Lennox and Ponting

[2009] FamCA 1107

FAMILY COURT OF AUSTRALIA

LENNOX & PONTING [2009] FamCA 1107

FAMILY LAW – CHILDREN – Re-opening – Sexual abuse – Fresh evidence – None provided – Application dismissed

APPLICANT: MR Lennox

RESPONDENT: Ms Ponting

INDEPENDENT CHILDREN’S LAWYER: Kendall Hawdon

FILE NUMBER: BRC 8460 of 2008

DATE DELIVERED: 2 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 2 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Moore

SOLICITOR FOR THE APPLICANT: Ryan Lawyers

THE RESPONDENT: The Respondent appeared in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms R. Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Forest Glen Lawyers

Orders

IT IS ORDERED

1. That the Mother’s application for leave to file and rely upon her affidavit be refused.

1. That the Mother’s Response filed 20 November 2008 be dismissed.

1. That the Father have leave to amend his application to include an application that the Mother spend supervised time with the children for two (2) hours per fortnight.

1. That the children, M born … August 2000 and T born … February 2003, live with the Father, Mr Lennox, at an address not to be disclosed to the Mother.

1. That the Father have sole responsibility for the long term care, welfare and development of the said children.

1. (a)     That the Mother spend supervised time with the said children for two (2) hours per fortnight, such time to be supervised by the W Contact Centre at times to be arranged between the Father and the W Contact Centre.

(b)That, if possible, the time the Mother spends with the children take place off site from the contact centre.

(c)That the Father notify the Independent Children’s Lawyer of the details of the future arrangements for time to be spent with the children as soon as they become available to him.

(d)That the Independent Children’s Lawyer notify the Mother of those arrangements.

1. That the Mother communicate with the said children as follows:

(a)by telephone each Tuesday afternoon between the hours of 4.30 pm to 5.00 pm for a period of no more than 15 minutes and such communication to be supervised by the Father;

(b)    by letter or other means of electronic communication and such communication to be supervised by the Father.

1. That the Mother be restrained from removing the said children from the Father’s care.

1. That the Independent Children’s Lawyer be discharged upon attendance to the matters referred to in sub-paragraphs (c) and (d) of paragraph 6.

1. That pursuant to s65DA(2) and s62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8460 of 2008

Mr Lennox

Applicant

And

Ms Ponting

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX TEMPORE

1. The record of what has happened this morning will in part explain why I have made the decision I have made. 

2. I need to deal, firstly, with the mother’s application for leave to read, file and rely upon an affidavit in support of her wish to have issues relating to the children’s care re-opened.  That application comes from a background where the matter was before the Court on 23 July 2009 and, at that time, the father had filed an application for orders and the mother made a response.

3. The father’s application was an application to be permitted to live at an address not to be disclosed to the mother, for sole parental responsibility, for the mother’s time to be supervised and for restraining orders restraining the mother from removing the children from the father’s care.  The mother responded by seeking an order that the children live with her, amongst other orders, and that the father have supervised contact. 

4. The matter was the subject of a lengthy hearing before me in 2006, which resulted in a judgment being delivered on 15 June 2006.  The core of the mother’s case, at that time, was that the father had sexually abused the children.  At that hearing, as explained in the judgment, I determined that the case of sexual abuse had not been made out against the father and I ordered that the children live with the mother and spend time with the father.  In the course of those reasons, which examined, might I say, some rather extreme and quite improbable allegations of sexual abuse based, in part, upon the disclosures of the children, I expressed the hope and expectation that the mother would not continue to expose the children to her beliefs about sexual abuse.

5. The history subsequent to those determinations in that judgment included evidence to the effect that the mother did indeed continue to expose the children to her ongoing beliefs of sexual abuse to such a level that, not long after this Court had determined that the children should continue to live with the mother, the Department intervened, obtained a temporary protection order, and had the children placed in foster care based upon its assessment that the children were at risk in the mother’s care as a consequence of the emotionally abusive circumstances surrounding them, relating primarily to the mother’s conviction and refusal to let up on her pursuit of the allegations of sexual abuse.

6. In my experience, such an intervention by a Department to remove two young children from their primary care giver is a stark and exceptional response and one only likely to have emerged from a situation where the Department and its officers became gravely concerned that these young children were at grave risk if they remained in the care of the mother.  The Department conducted its own assessments and determined that the children were not at risk from their father and chose to work towards an outcome of having the two girls placed in their father’s full-time care.  By 11 June, the children were placed in their father’s full-time care.  Thereafter, the Department sought to limit the mother’s contact to supervised telephone contact and supervised contact, one hour per week. 

7. In the father’s evidence, he refers to ongoing harassment by the mother, which has, he says, resulted in his circumstances and those of the children continuing to be undermined by the mother’s relentless campaign in the form of informing others who had responsibility for the children, or knowledge of the family, of the father’s alleged paedophile activities with his own children. 

8. Those matters have resulted in the father bringing applications to this Court designed to further protect the children from that prospect in the future.  The application was met by the mother’s response, seeking orders to have the children placed in her care. 

9. The material filed in support of the father’s application included an affidavit by Mr K, a Child Safety Officer with the Department of Child Safety.  That is an extensive affidavit, setting out the history of the matter and further informing the Court of the nature and extent of the concerns held by the Department in the past and at this time.  In that affidavit, the deponent refers to the prolonged case study undertaken by the Department and their ongoing concerns about the mother’s campaign.

10. The assessment was to the effect that the mother could not and would not allow this matter to rest and included an assessment by Professor N that the mother’s confabulation on this issue was tantamount to emotional abuse and will not change, even with psychological treatment.  Professor N’s evaluation included an assessment that the children should not be returned to the mother’s care as her beliefs regarding sexual abuse will not change and the girls will continue to experience emotional abuse.

11. During the course of that assessment, one of the children, T, told Professor N that her mother told her to say that the father was hurting her and that T and M should hate their father.  Both girls apparently stated to Professor N that they did not believe that the father hurts people and they do not hate him. 

12. Mr K sets out in his report that he has had numerous engagements with the mother and she has not demonstrated any insight into the emotional harm her actions were causing the two girls. 

13. Unfortunately, but perhaps not surprisingly, the children are currently demonstrating some reluctance at some times in their engagements with their mother, either by telephone or personally.  At other times, the children have demonstrated to observers their love and affection for their mother, which is reciprocated by their mother.  That is the absolute tragedy of this case, that the price everyone has paid for the mother’s relentless pursuit of this issue is a loss of a valued relationship between two young girls and their mother, so that it is, sadly, now only a token relationship.

14. The mother’s application indicates, again regrettably, that even the very loss of her relationship with her children has not deterred her from pursuing this matter to her own detriment.  It was in that background that on 23 July 2009, and on the pleas of the mother to the effect that she had important evidence she wished to present in this case, that, not without some reservation, I gave her that opportunity, mindful as I was of the fact that this exposed the father to more of the same, and left hanging over the father and the children continuing uncertainty.  Notwithstanding my earlier determination after a long trial and the Department’s subsequent determinations after a long case study, I extended that opportunity to the mother.

15. I am reminded by Mr Moore of counsel, who appears for the father, as I am by notes recorded by my legal associate at the time of the mention on 23 July, I made it very clear to the mother that it was essential that she complied with my directions associated with this one further opportunity, and that she file material, her evidence-in-chief, on or before 23 September, so that the father might have the opportunity to reply on or before 14 October, and the Independent Children’s Lawyer might have the opportunity to file any material by 30 October 2009.

16. The mother was without legal representation at that time.  She tells me that she has been unable to secure legal representation in the three and a half months since those directions.  I was fully aware of the mother’s lack of legal representation, and I certainly had no expectation whatsoever, given the history, that the mother would ever secure legal aid, but of course she was absolutely entitled to pursue that option.  I regard the refusal of legal aid to provide legal representation as absolutely no excuse whatsoever for a failure to comply with my direction that the material be filed by 23 September.  It should have been the mother’s expectation that she would not have legal representation, and the onus was on her, whilst she was applying for legal aid, to continue to prepare herself for the prospect of providing an affidavit by 23 September.     

17. Notwithstanding the mother’s failure to comply with directions, and notwithstanding the objection taken by counsel for the father, I extended the mother yet a further indulgence in the form of at least being prepared to read her affidavit, notwithstanding that it was so drastically out of time.  Again, I wanted to be satisfied that there was no secret evidence, no new information that I should have before I ruled on this matter.  Sadly, the affidavit is more of the same.  It does include reference to some disclosures made by the children subsequent to my determination in 2006, but, as I have said to the mother in the course of our discussions, I do not regard the fact the children continue to make disclosures from time to time as evidence of any probative value.  Indeed, given the history of this matter, I would be astonished if, from time to time, the children did not make some statements which might be capable of being the subject of adverse inferences.

18. In addition to the investigations conducted through this Court and through the Department, the children have been subjected to no less than seven police interviews and no less than seven medical examinations.  Sadly, I have absolutely no doubt that they have been subjected to continual and continuing requests by their mother to make disclosures against their father.  The mother, herself, as part of her argument today, informed the Court about her instructions to her children about the need to inform other people other than herself.  As I say, it would be extraordinary if the children, therefore, had not been left with some appreciation of the need to make some of those types of disclosures from time to time.  The history of this case renders disclosures alone made by the children against their father of no probative value on the question of whether or not he has in the past, or continues to abuse them. 

19. Of course, in this case, in addition to the contaminated features of the history I have described, there is the fact that on other occasions the children positively assert that their father does not hurt them and positively assert that their mother tells them to say that he is hurting them, when he is not. 

20. It was incumbent upon the mother to produce further additional evidence to persuade me that, after a final hearing and after an extensive Departmental investigation, I should again entertain or allow this Court to entertain a re-examination of such issues.  The mother’s other evidence of alleged abuse is so equivocal as to be largely worthless. 

21. In addition to all of those matters, I am informed by the Departmental officer that, should this Court be minded to afford to the mother any more than one hour’s supervised contact, it would be disposed to again intervene, with the view of removing these children and having them placed in foster care, and in the unlikely event that this Court could be persuaded to make an order that the children live with their mother, it would be a very short-lived arrangement, which would result in these children being placed with some strangers to endure what they have already endured, which was almost two years of foster care.  I cannot entertain such terrible prospects for these children, who have already been through so much.

22. In all the circumstances, I therefore refuse the mother’s application for leave to file and rely upon her affidavit.  Her response and the orders she seeks in it are therefore without any evidentiary basis.  I therefore dismiss the mother’s response filed on 20 November 2008.

23. The only live matter before this Court is the father’s application for orders sought, which application was filed on 3 September 2008.  In that application, the father seeks orders that the children live with him at an address not to be disclosed, and that the mother’s communication be limited to telephone communication each Tuesday between 4.30 and 5.00 for a period of no more than 15 minutes, to be supervised by the father;  that the mother be at liberty to communicate by letter or other electronic means, as supervised by the father;  that the father have sole responsibility for their care and that there be orders designed to protect the children from the prospect of the mother removing them from his care.

RECORDED  :  NOT TRANSCRIBED

1. I note the five orders sought in the father’s application filed on 3 September, and I grant him leave to seek leave to amend that application to include an application for supervised contact between the children and their mother for two hours per fortnight, for the reasons the father has set out in his affidavit material.  It is his belief that it is in the children’s best interests to move to an address not disclosed to the mother, and having regard to the contents of his affidavit, which have not been addressed by any material filed by the mother, I appreciate and understand that application.  That application is supported both by the Department and the Independent Children's Lawyer.  I propose to make orders in terms of the application, as supported by the Department and the Independent Children's Lawyer.  I propose to make an additional order, which will be between orders 1 and 2 in the application.  I make this order, which will be 2(a):  that the mother have contact with the children on each alternate weekend for two hours at the W contact centre.

RECORDED  :  NOT TRANSCRIBED

1. Dates and times to be advised.  I will discharge the Independent Children's Lawyer as and from the time when the father has made the arrangements and is able to notify the Independent Children's Lawyer that these are the specified times and dates, and the Independent Children's Lawyer in turn can notify the mother.  So two hours per fortnight at times to be arranged between the father and the W contact centre.  That is (a). 

2. (b) That if possible, the said contact take place offsite from the contact centre.  I do not know whether I have specified, but the contact should be supervised until further order.  (c) That the father notify the Independent Children's Lawyer of the details of the future contact arrangements as soon as they become available to him;  and (d) that the Independent Children's Lawyer notify the mother of those arrangements.  I make an order discharging the Independent Children's Lawyer upon attendance to the matters referred to in subparagraphs (c) and (d).

3. I simply close by observing that I fully appreciate not only the father’s point of view in making these orders, but I fully appreciate the impact this has upon the mother.  I understand her ongoing concerns and her dismay at the outcome of today’s proceedings and these orders.  I do not want to close without offering the mother some unsolicited, gratuitous advice, based on my appreciation of where this case is.  When I heard the matter in 2006, I was left with a feeling of sympathy for everyone involved in this case:  the children, the father, but also the mother, because of my conclusion at that stage that the mother was burdened by a belief, albeit one that I said was mistaken. 

4. I acknowledge that the mother still has concerns, but she needs to appreciate that that cause has now been determined and, for the sake of her children, she must be able to let it go.  She has referred it to the Family Court;  it has been examined by the Department;  and the only way that the mother can build on her now sadly limited relationship with her children is to let that cause go and, over a period of time, regain the trust of the father and of the Department and of her children.  That is the only chance she has of building upon this limited relationship, because more of the same, I am afraid, has an inevitable end when it will be determined that, on balance, the children’s future is best served by having no contact with their mother.  That would be a tragedy for all concerned.  It is now really in the mother’s hands.  She must come back from a long way, in terms of gaining the trust of the father.  I know that may be unpalatable to her, but she must now demonstrate that she can let this cause go and focus on more positive aspects of what she has to offer her children.  But it is going to be a long path.

5. Otherwise, orders as per application. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: