it was probably not surprising that by June 2014 the father had filed an application for contravention of the orders, which was listed for hearing on 28 October 2014. On that occasion the court ordered an Independent Children’s Lawyer and adjourned the matter to 18 November 2014.
The matter was further adjourned to 11 February 2015 with the parties ordered to confer with the Independent Children’s Lawyer on 14 January 2015.
By the next hearing on 11 February 2015 the father was appearing in person and the mother had changed the children’s school without consultation with the father. The father was ordered to file and serve any initiating application with respect to resumption of the order of 7 November 2013 on or before 27 March 2015, with the matter being further adjourned to 21 April 2015.
The father’s initiating application seeking orders for a reinstatement of the order of 7 November 2013 was filed on 12 March 2015. On 21 April 2015 a Family Report was ordered and the mother was restrained until further order from facilitating the children’s attendance upon any mental health or allied health professional for any form of therapeutic intervention or counselling without an order of the court.
On 9 July 2015 a Family Report was released. The report raised serious concerns as to the children’s educational progress or lack thereof, their regular absence from school or late attendance, and to the schools concern about any handovers for the children to spend time with their father being conducted at their school.
Both children allegedly refused to be observed with the father for the purposes of the preparation of that Family Report and the Family Consultant expressed serious concern as to the ability of the children to re-establish a secure relationship with the father if they remained in the mother’s care.
The Family Consultant recommended that the children be placed in the father’s primary care and spend limited supervised time with their mother at a children’s contact service until she no longer posed a risk of alienation of the children from the father.
On 10 August 2015 the matter was listed for trial on 24 February 2016.
On 25 January 2016 the trial date was varied to 30 March 2016. The trial commenced on that day.
The applicant father was represented by counsel as was the Independent Children’s Lawyer. The mother attended in person.
On 1 June 2015 the mother’s solicitor had filed a notice of withdrawal of lawyer. Her new solicitors filed a notice of address for service on 21 July 2015. On 24 February 2016 the mother filed a notice of address for service on her own behalf.
On 25 January 2016 the court had ordered that the father file his trial affidavits on or before 17 February 2016 with the mother to file her trial affidavits on or before 2 March 2016. On that occasion the mother’s previous solicitor Ms Boylan attended for the mother.
Ms Boylan filed a further notice of withdrawal as lawyer on 10 March 2016.
In circumstances where at the time of the commencement of trial the mother was unrepresented and had not filed any trial affidavits, the court determined that she should give her evidence orally at the commencement of the proceedings, which evidence was adjourned to enable the Family Consultant, Ms N to be interposed.
Part-way through the Independent Children’s Lawyers’ cross-examination of Ms N, the matter was further adjourned until later in the day to enable the children to attend upon Ms N at approximately 2:00pm to enable the expert to observe [X] and [Y] with their father.
The court noted that the mother’s friend Mr M would deliver the children to the court in the absence of the mother and the mother was otherwise restrained during the period of the adjournment from coming into contact with the children.
When the matter resumed late that same day Ms N gave oral evidence as to her observations of the children with the father, with cross-examination by the father’s counsel and the mother following thereafter.
The trial continued on 31 March 2016 and briefly on 1 April 2016 prior to be adjourned part-heard to 9 June 2016.
The trial ultimately concluded on 10 June 2016.
Orders sought by the Parties at trial
The father, in his application filed on 12 March 2015 sought that the existing consent orders of 7 November 2013 be reinstated – that is, remain in full force and effect and resume in operation. Those were the orders to which I referred in paragraphs 24 and 25 hereof.
By the time the trial commenced on 30 March 2015, the father’s position had changed markedly and the orders sought by the father were that both [X] and [Y] live with him, that he have sole parental responsibility for the children and that they spend such periods of supervised time with their mother as ordered at a Children's Contact Service. He further sought that the mother forthwith provide to him all of the children’s medical, dental and schooling records.
In the mother’s response filed on 16 April 2015 she sought that the consent orders of 7 November 2013 be varied such that the children’s time with the father be reduced to two (2) hours per month on a professionally supervised basis at the Suburb C Children's Contact Service. She further sought that paragraphs 4 and 5 of that order which refer to handover arrangements be excised.
She did not seek to vary the order for equal shared parental responsibility, or the orders relating to the children’s attendance at School 1 Primary School, the use of the communication book, the provision of contact telephone numbers and the attendance of the children at therapeutic counselling. She further did not seek to interfere with the order whereby the children were not to be removed from the state of South Australia or the Commonwealth of Australia without the prior written consent of the other of them.
At the time of the filing the response the mother was represented by Radin Legal Pty Ltd. By the time of trial she was, as I have said previously, was unrepresented and had not filed any further documents since her affidavit filed on 15 April 2015 in support of her response.
At the commencement of the trial the mother gave evidence that she was not against the children seeing the father and was willing to keep bringing them to the Suburb B Children's Contact Service so that the father could pick the children up from there and keep them for as many days as he wished.
In final submissions, she submitted that the children should have contact with the father and that she was agreeable to that. When asked what contact she meant, she told the court that at first it should be under supervision by a third party in a government institution. She further said that she did not know how long that such an arrangement should continue and in relation to the children spending time with their father on weekends, she replied that she thought they could do that if the father could manage.
She stressed both at that time and on numerous other occasions during the proceedings that everything was up to the children and not up to her. It was her view that the children were old enough to make that decision and when asked whether she thought that at the time of trial the children didn’t want to have contact with their father she replied that she didn’t know, that she wasn’t able to speak and that she needed to go home and lie down.
Nothing in the mother’s evidence, in-chief and in cross-examination, or in her presentation and demeanour throughout the trial indicated in any way that she supported the proposals she made for final orders. To the contrary, I eventually came to the view that the mother was implacably opposed to the children having any relationship with their father at all and further, the proposals she made were based on a concern on her part that if she did not make a proposal for order the children may be removed from her care.
It was submitted by counsel for the Independent Children's Lawyer that orders as sought by the father were in the best interests of the children. Ms Fuda further submitted that if the children were to live with the father there needed to be a “settling-in” time in circumstances where in the period since they had previously spent time with their father he had married, the father’s wife was not known to the children and the father and his wife were having a baby.
Ms Fuda submitted that the “settling-in” period where it was proposed the children not spend time with the mother should not be for a long period of time as the children needed to maintain a relationship with the mother.
Evidence of the expert Ms N
The report for the trial was prepared by Regulation 7 family consultant Ms N.
She had spoken with the father, the mother and the children on 29 June 2015, on which day she had also observed the children in the presence of the mother. Efforts by Ms N to seek information from the School 2 Primary School were unsuccessful.
Ms N did not observe the children with the father in circumstances were she describes both of the children as refusing her invitation to do so. Ms N recommended in her report that unless the court accepted the mother’s claims of child sexual abuse, the father should have sole parental responsibility for the children.
She further recommended that the children live with him and spend supervised time with their mother at a children's contact service with the supervision to be suspended when the mother was able to prove to the court that she no longer posed a risk of alienation of the children from the father.
She recommended that the father be at liberty to re-enrol the children at their previous school and that the father engage the children in therapy as well as obtaining a full paediatric review for each child. She recommended that the mother provide the father with all relevant medical, dental and schooling records for the children including Women’s and Hospital assessment labelling [X] with autism spectrum disorder.
In paragraph 24 of her report Ms N expressed a view that the mother presented as “fixed in her position that the children had been harmed and would continue to be harmed in their father’s care”. She reported that the father “provided a clear, detailed and articulate narrative. He presented as having a genuine love and care for the children, a genuine concern for their wellbeing, and to be a child-focused and emotionally attuned Father…”.
In her report she referred to the mother’s refusal to have contact with the father, and to the father’s hope that she would communicate with him because he considered that it was better for the children.
In her report in paragraph 29 she referred to the father having serious concerns for the children and to what he considered to be the mother’s unsuccessful attempts to destroy his relationship with his older daughter A.
The mother alleged to the expert that the father was manipulative, that he had been physically abusive to [X] and to [Y] and she said that [X] had reported that abuse to a Dr W post separation.
She reported that the father alleged physical violence towards him by the mother that she was emotionally manipulative of the children.
In paragraph 33 she referred to the father’s concerns that the children would begin to believe lies told to them by the mother about him and the alleged risk he posed to them.
She reported that the father expressed concerns about the mother’s use of alcohol and pain relief medication which he had observed during the relationship, and to the mother’s mental health. He reported concerns about the children becoming mentally unstable in circumstances where he believed they were being made to fear him.
The father reported to Ms N (paragraph 36) that the incident leading to the mother withholding the children from him in February 2014 was manipulated by the mother.
She reported that the mother told her the father had taken photos of the children whilst naked and showering (paragraph 37) and further that he watched what she considered to be child pornography. She reported Mr Laurent’s denial of those allegations of the mother as well as other allegations made by her that he masturbated or engaged in sexual acts in the presence of the children, held a sword at the children or chased [Y] with a chainsaw. He did say that he had used a leaf blower with [Y] and that [Y] had enjoyed using this with his guidance (paragraph 37).
Ms N reported the mother’s claim that after the incident in February 2014 she had offered for the father to have small amounts of time with the children by text message to which he had not responded, and further, that he had not attended to collect the children from the children's contact service in the April 2015 school holidays and further, that he had not attended to collect the children from school in accordance with existing orders.
The father disputed all of those matters in his discussions with Ms N and said that it was his belief the mother was manipulating the children against him.
The mother told Ms N that she had not alienated the children but would prefer that they had no contact with him. In the parties’ discussions with Ms N, there was dispute as to whether the father had been advised of the change of the children’s school and Mr Laurent also reported that he had no knowledge of an assessment of [X] diagnosing autism spectrum disorder.
It was very clear from each party’s version of events as presented to Ms N that there was a high level of conflict between the parties and no level of communication whatsoever.
Ms N interviewed both of the children. She described [X] as appearing anxious throughout the interview and presenting in a way that was not consistent with a typical 10 year old child (paragraph 48). The expert raised the possibility of developmental or cognitive limitations underlying [X]’s presentation and lack of free discussion on any topic, and reported that the child appeared to struggle to comprehend simple questions.
Ms N expressed concern as to [X]’s level of comprehension of the English language and the possibility of pressure being brought to bear on the child to respond to questions with a “correct” answer (paragraph 48).
[X] was unable to explain to Ms N why she felt “not good, scared and frightened” of her father and was unable to place that in any context. She was also unable to provide Ms N with an explanation as to why she did not want to spend time with her father in the future or meet with him for the purposes of the assessment.
In paragraphs 50-54 of her report Ms N discussed her interview with [Y] who she described as friendly and quiet. She referred to [Y] also appearing anxious when speaking with her and providing limited responses to questions.
[Y] did not have any criticisms of his mother according to Ms N, but stated his father did not give him a lot of presents and had not bought him a trampoline. She referred in paragraph 51 of her report to [Y] adding “and he was watching kids with no clothes like zombies at night time”.
She referred to [Y] telling her he had heard that while sleeping, and to [Y] not responding when she asked him how he knew what the images looked like.
Ms N reported [Y] denying having any fun in his father’s care and saying that he felt “sad and angry” in his father’s care including when he was given Chinese food because he hated Chinese food.
He told Ms N that he also felt angry when his father shouted at his grandfather while changing the bed (paragraph 52). [Y] likewise refused Ms N’s suggestion of seeing his father as part of the assessment even when told that giving his father a hug was not necessary.
[Y] told Ms N (paragraph 53) that he did not like his father “cuddled next to me at home and the shops and everywhere”. [Y] also told Ms N that he didn’t like that his father had taken photos of him and his sister in the shower when they were washing.
Ms N reported [Y] as denying that his mother had made any comments about his father. Ms N did not observe the children with the father for the purposes of that report. According to her however the interaction of the children with their mother and older siblings [B] and [C] involved some shared age appropriate play but all verbal communication were in (language omitted).
Ms N reported the family appearing aloof (paragraph 56). In her evaluation as set out in paragraphs 57-66 of her report, Ms N expressed concern about the children’s emotional wellbeing and attachment needs whilst in their mother’s primary care. She was concerned that the mother had a pattern of behaviour not conducive to the children having a positive and meaningful attachment to their father and further expressed concern that the mother had actively sought to alienate the children from their father, a course of action not of benefit to the children.
She referred to the mother’s history of failing to attend or attending late at the children's contact service, and to the likelihood that the mother had actively sabotaged the children’s ability to engage in handovers with their father at school.
She referred to the impact of that on the children’s relationship with the father and the rate of their attendance at school. She expressed concern about both children’s developmental needs.
Ms N expressed concern about [X]’s ability to express herself freely, to the possibility of being coached by her mother to support her mother’s position and to the difficultly of attempting to ascertain whether [X]’s presentation was a result of her autism spectrum disorder or whether it related to past and current parenting environments.
She was concerned that [Y]’s rationale for refusing to spend time with his father raised questions and referred to an earlier 2013 family report of Ms D who had expressed a view at that time that the children were under “considerable pressure to align with their mother and reject their father”.
Ms N concurred with that opinion in her assessment. She expressed concern for the children’s emotional and psychological wellbeing if they remained in their mother’s primary care and if the mother continued to influence the children to believe they had been sexually abused by the father and were at risk in his care.
Ms N expressed the opinion that there was no objective independent evidence to support the mother’s contentions in that regard and it was her view that the children’s disclosures to Dr W should be treated with caution.
Ms N expressed concern that the mother was not honest with respect to her claim that she had notified the father of the children’s change of school, and to the impact on the children of three changes of school in three years. Ms N could not conclude, based on her discussions with the parties and the information available to her, that the children were at an unacceptable level of risk of harm if they were in the father’s care.
She concluded in paragraph 63 that she considered the children would benefit and flourish from re-establishing a stable, secure and meaningful primary attachment with their father. She went on to express concern in paragraph 64 about such an outcome being achievable if the children remained in their mother’s primary care because of concerns that the mother may sabotage the efforts of reunification.
It was Ms N’s view that if the mother followed that course her actions would psychologically damage the children significantly. In those circumstances, she recommended that the children be placed in the father’s primary and care and spend time with the mother at a children's contact service until concerns about her alienation and manipulation of the children were reduced significantly (paragraph 64). Ms N did not support telephone communication between the children and the mother in those circumstances.
Her recommendation was subject to there being no new information coming to light and being accepted by the court that supported a concept of the children being at risk in their father’s care (paragraph 64).
In paragraph 65 of her report, Ms N discussed the impact on the children of such a dramatic change in the children’s lives. She opined that it was not without risk of emotional distress for the children at least in the initial period of transition and she noted that it would involve the children living with the father’s new wife who was new to Australia and unknown to the children.
Ms N recommended that that impact could be ameliorated by way of the father obtaining a mental health care plan and engaging the children with a skilled therapist to support the children. She also referred in paragraph 66 to a recommendation that the father could if he so wished re-enrol the children at their previous school and that the mother provide him with copies of all school reports, medical reports and the like including the alleged assessment with respect to [X] and autism spectrum disorder.
She also recommended that the father engage with a paediatrician to have a full medical review of each child. Ms N did not consider that parental responsibility could be shared and recommended that that be given to the father.
These recommendations were made by Ms N in circumstances where she had not observed the children with the father and where the children had never met the father’s wife.
Ms N was called for cross-examination shortly after the trial commenced on 30 March 2016, and shortly after the mother had given some oral evidence in-chief in circumstances where she had not filed any trial affidavits but had filed two affidavits earlier in the proceedings before the preparation of the report.
The Independent Children's Lawyer questioned Ms N as to her usual process in relation to observation of interaction. She replied that she was aware of the court order requiring observation of interaction but had not persisted in this case, as she would normally do, because she thought that it was not helpful for the children’s long term relationship with their father. She said she did encourage the children to participate.
She described the children as being anxious and to the mother being nearby. She said that she thought it might be traumatic for the children and possibly abusive at that time. She said that she had determined not to insist on the observed interaction because the children appeared very distressed. When asked whether she thought that [X] knew what she was being asked to do Ms N reported that she did not appear to be cognitively challenged but rather overwhelmed by anxiety.
She expressed concern that [X] was stunted socially, she was anxious and fearful and socially withdrawn. It was her view, having read school reports, that nothing had raised issues for her with respect to the alleged diagnosis of autism spectrum disorder for [X], but she was aware from [X]’s school reports that she had been working with an SSO on a learning program.
She agreed that [Y]’s school reports suggested that in 2015 there were continuing issues with particular reference to his progress in English and Maths.
In reference to information provided to her through an affidavit of the Independent Children's Lawyer filed on 29 October 2015, Ms N expressed concern that both [X] and [Y], by being regularly late to school and missing days of school, were struggling to meet milestones. She questioned whether the mother was aware of the problem and whether she was doing anything to assist. She questioned whether the children were being held back by home life.
When asked why she said that the father should be at liberty to change the children’s school back to their old school if they went to live with him, she said she thought it was near to the father’s location.
Before that cross-examination ended the matter was adjourned to enable the expert Ms N to observe the children with their father. An order was made in the following terms:
1.That these proceedings be adjourned to 3:00pm this day.
2.That the mother facilitate the children [X] and [Y] being delivered to the child-minding facilities of this court on or before about 2:00pm this day NOTING THAT the mother’s friend Mr M will deliver the children to the court in the absence of the mother.
3.That during the period of the adjournment the mother be restrained and an injunction is hereby granted restraining her from coming into contact with the said children other than by further order of the court.
4.That during the period of the adjournment the expert Ms N observe [X] and [Y] with the father.
When the matter came back before the court later that day the expert was able to give oral evidence about her observed interaction. She told the court that she had met the children in a large room, explained to them the process and then explained that she would be watching through a two-way mirror. She explained that the children were excited to see their father and she left when the father greeted the children.
When asked about her comments as to the children being excited she said that the children did not say they were excited but rather, that they remembered the observation room from having spent time there with the mother. She described [Y] as immediately engaging the father in conversation and a hug, with [X] being more physically distant but interacting easily.
She said that most of the interactions were in (language omitted) but she did not insist on English conversation as she considered it was reflective of a more natural interaction. It was her observation that [Y] and the father had spoken fluidly and in a free flowing manner. She said that when [X] was with [Y] she whispered to him to talk on her behalf and also for him to talk with the father on her behalf. She observed [X] not interacting much verbally with her father but when doing so seeming happy.
Ms N said [X] did not engage in play with her father nor in much eye contact with him but the father was described as being encouraging of her, with [X] giggling in response.
She said that at the conclusion of the session she asked the children how it had been for them, with [X] saying nothing but being teary and [Y] saying it was hard and sad. He said it was hard because Dad hit Mum, and when asked how he knew that he said he remembered and thought he remembered dad throwing glass.
[Y] reported to Ms N “I love my mum the most” and told her that [X] didn’t like to talk. Ms N reported that when she left the room and went to get the mother’s friend to take the children home she observed sibling interaction and heard [X] say “shhhhh, I think the lady is watching”.
It was her view that [Y] was confused emotionally because he was happy to see his father but knew how his sister and mother felt. On leaving, [Y] hugged his father who asked if [X] also wanted a hug. There was no response from [X] in that regard according to Ms N and she observed that the father took this cue and that [X] did not appear fearful.
Ms N said that she had an animated conversation with the children in the lift, that they left happily and that they seemed to have a close and loving relationship. She said that her observations that day had not caused her to change her recommendations.
When asked by the Independent Children's Lawyer whether her observations had cemented her view, she said that given the reassurance of her observations of the children with the father she considered there was a base to work on. It was her view that the father had managed the children’s emotional needs well and that the observation had confirmed her concerns about the children feeling a divided loyalty and a need to align themselves with their mother.
She said that in her observations [X] had pressured [Y] during the observation period to disengage from the father and not play with him. During the observation period Ms N said [X] had whispered to [Y] to ask him to speak for her but when the two children were together after the observation period she observed [X] to tell [Y] off in a playful but serious way for his interaction saying that the father didn’t love the children anymore and that [Y] should have followed her lead and not played with the father because she is the bigger sister.
Ms N’s interpretation of that was that [X] was aligning with her mother. Ms N took the view that [Y]’s disclosure to her about having heard his father watching kids with no clothes like zombies at night time (paragraph 51 of the report) was unusual in that usually children of [Y]’s age can give a context for such a disclosure, for example they got up, saw it on TV or the like, but that it was hard to place any weight on what [Y] had said because of the missing context.
In answer to questions from the Counsel for the Independent Children's Lawyer, Ms N agreed that even though [Y] was anxious during the interviews for the report he was still able to interact with her and that he seemed clear, in contrast with [X]. She said that the clearest thing that [Y] said during the entire interview process for the reports was that he did not want to see his father, and that he simply would not be moved in that regard. She said [Y] gave no context in relation to the photos that he said his father had taken of the children in the shower despite her trying to glean same.
She said that somewhat unusually [Y] displayed no deep emotional presentation when discussing those issues. Ms N said that the issue of being photographed in the shower came up when she was asking [Y] why he didn’t want to see his father.
In answer to a question from the court as to why the children seemed to have such a different presentation during the observed interaction that day as opposed to their complete resistance to being observed with their father when asked during the interview process for the report, she replied that it may have been that the children sensed their mother’s anxiety and that it was possible the mother had spoken with them and that they were aware of her views, but that day there had been no build-up or preparation, the children had not had a chance to speak with the mother prior to seeing their father and she thought it was an honest observation.
Ms N was asked whether she still held the same views as previously reported about [X]’s inability to express herself freely after seeing the children earlier in the day. She replied that she did so and that it was most telling when the children were together and thought they were not being observed.
She said that if she hadn’t seen that she might have thought that there was no capacity on the part of [X] to express herself as in the session she had expressed a tired attitude, but when she was with [Y] after the session she had appeared very bright.
It was Ms N’s view as expressed to counsel for the Independent Children's Lawyer that [X] was relatively relaxed during the time she was observed with the father and at times playful, although there was limited interaction. To her it was almost as though [X] wanted to have fun, that the father and [Y] seemed to be having fun but that in her mind it was not right to develop a relationship with her father because she needed to be respectful of her mother.
She confirmed that she still was of the view that the children were aligned with the mother and that she still held the view that the children should have a change in their living arrangements unless the court accepted the mother’s allegation of sexual abuse.
She described the father as very sensitive to the children’s reserve, affectionate and playful with [Y] and to there being no sign of a lack of contact for a period in excess of two years. She was also of the view that there was not a complete rejection of the father by [X].
With respect to the question of therapy it was Ms N’s view that regardless of what household the children lived in they should have therapeutic input so as to develop a sense of their place in the family and their experiences. She opined that the court should be cautious in accepting Dr W’s opinion in circumstances where it was based on information given to him which had definite questions as to its reliability.
Mr McQuade of Counsel for the applicant father also cross-examined Ms N. In answer to a question as to what sort of therapy might be appropriate for the children, she replied that the qualifications of the therapist were less important than the experience and expertise of the therapist in these types of situation. She agreed that it would be important that the therapist have access to the history of the matter.
When asked about her recommendation with respect to the Family Wellbeing Program, she said it was a no cost program which provided mental health psychologists and social workers, with the program identifying children at risk of mental health issues due to their home life and experiences. She said it was part of the organisation known as “Headspace”.
With respect to the children’s education she said that she thought it would be preferable for the children to remain at the School 2 but that if it was not practically possible for the father to facilitate their attendance at that school, she saw no real difficulty with the children returning to their previous school even though the mother had removed them from that school.
It was Ms N’s view as expressed to Mr McQuade that the benefit in the father obtaining a full medical review of both children by a paediatrician was that it was better for parents to have a bit of understanding of what stage their children were at and why, and that there were particular concerns about [X]’s presentation and schooling.
She described the children’s presentation at the observed interaction that day as being that they were nearly groomed, healthy and happy but that [X] only talked through her brother. She described [X] as lacking in confidence, that her play was not age appropriate and that she struggled to focus. She described [X] as “bouncing” around the room a bit and that although there were about 20 games available [Y] saying that the children didn’t know any of them. She also described [X] as appearing fatigued.
She said neither children had a difficulty in conversing with her in English. She said that [X]’s 2015 report card raised concerns as to [X]’s ability to be able to write the appropriate number of letters of the alphabet and create sentences. She said that she was recommending sole parental responsibility to the father as she did not believe that the parents could communicate in any meaningful way.
Ms N said, in answer to further questions from Mr McQuade, that the children had no idea that they were going to see their father when they arrived at the court that day and that she told them that the Judge had decided it had to happen.
She agreed that [X] appeared to smile and be happy to see her father and when asked if she was suggesting that [X] was torn between a love of her father and being able to display that to her mother, she replied that she wasn’t sure but thought [X] feared the consequences for herself and for [Y] if she let her father back in her life.
When asked how confident she was that such a fear could be overcome, Ms N said she was confident that it could be, that she had thought a lot about it and that if she thought anything else she would say so. She said she had some concerns as to how the children would manage in the short term but thought they would be “okay” in the long term. When asked to explain what she meant by that she said that the children would get a view that the world was not unsafe, that their father was not unsafe and that they didn’t have to be burdened by issues of adults feeling safe.
When asked what level of contact the children should have with their mother if they moved to live with their father, Ms N suggested that for the children to settle without overwhelming anxiety, touching base with the mother on one occasion per month at a children's contact service would enable them to see that she was alright, that they would not be taken away from her and that they could speak in (language omitted) with her. It was Ms N’s view that if the children were left with the mother unsupervised she would seek to undermine the relationship between the father and the children.
When asked if that would add stress to the situation and create more difficulties for the children and their ability to cope, she agreed that it would and that the children were already going into adolescence. She thought that the one contact per month should continue for 6 to 12 months at least and agreed that the mother needed counselling. She agreed that the mother’s view of the father may never change and that the children’s time with the mother should be supervised until the children were old enough to be able to test reality themselves.
Mr McQuade asked Ms N if the mother’s evidence that the children’s school attendance had been affected by fears of the father arriving at the school would be expected if the mother had been trying to undermine the relationship between the children and their father. She agreed that would be expected and that the children may also start to believe the mother’s position if they were unable to test it themselves.
The mother also cross-examined Ms N. She asked Ms N how she justified her position and Ms N replied that she gave a professional opinion about what she thought was in the best interests of the children.
She was asked how many times she had seen the father and replied that it was one time in July and again that day and said that she didn’t know Dr W. When asked by the mother how she had assessed the father, Ms N said that she had met him in the same office as she had met the mother, spent approximately the same amount of time with each party, namely approximately one hour, and that she had read the affidavit material before the court.
When asked if the father had told her that he had been medicated with psychiatric medication, Ms N replied that she was aware that the father had both been medicated and hospitalised. When asked if she was aware that the father was an abuser of alcohol, Ms N replied that she was aware of the concerns of the mother before the court and that the mother’s concerns about the father’s alleged abuse of alcohol were one of the reasons she had given for separating from the father.
In answer to a question of the mother as to how often she had met with the children, she said that it had been one time in July and again that day. When Ms N was asked how she could establish, in circumstances where she had only seen the children on two occasions, that she was coaching the children, Ms N replied that it was based on all of the information before the court over four years as well as the meetings. Ms N agreed that she had not been in touch with [X]’s school.
Ms N was asked if she had only seen [X] on two occasions how she established that [X]’s vocabulary was limited. Ms N replied that when the child was relaxed and free she talked freely and happily but that she had two concerns, namely that [X] felt pressured to say the right thing and that if she doesn’t know what to say she goes quiet and secondly, that having read [X]’s school reports it suggested that she was not doing as well as she could or as other children her age were doing.
Ms Mullam put to the witness that she had judged that she was influencing [X] badly against the father even though she hadn’t heard the mother do that. Ms N answered that she was concluding that scenario and it was her opinion that the mother is influencing the children in circumstances where she thinks negatively of the father and that in turn influences the children.
The mother asked Ms N how she thought the mother should react towards the father in terms of negative thoughts. Ms N replied that if what the mother had said about the father and his treatment towards her was true she would appreciate the reason for the mother’s negative feelings against the father and that of itself was not a problem, but she was concerned that the mother’s fear of the children’s safety in the father’s care makes the children share that fear and prevents a relationship between the children and their father. She did not consider this was healthy for the children.
Ms N was asked by the mother why she had written a report without a further interview with the mother with an interpreter present. Ms N responded that the mother had told her that it was acceptable to continue with the interview. She agreed that she had not talked with the children’s psychologist but denied it was because she wanted to write a good report for the father. She said she didn’t think she was aware that there was a psychologist but that she had tried to talk with the school. There had been no response to her enquiries.
Ms N was asked whether notwithstanding the opportunity to meet with both the children the day before she still believed that they should be with the father. She replied that she did. When asked what she based her opinion upon, Ms N replied that it was her belief that the children would benefit from a relationship with both parents and it was her concern that if the children remained in the mother’s primary care there would be no opportunity for a relationship with the father.
When it was put to her that the opinion was based on her belief and not fact, Ms N replied that it was her job to provide an opinion to the court and it was thereafter up to the court to determine matters on the facts. The mother asked Ms N why she did not include in her report the impact on the children of the abuse of the mother proven by the intervention order. Ms N replied that there remained concern that the children were exposed to a level of domestic violence and that would have consequences for the children’s emotional wellbeing.
At the end of the cross-examination Ms N’s recommendations remained unchanged.
Evidence of the Mother
On 16 April 2015, the mother had filed an affidavit in support of her response, at which time she was legally represented. She had also filed an affidavit on 5 February 2015 in relation to the father’s contraventions application. Thereafter the mother filed no further affidavits and accordingly the court gave leave for the mother to give such further oral evidence upon which she intended to rely at the commencement of the trial.
It was the mother’s evidence that she wanted justice and that she was not against the children seeing the father. She said that she was willing to keep bringing the children to the Suburb B Children's Contact Service so that the father could pick up the children from there and keep them for as many days as he wished. She said that it was very hard for her to reflect on relevant details but she remembered that on 31 January 2014 the father had come to the School 3 Primary School and talked with a Mr R and the children for over 2 hours which she considered should not have been allowed.
She said the children then ran away and they were caught by both men who then “threw them in the car by force”. It was the mother’s evidence that on 1 February 2014 [X] had called the police between 9:00am and 9:30am, that she had said that she didn’t feel safe and that the father had grabbed her by the face and ordered her to tell him what the mother was doing and with whom.
She said that the evening before [Y] had been in the bath, that he had been forced into the bath in hot and cold water and that the father had forced the children to say that they don’t love their mother and don’t want to stay with her.
She said the father then called his daughter [A] and told her to pick up the children from him as they were crying. It was her evidence that the children were then taken to the doctor by her at which time they had made the statement to Dr W annexed to her affidavit filed 6 February 2015 in response to the father’s contravention applications.
It was her evidence that the children had also stated that when they woke up at night they had seen the father with pornographic material and that they had found him in the morning in an inappropriate situation masturbating. She said that [Y] had “testified” to that to Dr W.
The mother said that the children had shown from the beginning a lack of interest in spending time with their father because they had witnessed his abuse to her and because the father would beat her and at night time rape her when [Y] was present, as [Y] slept with she and the father.
She said that she cried or shouted out the children to go to another room and that the father had raped her in the mouth and everywhere possible. It was her evidence that two years prior to the trial she had done everything she could for the children to be with the father but the present situation had arisen because of the father’s behaviour.
She said that a year ago when the children had changed schools, the school had taken a note of the children’s problems and referred them to a psychologist namely “Ms C” at CAMHS at Suburb A. She said she couldn’t get a report from CAMHS.
It was the mother’s evidence that around 23 March 2016 the father had tried to revoke the intervention order in the Magistrates Court but had been stopped by the police and further that the father continuously broke the conditions having done so on 8 occasions over the previous 3 years.
She said that the father abused her in public places and sent his parents to ask about her personal business, with him coming to watch from a distance. She said she did not feel safe at work or at home. She said that the father in his previous affidavit had illegally used correspondence of hers and from his ex-wife from Facebook and that he had falsely stated he was subject to an interim intervention order when the final intervention order had been in place for the past 3 years.
The mother gave evidence that the children still remembered what happened and that she had a big problem in the children not wanting to go to school because they were scared the father might pick them up. She said the school had organised a social worker who met with the children and talked with them on a couple of occasions per week.
She said the children had also spoken with police in 2014 some six months after the traumatic incident at the father’s and had given statements but she was not able to obtain those statements.
She alleged this was done with the children alone without another witness in the room. The mother otherwise relied on her affidavits filed on 6 February 2015 and 16 April 2015. The mother was cross-examined firstly by Mr McQuade of counsel for the father. She was asked if she had ever suggested to the children that the father did not love them, and replied that never ever in her life had she done that and that she had always done everything to enable the children to stay in touch with the father because he is their father. She said however she was not concerned that [X] thought that the father didn’t love her because of the thoughts of the child. She said this was a child that was grabbed and taken from school, and that all she could do was cooperate with the psychologist and the children to improve their feelings towards their father. When asked if she thought the father loved the children she replied “I think not”.
When asked if she thought it was just a coincidence that [X] shared her views about the father not loving [X] or [Y], she said that the children were witness to the behaviour of the father within the family and when in his care, and so those thoughts are theirs. When asked if she thought that the children had worked out for themselves that the father didn’t love them she said that she can’t be responsible for the feelings and thoughts of the children.
Mr McQuade asked if she had spoken with [X] the previous evening and told [X] she was upset that [X] thought her father didn’t love her. The mother replied that of course she had not done so because that would put the children in a really bad mood. When asked if she thought it would make the children feel better if they thought the father loved them she replied that she agreed, and when asked why she didn’t promote that she said she had been doing that for the last two years.
She said she was under the care of a psychologist as were the children at CAMHS, and she was working towards a situation where the children, despite the trauma, could come back to the father. In answer to a question from the court as to whether she was present when [X] and [Y] spoke with the social worker at CAMHS, she said sometimes she was because they learnt through playing games and that the children couldn’t do that any other way.
When the mother was asked who had told her that the father was taking photos of the children naked when they were showering, she said that it was [Y] and that’s what the children had witnessed. She agreed that [Y] had said that the father had photos of both he and [X] naked in the shower and further that she had spoken with [X] about the issue who agreed that it was true.
She said that conversation with [X] took place about half a year after [Y] had told her about the issue, because she noticed there was something wrong with the children. She agreed that she kept asking the children what was wrong and that those discussions had started about a half a year after [Y]’s disclosure and after the children were abused.
She told Mr McQuade she couldn’t exactly say when the conversation with [Y] about the photos in the shower took place but she was able to respond to a question from the court that it was before 3 February 2014. When asked how long before she said it was in 2012. Mr McQuade put to the mother that if [Y] had told her that information in 2012 she would have known of the problem when she consented to final parenting orders in 2013. She replied that she couldn’t be precise.
When she was asked again did [Y] tell her about those matters before or after the orders of 7 November 2013, she said it was after spending time with the father. She was asked if she remembered telling Ms N that the father had raped her while [Y] was in their bed and she said that it had occurred many times. She agreed that of course she knew about that prior to the consent orders of 7 November 2013.
She agreed that the allegations of domestic violence that she made occurred during the period of the marriage. It was put to her that she was aware of those issues when she consented to final parenting orders on 7 November 2013. She replied that she had been threatened by the father that the children would be taken from her by the father.
The mother agreed she had solicitors acting for her on 7 November 2013 and further that they had briefed a barrister who had appeared for her at that time. When it was put to her that the mother had never before said that she had been pressured into consenting to those orders, she said she had complained both to the Legal Services Commission and to the Women’s Legal Service. She agreed that until recently she had lawyers.
The mother agreed that she had filed two affidavits in the current round of proceedings one being sworn on 5 February 2015 and the other on 15 April 2015. She agree that they were prepared by her solicitors and when it was put to her that in neither document did she depose to being pressured into consenting to the orders of 7 November 2013 she said that of course she did tell the lawyers that but it was not recorded or written.
She agreed that she had read the documents before signing them and when she was asked why she had not told the solicitors that her concerns about pressure were not in either of those documents, she said that of course she had told her lawyers but that they had said she wouldn’t succeed. It was put to the mother by Mr McQuade that she had the opportunity to file her own affidavits and she said she was not able to do that and it was not a question of not choosing to do that.
When asked why she hadn’t “said it” in her oral evidence to the court the day before she said that giving evidence from the witness box was different. When asked again why she did not tell the court that she had only consented to the orders against her will, she replied that after getting through yesterday and spending time getting over things she had realised that that was what it was all about.
Mr McQuade asked the mother whether she had simply forgotten the day before to tell the court that she had been pressured and only realised when she had got home and looked at her documents what it was all about. She replied that she didn’t do that but rather just didn’t say anything because it didn’t come to mind and she didn’t think it was important. It was put to her that she had said nothing about being pressured because she was lying to which she replied that she doesn’t lie.
The mother has two older children. Mr McQuade asked the mother why she had lied that day about the age of her youngest daughter. The mother replied that she didn’t lie but had made a mistake. When it was put to her that she was saying she didn’t know the age of her second eldest daughter, she replied that she knew the daughter’s age and was aware of the rules in relation to the age of children who could be present in a courtroom.
Mr McQuade put to the mother that she knew her daughter was not allowed in the courtroom without a Judge’s leave if she was younger than 18 years of age, to which the mother replied that Mr McQuade was paying attention and picking on her mistakes when his client was lying on some many things.
It was further put to the mother that she knew before court that day that if the child was not 18 she was not to be in court unless the Judge permitted that. The mother replied that she did not know that the Judge would not allow the child in if she was under the age of 18.
When the court asked the mother why she had told the court that one of her children was 18 years old and the other 19 years old she said that she made a mistake. Mr McQuade asked the mother if she intended to ask the court to let the 16 year old daughter give evidence as a witness and she replied “of course not”. He asked if she had “given the father the finger” when she left court the previous day. She replied that the father said to her that she was a whore and that he would get her. When asked when that was said to her she said it was when the father was standing in the corridor.
The mother agreed that the annexure to which I have previously referred, namely Dr W’s report and notes, was material that had been provided to her lawyers from Dr W and that it was dated the same day as the children came back from the father’s care namely 3 February 2014. When asked how long the children had been with her before she took them to Dr W she said she couldn’t remember and she couldn’t remember if anybody else was present.
The mother was asked if the court could take it that the material in Dr W’s report consisted of matters the mother told the doctor, not direct reports of what [X] or [Y] had said to him. She agreed and said she had repeated to the doctor the words of [X] and [Y]. She agreed she told Dr W about the children being reluctant to go to the father’s and said she repeated what [X] said to her.
It was put to her that the children did not say anything to either her or Dr W about the father watching pornography or coming into the room with a sword. The mother said they did say that. It was then put to her that those comments were made almost 8 months later and the mother then took the children back to Dr W. The mother replied that she could say these things after 5 years so what was 8 months. When the mother was asked if she had seen the father walking around with a sword she said not only once.
Mr McQuade put to the mother that to be absolutely clear, what she was saying was that almost 8 months later she had taken the children back to the doctor and told Dr W that the children had told her that they had seen the father watching pornography, that [X] had said that the father had come to her room with a sword, that [Y] had slept in a car and that the children had naked photos taken of them in the shower. The mother replied that’s what the children said and it was put to her that that’s what she had told Dr W and not what the children had told him. She said that they later “testified” to the doctor as to those issues. She was asked whether her friend Mr M had been with her to translate when she saw Dr W and she replied that he had been there once. When asked if Mr M had told Dr W what [X] said she replied that he had because he had been translating for [X].
Mr McQuade asked whether on 29 September 2014 she had taken both [X] and [Y] to the doctor or just [X], but said she could not remember. When asked how long she was aware of what [X] was saying before she made an appointment with Dr W, she said when she noticed [X] starting to wet the bed and [Y] having nightmares she took them to Dr W.
In answer to a question as to whether [X] had told the mother the things that she had quoted to Dr W before the doctor’s appointment, the mother replied that she had but she was unable to recall how long before the Dr W appointment that had happened. It was put to her that she was keen to take [X] to see Dr W as soon as [X] had told her those things. She replied that she wanted to go there and see the doctor as soon as possible.
In relation to taking [X] to Dr W after noticing that [X] was wetting the bed, she said that [X] had been doing that whenever she was seeing the father. She was asked if [X] continued to wet the bed after she stopped seeing her father. She said [X] did not stop for some time.
In response to a question as to whether, when [X] kept on wetting the bed she, the mother, believed that it was occurring because of something the father had done when [X] was in his care, she replied that she was scared of the fact of the wetting and was convinced it was a direct result of [X]’s experiences. She was asked if she kept asking [X] what bad experiences she had experienced. She replied that she did ask but not often because she knew that it would unlock bad memories.
She was asked if she had questioned [X] as to whether she had seen the father watching movies of naked children. She said she had not asked that question because [X] told her that herself. When asked what she did ask [X], the mother replied that she asked [X] where she slept, when she woke up, what she did when she saw the father doing that and was she afraid? She agreed that she had asked [X] if the father had touched her.
When asked what [X] had said in response to that question, she said that [X] told her the father sat on her bed next to her and touched her intimate parts. When asked whether that conversation occurred in late 2014 she said it did and that [X] had held it in for a long time. Mr McQuade asked whether on the first occasion the mother asked [X] if the father had touched her [X] had replied no or words to that effect. The mother said that [X] had said that he did.
When asked why she didn’t report it earlier she said she reported it when [X] told her. It was put to her that she had asked [X] on many occasions before September 2014 whether the father had touched her. She replied that [X] did tell her that he had on one or two occasions but that she is a very quiet child. It was then put to her that when she asked the question on the first occasion [X] said nothing and wouldn’t talk about it. The mother replied that she said nothing at all – that there was silence.
It was put to her that she then kept asking [X] the question until [X] told her what she alleged she said. The mother said that she continued to do so because she wanted to know why she was exhibiting the particular behaviour. It was put to the mother that she was convinced that the father had touched [X]. She replied that she was convinced in circumstances where the father watched pornography with children ages 11 to 14 years in movies. When she was asked whether she watched them with him she said “of course not” but he was watching at night on the TV in the bedroom.
She said she had seen that and that she had woken up and watched a scene that he watched which at the time of being in the witness box was still in front of her eyes. She said it occurred when they were married and after the children were born.
It was put to her that even knowing that, she had consented to orders on 7 November 2013 providing for the children to spend significant time with the father. She replied that she did so because she had given the father a chance and also because he showed initiative to pick up the children to care for them.
Mr McQuade put to the mother that she was convinced that the father had sexually touched [X] which in turn had led to her wetting the bed and that when [X] was silent when first questioned she was even more convinced about that fact. The mother replied that she knew that the father had those inclinations, she knew how abused children would react and behave and she was their mother. It was put to her that she came to the view that if she kept on asking [X], [X] would tell her the truth. She replied that was not the case.
When asked what problems she had noticed in [Y], the mother replied that he was shouting and screaming at night and getting migraines. It was put to her that as far as she was concerned that was because of what the father had done to him while [Y] was in his care. She agreed that was the case because it hadn’t been a problem beforehand. She was asked if she had questioned [Y] as to whether the father touched him and replied that [Y] said it himself.
When it was put to her that that was not before late September 2014 she said she couldn’t remember. When it was put to her that if [Y] had told her those things she would have gone straight to Dr W she replied “of course”. It was further put to the mother that the reason that [X] was wetting her bed was because the mother kept asking her about the father’s alleged conduct towards her. The mother denied that proposition.
Mr McQuade suggested to the mother that in between February and September 2014 she had kept asking both children about the father’s conduct. The mother replied that she did not ask questions continuously but did sometimes. It was put to her that she asked the children to tell her bad things that the father had done to them and she replied that she asked questions about good things.
In answer to a question from the court as to whether she had ever reported the alleged conduct to anyone except Dr W, she replied that she had reported the issues to the Police Station and to Families SA.
She said that she had heard back from Families SA who told her that the situation was not so dangerous as the children were living with her and not the father. It was her recollection that she reported the issue to the police station before 2014 and to Families SA later, sometime in 2015.
The mother was asked whether even if the children told her now that those things had not happened she would still be convinced that the father had touched the children a sexual way. She replied “No, that she wouldn’t be convinced”. She went on to say that they would not say that.
She agreed that she was convinced that if the father had any unsupervised time with the children again he would repeat the conduct. She agreed that she has a great need to protect the children from that behaviour and when asked whether, knowing that the children would be touched by the father inappropriately, it was impossible for her to support any kind of relationship between the children and the father, she replied that she takes into account the possibility that he could have changed.
The mother was cross-examined about a document that she agreed was a statement sworn by her in support of her application for an intervention order against the father in 2012. She agreed that she gave the statement on 16 November 2012. She agreed that there was nothing in paragraph 28 of that document about the father raping her whilst [Y] was in the bed, but said that the word “forced’ appeared in that paragraph. When again it was put to her that there was nothing about [Y] being in the bed at the time in that statement, she replied that had nothing to with the children. She agreed that in paragraph 7 of the document she had said that four children needed to be considered.
When asked why she didn’t tell the police that the father forced her to have sex with him whilst [Y] was in the bed, she said that happened in 2012, she had left the husband, she was suffering deep depression and was not able to talk about the issue. She went on to say that the husband not only raped her himself but also with his colleagues.
The mother agreed that she had not referred to the father listening to music and watching satanic websites and pornography in paragraph 29 of the document. When it was put to her that she had not mentioned to the police that the pornography involved children aged 11 to 14 years, she repeated that she was in a deep depression and she had just left the husband because of an act of domestic violence and lived at a shelter.
Pressed on the point the mother said that she was telling the court now that the pornography depicted young children. She denied that her allegations were in relation to matters that had never happened. In answer to a question from the court as to whether the mother had seen a psychologist at all, she replied that she had not but was intending to do so. The mother was asked why she had not told the police in her statement or in her affidavits to the court that the father had masturbated in front of [X] in 2011. She replied that was her first affidavit and that she would now do that and his client would be punished.
When it was put to the mother that she said in her first affidavit in 2012 that the father had never acted sexually inappropriately towards the children she repeated it was her first affidavit. When it was put to her that she was now saying that statement was a lie, she replied that at that time she still loved him and she was defending herself about him getting close to her because she knew of his influence. When she was challenged that she had not told the court that the father watched pornography involving children because it never happened, she said it was not like that and that counsel was only saying that because he was getting paid to do so.
She denied the proposition that she had made up the allegations after she had sworn that first affidavit and said although it was not in the first affidavit it was before the court now (at trial). It was further put to the mother by the father’s counsel that on 15 April 2015 she had sworn an affidavit in these proceedings in which she mentioned nothing about reporting the alleged allegations to police or Families SA. She replied that maybe it was not in that affidavit but the court was now aware of the issues.
In reply to a question as to when she had first gone to the police in relation to the allegations of sexual abuse, she replied that it was in December 2014 at which time she had also gone to Legal Aid to see a solicitor and was advised that if the children were in danger she was entitled to keep them in her care and not return them to the father’s care until he asked. She said he had not asked for another six months. It was put to the mother that on her case the children had told her about their father touching them inappropriately in or about September 2014 and she had not, on her evidence, gone to the police for another two or three months she agreed and said that she had to look after other things for her family.
The mother was also cross-examined by the Independent Children’s Lawyer. In answer to a question from counsel for the Independent Children’s Lawyer the mother said the father had last seen the children on 2 or 3 February 2014. She was asked whether she was saying that between February 2014 and September 2014 the children had been disclosing information to her ‘bit by bit’. She said that during that time the children were not telling her anything and she could only observe their physical behaviour. She said [X] was very quiet, not talking and [Y] had headaches and panic attacks.
When she was asked if she had noticed those physical things before the children started to make disclosures, she replied that she was asking and asking and talking to the children trying to get them to speak and then took them to the doctor. With the assistance of a nurse they “testified” for the first time which she thought was in September 2014. She agreed that according to Dr W’s letter that was on or about 29 September 2014.
She said that by her recollection the children had first told her about being photographed by the father in the shower about a week before going to see Dr W. She agreed that it was a very long time after the last time the children had seen the father.
The mother agreed that [X] had rung her on the weekend of 31 January 2014 or in early February 2014 when she was with the father. When it was put to her that she had made no mention to the mother in that phone call that the father had taken photographs of either child naked the mother replied that water was running and [Y] was crying. When asked whether she was unsure of what was going on in the father’s house at that time, she said that she was not able to determine what was going on but thought that everything was not right and that was why she reported it to the police.
The mother denied suggesting to [X] that she ring the police but said rather that the police had telephoned her at work to tell her that [X] had rung them. She denied that all of her evidence about these issues was false. Ms Fuda questioned the mother about issues raised in the affidavit that she had sworn on 5 February 2015 and filed on 6 February 2015. She agreed that in paragraph 66 of that document she said that the children had displayed unsettling behaviours when she spoke with them about upcoming time with the father including crying and shaking. She agreed that in paragraph 64 of the same document she had deposed to the children confiding in her on the night of 31 January 2014 that the father had taken photos of both of the children.
The mother, the father and the children all have English as a second language. The mother and the children as well as the mother’s older two children all communicate primarily in (language omitted), as did the children and the father during Ms N’s observation of them together.
In cross-examination by counsel for the Independent Children's Lawyer, the father was asked if he had read the documents in relation to any of the children’s special needs. He said that he had read some quickly but said that he had heard evidence from the school teacher in relation to [X]’s challenges and that she was a “slow learner” and that he was concerned about her school attendance. He said in relation to any efforts he made to encourage [X] to go to school in 2010 and 2011 prior to separation, that he hadn’t taken her to school because she was crying and he didn’t want to upset her.
He agreed that the mother had been responsible for [X]’s schooling since the parties separated in April 2012. He said he had taken the children to school after they had weekends with him and he had noticed that [X] was a child with difficulties. He said that [X] had not shown any signs of selective mutism during the period of the parties’ cohabitation and that she had been a happy child but he had noticed problems post separation. He said she had exhibited strange behaviours and didn’t say much.
The father said that he was not aware that the order of November 2013 had provided for the children to have counselling but had noticed that soon after the children started to come to see him under the terms of that order, he had observed the children exhibiting very strange behaviour very quickly. He said that he was very worried about the children being behind in their education and that he didn’t understand why the children were so afraid and behaving as they were.
When he was asked how he thought the children would cope with change if they moved to live with him, he said that when the children did spend time with him they went out lots, and he didn’t know what had happened on the other side. He said that he thought the mother was controlling the children. He was asked if the children had so many problems at school and in his care how they would transition into his home. He said that he thought that he could get help from organisations.
He conceded in answer to a question from the Independent Children's Lawyer that the children had not at that time met his wife. He agreed that his proposal was that the children spend supervised time with the mother at a children's contact service once a fortnight for two hours. When he was asked why he thought supervision was required he replied that he didn’t know what had happened with the children, that they hadn’t seen him for a long time and that the children should have a chance to be with him as he could help with their education and other problems.
The father conceded in cross-examination that if the children lived with him travel distances may mean a further change in schools for the children. In answer to further questions about how the children would transition to his care, the father agreed that he had said there should be some assistance in that regard but went on to say that when the children are with him they are okay if they are not pressured by the other party. When asked if he had spoken with anyone in relation to getting assistance with the children’s proposed transition he said that he had not but that he had got help for himself and the doctors he saw could help him in relation to the children.
He agreed that he had seen a general practitioner Dr G on 29 March 2016 for assistance with his own mental health issues, that Dr G is his regular general practitioner and that the appointment on 29 March 2016 had been in the presence of his partner. He agreed that he had spoken to Dr G about obtaining a mental health plan to assist him to get involved in the Family Wellbeing Program. He was asked whether he wanted the children to engage in the therapy as ordered on 7 November 2013 and replied that he did and was not aware that the children had been involved with CAMHS prior to the trial. He said that it was his understanding that he and the children would be involved in the Family Wellbeing Program.
I have already referred to my significant concerns as to the veracity of the mother’s evidence. I am satisfied, on all of the evidence, that the mother has used every avenue available to her to ensure that post separation the children did not develop a meaningful relationship with their father. I am satisfied that she has whenever possible ensured that the father is not aware of the whereabouts of the children, that she did not encourage him or involve him in any way in the children’s education, that she did not advise the father or involve him in any assessments of [X] with respect to her intellectual and psychological development and that the proposal she made at trial for the children to spend time with the father had no genuine basis whatsoever.
I was entirely unconvinced by any aspect of the mother’s evidence in relation to her allegations concerning the father’s conduct towards [X] and [Y] in early 2014 that led to a complete cessation of the children’s relationship with their father.
Nevertheless, taking into account the history of this matter including the mother’s allegations as to the father’s interest in pornography, his long term difficulties with his own mental health which were not disputed and his alleged abuse of alcohol, I was left with some concern about inadvertent exposure by the father of pornography to the children when they were in his care and he had allegedly fallen asleep.
As I have said previously, it is necessary for the court to consider whether the children’s best interests would be met by the change of circumstance as proposed by the father. It is not sufficient simply to say that the mother’s behaviour and conduct towards the father has been and is unacceptable, that it has prevented the development of a close and meaningful relationship between the children and the father and therefore the children should be moved from the mother’s care to that of the father. That is the approach advocated by the expert, the Independent Children's Lawyer and the father. To my mind, in the circumstances of this case it may simply result in the children being further damaged rather than their circumstances improving.
At the time of trial they had never met the father’s wife, a person who did not give evidence before the court, who had at that time spent very little time in Australia at all and who on the father’s own case had spent very little time with him. In addition, the father advised Ms N in June 2015 that she was aged 22 years, some 29 years his junior. The father did not adduce any evidence about his wife other than a brief reference to her in paragraphs 52 and 53 of his trial affidavit filed 4 March 2016.
In addition, Counsel for the Independent Children's Lawyer did not question the father at all about his wife and how well she might be equipped to deal with the myriad of problems likely to be faced by both of the children and the father in terms of them becoming part of his and therefore her household, only asking him if the children had ever met her, to which he replied she had not. The expert Ms N did not mention any added difficulties that might arise for the children in having their mother figure replaced in their father’s household with a very young woman new to Australia and completely unknown to the children, other than a brief mention in paragraph 65 of her report dated 3 July 2015.
I was not convinced at any level about the father’s capacity to effectively provide for the children’s emotional needs if they were placed in his fulltime care. On his own evidence he had a significant history of mental health difficulties which had on occasion involved hospitalisation. At the time of trial he had a very young new wife with whom he had a very limited relationship to that date and who had only spent a few months in Australia.
[X] and [Y] were both exposed, on the evidence of both parties, to a significant level of trauma in the family home prior to their parents’ separation in 2012. The reality of the children’s lives post April 2012 was that they were in the almost fulltime and sole care of their mother. It was the mother who provided the children’s day-to-day care.
It is without doubt that the mother had, at the time of trial, a limited capacity to provide for the children’s emotional needs. Her dislike of and disdain for the father was palpable. She had maintained that attitude towards him since separation in 2012. There was no evidence to suggest any wish or capacity for change in that regard. It could not be said, on the father’ evidence, that he had any level of regard for the mother, although his personality appeared to be much more passive. He had not seen fit to challenge the mother’s view of him and her allegations against him either in the criminal law system or in the family law system post separation prior to acquiescing to an intervention order in late 2012 and consenting to orders on 7 November 2013 that left the children in the principal care of the mother. The mother’s allegations of domestic violence were serious and she had not wavered in the four years post separation.
I find that not only was the mother’s capacity to provide for the children’s emotional needs lacking, but so was her ability to provide for their intellectual needs at the time of trial. There is no evidence to suggest that any blame for [X]’s intellectual challenges could be laid at the feet of the mother. She was however, by the time of trial, entirely responsible for [X] and [Y]’s appalling school attendance record and their regular late attendance at school. I find this severely impacted on the capacity of either child to learn at the highest level of their ability.
I find that the father may, in ideal circumstances, be more supportive of the children’s regular attendance at school and therefore be in a better position to provide for the children’s intellectual needs. I am mindful however of his inability in 2010 and 2011 to do anything to improve [X]’s school attendance rate, in circumstances where on his evidence he didn’t like to try and pressure her to go to school because she was upset and crying, at a time when she was only aged five or six.
Removing [X] and [Y] from the primary and almost sole care of the mother for a period of four years to the care of the father and his new wife, a person unknown to the children, could not possibly be other than traumatic for the children. This would be in circumstances where, based on the attitude of the mother towards the father and the children having a relationship, such a transition could only be achieved if there was a significant period of time where the children had no contact with their mother. I am unable to find on the evidence that the father has the capacity to understand the impact on the children of his proposed orders in terms of their emotional wellbeing.
I find that the father’s comprehension of the very significant psychological, intellectual and social challenges faced by [X] which will no doubt continue to challenge her is at best rudimentary. I am unable to find, in those circumstances, and taking into account the father’s own mental health challenges and the changes he will face in his own life arising from a recent marriage to a woman very much younger than him and new to the country, that he is well placed to take on the role of primary care giver for the children.
For all of those reasons I find that there are serious questions as to the capacity of both parents to provide for the needs of [X] and [Y] including their emotional and intellectual needs.
There is no evidence to suggest that either of the parties are unable to provide for the children’s physical needs. I note in that regard that Ms N described the children as neatly groomed, healthy and happy when observed for interaction with the father on 30 March 2016, a meeting that was not foreseen by the mother. Accordingly, I find their presentation was indicative of the mother’s usual standard of physical care for the children.
g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant.
I do not consider this to be an important factor in this case. The children’s heritage is (nationality omitted) and they speak with both of their parents and their older sisters in that language. They are of an age where in particular they would benefit from learning life skills from each of their parents and enjoying activities together but only in circumstances where such an arrangement was in their best interests.
h) if the child is an Aboriginal child or a Torres Strait Islander child:
the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this Part will have on that right.
This is not a relevant factor in this case.
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I find that both parents love [X] and [Y]. I find that [X] has exhibited quite significant challenges with respect to her psychological development and intellectual capacity for many years. There is no doubt that obtaining assistance for children in [X]’s circumstances is not an easy task and as I have previously said, it is not possible to lay blame at the feet of the mother for the difficulties facing [X].
There is no doubt that her and [Y]’s school attendances is a serious problem. There was no evidence as to whether that situation arose because of a lack of effort on the part of the mother or whether it related to the children’s willingness to attend at school.
The mother had on the evidence obtained some assistance from CAMHS for the children. The motives for the mother so doing were questionable but nevertheless it had occurred, and the mother had cooperated in assessments for both children at school leading them to have some additional educational support.
It was the mother’s case that the attitudes she expressed and actions she took with respect to her opposition to the children engaging in a meaningful relationship with the father were based on her view that the children were at risk and in danger in the care of the father.
I find there is no evidence to support that position with respect to the alleged incidents upon which the mother relied with respect to the events post the making of the final parenting order by consent on 7 November 2013.
The mother however had been resistant to the children’s relationship with the father at all times post separation. Her evidence at all times was that her attitude was based on her experiences of being abused by the father during the period of the marriage physically, verbally and sexually. I am not, on the evidence, in a position to make a finding as to whether the mother’s allegations are based in fact or otherwise, but I find that it is the mother’s genuine belief that the children are at risk, as opposed to a position she has taken to punish the father for the breakdown of the relationship.
It was the mother who left the relationship in April 2012 allegedly on the basis of being subjected to domestic violence. She took the children with her. She obtained an intervention order against the father which was still extant at the time of trial. She and the children initially obtained domestic violence emergency housing.
Although I have found that the mother has been determined to prevent a meaningful relationship between the children and the father, I find that it is genuinely based on her perception of her experiences in her relationship with the father. I find that she is undertaking the responsibilities of parenthood to the best of her ability. I could not find on the evidence that the mother is disinterested in or neglectful of the children.
Likewise, I find that the father loves the children, that he is very sad that the children do not have a relationship with him and that the application was made to the court in circumstances where he genuinely believed that he and the children have a good relationship and that it would be to the children’s benefit to maintain that relationship.
At the time of trial he had not had an opportunity to undertake the responsibilities of parenthood for any significant period at all. Accordingly I am unable to make any findings as to the abilities he may bring to that role.
j) any family violence involving the child or a member of the child’s family; and
k) if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
any findings made by the Court in, or in proceedings for, the order; and
any other relevant matter.
I have dealt with issues of family violence previously herein.
Conclusion
For all of the reasons to which I have referred I find that the best interests of the children would be met by remaining in the mother’s care. I am unable to find that it is in the best interests of the children to spend time with the father, other than in accordance with their request, in circumstances where I find that an order for fixed time would lead to the children continuing to be the subject of conflict between their parents and inevitably the subject of further litigation.
I find that the parents cannot and will not be able to communicate effectively in the future. I find that the children are primarily dependant on their mother for all of their needs.
I find that [X]’s relationship with her father at any level is tenuous and that although [Y] shows signs of being amenable to a relationship with his father, any order that provided for him to spend time with the father in the absence of [X] would at a practical level be almost impossible because of the level of conflict between the parties.
I find that if the children were to transition into the care of the father it could only be workable if the children spent no time with or communicated with their mother for a considerable period of time. I am not satisfied as to the capacity of the father to support the children’s needs if they were to be removed from the care of the mother. I find that it is likely that the children’s emotional health would be damaged if they were separated from their mother for any significant period of time.
I am aware that in making the orders that I intend to make I am not only finding against the father’s proposals but the recommendations of the expert and the Independent Children's Lawyer. I find that the recommendations of the expert, the proposals of the Independent Children's Lawyer and those of the father are idealistic and do not properly addresses the reality of the children’s lives, the conflict between their parents and the complete upheaval to the children’s lives that would be occasioned if the court acceded to those proposals.
I am unable to find that orders as proposed by the Independent Children's Lawyer and the father would be orders in the best interests of the children because of the level of upheaval that would result and because of my finding that the father would not have the capacity to support the children in that regard.
This is a very unfortunate outcome and will potentially have long term ramifications for the children’s relationship with not only the father but the paternal family. The court however is not able to determine the behaviour of parents. There is no doubt that [Y] and [X] deserve to live their lives free of conflict. I find, for all of the reason to which I have referred, that such a life would not be possible if they were the subject of an order requiring them to either live with their father and spend no time with their mother for a period of time or alternatively, start to spend regular fixed time with their father which would be opposed by their mother at every level.
I find that if the court was to make an order for [Y] to spend regular times with his father, he would be under extraordinary pressure from not only [X] and his mother to resist such an order. His position would be untenable.
I can only hope that as [X] and [Y] attain ages where they are able to make their own decisions they explore a relationship with their father if that is their wish. In the meantime it is hoped that they have an opportunity to spend the remainder of their childhood in an environment that is free from conflict.
For those reasons I make the following orders.
I certify that the preceding four hundred and thirty-eight (438) paragraphs are a true copy of the reasons for judgment of Judge Mead
Date: 25 June 2018
Key Legal Topics
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Family Law
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Procedural Fairness
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