MILLARD & MILLARD
[2020] FamCA 107
•25 February 2020
FAMILY COURT OF AUSTRALIA
| MILLARD & MILLARD | [2020] FamCA 107 |
| FAMILY LAW – PARENTING – With whom the children live – Where the children were enmeshed with the father – Where the father had perpetrated family violence against the mother and eldest child – Where the children were at risk of physical and psychological harm in the care of the father – Where this risk was not mitigated by supervised time – Where any communication with the father posed risks of psychological harm – Order for no time – Order for no communication – Where the father is viewed as a serious risk to both the mother and children – Injunctive orders made for the personal protection of the mother and children. FAMILY LAW – PRACTICE AND PROCEDURE – Where the father made no appearance on the 11th day of hearing – Where the father emailed the Court indicating his reasons – Where counsel and solicitors for the father were given leave to withdraw – Where the Court considered the email an application for adjournment – Application refused – Matter proceeded in the absence of the father. | |
| Australian Passports Act 2005 (Cth) Crimes (Domestic and Personal Violence Act 2007 (NSW) Family Law Act 1975 (Cth) ss 60CC, 65Y(2) 68B, 68C, 121 | |
| APPLICANT: | Ms Millard |
| RESPONDENT: | Mr Millard |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5458 | of | 2015 |
| DATE DELIVERED: | 25 February 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 29 October 2018 – 2 November 2018; 1 April 2019 – 5 April 2019; |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies SC |
| SOLICITOR FOR THE APPLICANT: | Broun Abrahams Burreket |
| COUNSEL FOR THE RESPONDENT: 29 OCTOBER 2018 – 5 APRIL 2019: 19 SEPTEMBER 2019 – 11 FEBRUARY 2020 | Mr Batey with Ms Lioumis Mr Coleman SC (leave granted to withdraw) |
| SOLICITOR FOR THE RESPONDENT: 29 OCTOBER 2018 – 5 APRIL 2019: 19 SEPTEMBER 2019 – 11 FEBRUARY 2020: | Hamish Cumming Family Lawyers |
| RESPONDENT: 11 FEBRUARY 2020 | No Appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Kenny |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
IT IS ORDERED
That Ms Millard (“the Mother”) have sole parental responsibility for the children of the marriage, B born … 2005 ; C born … 2007 and D born … 2012 (“the children”).
That for the avoidance of doubt, the Mother’s parental responsibility is in respect to all major long term decisions relating to the children, including but not limited to issues about:
(a)The children’s education (both current and future);
(b)The children’s religious and cultural upbringing;
(c)The children’s health; and
(d)Changes to the children’s living arrangements.
That the children shall live with the Mother.
That the children shall spend no time with the Father.
That the Mother shall be at liberty to leave the Sydney metropolitan area with the children.
That the Mother shall be at liberty to organise counselling for the children at such counselling services as is determined by the Mother from time to time.
That pursuant to section 68B(1)(b), (c), and (d) of the Family Law Act 1975 (Cth) the Father be and is hereby restrained from:
(a) Assaulting, harassing or molesting the Mother in any way;
(b)Forwarding, sending, initiating or sustaining any communication in any form with the Mother;
(c)Approaching or being within 50 metres of the Mother;
(d)Entering or being within 50 metres of the Mother’s home or any place where the Mother works.
That pursuant to section 68C of the Family Law Act1975 (Cth), Order 7 is an injunction for the personal protection of the Mother.
That pursuant to section 68C of the Family Law Act1975 (Cth), if a police officer believes, on reasonable grounds, that the person (Mr Millard) against whom the injunction is directed has breached the injunction by:
(a) causing, or threatening to cause, bodily harm to the protected person; or
(b) harassing, molesting or stalking that person;
the police officer may arrest Mr Millard without warrant.
That the operation of Order 7 is suspended during any period in which an Apprehended Domestic Violence Order or a Provisional Apprehended Domestic Violence Order made pursuant to the Crimes (Domestic and Personal Violence Act 2007 (NSW) is in force for the protection of the Mother from Mr Millard.
That the Father be and is hereby restrained from the following:
(a)Assaulting, harassing or molesting the children or any of them in any way;
(b)Forwarding, sending, initiating or sustaining any communication in any form with the children or any of them;
(c)Causing any third parties, including but not limited to Ms EE, Mr EE and NN from forwarding, sending, initiating or sustaining any communication in any form with the children or any of them on behalf of the Father;
(d)Entering or being within 50 metres of the children’s home;
(e)Entering or remaining or being within 50 metres of the children’s schools, presently being Suburb F Public School and/or G School;
(f)Being within 50 metres of the children or any of them;
(g)Removing the children from the Commonwealth of Australia;
(h)Denigrating the Mother:
(i)To or in the presence of the children; or
(ii)On social media including but not limited to Social media service 2;
and
(i)Causing any third party from accessing the log in details of all social media accounts operated by him.
That pursuant to section 68C of the Family Law Act1975 (Cth), Order 11 is an injunction for the personal protection of the children.
That pursuant to section 68C of the Family Law Act 1975 (Cth), if a police officer believes, on reasonable grounds, that the person (Mr Millard) against whom the injunction is directed has breached the injunction by:
(a) causing, or threatening to cause, bodily harm to the protected person; or
(b) harassing, molesting or stalking that person;
the police officer may arrest Mr Millard without warrant.
That the Father shall immediately upon the making of these orders:
(a)Cause to be removed from the internet including Social media service 2 or other social media accounts that he conducts, has conducted or will conduct any photo or image of the children, or any of them;
That the father is restrained from posting or publishing on any social media platform, any information which identifies the Mother or the children.
That he Mother shall authorise and direct the Principal and staff of the children’s schools to supply the Father with copies of all school reports and school photograph order forms.
That the Mother will cause the Father to be notified as soon as is reasonably practicable of any serious injury or serious illness suffered by the children.
That the Family Law Watchlist Order, being Order 8 of the Orders made 14 March 2018 be discharged.
That the Australian Federal Police are hereby requested to remove the names of the children, B born … 2005, C born … 2007 and D born … 2012 from the Family Law Watchlist.
That within 7 days of the date of these Orders the Father is to cause each of the children’s passports to be delivered to the offices of Broun Abrahams Burreket and the Mother will thereafter have possession of the children’s passports.
That pursuant to section 11 of the Australian Passports Act 2005 (Cth) the Mother be permitted to do all acts and things and sign all documents necessary to apply for and maintain current Australian passports with respect to the children B born … 2005, C born … 2007 and D born … 2012.
That pursuant to section 65Y(2) of the Family Law Act 1975 (Cth) the Mother be permitted to take the children out of the Commonwealth of Australia.
That the Mother be permitted to provide a copy of the Orders and Reasons for Judgment delivered in these proceedings (interim and final) to the following persons if it would be of assistance to those persons and organisations:
(a) any counsellor, psychologist or psychiatrist she attends upon;
(b) the children’s medical practitioners including but not limited to any
counsellor, psychologist or psychiatrist the children (or any of them) attend upon;
(c) the children’s school(s);
(d) the New South Wales Police; and
(e) the Department of Communities and Justice.
That the Father provide a copy of Order 11(c) of these Orders to Mr EE and Ms EE.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Millard & Millard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5458 of 2015
| Ms Millard |
Applicant
And
| Mr Millard |
Respondent
REASONS FOR JUDGMENT
Ms Millard (“the mother”) and Mr Millard (“the father”) commenced co-habitation in 1996 or 1998 and married in May 2000. There is a dispute about the date upon which cohabitation commenced and when the marriage finally ended but that dispute need not be resolved here.
They are the parents of three children: B born … 2005; C born … 2007 and D born … 2012. At the present time, pursuant to orders made 26 April 2018, the children live with their mother and spend no time with their father and he is restrained from contacting them. An order has been made giving the mother sole parental responsibility for the children.
The mother seeks orders which would continue those arrangements on a final basis.
The father seeks orders for equal shared parental responsibility and for the children to live with him and the mother on a week about basis.
As will be apparent from the history of the matter, equal shared time was trialled commencing in 2017 and eventually resulted in all three children refusing to see or spend time with their mother.
When the Court ordered that the children live with their mother and spend only supervised time with their father in March 2018, C ran away from her mother’s home and, after police intervention, was placed in L Hospital for 13 days, while authorities determined what to do with the child.
Eventually, in April 2018, the Court ordered that the children live with the mother and spend no time with the father.
Whether it is possible for the children to live with one parent and have a relationship with the other, where they spend time with that parent, is the crucial issue to be determined.
If the children cannot spend time with each of their parents, and can live with only one parent and not spend time with the other, with which parent should they live?
It is instructive to set out, with reference to the affidavits and the chronology prepared by the Independent Children’s Lawyer (“ICL”), what the parties allege to be the history of the relationship. It is not intended to list each and every allegation made by each parent against the other, or against third parties, but rather to give an overview and a context in which to place the consideration of relevant incidents and to gain an understanding of the reason these children moved from having a close, loving relationship with their mother in the beginning of 2017 to completely rejecting her by the end of that year. Specific consideration will be given to those incidents where there is evidence, of either documents or witnesses, other than solely the evidence of the mother and the father.
The father denied each allegation, including each allegation of family violence, made by the mother. He also denied the allegations of violence made by the paternal grandmother. It was his case, repeated in cross-examination, that where a version of events differed from his, the mother and her witnesses, including members of his family, teachers and other disinterested parties, had colluded to tell lies about him.
This matter was set down for final hearing, and was adjourned part heard on four occasions, commencing in October 2018 and eventually concluding in February 2020. The extensive evidence before the court was not anticipated when the matter was first set down, as was the evidence adduced through the adjournment periods. On the first day of the final part of the hearing, the father made no appearance, his legal representatives were granted leave to withdraw, and the matter proceeded in his absence to submissions.
HISTORY
The mother alleges that in 2007, the father assaulted her, holding her against the wall with his hands around her throat.
Also in 2007, the mother alleges that the father smacked B so hard he left hand prints on her legs. The father denies those allegations.
The paternal grandmother alleged that the father had assaulted her in 2007. The father denies those allegations.
The mother alleged that, in 2012, when B was having a “meltdown”, the father threw her in the swimming pool. The father denies the incident occurred as the mother alleged.
In early 2013, the father was charged with assaulting his mother’s then husband, Mr OO. The charge against the father was dismissed but he pleaded guilty to a charge of damaging Mr OO’s car and was placed on a good behaviour bond. The father denies that he assaulted Mr OO.
The mother alleges that, in late 2012 or early 2013, when D was a toddler, the father pushed the mother in the presence of family members. The father denies that he assaulted the mother on that occasion.
In 2013, the father proposed that the family move to Asia which would facilitate his business activities in Asia. While the mother and father travelled to explore schooling options for the children, the mother eventually declined to move.
On 7 October 2013, the father moved to Asia and the mother remained with the children in the family home in Sydney. It is not in dispute that, when he moved to Asia, he did so believing that the mother was a capable parent and with complete confidence in her care for the children. Neither is it in dispute that the children then had a warm and loving relationship with their mother. The father returned to Sydney every six weeks or so. When he returned to Sydney during this time, he would stay in the matrimonial home, although where he slept remains in dispute. He lived in Asia for almost two years, during which period the mother was the children’s primary carer.
The mother alleges that on … August 2014, in Sydney, the father assaulted her, kicking her out of bed and, with both hands, squeezing her neck. The father denies that allegation. It is considered at length later in these reasons.
The mother alleges that the father pushed B forcefully in her chest in 2014. The father denies that allegation.
The mother alleges that in September 2014, the father again assaulted her by grabbing her wrists, in the context of a conversation about separation. The father denies that allegation.
An incident occurred in Sydney, on Christmas Day 2014, when the mother and the father argued and the father left the home. He eventually went to the police station. The father was ultimately conveyed by ambulance to hospital. Although this event took on some significance in the trial, it is not significant in determining the issues here, except to the extent that it appears that it was from hospital notes that the mother first saw the suggestion that the father might have elements of a narcissistic personality.
The paternal grandmother describes an incident, in May 2015, where she was assaulted by the father when in the car together. She details the father driving in a reckless and dangerous manner. C was in the car at the time. The father denies that allegation.
In mid-2015, the parents jointly instructed a solicitor to prepare consent orders resolving financial and parenting issues. They agreed on an equal shared care arrangement for the children. In the Application for Consent Orders signed by the mother on 15 July 2015 she stated:
1.There has been past domestic violence against the mother by the father. The children have never been at risk and I have no recent concerns regarding the safety of the children in their father’s care.
2. There have been no recent incidents & I feel safe if we are together.
In August 2015 the father returned from Asia and lived separately from the mother and the children. In April or July 2016, the father moved into the house where the mother and the children lived. There is a dispute about whether cohabitation resumed but it is not necessary to resolve that dispute.
In later July or early August 2016, there was an incident when the mother alleges that the father punished B by soaking her with the hose. The father denies that allegation and says that he took B outside and sprayed her with a little bit of water to show her it was not nice to tip water on C’s head. In cross- examination, the father specifically denied that it was a punishment. This incident is considered at length in the reasons.
In December 2016, the parents physically separated, the father remaining in the former matrimonial home and the mother moving to rented accommodation.
On 20 December 2016 there was an exchange of messages between B and the mother. The mother asked B to remind C of something she needed to take to school. The response from B’s phone was “You should really be talking to dad about all these things and not using me in the middle as a kid. Your [sic] the parent with dad, not me.” Unlike B’s other messages around this time, there was no accompanying message of love. Later B sent a message to the mother saying “Mum I am so so sorry dad wrote that while I was in bed XO”. The father denied writing the message but, having regard to B’s message and the markedly different tenor of the subject message, it is likely that he wrote it.
The parents reached an agreement about the way the children’s time should be divided between them, from the beginning of Term 1 of 2017, in the following terms:
· With the mother from after school Monday until before school Wednesday each week;
· With the father from after school Wednesday until before school Friday each week;
· With the father from after school Friday to before school Monday in week 1 of 2 and alternating thereafter;
· With the mother from after school Friday to before school Monday in week 2 of 2 and alternating thereafter.
They agreed that the children should spend the school holidays in 2017 on a week about basis.
On 31 December 2016, there was an incident at the home of the father’s uncle and aunt. The circumstances are disputed and the evidence is discussed later in these reasons. The father denies that the incident occurred as described by the father’s uncle and aunt. That incident marked the end of the hitherto cordial relationship between the father and his uncle and aunt.
The father took the children overseas for a holiday during the January school holidays. Emails between the parents during this trip show an unremarkable correspondence with the mother asking questions about the holiday and the father detailing their day to day activities.
The relationship between the parents became increasingly acrimonious.
In January and early February 2017 C was sending loving text messages to the mother.
In February 2017, the mother alleges that the father spat on her.
Also in February 2017, the mother asserts that the children, particularly B, were expressing fear of the father and reluctance to go with him.
On 16 February 2017 B messaged the mother on Social media service 1 saying “Mum please come and pick us up love [B]...Its [sic] urgent [crying face emoji]”, and later “No mum please come every one is [crying]. The mother telephoned. B texted “dad didn’t let us [answer]”. On 17 February 2017 C messaged the mother “Please text not call me mum please mum xoxo have a good weekend” and then sent six texts each saying “Mum” then “Please answer please please mumxoxo”.
On 24 February 2017 a notification was made to the Department of Family and Community Services (“DFCS”), presumably by a teacher, stating:
[B] and [C] are allegedly being singled out by their father and made to feel guilty. [B] expressed concern about going home to the father’s home today. The caller is concerned that the children are at risk of psychological harm if exposed to the father’s behaviour.
…
[B] said that she is very afraid. She is scared to leave her 2 sisters alone as she won’t be there to protect them when she goes on camp next week. She is scared to go home today.
The caller reported that B told of being hit in her father’s care, and an incident where C was force fed food by her father. The father in cross-examination said that report was not true and that it could be a fabrication by the school.
On 27 February, the mother reported to Suburb Z Police that B had expressed a fear of going to the father’s home. At 4.00 pm, the police conducted a welfare check on the children and spoke to B. The maternal grandmother was present during their interview, but provided no information. The notes from Police produced on subpoena note:
[B] told police that when [the father] gets angry, he yells at her and her sisters, which makes her not want to stay there.
[B] also indicated [the father] smacks the children, however [B’s] description of this “smacking” constituted lawful chastisement.
C’s class teacher in 2017 noted that on 28 February the class discussed circles of trust and C identified mum and dad as being people within her inner circle of trust.
On 1 March 2017 C’s teacher noted:
[C] showed signs of distress – hands shaking and crying. … C was worried about staying at her dad’s while her older sister was at camp.
On the same day, C texted the mother sending an image of a sad face and the words “Mum mum mum Mum please Mum Mum Mum”. Later C texted the mother asking to be picked up and was concerned as she had been told the mother was ill in the head. The mother sent a text reassuring C. Around 7.25 pm C again texted asking, repeatedly, to be picked up and the mother replied “Go to sleep soon you’ll feel better”. At 8.59 pm C texted “Mum, Dad made me tell the truth about the police and it was so sad. I need you please answer me...” The mother replied “It’s ok” and C responded “No it is not help me”. The exchange continued with C distressed and the mother reassuring her.
At 11.39 pm that evening, the father sent the mother an email berating her. The email was three A4 pages and said, inter alia:
Being led by this dynamic in your unhealthy agenda and motives, to then have the police talk to [B], after all have you been doing and saying above to her. Making her completely upset and in line with that you say (as she has made clear above) to then have [the maternal grandmother] and you embrace and hug her and tell her what a good girl she is. Serious manipulation of a child and very unhealthy.
B’s teacher in 2017 noted that in week 10 of first term B had been upset and waited after school to talk to the teacher. B apologised for her behaviour. When questioned why she was apologising, B:
explained her dad had told her to. He had told her the comments I had made to him during parents/teacher meetings.
She was emotional + said her dad would make her repeat Yr 6 + not let her go to high school if she didn’t apologise for not being focussed.
(As per the original)
In June 2017, the mother moved into rental accommodation in E Street, which was directly opposite the school which C and D attended. Also in June 2017, the mother arranged for B and C to see Ms PP, a psychologist.
The class teacher noted at the end of term two that C reported being happy with transitions from mum to dad.
In week five of term two of 2017 the teacher noted “Spoke with [B] about being late for sports training. She said her dad wouldn’t bring her on time because it was too early for her sister’s and not fair”. The parents of B’s friends offered to take B to training, but the father declined as he viewed it as his responsibility.
In week 10 of term two the teacher noted that she spoke to B and:
[B] said her dad was yelling at her on the way to school about being ungrateful…
Mentioned she was also worried about her dad finding out about her talking to a psychologist - worried her sisters might say something.
In a document entitled “Child Assessment/Interview” dated 27 June 2017 created by Ms PP, B was asked to list good things and bad things about each of her parents. In relation to her father, the good things B listed were “fun, takes us skating, funny, teases us”. The bad things B listed were “gets angry over small things, hypocrite – fine for him to do something wrong but not us”.
In relation to her mother, under the heading good things, B listed “Nice, she understands me – can talk to her about anything – she’s my best friend”. Under the heading bad things B said “nothing”. Asked whether she was worried about anything, B listed her worries as “Mum dying e.g. on the way home from work”. The report notes:
Strategies for managing worry about Mum
Help for dealing with Dad when he’s angry
Under the heading “behavioural observations” the report noted, in relation to the father:
“makes us sit outside when he’s angry…”
“I feel scared about once a fortnight…when ever [sic] he gets angry I back away & walk away from him, then he sends me outside.”
“Dad thinks I should be more like my sisters; they just agree with him.”
A similar assessment was conducted with C. C is noted to have said about her father “Gets angry shouts at us – if we misbehave or don’t do what we’re told”. In relation to her mother, C is noted to have said, “Gets cranky and tells us not to do it again”. C nominated her father as the angriest person and the saddest person and her mother as the easiest person to get along with.
On 4 July 2017 Ms PP noted that B had presented as bright and highly engaged. She noted that B said that she was “Feeling more comfortable with dad/less signs of anxiety”. B “Reported enjoying the school holidays with her father and no episodes of him becoming angry”.
Also on 4 July 2017 the paternal grandmother wrote a letter to the mother stating inter alia:
It has been a long hard road “dodging darts” and mustering a great deal of patience to finally have [the father] allow me to spend some time with the girls which I did Friday night and Saturday morning…
I would not want to jeopardise the few occasions where I manage to see them – and it is not an option for me not to see my grandchildren, as I have been a part of their lives since they were born and have a great deal of love for them.
The paternal grandmother observed that she had witnessed the father insisting that B, who had turned 13 years of age, should bath with the younger children. Initially the father refused B’s request that she should have a shower. The paternal grandmother described the father standing over B while she undressed and got into the bath.
The paternal grandmother stated in a letter to the mother:
I think we are all aware that [the father] can be insensitive to the personal needs of others and, at this time particularly, whilst he is still somewhat preoccupied with his own situation, he may be missing signals he otherwise he would not miss. I am hopeful that generally his common sense prevails, not just for his sake, but for the rest of us as well. I do not wish to see him alienate us any further and I am attempting to pave the way for some healing without having my own boundaries compromised.
In a counselling session on 11 July 2017 the mother told Ms PP that B had told her:
When she was staying with her father last week he pushed her and she fell over. Incident triggered by not cooking the eggs for breakfast right.
[The mother] reported that he then proceeded to yell over her when she was on the floor and she wet her pants ‘out of fear’.
Ms PP noted, “B was encourage [sic] to discuss the above incident involving her father, however was very reluctant”. Ms PP recorded:
Informed [B] that her safety/wellbeing is of most importance and that she did the right things talking to her mother about it. Encouraged to continued speaking with mother after staying with her dad and let her know of any times that she feels scared.
Discussed her desire to see her father. [B] seemed very adamant about seeing her dad and enjoying being with her dad.
On 28 July 2017 the father sent an email to the mother stating inter alia:
[C] is not coping as well as [B] with your moving out of our family home, where they feel a huge sense of stability and safety in what they have always known. She does not understand why our family all together is not the focus and priority for you, as it is with me that I have communicated on many occasions with you and its importance for all of us. I will not get involved in these conversations with her on your choices, that I strongly disagree with, to move out and all the disruptions it has created to our family when the priority should be moving forward from mistakes and being adults (good parents) in strength and maturity work through to keep what is so important together for all involved. The choice you have made has been yours alone and in opposition to what I think is important and a priority for our family that should be the focus for nothing is more important. However, that strength and maturity plus on countless occasions asking you to come home and heel [sic] with me for each other and our family, has been met with no reaction or equal focus and priority of importance from you.
That email does not sit comfortably with the father’s evidence that, in May 2016 the mother had not reconciled herself to the separation.
On 2 August 2017, the father sent the mother an email that consisted of 11 A4 pages.
Among the volumes of emails from the children to each parent which were tendered were emails to the mother between July and September 2017. The messages from the children are loving and express affection.
On 24 August 2017 C texted the mother saying “Love you so much I will call you tonight so be prepared for my call”. C sent a similar message on 30 August.
The father asserts that, in September 2017, C began to tell him that the mother was angry and C was scared of her.
On 15 September 2017 C sent a message to the mother saying “love you so much have a great sleep”. On this day, the class teacher reported concern that C was becoming withdrawn.
On 19 September 2017 B’s school counsellor noted that B was still seeing Ms PP. The counsellor noted that B told her that her father had said “we don’t talk about people behind their backs so don’t talk to the counsellor about me”. B reported that her mother “cries all the time”.
In September 2017, the father met his new partner, Ms QQ, at the beach where the father and the children were staying for a holiday. The father asserts that he had intended to take the children overseas but that the mother had withheld D’s passport until the last minute and when they arrived at the airport he found that the passport had expired. That was what he told Ms QQ.
The mother disputes the father’s version. In her affidavit she deposed that the father, at all relevant times, held the three children’s passports which he retained after returning from overseas with the children. She deposed that she emailed the father and reminded him that B’s passport might need renewing and she signed the forms to enable the father to apply for a new passport for B. She was not cross-examined about the father’s allegation that she had given him an expired passport. At this time, the father was engaging in an oppressive email correspondence with the mother. More will be said about the father’s emails later in these reasons. There was no email about this alleged failure on her part to provide a current passport for D. I view it as highly unlikely that, if the mother had failed to facilitate the planned holiday, the father would not have reacted in angry emails. I do not accept the father’s evidence in relation to this issue. It is, however, relevant that he told the children, and Ms QQ, that the cancellation of the planned holiday was the fault of the mother.
It is at about this time that the older children’s attitude towards their mother seemed to dramatically change.
On 4 October, the father emailed the mother having found out that B was seeing a psychologist. The email was two A4 pages.
C’s teacher noted that on 10 November 2017 “[C] sought class teacher to report that she regretted saying she was scared of her dad at the beginning of the year”.
On 20 November 2019, C called her father to come and get her from the mother’s home.
The father asserts that, on 20 November 2017, C telephoned him and told him that she had locked herself in the bathroom and her mother was screaming and trying to take her phone. The father went to the mother’s home. The father deposed that the mother told him that C was being disobedient. He deposed that he took C for a walk and she told him that she was sick of the mother being negative and “make us sad and says bad things about you”. The father deposed that C said she was not going back to the mother’s house. He deposed that he asked her to “try and go back in like the other times and like I just spoke to you about” but C refused. The father took C home with him. Thereafter C spoke to the mother a few times on the phone and told the father “every time I talk to her she pretends, she acts all fake and then starts trying to make me feel bad about myself”. C ceased overnight time with the mother from this date.
On 22 or 23 November 2017, D, who was then aged five years, told the father she did not want to go to her mother’s house.
C’s class teacher noted on 22 November 2017:
[C] stated that she had called her dad the previous night and asked him to come and get her and had asked dad to live with him full time. [C] stated that there was some confusion from her mum and she had to get her dad to explain what was happening. [C] stated that her dad told her he had contacted the police to check it was ok to get her before arriving.
On 27 November, C went home with the mother after school but in the early evening, contacted the father to come and collect her.
Thereafter, the father deposed, “[C] and [D] continued to refuse to spend time with [the mother]” despite his encouraging them to see her.
The mother deposed that D ceased overnight time from 28 November 2017.
On 2 December, B was mentioned in the school newsletter and sent a copy to the mother. The mother says “You should also send these things to Dad”. When B protested, the mother replied “You send them to me and it’s not hard for you to send them to Dad also.”
On 5 December C’s class teacher noted that the mother came to class at 3pm to see C and that they appeared to chat amicably.
The mother emailed the father, asking him not to come to the school that afternoon when the girls were to be collected by her. She asked that he keep to the agreed schedule, stating that she had not seen C for 14 nights and that it was not to be left to the children to decide where they lived.
The father went to the school and collected the children.
At 3.51 pm on 5 December 2017, the father emailed the mother, saying that the children had come to him in tears saying that the mother “turned up in their classroom early and started [sic] yell at them, talking over them and didn’t let them say anything”. He stated “I will try over the coming days to encourage the girls to see you this weekend and in the meantime I think it best if you give them some peace and reflect on what is important and healthy here.”
The note kept by C’s teacher does not support the father’s version of that event. The teacher noted that she was “able to see C & mother. The chat appeared amicable. C returned to the classroom”.
The father asserts that on 8 December 2017, C told him that, in the school playground, the mother chased her, grabbed her and pushed her over. The record kept by the school indicates that the teacher saw the incident and did not see C pushed over. C said that she ran into her classroom to get away and the teacher “saw me crying and did nothing because she gets tricked by mum. I can’t do this anymore Dad”. It is the mother’s evidence that she went to school on 8 December for presentation day. She saw only D who was quiet and withdrawn, and in the presence of the father. Both C and D went home with the father.
The school record notes “teacher check in with C. C stating everything was good”.
The school principal discussed this incident with the father in an interview on 29 January 2018. The principal told the father that the whole incident had been seen by a teacher who saw C go willingly and happily with her mother.
Both C and D went home with the father despite it being the mother’s weekend.
There were numerous occasions during the cross-examination of the father when he said that the children do not lie and that he accepted their version of events. If there was a record of a child making a comment that was unfavourable to him, his explanation was that the reporter had lied because of the mother’s manipulation and the child had not said the thing noted. On this occasion, as on all others, the father said that he believed C’s account and that the teacher’s account had been falsified because of manipulation by the mother.
C sent an email to her mother stating:
Yesterday I did not like how you pushed me when I said that I wanted to go to dad’s and that I wanted to be with dad. Please don’t ever push me like that again...you make me sad and unhappy and you call me names as well as dad. All the things you say I am, I am not.
The father deposed that, despite his efforts, D (who was then aged nearly six years) stopped any contact with the mother after the mother came to the school on 11 December 2017 and took D out to lunch.
On 12 December 2017, the father sent an email to the mother and to the children’s school principal. He set out a conversation which, he said, took place with D on the afternoon of 11 December:
“[D], why are you crying honey, whats [sic] wrong?”
“Mum came to school today at lunch and took me to a café.”
“That’s great honey, that would have been fun!”
“No it wasn’t.”
“Why honey?”
“Because I did not want to go with her.”
“If that is how you felt, then why didn’t you tell her.”
“Because I was scared of her and embarrassed in front of my friends when she came. I did’nt [sic] know she was coming.
“Sorry honey, I did not know either. Why where you scared [D]?”
“Because if I told her that I didn’t want to go with her then she would not have listened to me and just do the things she does and says that make me sad and be quiet.”
“Well, it’s important to say what you feel honey.”
“But no one was there to help me so she could have made me do what she wanted like she always does.”
The father, in the email of 12 December, wrote to the mother:
…this continued unfortunate behaviour of yours, which has caused the girls to unfortunately feel the way they [sic] in not wanting to see, is not healthy or the right approach to give them the comfort they need in my continued efforts to support and encourage them to want to see you.
I am now dealing with them saying this morning that they don’t want to go school because they are afraid you will show up again. Putting me in a position where I have to write this email, in the middle of everything else that has to be done this morning to get them to school.
This has now added to the problem of your behaviour that makes them feel the way they do.
They have asked you countless times now to stop calling them little liars, deceivers, manipulators and nightmares whenever they say what they feel or want. To stop getting angry, yelling at them and calling them names when they say where they want to be and how they feel. To stop saying they are just kids and what you want as the parent is more important – which you say to manipulate and try and silence their voice and what they feel, their emotions. They have asked you countless times now to stop saying bad things about Dad all the time that makes them not want to be with you because it makes them sad and unhappy.
…
Showing up to school today unannounced (that caught [D] by surprise and embarrassed her in front of everyone) and pulling [D] out of school without her or my prior knowledge, has not helped the situation in improving the way the girls feel due to your behaviour that makes them feel the way they do, as your behaviour creating the problem is deteriorating and unfortunately worsening the situation of how they feel towards you.
On 14 December 2017 there was a loving exchange of emails between B and the mother ending with B sending hugs and kisses and hearts and “You’re the best”.
On 15 December 2017 the school principal responded to the father’s email advising that the school could not prevent either parent from picking up, dropping off, or accessing children during the day. The father replied on 15 December 2017:
I have asked simply to be informed and naturally advised if [the mother] shows up and tries to take either of my daughter’s [sic] out of school during school time. As a consequence of what has been passed on below.
On 22 December, the mother went to the former matrimonial home to collect the children. C and D refused to go with the mother. D stated, “I cannot come home with you because of your negativity.”
On 23 December the mother sent a loving email to C about Christmas, and told her she was always welcome. C replied on Christmas Eve:
Have you even read any of the emails that I have sent to you? You do not listen to how I feel, and the emails you send me do not change who you actually are.
You say to me that I am a manipulator, troublemaker, criticiser, that god knows if I am lying. I really don’t care of what you have to say about me because I will always say how I feel for the rest of my life. You are the thing that you call me.
Of course I am still part of the family why wouldn’t I be. What a weird thing to say. I don’t really want to know what your [sic] doing because after everything you have done to me I don’t really care because whenever I am near you I feel unhappy, stressed and uncomfortable…
On Christmas Day, when the mother arrived at the father’s home to collect the girls, they refused to go with her. The father deposed that he tried to encourage the girls to go with their mother but they were reluctant. B left with the mother. Ms SS, a friend of the mother’s deposed that the father brought all the children to the door, and made them tell the mother how they felt about spending time with the mother and seeing the maternal grandparents. She deposed D said very quietly “um, sad and unhappy” to which the father responded “There, you can bring your friend as a witness, I have my children.” He then called her a liar, deceiver and manipulator and asked her “Is that why you abuse your children…”.
Later that day, when the mother sent C a loving message saying she missed her, C responded with the same email she had sent on Christmas Eve.
On 30 December 2017 there was a loving exchange of emails between B and the mother ending with B saying “love you have a good day tomorrow.”
On 31 December 2017 B’s last message to the mother was “Love you too xoxo”.
In January 2018, whilst on holidays in Queensland with the mother, B broke her leg. The mother returned B to Sydney and she was thereafter in her father’s care. The evidence of the surrounding events will be examined later in these reasons.
On 17 January 2018, a provisional Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother. The basis of the application for the ADVO was the father’s voluminous and harassing emails to the mother and her allegation that he persisted in coming to her home uninvited. The conditions of the order were that the father should not assault or threaten, stalk, harass or intimidate the mother or go within a hundred meters of any place where she lives or works.
On 23 January 2018, an interim ADVO was made.
In January 2018, the mother reports that she had a discussion with B about returning to a psychologist. B responded “I’m fine. I’ve got lots of life experience. I don’t need anyone to tell me what to think”.
On 29 January 2018, notes produced by the school record that the father attended at school. The notes record that the father said he did not want any of the children seeing the counsellor at the school. The father said that the mother had taken C out of school for a milk shake at the end of the previous year and that when the mother came to pick her up C didn’t want to go with her mother so the mother pushed her over. The school recorded that this didn’t happen, the class teacher saw the whole event and C went willingly and happily after talking to her mother.
The notes further record:
[The mother] took [B] away for days and brought her home with a very badly broken leg. The implication was [the mother’s] fault. The father said he wanted to be called if the mother tried to take the children out of school. The father complained that the mother has been making friends and having coffee with people who don’t even know the children and poisoning the friends against the father.
The notes kept by the school record that, on … February 2018, D’s birthday, the mother emailed to say that it was D’s birthday and she would like to come to the school at 1 pm and spend some time with D and take her to a cafe for lunch. The notes recall that the mother arrived and met D outside the school office:
[D] didn’t want to leave so they remained there until [D] opened her presents from Mum. Meanwhile [C] arrived and appeared not to be happy that Mum was there.
After about 1/2 an hour [the mother] left + [D] and [C] started to cry.
On … February 2018 the deputy principal of [D’s] school noted:
[The mother] came and visited with [D] at lunchtime for her birthday. They sat in the corridor between the office + staffroom. Office staff were watching and I passed back + forth a few times and all seemed calm.
After [the mother] left, at the end of lunch, the girls were in [the principal’s] office crying. [The principal] and I talked at length to the girls, they said they didn’t want to go with Mum + seemed worried. We told the girls that we would never make them go home with anyone that they didn’t want to, that they are safe at school and our job is to keep kids safe at school…
The girls were keen to phone Dad, I took them to my office, dialled the number and left them in private with the door closed. [C] came out and said dad wanted to speak to me. I told dad that Mum had come see the girls at lunchtime, the girls seemed fine during the visit and then became upset when Mum left.
The deputy principal noted:
Dad was worried Mum would try to pick the girls up after school, I said that mum had given no indication that Mum would do this and Dad said he would do pick up at normal time.
The deputy principal noted that after five minutes or so the girls were calm and chatting about D’s birthday and all three went back to class calmly.
The deputy principal noted that the mother phoned at 3.30 pm having just received a letter from the father’s lawyer saying that he had been telephoned by the school telling him that the girls were “distressed and hysterical”.
There was a loving text exchange between the mother and B on 31 January 2018 and … February 2018, signing off with “Love you lots”.
On 9 February 2018 charges were laid against the father of “stalk or intimidate intending to use fear of physical or mental harm” between 4pm on 4 March 2016 and 11.55pm on 11 January 2017 alleging that the father intimidated the mother with the intention of causing her to fear for her physical or mental harm. Those proceedings were returnable on 27 March 2018. The charges were laid after the police considered the email correspondence between the father and the mother. The facts relied on by the police included, inter alia:
In response to email messages sent by [the father], about 7:44pm on 4th March 2017, [the mother] wrote an email stating “Please stop this controlling behaviour…. The [father] sent a 3 and half page response which generally criticised [the mother].
…on 10th June 2017, [the mother] sent a text message to [the father] stating “Please stop sending me these messages. It isn’t helpful. You have moved on, it’s time to stop looking back. Please keep your communication relevant to *important information about the girls. *our financial settlement”. The [father] continued to send text messages and emails with simular [sic] excessive and harassing content.
…on 16 August 2017 [the maternal grandmother] wrote an email to the [father] requesting him to stop sending her long critical email [sic]. [The father] continued to send long and critical emails to [the mother].
On the 1 December 2017, after speaking with Police [the mother] wrote an email to [the father] request [sic] him not to send such long and derogatory emails and to stop turning up at [the mother’s] residence without notice. [The father] replied with a response over two pages in length with critical and harassing content which distressed [the mother].
About 6:00am on 8th December 2017, [the mother] attended Suburb RR Police Station and provided an initial statement to police.
…on 8th December 2017, [the mother] wrote an email to [the father] informing him she was “intimidated and frightened” of [him]. [The father] replied with a four page response as critical and distressing for [the mother] as previous responses. [The mother] wrote another email to inform [the father] about how distressing his responses made her feel. [The father] replied with a 2 and half page response which was as critical as previous replies.
…on 11th December 2017 [the mother] wrote an email to [the father] again asking him to stop with his long belligerent responses. [The father] continued to write excessive and critical emails to [the mother].
About 6:00pm on 11th December 2017, [the father] turned up to the [mother’s] residence without being invited or having informed [her]. [The mother] has previously made requests for [the father] not to do this.
About 10:37pm on 10th January 2018, [the father] sent a text message to [the mother] which include [sic] two photographs of Valentine’s Day Cards which [the mother] had written to the father about 4 years ago. [The mother] again request [sic] that [the father] not contact her unless its [sic] directly related to the children or their divorce and for any non urgent communication to be via email.
[The mother] provided information throughout this time period and it was formally captured on the 15th January 2018. Police were provided with email correspondence from [the father] to [the mother] of which most ignores [the mother’s] requests regarding communication and would constitute unwarranted contact and harassment.
The father defended the proceedings and gave notice that the older children would be called to give evidence in his case.
On 12 February 2018, the mother filed an application seeking final and interim parenting orders.
On 13 February 2018 and in the following days, Dr TT, B’s orthopaedic surgeon refused to provide information to the mother, on the instructions of the father. These events are discussed more fully later in these reasons.
On 17 April 2018, the proceedings in relation to the ADVO sought by the police against the mother for C’s protection were listed for mention. C attended at Court with her father. The proceedings were adjourned on the application of the police.
On 14 March 2018, interim orders were made to the effect that the mother have sole parental responsibility for the children and that the children live with the mother. The children’s contact with their father was to be professionally supervised by X Group.
The reports of the X Group supervisors are in evidence. They show, as was the father’s evidence, that he did not say anything critical of or derogatory about the mother. However, they also show that the father responded to the children’s complaints about their mother without ever questioning their accuracy or suggesting to the children that they should comply with her directions and her discipline.
On 16 March 2018, the police were involved after they received a report that C had been seen in Suburb DD. C at the time was at home with her mother. That report was made by Ms EE, a close friend of the father. The police officers spoke to C who had been texting with Ms EE. The text messages were in evidence. C’s first text stated that she wanted her father and “I am planning to run away tomorrow to see my daddy. I hate it here I NEED HELP! Please SAVE ME”. Ms EE replied “Sweetheart I’m so sorry. If she hurts you call 000”. C responded “Okay thanks I just want daddy can you help me”. Ms EE responded “Record your proof of her being nasty” and later “You can also ring Facs on 132111 and tell them you are in danger”.
On 16 March 2018, C ran away from the mother to her father’s home. The father and Ms QQ were not home and received a telephone call from Suburb Z Police Station. Over a period of time at Suburb Z Police Station, C was spoken to by a police officer and ultimately was taken to L Hospital and admitted.
On 21 March 2018, the father filed an Application in a Case, seeking to review the orders of the Senior Registrar. On this date, police were called when Ms EE attended G School, and stated she wanted to give B a birthday present. She refused to sign in and was asked to leave.
On 31 March, the children had their first supervised contact visit with the father. The mother’s evidence is that the children were agitated and upset when they realised that the supervised time would not take place in the former matrimonial home. When they returned to the care of the mother, all three children refused to come inside the mother’s home. B ran approximately six blocks away from the mother, and was returned to the home by the supervisor.
On 1 April, C jumped approximately 8 feet off the mother’s balcony and ran away to go to her friend’s house. From there C told her friend she had enough money for a taxi to her father’s. B and D then ran from the house. When found a short time later, they refused to go home without the assistance of police.
On … April, the children had supervised contact with the father for C’s birthday. Upon their return home, B messaged Ms EE reporting they had the most amazing time with their father. B said she hates her life and, in response, Ms EE commented “Once dad goes back to court you will get to spend more time with him… You are still allowed to talk to people you love”.
On 6 April, police arrived at the mother’s residence at 1.30 am in response to a call from the father alleging the mother had assaulted C. Police spoke to C and she remained in the mother’s care.
On 11 April following supervised contact with the father, B got out of the supervisor’s car and ran up the road. Her mother convinced her to return to the home.
The following day, C ran away from swimming lessons. The mother called the police, and was informed approximately 90 minutes later that C was at Suburb Z Police Station with the father. The father reports that C appeared at his home barefoot, wearing shorts and a t-shirt.
C stayed with the father. That evening, the mother deposed that C emailed B:
Last night the Police finally listened to me and realised the truth. They made the decision for me to be back with daddy and I feel relieved, safe and happy again… I told them the truth and all the things Mum does to you like tackling you, pushing you and shoving you in the back, grabbing you and everything else she does. BUT they said you have to tell them so they can help YOU. I also told the Police the truth about how Mum makes us hate Dad and hurt us
On 14 April 2018, the police took out a provisional ADVO against the mother for the protection of C.
Competing interim applications for C’s care were heard and judgment was delivered on 26 April 2018. Each of the parents sought an order that the children live with her or him and spend no time with the other parent. An order was made that the mother have sole parental responsibility for the children who were to live with her and spend no time with the father. The father was restrained from communicating with the children or approaching them, their schools or their residence.
Ms EE, who had been caring for the children while the father attended Court, returned them to the mother.
On 28 April 2018, the mother was informed that the proceedings for the ADVO against her would be withdrawn and the application was dismissed on 8 May 2018.
On 13 August 2018 orders were made in relation to the charges against the father, restraining the father from assaulting, threatening, stalking, harassing, or intimidating the mother. He was restrained from going within 100 meters of any place where she lived or worked.
The father alleged that the mother deliberately omitted to deliver a hand-made Father’s Day card from B.
Surgery for B’s leg scheduled for 24 October 2018 was cancelled.
The trial commenced on 29 October 2018. The matter was initially listed for five days but was unable to be completed in that time.
There were a number of procedural and interim applications in the period between the completion of evidence on 2 November 2018 and the resumption of the trial on 1 April 2019.
Those applications are dealt with later in these reasons.
In the reasons for judgment delivered 2 November 2018, in relation to the arrangements for the intervening period before the trial resumed, I stated:
... the ICL should speak to the children with the assistance of a Family Consultant of the Family Court of Australia. In the course of that conversation, the children can be assured that I am very well aware of their consistently expressed wish to live with their father and that I have read their emails, texts and letters to their father since 26 April 2018. They might also be told that their wishes, though relevant, are not determinative of the outcome of the proceedings.
On 20 November 2018, NN, the daughter of Mr and Ms EE sent an email to C stating:
Feeling so sorry for how her lies ruining your life. stolen from your dad by strangers n idiots...U right she is a monster. If I had a mum didnt love me and listen to my feelings I would be so angry and do anything to get away.
(As per the original)
On 30 November 2018 NN sent C a link to Kids Help Line stating:
I here my dad n mum saying how much she always lies. she only lets u guys see who lies also…..the people that r trying to kill ur n ur sisters life u want together. Dont let them [C].
(As per the original)
On 3 December 2018, Mr EE sent an email to Dr K to which reference is made later in these reasons.
On 17 December 2018, the children sent an email to the father containing an abusive and offensive video clip about Ms QQ. Reference is made to that email later in these reasons.
On 15 January 2019 there was an exchange of emails between the father and the paternal grandmother. The grandmother suggested, inter alia, that the father seek counselling for his anger. His response was belligerent.
On 8 February 2019 the children’s dog, who was living in the father’s home, died. The father’s solicitors advised the mother on 14 February 2019 stating that the dog’s ashes had been placed in an urn and were being held by the father “for the girls and our client to have a ceremony in celebration of the dog’s life in due course”. The mother asked for the dog’s ashes to be given to the children. The father refused.
There were email exchanges between the father and Dr CD, a child and family psychiatrist whom the father sought to call in his case, in February 2019. In a lengthy email dated 13 February 2019 the father provided a history of the proceedings, in which he stated:
Father starts hearing from people in the system that he is disliked by the family court because he wont be quite [sic] and stands up to their abuses. He is told the brethren in the fold have put a black mark to his name and their solution is to keep attacking with unjust decisions and abusing children; Hoping their continued abuse will elicit and force a reaction from the father to commit suicide or do something drastic to protect his children from the family court abuse.
On 14 February, Dr CD replied. He encouraged the father to prioritise the best interests of the children.
The following day, on 17 February 2019, the father created a Social media service 2 account @...1. It is conceded that the name was an abbreviation of “…”. The description of the account is “Protect ur feelings, no one tells u what ur heart knows. If ur feelings aren’t respected they don’t love u and are fake, abusing u in their lies...” The profile picture includes the words “real recognises real, fake flock together”. The content of the messages posted on this account will be discussed later in these reasons.
On 30 March 2019, C sent an email to the father in which she stated:
I am BEGGING the court people to make the right choice! As a child my life has already been turned upside down, no child should experience what me and my sisters have experienced!... I am in tears writing this right now.IM BEGGING YOU please can I be with my dad?!...
…
PLEASE COURT PEOPLE I’M BEGGING YOU I CANT TAKE THIS ANY MORE I NEED MY DAD! I NEED HIM…
The trial resumed for five further days commencing on 1 April 2019. Counsel for the father proposed that submissions be in writing. That proposal was not acceded to. An agreement was reached between counsel that the evidence would conclude on the Friday and submissions would be made on the following Monday. Because counsel for the father was part heard in another matter on Monday, it was agreed that written submissions would be made by counsel for the father by 10 am on Monday and that oral submissions would be made by senior counsel for the mother and counsel for the ICL.
At about 4.30 pm on Friday 5 April 2019, before the father’s cross-examination of the single expert had concluded, an application was made on behalf of the father to further adjourn the proceedings on the basis that counsel for the father was unwell and unable to continue. Further dates suitable to all counsel were then allocated in September.
On 7 April 2019, the father posted on Social media service 2 the 12 Steps: “An Evil woman’s tick list to destroy kids & their father for money & jelousy [sic] of how much the kids love their Dad”.
On 9 April 2019, the father initiated two phone calls to B.
On 10 April 2019, B messaged Ms EE on Social media service 1 asking, “Could you ask dad what a full stop is meant to mean?”
On 16 May 2019, C sent an email to her father expressing sadness about the death of Bob Hawke. The father replied on 5 June 2019 with a heart emoji.
The mother deposed that at about May or June 2019 she found C in her room crying. C said:
[B] reminded me about the awful things I wrote to you last year. I feel so guilty and I’m so sorry. I didn’t want to write them.
The mother reassured C who said “yes, I know you have forgiven me but I haven’t forgiven myself”.
On 5 June 2019 C received an email with a heart emoji. The father denies that he sent the email but it is likely that he did so.
In mid June 2019 B said to her mother “Dad sent me a message through NN. NN messaged me and said ‘Your dad said you shouldn’t wear the ring [Ms QQ] gave you’.” The father denies that he caused NN to send the message.
Also in mid June 2019, B told the mother:
When I was sending you horrible emails and messages Dad used to write them. He would tell me exactly what to say and I wasn’t allowed to say anything nice to you. Whenever I called you he would stand next to me.
On 28 June, the father initiated a call to B.
On 14 July 2019 the father replied to an email from D saying “i love you so much” with a heart emoji.
On 17 July 2019 D received an email from the father’s email address. The father denies that he sent the email but it is likely that he did.
The mother deposed that on 25 July 2019 C came to her and said:
All those awful emails I wrote to you last year when I was with Dad, Dad was telling me what to write, sometimes he even wrote them for me.
The mother deposed that on 28 July 2019 B and C had a conversation with her. B told her that NN had sent her an email instructing her that she was to copy the email to her father. B said that she sent the email but didn’t read it. That email was the subject of cross-examination of the mother by counsel for the father. The mother maintained in cross-examination that she did not believe that B had written the email.
The mother deposed that, during the conversation on 28 July 2019, B told her that she had been talking to her father but stopped after the dog died. B said that NN would call her and tell her to call her dad and that she used friends’ phones or a public phone. B told the mother “one time I told NN that I wanted to spend time hanging out with my friends and NN said ‘Your Dad is more important than your friends”. The father denies that he asked NN to arrange for B to call him.
Also in the same conversation, C said to the mother:
I’m sorry I ran away. I don’t know why I did it, I just did what he told me to. Dad is going to be so angry with me. Dad told me I was the one responsible to run away because I am the fastest and strongest and if I didn’t run away, Dad told me his life and my sister’s [sic] lives would be ruined. I was the only one who could fix it.
The mother deposed that later in the conversation C went to her room and brought her iPad back. C said:
[B] didn’t want me to show you but I need to talk to you, I don’t know whether to show you or not... Dad made a [Social media service 2] account for us.
B then said, “Dad sent me the details. I haven’t even looked at it”. The Social media service 2 account was entitled @...1.
On 6 August 2019, C’s teacher noted a conversation with C:
·Wanted to talk about the [Social media service 2] page she said dad created
·Showed her mum, [B] didn’t want to
·Not sleeping well
·Feels guilty about the things she said to her mum, which dad asked her to type up
·Spoke about how mum would not be angry at her for those emails
·Wants to stay with mum, but is scared dad will do something to himself
·Mentioned an incident when he was in the laundry and had red handprints on his shirt. [C] not 100% sure what the red was.
·[C] was put in a cold shower when she was in trouble – said easier to do what he asked after this – didn’t want to get in trouble.
·[B] was thrown in the pool
·Doesn’t want to talk about it with her friends, as she doesn’t want to burden them with everything.
On 7 August 2019 B showed her mother her phone with a notification “Daddy Millard missed call – just now”. Later that day, B told her mother, “Sometimes dad calls me if I haven’t messaged him for a while. He usually calls me when I am at school. He hangs up if I answer the phone”. This phone call was recorded in the documents produced on subpoena by the phone company.
On 7 August 2019 and again on 14 August 2019, C received an email with heart emoji which appeared to have come from the father.
The ADVO for the protection of the mother expired on 12 August 2019.
On 14 August 2019, C said to the mother “I am worried that dad is going to murder me. Do you know he has a sword at the house and a knife in the car? I’ve seen him angry...”
The mother deposed that, on … August 2019, C told her:
When we were living with Dad last year, he told us a story about a 13 year old, she was about the same age as [B], and she had a terrible mother, but a really wonderful father. One night when the mother was asleep, the girl stabbed the mother in the lung and the mother died, but the girl didn’t get in trouble, because she had such a wonderful father and the mother was horrible.
On this same day, C messaged the father a birthday message.
On 20 August 2019 C and B received an email with an attachment of a picture of candles spelling out “I [heart] you”. The emails appeared to have come from the father.
On 21 August 2019 B received an email with heart emoji which appeared to have come from the father.
Also on 21 August 2019, B said to the mother:
Dad sent me a text message telling me about the [Social media service 2] account. The message just said ‘…’. I worked out what he was talking about. I don’t have the text message anymore.
The mother deposed that, on 17 September 2019, she had a conversation with B where B told her “Dad’s made another Social media service 2 account”. The mother asked how B knew and B said “He sent me a request on Social media service 2 to ‘follow’ C and I from the account. I declined him but he requested again. I think it was to get my attention”.
The Social media service 2 account was called @...2. The profile picture on the account was of the three children kissing the father. The father’s name is on the page. The mother downloaded the posts from the account. The content of that Social media service 2 account will be discussed later in these reasons.
The case was due to continue on 19 September 2019. It was determined the matter could not, because of evidence of events that had occurred during the adjourned period, be completed in the two days allocated. It was instead listed for case management. At 9am on that day the father posted on Social media service 2, using the @...2 account, a photograph of the children, a series of photographs with captions about parental alienation and false allegations of family violence.
The mother sought an order that the father refrain from publishing images of the children or the mother. Senior counsel for the father told the court that the father would be advised about his obligations. No order was made. By letter dated 19 September 2019, the mother’s solicitors asked whether the father would voluntarily refrain from posting further material, noting that immediately after the proceedings finished on that day, the father had uploaded more photographs of the children on Social media service 2.
The father’s solicitors replied, denying that the father had uploaded the photographs.
On 29 October 2019, the father sent an email to the mother of some 13 paragraphs, similar in tone and accusatory content to his earlier emails.
The police obtained a provisional ADVO against the father on 31 October 2019. The ADVO is returnable in the Local Court on 3 March 2020.
On 17 November 2019, C told the mother that she had received an email from the father. She showed the email to the mother. The father had re-forwarded to C the email that C had sent to him on 1 December 2018 telling him that she missed him and “Mum is always lying and I can never trust her”.
The following day C told the mother that she had not emailed her father in months and that he would be angry. At the suggestion of the mother, C sent an email to the father. He replied with an empty response. On the same day, on the @...2 Social media service 2 there was a photograph of C aged about 10, not fully clothed, that had been photo shopped to cover C’s torso.
On 21 November 2019, one of B’s friends, aged 14 years, received a message from @...2 asking to “follow” her on Social media service 2. The friend sent the massage to B asking if that was her father. B responded “I’m not even going to call him my dad anymore but yea that’s him.” The friend replied “wtf, that’s so weird” and B responded... “He’s obviously gone psycho.” B sent a message by Social media service 2 to the mother saying “This has gone too far. I’m never forgiving him. Why is he bringing [my friend] into this? He belongs in a mental hospital”. The mother deposed that B was very upset. Later that day, B sent a text message to the father saying:
…stop requesting to follow me idk [I don’t know] why you’d think I’d accept you
Stop requesting to follow [C] you already put her through enough nights of going to sleep crying because of all the stuff she saw on the other account she doesn’t even have her account yet because I’m managing it.
Do not ever request my friends again.
Delete all the pictures of me, a [C] and [D] and change the profile picture I’m actually embarrassed by you for the first time.
The father responded to B’s text the next morning saying:
Confirms damage her brainwashing lies abuses are having on my beautiful daughter’s stuck in her awful alienation campaign. Her malicious psychosis is destroying them in her risks she is using and exploiting them in. Putting them in middle of her sickness then telling the court what her abuses make them say. It’s like [the paternal grandmother’s] sickness. So destructive. Girls are so stressed and bewildered being bombarded daily with nasty lies their alienated in. Im so worried for their safety, health, stability and development. Their deteriorating in abuses of her lies she involves, uses and exploits them in. They are the most important priority of my heart and life. I cry every morning what they are going through in her sickness showing no genuine care or love for them. Everything/one to her, including the girls, is sadly a game for her lies abusing all of us. All I can do is keep being the strong loving dad the girls know I am and keep standing up for them. It’s so hard defending and protecting their well-being and best-interests when their trapped in her alienation. The abuses of her lies and orchestrations hurting the girls are worsening in her fear of them. She’s involving, playing, our children in all her toxic projecting manipulations, stories deceptions like she is the court, everyone. Still breaking orders. My heart breaks for the girls, what their having to deal with in her lies harming them. I just want to give them a big hug, have them focus on healthy things and safe from poison and lying stuff she dumps on them.
(As per the original)
B showed the message to the mother but did not respond to her father.
On 23 January 2020, C sent an email to the father stating “Hi dad I’m excited to start high school it’s going to be a whole other experience and I’m really excited to go meet new people”. The father responded, “To who is sending me emails through my daughter’s accounts pretending to be them. These toxic manipulations are not my children, sounds nothing like them.” The father included in his response a link to the @…2 Social media service 2 account.
On … February 2020, D sent an email to the father saying that she missed him and wished he could be with her for her birthday. The father responded to D, including a link to the @...2 Social media service 2 account and saying:
I’m doing everything I can sweetheart and missing you every second, so much.
Happy birthday my amazing daughter. Hope you enjoy the presents I got you.
I love you so much and can’t wait to give you a big hug and kiss
Lots of love
[Dad]
On the afternoon of … February 2020 D sent an email to the father saying “Hi [Dad], Please mow the front hedge and the weeds it looks a little bit messy but I am not trying to be rude but please I still love you sooooooo much.” The father responded with a kissing and love heart emoji. The message contained a link to the @...2 Social media service 2 account.
The matter was listed to continue on 11 February 2020 for a further four days. The mother had filed three affidavits. The father had filed an affidavit in response to the mother’s affidavit. A Notice to Admit Facts had been served upon the father and he had responded.
The father did not attend on 11 February 2020. Senior counsel for the father advised the Court that, although his legal advisors had attempted to contact the father that morning, they had not received a response.
The matter was stood in the list until 11.00 am to give the father’s lawyers a further opportunity to contact him. The father was advised by his lawyer that it was likely that the matter would proceed in his absence if he did not appear at 11 am.
At 10.13 am the father sent an email to my associate indicating that he would not attend. This email was some 12 pages. A copy was immediately provided to all legal parties.
The father’s legal representatives sought, and were granted, leave to withdraw from the proceedings.
The matter proceeded.
Counsel for the ICL drew the Court’s attention to the fourth paragraph of the father’s email which stated:
I was given a time to meet with my counsel yesterday afternoon at 3pm. My instructions to be represented had not yet been reviewed for finalisation preparation to commence this morning. I distressingly cannot commence this hearing as a consequences, I have no team prepared with my instructions or even a review of them these last couple of weeks to cleanse.
(As per the original)
In so far as it was possible to construe those words as an application for an adjournment, that application was formally refused. I indicated that reasons for the refusal of the adjournment would be included in the substantive reasons. The matter is dealt with later in these reasons under the heading “Procedural/Interim Applications”.
In the course of the hearing on 11 February 2020, senior counsel for the mother tendered a summary of documents produced on subpoena the phone company indicating that between 5 April 2019 and 3 September 2019, the father sent 52 SMS messages to B; one MMS message to B and initiated four phone calls to B.
The Trial
An Independent Children’s Lawyer (“ICL”) had been appointed for the children.
Dr K, a child and family psychiatrist, prepared two reports as a Single Expert. The first report was dated 27 June 2018 and had been prepared before the trial affidavits had been filed. Dr K answered questions in a document dated 9 July 2018.The second report, dated 12 March 2019, was prepared in the interval between the first five days of the trial and its recommencement.
Dr K was cross-examined in April 2019.
The mother relied upon an affidavit by herself, and affidavits by Ms N (the mother’s cousin), Ms P (the father’s aunt); Mr P (the father’s uncle); Ms O (the maternal grandmother), Ms UU (to whom the mother was referred for counselling), Dr VV (a therapist who treated the mother between 2014 and 2017), Ms SS (a friend of the mother), Ms WW (B’s teacher in 2016) and Ms LL (a child minder).
The father relied on two affidavits by himself, and affidavits of Ms W (who supervised three periods of time between the father and the children in March and April 2018), Ms QQ (the father’s then partner), Ms EE (a family friend), Ms XX (a psychologist) and Mr YY (a family friend). Ms W and Mr YY were not called for cross-examination and their evidence will be given the weight appropriate in those circumstances.
In addition to those witnesses who had sworn affidavits, the father sought to rely on the evidence of Sergeant ZZ to whom he proposed to issue a subpoena to give evidence. However, Sergeant ZZ was not called in the father’s case.
The ICL relied on a report of Ms AB, a psychologist who saw B on eight occasions in 2018. She was cross-examined.
On 1 April 2019, at the commencement of the second five days of the trial, the husband sought to rely on an affidavit of Dr CD, a psychiatrist whom he had consulted in February 2019 and with whom he had five sessions. That affidavit was allowed over objection and Dr CD was cross-examined.
The hearing was due to resume in September 2019 but would not finish. The hearing finally concluded on 11 February 2020.
PROCEDURAL/INTERIM APPLICATIONS
Dr K
The matter was listed for hearing for five days. On the fourth day of the trial, 2 November 2018, when the parties agreed that a further five days should be set aside and those days were allocated in April 2019, the father pursued an application, which had been foreshadowed, to call the Single Expert on the fifth day to be cross-examined in relation to the father’s interim application for orders permitting him to spend time with the children in the period until the matter was determined.
That application was opposed by the mother and the ICL.
After hearing submissions, I refused to allow Dr K to be called and indicated that I would give my reasons in the substantive judgment.
By day five of the trial, the mother’s case had been closed. The mother and all of her witnesses had been cross-examined.
Because of the lengthy period before the trial was to resume, the father’s cross-examination did not commence. There was a real risk that he would still be in cross-examination at the end of the fifth day which would have caused difficulties for his legal representatives in their conduct of the balance of the trial. Instead his partner, Ms QQ was cross examined. The remainder of the father’s witnesses had not been reached.
Counsel had agreed to forward a large volume of documents to Dr K. Those documents included all of the trial affidavits, both of the parties and their witnesses and bundles of emails from the children to the father; the children to the mother; the father and the mother to each other and from the father to third parties.
Dr K did not recommend any further assessment of the family which would, he said, add stress to the children’s lives. He urged a resolution of the proceedings.
It is to be remembered that Dr K was cross-examined in April 2019. The events subsequent to that cross-examination, particularly the escalation of the father’s electronic communication with the children; their subsequent rejection of that further communication with him and his reaction, are entirely consistent with Dr K’s evidence.
The vitriolic and highly critical message sent by the father to B on 22 November 2019 illustrates and confirms Dr K’s predictions about the father’s behaviour.
DISCUSSION
The primary considerations in these proceedings are twofold. Firstly the benefit to the children of having a meaningful relationship with both of their parents and secondly the protection of the children from physical or psychological harm arising from being subjected or exposed to abuse, neglect or family violence. In the event that those considerations are inconsistent, or in conflict, then the protection of the children is to be given priority.
I accept the evidence of Dr K that these children cannot have a relationship where they spend time with both of their parents.
Dr K spoke in cross-examination of the children “once again being pulled into the bubble” of their father’s narcissism “because that’s how he interacts with them”.
The parents agreed in a shared arrangement commencing in 2017 which broke down after about nine months. I accept that, in the care of their father, even for short periods of time, the children cannot have a positive view of their mother because that would be inconsistent with his entirely negative view of her and, as Dr K said “they can’t hold both in mind at the same time”.
If the children can only have one parent present in their day to day lives, which should it be?
any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
Until about July 2019, the two elder children have maintained, in correspondence to their father and in correspondence clearly directed to, and intended for the Court, that they wish to live with their father.
D’s views are not clear. Her most recent emails to her father express love and that she misses him greatly.
There appeared to have been some tempering of B’s views, according to Ms AB so that, in September 2018, B was unwilling to be responsible for making a choice, especially where that choice might be seen to affect her sisters but was clear, at that time, that she wanted to spend time with both of her parents and not to have to wait a week to see either of them.
Until about August 2019, the evidence suggested that the older children loved their father and missed him and wanted, at least, to spend time with him.
Whether B or C, at the present time, want to spend time with their father is not clear.
The weight that should be given to such views is tempered by the evidence of Dr K relating to the influence that the father has had on the children’s views and to a consideration of the evidence of the way that the children have behaved in the past under the influence of the father.
In this case, the children’s views, as previously stated, do not coincide with an objective consideration of their welfare and what is in their best interests.
the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
I accept the evidence of Dr K that these children had, as at April 2019, an enmeshed and idealised relationship with their father.
Before about September 2017, the children had a close and loving relationship with their mother. Even after that time, as is evidenced by B’s emails to the mother in January 2018, and the fact that B went on holidays with her mother, that relationship had not broken down.
Having regard to the observations of D’s teachers of her interactions with her mother in late 2017 and early 2018, which I accept where they conflict with the observations of the father, I do not accept that D’s relationship with her mother had broken down. Rather, it is likely that either the father prevented D from continuing to see her mother, or that, under the influence of both the father and her sisters, D felt she was unable to continue a relationship with her mother.
Of the three children, it would appear to be C whose relationship with the mother was most damaged.
Since they have lived in the mother’s care after 26 April 2018, they appear to have readjusted their relationship with her.
Despite the father’s expressed belief that the children do not have a good relationship with his mother, the paternal grandmother, the evidence of their emails to her would suggest that they do. The children have been able to maintain that relationship in the mother’s care. The paternal grandmother in an email to the father dated 13 January 2019, referred to spending time with the girls and being able to talk to the girls about the father.
Given the content of the father’s more recent correspondence with his mother and his evidence in cross-examination about her, it is unlikely that, in the father’s care, the girls will be permitted to have a relationship with her.
The correspondence between the maternal grandparents and the father in 2017 in relation to their efforts to see the children, and the father’s refusal to allow them to do so, suggests that the children will not have a relationship with them if they are in the father’s sphere of influence.
There was no member of the father’s extended family with whom he said he had maintained a cordial relationship. Apart from the EE family, there is no evidence of any support network for the father. Hence there is no likelihood that the children will be able to maintain a relationship with extended family members if they are not in the care of the mother.
the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Both parents have taken every conceivable step to ensure he or she spends time with the children and participates in their lives in every conceivable way.
the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
The father has not made any contribution to the financial support of the children since they have lived exclusively in the care of the mother.
In cross-examination, he said that the mother had taken $250,000 from joint funds and that she was using that money to provide for the children.
The mother deposed that, after commencing these proceedings, she transferred $229,102.83 from their joint MISA account to an account in her name. It was her unchallenged evidence that she left the same amount in two accounts, the MISA account and the Home Loan account, to which the father had access, for his use.
The mother deposed that, in correspondence, she has been told by the father’s solicitors that he will not contribute to the support of the children until she returns the money to the MISA account.
the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I accept the evidence of Dr K about the effect on the children should time with their father be re-introduced.
It is likely, based on past history, that under the father’s influence, they will once again suffer the loss of their relationship with their mother.
It is also likely that their present relationships with their grandparents and the extended maternal and paternal family will again be lost.
the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
Dr K gave evidence about the need for a parent to give children a balanced developmental experience. He said:
...they have to have the capacity to succeed, they have to have the capacity to fail, they have to have the capacity to maintain relationships with people who like them and people who don’t – that it’s all a part of life’s experience. That just because things aren’t according to how you like them doesn’t mean that they should be disavowed, dismissed, not be given any credence in the world. And the concern, of course, is that if the children grow up exclusively validated by a narcissist and first of all they need to mirror the narcissist so they can’t differentiate themselves from that. They have to kind of constantly say how fantastic their father is in this situation. If they don’t that would be potentially problematic. And so they become an extension of the environment in which they’re validating the father, the father is validating them, and anything that doesn’t fit with that needs to be treated with contempt.
Dr K said, that in the father’s care, there is, for these children:
...a risk that they would develop in a manner where they would lack the capacity for a normal relationship with significant people in their lives whereby there would be a normal degree of ability to tolerate criticism, to tolerate disappointment, without being absolutely dismissive of, you know, the other – the other person be it a – in an intimate relationship, a peer relationship, a colleague and so on.
I do not accept that the father can provide for the children’s emotional needs where he does not perceive their needs to be identical with his.
I do not accept that, in the care of the father, the children would be permitted to have relationships with anyone whom the father did not perceive to be entirely supportive of him.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
It is an important responsibility, for any parent, to ensure that the children’s relationship with, and love for, the other parent, is supported and nurtured.
The father’s unwillingness, or inability, to support the children’s relationship with their mother has been amply demonstrated.
Despite the father’s attitude towards her, there is no indication the mother has exposed the children to her own fears or concerns about the father’s behaviour towards her and the children, or the ongoing court proceedings. Remarkably, the mother, with the help of the elder two children, has also managed to shelter D almost entirely from the father’s behaviour.
any family violence involving the child or a member of the child's family;
Earlier in these reasons I have made findings about specific incidents where the father has perpetrated violence against the mother and against B.
The violence against the mother, in particular the two incidents of assault by strangulation, is serious and concerning.
The records kept by the children’s schools note that both B and C have expressed concern about the father’s anger.
Notes kept by teachers record that in February 2017 B was worried about going home to her father because of his anger and scared to go to camp and leave her sister with him.
On 1 March 2017, C’s teacher recorded that C was shaking and crying and concerned about staying with her father when B was at camp.
The mother was referred to counselling with Ms UU by the Family Referral Service of the police. Ms UU deposed that the mother:
...presented with symptoms of trauma not uncommon in women who present with a history of DV – anxiety, depression, difficulty with eating and sleeping, hyperarousal and fear for the safety of herself and the children.
I am satisfied that the mother and B have experienced family violence and that C has been fearful of her father.
In August 2019 and more recently, C has expressed concerns about her father’s anger.
I accept the evidence of Dr K that the father poses a risk of physical and psychological harm to the children.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is likely that any regime that leads to the father having any access to the children will lead to further litigation.
CONCLUSION
These children cannot have an ongoing relationship with both of their parents, no matter how limited the relationship with one of them may be.
In circumstances where they must live with one parent, and have no relationship with the other, it is the mother who is most likely to meet their emotional needs and their relationships with extended family, peers and school communities.
The orders will provide that the children live with their mother and have no physical contact with their father.
PARENTAL RESPONSIBILITY
The mother seeks an order that she have sole parental responsibility.
The father seeks equal shared parental responsibility.
The presumption that the parents have equal shared parental responsibility has been rebutted by the findings that have been made in relation to the father’s perpetration of family violence. Thus the determination is one of the children’s best interests.
The parenting decisions that need to be made for children, such as fall under the definition of major long term decisions, are serious and can have long standing consequences. They are defined to be:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
In relation to these children, there has already been an issue about B’s surgery where the failure of the parents to agree has meant that the surgery did not proceed as scheduled. Also in relation to B, as has already been discussed, the father’s direction to the treating doctor that he should not provide information to the mother except through her lawyers, although at the relevant time both parents had parental responsibility, is relevant.
In cross-examination of the father, it emerged that the children’s dog had died in February 2019 and, despite extensive correspondence, some six letters having been exchanged between the solicitors up to the time of the resumed hearing, no agreement had been reached about how the dog’s ashes were to be disposed of. The last letter from the father’s solicitors to the mother’s solicitors stated the father’s position that he will retain the ashes until such time as he can “have a ceremony” with the girls. The mother had conveyed the children’s request that they be permitted to scatter half of the ashes. The father in cross- examination said that he did not accept that the mother accurately represented the children’s wishes. The dog’s ashes remained in the father’s possession when the proceedings were adjourned on 5 April 2019 with no resolution in sight.
A further instance of their inability to co-operate arose when the mother asked for the children’s bikes in April 2018 after orders were made for the children to live with her and have no contact with the father. After protracted negotiations conducted by the solicitors, it was eight months before the bikes were eventually returned, just before Christmas 2018.
Even through the medium of their respective solicitors, they cannot reach agreement about the most basic matters.
The father’s correspondence with the mother, as has been tendered in evidence before me, is of a volume and tone that is completely unacceptable. I do not accept his assurances that he now realises that and intends to modify his tone. It is not reasonable to require the mother to communicate with him or attempt to negotiate with him.
There is no possibility that these parents can make decisions together in a timely way.
The mother will have sole parental responsibility.
FORM OF ORDERS SOUGHT BY THE MOTHER
The form of orders sought by the mother was amended and on 3 February 2020 a copy of the amended Minute was forwarded to the father’s solicitors
The mother sought sole parental responsibility; that the children live with her and spend no time with the father; that the mother be permitted to leave the Sydney metropolitan area with the children; permission to organise counselling for the children as needed and an order restraining the father from assaulting, harassing or molesting her or communicating with her in any form.
None of those applications was new.
By her amended Minute, the mother sought, in addition, an order restraining the father from approaching her or being within 50 metres of her and from being within 50 metres of her home and her workplace.
The mother sought injunctions pursuant to section 68B of the Family Law Act 1975 (Cth) restraining the father from assaulting, harassing or molesting the children; from initiating any form of communication with them; from being within 50 meters of their residence or their schools; from approaching within 50 meters of the children and from removing them from Australia. With the exception of the removal of the children from Australia, these orders largely replicate the orders made on 26 April 2018.
In the amended Minute she also sought an order in the following terms restraining the father from:
Causing any third parties, including but not limited to [Ms EE], [Mr EE] and [NN] from forwarding, sending, initiating or sustaining any communication in any form with the children or any of them on behalf of the father.
Also in the amended Minute the mother sought an order restraining the father from denigrating her to, or in the presence of the children or on social media including Social media service 2. She sought orders requiring the father to remove photographs of the children from any social media and ensuring, by adjusting the privacy settings, that any social media conducted by him is not accessible to the general public, including the children.
The mother proposed an order that she authorise the schools to provide the father with copies of the children’s school reports and order forms for school photographs. By her amended Minute she withdrew her application for an order that she authorise the children’s treating medical practitioners to provide information to the father about the children. She proposed an order that she be required to notify the father of any serious illness suffered by a child.
The mother sought the right to travel outside Australia with the children and to obtain passports for them without the involvement of the father.
She sought an order permitting her to provide a copy of these reasons and the orders to medical or counselling practitioners treating her or the children, the children’s schools, the NSW police and the Department of Community and Justice.
By her amended Minute she sought an order that the father serve on Mr and Ms EE a copy of the portion of the orders relevant to them.
Some of these orders sought carry complications.
Section 68B order for the protection of the mother
An interim ADVO has been made for the protection of the mother. That matter is listed for hearing in March 2020 and whether the order will be continued or made final is not known.
Senior counsel for the mother submitted that, if the ADVO is not continued or made final, it is appropriate for an order to be made for her protection. The mother did not seek such an order if there were an ADVO in place for her protection.
Section 68B provides:
68B Injunctions
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
I am satisfied, on all of the evidence that the mother is in need of protection.
I propose to make the order which the mother seeks pursuant to s68B but to make it a condition of that order that the operation of the order is suspended during any period when there is in force an ADVO made pursuant to the law of New South Wales.
The order will include the power of arrest pursuant to s 68C.
Restraint on the father’s contacting the children
The mother does not seek to prevent the children from contacting the father by electronic or physical means.
The evidence establishes that they have sent him a volume of emails, texts and video footage.
The evidence also establishes that, despite such an order having been in force since April 2018, the father has been communicating with all of the children using electronic means.
As Dr K made clear in his evidence, the reality of modern technology and social media makes it impossible to prevent the father from initiating contact with the children if he chooses to continue to do so in breach of an order of the Court.
However, having regard to the nature of the material which the father has included in his Social media service 2 accounts, and the content of his most recent communication with B on 22 November 2019, I consider that it is appropriate to continue the order restraining the father from initiating contact with the children.
The children should be aware that the order has been made. How they choose to take the order into account is a matter for them.
Order relating to Mr and Ms EE
It is clear from the evidence that Ms EE in particular has been active both in communicating with the children and in seeking to influence them, and the then DFCS, against the mother.
The involvement of their daughter NN in passing on messages to the children must have occurred, if not on their instructions, at least with their complicity.
Since the father denies that he has sought the involvement of Mr or Ms EE in communicating with the children, he suffers no detriment if the order is made.
It is appropriate that the orders sought by the mother be made.
The order will be separately engrossed.
Orders in relation to social media
The mother seeks an order requiring the father to remove any pictures of the children from his social media accounts.
I accept that B on 21 November 2019 asked the father to remove pictures of all of the children from his Social media service 2 accounts. I accept that both of the older children were upset by the picture of C posted by the father on that day.
In a letter dated 20 September 2019, the solicitors for the father advised the solicitors for the mother the father had not uploaded any photographs of the children since the appearance in Court on 19 September 2019 when the mother sought orders restraining the father’s use of social media.
Although in that letter, on behalf of the father, there was a denial that he continued to upload pictures of the children to Social media service 2, it is clear that he has continued to do so, as recently as 19 November 2019 and has done so without the permission of the children.
I propose to make the order sought by the mother requiring the father to remove from any social media conducted by him, any photograph which includes the children or the mother.
I do not consider that it is either appropriate or necessary to restrain the father from conducting social media accounts, provided that he does not, in any media, post material which identifies the mother or the children.
The father will be aware of the provisions of s121 of the Family Law Act which provide that it is a criminal offense to publish or disseminate (including on social media) any account of these proceedings that identifies a party or a child or a witness. That prohibition extends to describing the children, or any of them, as his children where he, himself, is identified.
MOTHER’S APPLICATION TO DISCHARGE ORDER 9(b) MADE 26 APRIL 2018
At the commencement of submissions, senior counsel for the mother made an application to discharge Order 9(b) made by Justice Benjamin on 26 April 2018.
That order provided, relevantly:
That each of the parents is restrained from:-
...
(b)discussing any aspect of these proceedings (other than to inform the children of these Interim Orders) or the Apprehended Domestic Violence Order proceedings, or any criminal proceedings instituted against either party with or in the presence of the children or any of them.
After hearing submissions, I indicated that I would reserve judgment in relation to that application.
On 13 February 2020 I made the Order sought by the mother. My reasons are set out here.
When the Order was made on 26 April 2018, the children’s situation was entirely unsettled. They had been living with their father with no contact with their mother. The effect of the orders was to summarily remove them from the father’s care and place them with their mother, with no contact with their father. He was restrained from attempting to communicate with them.
Whether, as a result of a substantive hearing, the children would live with their father or live with their mother was unknown. It was then important to protect the children, to the extent this was possible, from knowledge of the views that each of their parents might hold about the other and from the stress of the litigation.
The substantive hearing has now concluded.
All of the evidence has been heard.
The father did not come to court on 11 February 2020 and, as a result, the matter concluded on that day rather than, as anticipated, on 14 February 2020.
The children are likely have some understanding that events have occurred in relation to the litigation. This is particularly so in relation to the two older children who are teenagers.
It is appropriate that they be told that the litigation has concluded and that judgment has been reserved. They should know that, until judgment is delivered, the Orders made 26 April 2018, with the exception of Order 9(b) remain in place.
Having regard to the evidence about the distress of both B and C arising from more recent communications from the father, it is appropriate that they understand that the Court has made Orders which restrain the father from contacting them, specifically Order 11 which provides:
Pursuant to s 68B(1)(a) of the Family Law Act 1975 (Cth) the father be and is hereby restrained from the following:-
(a)Assaulting, harassing or molesting the children or any of them in any way;
(b)Forwarding, sending, initiating or sustaining any communication in any form with the children or any of them;
(c)Causing any third parties, including but not limited to [Ms EE], [Mr EE] and [NN] from forwarding, sending, initiating or sustaining any communication in any form with the children or any of them on behalf of the Father;
(d)Entering or being within 50 metres of the children’s home;
(e)Entering or remaining or being within 50 metres of the children’s schools, presently being [Suburb F] Public School and/or [G School];
(f)Being within 50 metres of the children or any of them; and
(g)Removing the children from the Commonwealth of Australia
(h)Denigrating the mother:
(iii)To or in the presence of the children; or
(iv)On social media including but not limited to Social media service 2.
(i)Causing any third party from accessing the log in details of all social media accounts operated by him.
There is no person, such as a therapist, who has a relationship with all of the children to whom the responsibility to tell them of the present position could be delegated.
The mother is the only person who is in that position.
I am conscious of the fact that the mother did not ask the Court to discharge the non-denigration order made on 26 April 2018.
I am satisfied, from the whole of the evidence, that the mother will inform the children of the events of 11 February 2020 and the orders which have been made without denigrating the father.
I certify that the preceding seven hundred and fifty-five (755) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 25 February 2020.
Associate:
Date: 25/02/2020
Key Legal Topics
Areas of Law
-
Family Law
-
Negligence & Tort
Legal Concepts
-
Injunction
-
Remedies
-
Procedural Fairness
-
Jurisdiction
-
Breach
-
Duty of Care
0
0
7