MILTON and MILTON
[2020] FCWA 152
•2 SEPTEMBER 2020
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: MILTON and MILTON [2020] FCWA 152
CORAM: SUTHERLAND CJ
HEARD: 8-12 JUNE 2020 and 15-18 JUNE 2020
DELIVERED : 2 SEPTEMBER 2020
FILE NO/S: PTW 87 of 2016
BETWEEN: MR MILTON
Applicant
AND
MS MILTON
Respondent
Catchwords:
CHILDREN - Parental responsibility - With whom the children live and spend time - Children at ongoing risk of psychological harm from exposure to mother's beliefs that the father was dangerous and had sexually abused the children - Orders for father to have sole parental responsibility and for children to live with father with transition to be supported by [Program A].
Legislation:
Family Law Act 1975 (Cth)
Category: Not Reportable
Representation:
Counsel:
| Applicant | : | Mrs Farmer |
| Respondent | : | Ms McShera |
| Independent Children's Lawyer | : | Ms Needham |
Solicitors:
| Applicant | : | Perth Family Lawyers |
| Respondent | : | Anthony R Clarke |
| Independent Children's Lawyer | : | RM Law |
Case(s) referred to in decision(s):
Godfrey & Sanders (2007) 208 FLR 287
Goode & Goode (2006) FLC 93-286
M and M [2017] FCWAM 189
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Milton and Milton has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
INTRODUCTION:
1[Ms Milton] (the “mother”) and [Mr Milton] (the “father”) were unable to reach final agreement about parenting issues concerning their two children: [Child A] aged 13 and [Child B] aged 12. The proceedings were complicated by the mother’s steadfast belief that the father has sexually abused the children (in the context of bathing them and co-sleeping with them) and that he continues to pose an unacceptable risk of harming the children: psychologically, physically and sexually. As a consequence, the children have not spent time with the father since early 2017 and, at present, have no functional relationship with him. This is against the background that as a child, the mother was sexually abused by her step-father over a number of years. For the reasons that follow, I am satisfied that the father did not abuse Child A and Child B and that he does not pose a risk of harm to them. On the other hand, I am satisfied that the mother has psychologically harmed the children and she poses a significant ongoing risk of psychological harming the children in the future.
2The court is faced with a stark choice: either (1) leave the children in the care of the mother, in the knowledge that in so doing the children will inevitably have no relationship with the father and their narrative of having been sexually abused by him will not be challenged (and will be further reinforced). In those circumstances, there is a substantial risk that the children will grow into adults who falsely believe that their father sexually abused them: a belief that may significantly compromise their mental health and psychosocial functioning for the remainder of their lives; or (2) place the children in the care of the father, in the knowledge that the children will find the change traumatic and may not settle in the longer term. However, allied to that is the prospect that the children will come to learn and understand that they were not sexually abused, sparing them a lifetime of believing otherwise. The father is also the best candidate to promote the children’s relationships with the extended maternal and paternal families, in circumstances where the mother has isolated herself and the children from the wider family system. In essence, this is a case about balancing the risks of short-term versus long-term harm.
3The father commenced these proceedings in February 2017. Interim consent orders were made in April 2017 for the children to spend supervised time with the father. However, the mother then declined to make the children available, pending a police investigation as to whether the father had sexually abused them. In August 2017, following a contested interim hearing, Tyson M (as she then was) made further orders for the children to spend supervised time with the father. However, the children refused to go and the supervised visits did not proceed. In November 2017, orders were made: (1) by consent for the parties and the children to participate in family therapy with [Therapist A]; and (2) programming the matter to trial. The family therapy was unsuccessful in reunifying the children and the father. The first trial was ultimately listed before O’Brien J, commencing on 20 May 2019. On the first day of trial, the parties reached an interim agreement to attempt intensive family therapy with [Therapist B], with two of the stated aims of therapy being to: (1) provide strategies in relation to reunification between the father and the children; and (2) facilitate the relationship between the children and both parents. The trial was accordingly vacated. However, the intensive family therapy did not proceed as the mother withdrew from the process before it could effectively start. The matter was again listed for a trial before Duncanson J in late 2019, but could not proceed as the revised estimated time for trial significantly exceeded the days then available. Ultimately, the trial proceeded before me over nine days, starting on 8 June 2020 and concluding on 18 June 2020.
ORDERS SOUGHT AT TRIAL:
4In summary, the father’s position[1] was that the court should make final orders that he have sole parental responsibility for the children and they live with him. The children’s transition into the father’s care would be supported by [Program A]: an intensive program designed to reunify children with their “un-favoured” parent, together with an injunction restraining the “favoured” parent from having any contact with the children for a period of not less than 90 days. The program comprises a workshop component attended by the father and the children, followed by an after-care program for all the family members. The mother would be required to engage in reportable therapy as part of the after-care program, prior to her reintroduction to the children. Upon the expiration of the 90 day no‑contact period, the father then sought that the court make orders in respect of the children’s reintroduction to the mother, having regard to evidence that would then be available regarding the mother’s after-care therapy. In this regard, the father proposed that only interim orders be made at the conclusion of the trial as to the time the children should spend with the mother.
[1] Father’s Minute of Orders Sought attached to his Updated Papers for the Judicial Officer filed on 25 November 2019.
5The father proposed that he pay for his and the children’s participation in the program, whilst the mother would pay for her involvement with the after-care professional.[2] The parties would otherwise share equally in any other costs of the program. The father also sought a raft of ancillary orders, including with respect to: the provision of court documents to various professionals; travel with the children; the possession of the children’s important legal documents (such as birth certificates and passports); and the provision of information about the children’s education and health. The father also sought various injunctions, mostly directed at limiting the mother’s interference with the program.
[2] There was some confusion in my mind as to the exact nature of the father’s proposal regarding the payment of costs associated with Program A, which I deal with at the end of these Reasons.
6On the other hand, the mother’s position[3] was that she have sole parental responsibility for the children, the children live with her and only spend time with the father in accordance with their wishes. The mother also sought an order that the parties do all things necessary to have the children attend upon Therapist A for therapy. The orders were silent as to the aim of the proposed therapy with Therapist A, other than to “assist the children”. The mother proposed that the parties each pay for their own sessions with Therapist A, whilst the father would be responsible for the cost of the children’s appointments. The mother otherwise sought an order that permitted her to provide a copy of the court’s orders to various professionals and the children’s school, as well as orders with respect to travel; the children’s passports; the sharing of information about the children’s health; and granting a liberty to the father to send gifts and cards to the children on birthdays, Father’s Day and Christmas. The mother otherwise sought a raft of injunctions designed to stop the father having any contact with the children, save as expressly permitted by the orders.
[3] Mother’s Minute of Final Orders Sought filed 25 November 2019.
7The Independent Children’s Lawyer (“ICL”) did not identify what orders were sought by her at the commencement of the trial. However, late in the trial (and after the parties had completed their respective cases, but prior to the conclusion of the expert evidence),[4] counsel for the ICL handed up a Minute of Proposed Orders which sought that the children live with the father and that he have sole parental responsibility for them. To support that transition, the ICL (like the father) sought orders for the family’s participation in Program A, and for the mother to attend upon a clinical psychologist for reportable therapy. There was substantial agreement in the positions advanced by the father and the ICL, including with respect to the children’s reintroduction to the mother after a 90 day no‑contact period. The major point of difference related to how the costs of Program A would be apportioned between the parties.
[4] On 16 June 2020, being Day 7 of Trial.
8I am satisfied that orders should be made, largely in the terms sought by the father and the ICL, for the reasons that follow.
THE EVIDENCE:
9Both parties have been represented by lawyers throughout most, if not all, [of] the proceedings, including at this trial. The children have been independently represented by an ICL since May 2017.
10For the purposes of the trial, the father relied upon his trial affidavit,[5] together with various updating affidavits[6] and his updated sworn financial statement.[7] The father also relied on the witness affidavits of [Ms B] (the father’s current partner);[8] [Ms C] (the mother’s sister);[9] [Mr D] (a counsellor and psychotherapist who is able to deliver Program A);[10] and [Dr E] (a clinical psychologist who offers a different reunification program to that of Program A – but which no party proposed should actually be used in this case).[11] The father also filed an affidavit of [Mr F] (the mother’s adult son from a prior relationship). However, counsel for the father advised during the trial that the father no longer sought to rely on Mr F’s affidavit and, accordingly, I have not had regard to it.
[5] Father’s trial affidavit filed 3 September 2018.
[6] Father’s updating affidavits filed 12 October 2018, 17 December 2018 and 28 October 2019.
[7] Father’s financial statement filed 22 May 2020.
[8] The two affidavits of Ms B were filed on 3 September 2018 and 28 October 2019.
[9] Affidavit of Ms C filed 3 May 2019.
[10] Affidavit of Mr D filed 28 October 2019.
[11] Affidavit of Dr E filed 13 May 2020.
11The mother relied upon her trial affidavit,[12] together with two updating affidavits[13] and her financial statement.[14] The mother also relied on the witness affidavits of [Mr G] (the mother’s current partner);[15] [Ms H] (an employed trainer at [Protective Behaviours Program A], and who delivered a protective behaviours course to the children in April 2017)[16] and [Ms L] (the mother’s long-time friend).[17]
[12] Mother’s trial affidavit filed 25 September 2018.
[13] Mother’s updating affidavit filed 16 October 2018; Mother’s further updating affidavit filed 25 November 2019.
[14] The mother filed a signed, but unsworn financial statement on 4 June 2020. The mother swore that the contents of the document was true at the commencement of giving her oral evidence in the trial.
[15] Two affidavits of Mr G, filed on 7 November 2018 and 25 November 2019 respectively.
[16] Affidavit of Ms H filed 26 June 2017.
[17] Affidavit of Ms L filed 7 November 2018.
12The following independent evidence was also before the Court:
a)Three reports by [Dr M],[18] the court‑appointed single expert witness;
b)Two reports by Therapist A,[19] the court‑appointed family therapist who worked with the family from November 2017 to April 2019; and
c)A report by Therapist B,[20] the family therapist who was appointed by the court in mid-2019.
[18] Three affidavits of Dr M, filed on 22 September 2017; 9 August 2018 and 8 April 2020 respectively.
[19] Reports of Therapist A dated 30 April 2018 (being annexure L to the father’s trial affidavit filed 3 September 2018; and 16 May 2019 (being Exhibit 1).
[20] Affidavit of Therapist B filed 29 August 2019.
13On the third day of the trial (and without prior notice to the other parties), the mother objected to the affidavits of Ms C and Mr F in their entirety on the basis of relevance. In the alternative, the mother asserted that the prejudicial effect of the affidavits on the mother outweighed any probative value, and pointed to her already fractured relationship with the deponents and her distress at their giving evidence. I overruled the mother’s objection, principally on the basis that:
a)The relevance of Ms C’s and Mr F’s evidence is that they are relatives who no longer enjoy a relationship with the mother and the children, in circumstances where the father asserts that the mother has isolated herself and the children from the broader maternal and paternal family networks.
b)I was being asked to make some very difficult choices in this case, and I was not prepared to strike out Ms C’s and Mr F’s affidavits in circumstances where they have something to say about the mother’s attitude towards the father and to the broader family network and the children’s relationships with those people. It was also open to the mother to object to certain portions of their affidavits (as opposed to objecting in toto).
c)I was not persuaded that the mother’s potential distress at having to sit through the evidence of Ms C and Mr F outweighed the proper administration of justice in ensuring that all relevant evidence was before the Court to enable it to make decisions in the best interests of the children.
14However, I did agree with the submissions made on behalf of the mother and the ICL, to the effect that Mr F’s affidavit disclosed a bias and/or hostility against the mother. I considered that this was a matter that could be properly ventilated in cross-examination and taken into account in the assessment of his credit. In this regard, I observed that the mother’s counsel would have the opportunity to cross-examine both Ms C and Mr F as they were called as part of the father’s case. As noted above, the father ultimately did not rely upon Mr F’s affidavit, and the objection insofar as it concerned his evidence was moot.
FINDINGS IN RELATION TO CREDIT:
The father
15The father is employed as a [tradesperson]. The father was extensively cross-examined by the mother’s counsel over one and a half days, followed by counsel for the ICL for a short period. Notwithstanding the time the mother’s counsel took in cross-examining the father, by the end of her cross-examination I was concerned she had not put important aspects of her client’s case to him, and I provided her with an opportunity to do so.
16The father impressed as being a straightforward, down to earth, and somewhat unsophisticated man. I was satisfied that the father was frank, open, balanced and honest in giving his evidence. He did his best to answer the questions put to him fully and in a manner that assisted the court. The father readily made concessions against his interest, including in relation to various incidents that occurred during the parties’ relationship (which I will refer to in greater detail later in these Reasons) and the difficulties that he and the children would initially face if the children moved to live primarily in his care. I was left in no doubt that the father well appreciated the magnitude of the task ahead if I were to make orders for the children to live with him, as he sought.
The father’s witnesses
17The father’s partner, [Ms B], is a commonwealth public servant. Ms B has two daughters from an earlier relationship: [Child C] who is now aged 12 and [Child D], who is now aged 10. Ms B’s former partner passed away unexpectedly when she was pregnant with Child D. Ms B has been in a relationship with the father since approximately March 2017, and she and her children moved in with the father at his home in the southern suburbs of Perth in September 2019.
18Ms B impressed me as being a very intelligent, ebullient, practical and warm-natured woman. It was clear that she had a much more sophisticated understanding of some issues than did the father, including the psychological underpinnings of the various parenting courses that she and the father have undertaken in preparation for the possibility that Child A and Child B would eventually live with them. Ms B was cross-examined by the counsel for both the mother and the ICL. I considered that Ms B was a very impressive witness: frank, open, balanced and honest in giving her evidence. For example: I accept Ms B’s evidence that she thoroughly interrogated the father about the mother’s various allegations against him and satisfied herself that he did not pose any risk to her and their respective children. Having had the opportunity to observe Ms B in the witness box for some time, I have no doubt that she was both thorough and vigorous. I also accept Ms B’s evidence that she and the father have a loving relationship with each other, the father and her children have good relationships with each other, and that she has never had any concerns about the father’s behaviour towards her and her children, including in relation to family violence or sexually inappropriate behaviour.
19The mother’s sister, [Ms C], is an education director. She has lived overseas for over 25 years. Ms C gave her evidence by video link. She was subjected to an aggressive and, at times, heated cross‑examination by the mother’s counsel, including about Ms C’s own history of child sexual abuse (which the mother later conceded had no relevance whatsoever to the matters in issue in this trial). Ms C was also cross-examined for a short time by counsel for the ICL. Ms C impressed me as being a calm, thoughtful, helpful and honest witness, whose evidence was not successfully challenged in cross‑examination.
20 [Mr D] is a Victorian based counsellor and psychotherapist, who is qualified to deliver Program A in Australia. [Dr E] is a Victorian based clinical psychologist who offers a different reunification program to that of [Program A]. I am satisfied that both Mr D and Dr E were very professional and helpful in giving their evidence.
The mother
21The mother is employed as [an administrator], although she has previously worked in her own businesses as a [bookkeeper]. She currently resides with [Mr G] and the children in her home in [Suburb A, a suburb of City A]. The mother was extensively cross-examined by the counsel for both the father and the ICL. I considered that the mother was an unimpressive witness. The mother failed to give her evidence in a balanced manner and instead, appeared to perceive relevant events through the “filter” or legacy of her own experiences of child sexual abuse. The mother rigidly clung to her beliefs that the father was a dangerous man who had been physically and sexually abusive to the children.
22At times the mother was quite avoidant in her responses, not answering the questions put to her and instead going off on tangents or focussing on minor irrelevancies. I also formed the impression that the mother tried to muddy the waters by engaging in semantics as to what she believed constituted sexual abuse. At one stage in her cross‑examination, it almost appeared as if the mother was moving away from her position that the father had sexually abused the children – but she ultimately confirmed that was her belief. At other times, the mother simply minimised, rationalised or ignored any evidence or other viewpoint that was contrary to her beliefs. For example:
a)The mother maintained that she was not specifically aware of what the children told the police during their respective interviews, including about those matters that contradicted the mother’s beliefs about the father’s behaviour towards the children. This was notwithstanding that the recordings of the interviews had been produced pursuant to subpoena and had been available to the mother (as well as her lawyer) to review for some years.
b)The mother insisted that the Department of Child Protection and Family Support (as it then was) had substantiated that the father had physically harmed Child A in 2012, when it was clear that the Department had not done so. The mother also maintained that she could not recall ever seeing the letter from the Department dated 19 May 2017 to this effect, which responded to the mother’s Form 4 Notice filed during the proceedings.
23The mother had such a negative attitude to the father, Ms B, her own family members and any third party professionals who challenged her narrative that she regularly appeared to jump to conclusions that cast them in the worst possible light, rather than considering more plausible explanations. For example, the mother maintained, amongst other things, that the father caused her car tyres to be punctured by nails. I am not satisfied that there was any cogent evidence that the father did so (and I accept Ms C’s evidence that the mother also accused another maternal family member of doing the same thing).
24I considered that the mother’s evidence, particularly in relation to her communications with experts involved in the case, was very much coloured by her perceptions as to whether they were “for her” or “against her”. For example: the mother maintained that during the proceedings the ICL had colluded with the father, including to “label her as an alienator” and by not including her lawyer in communications regarding Therapist B. I am satisfied that the mother’s complaints in this regard had no basis in reality. Likewise, I am satisfied that the mother’s reports about Therapist B’s comments and behaviour to her and Mr G during their appointments in 2019 were not accurate. Rather, they were coloured by her resistance to the intensive therapy process generally and her perception that Therapist B did not take her side against the father.
The mother’s witnesses
25 Mr G is employed as a [logistics professional]. He has two adult daughters from a previous relationship, with whom he maintains some contact. Mr G acknowledged that he has a criminal record, including being sentenced [many years ago to a term of imprisonment]. Mr G and the mother have known each other for approximately 30 years, and they have been in a relationship with each other since 2014. Mr G was cross-examined by the counsel for the father and counsel for the ICL. I considered that Mr G was also an unimpressive witness. He was very cautious and selective in some of his responses and at times, I considered that he was not being entirely honest. He also struggled to give his evidence in a balanced manner. In particular, Mr G impressed as being a man of very firm and very fixed opinions about the father. Despite his assertion that he had an open mind, it was clear that this did not apply to the father: rather, he wholly accepted the mother’s narrative about the father and was satisfied in his own mind that the father was a dangerous man who had physically and sexually harmed the children. For example, Mr G maintained that due to his “nature”, he needed to be satisfied to the “nth” degree before accepting the truth of a matter and that he would circle around an issue “50,000 times” before being satisfied as to its truth. In my view it was clear that Mr G applied these standards to his views about the father. The fact that various professionals, including the police, the Department and [Dr M] had reached views contrary to that of the mother, [was] insufficient for [Mr G] [to] have any doubts about the father or that the mother may be mistaken in her beliefs.
26 [Ms H] is a qualified social worker who delivers protective behaviours training (having undertaken a three-day course to deliver that training about three years ago). By the time of the trial, Ms H’s evidence was that she had delivered protective behaviours training about 85 times, and has made mandatory reports of sexual abuse arising from that training on eight occasions. I considered that Ms H generally gave her evidence in a forthright manner, although her presentation at the commencement of her evidence was defensive and verged on zealous. Ms H made some concessions, including that: (1) protective behaviours training can result in children labelling normal parenting behaviours as sexual abuse; and (2) the fourth training session she delivered to Child B could have had the effect of reinforcing in Child B the false belief that she had been sexually abused by her father (although it remained Ms H’s view that, regardless of the conclusions reached by other professionals that the father had not sexually abused the children, it remained a possibility in her mind).
27There was one unsatisfactory component of Ms H’s evidence relating to the complaint[21] made by the father about Ms H to her employer. When Ms H was asked whether she had personally informed the mother about the complaint, she responded that she could not remember. That answer rang hollow, especially in contrast with the manner in which Ms H gave the balance of her evidence, including what I considered to be a generally good memory for events. Ms H agreed with the father’s counsel that, had she informed the mother about the father’s complaint, such conduct would have been unprofessional. I agree. I also had a number of concerns regarding Ms H’s evidence for the following reasons: Firstly, I am satisfied that outside of Ms H’s professional relationship with the mother, they also maintained some ongoing personal communications with each other, particularly via Facebook and around the topic of child sexual abuse.[22] Secondly, I shared Dr M’s concerns that Ms H appeared to have a very wide concept of what types of parenting behaviours may be considered inappropriate “grooming” of children and that her style of delivering the protective behaviours program may lead some children to “over interpret” normal parenting behaviours as being inappropriate and/or abusive.[23]
[21] The father complained that the mother and Ms H carried on a friendship.
[22] For example: refer to the father’s trial affidavit filed 3 September 2018, [57] and annexure “G”; Exhibit S11.
[23] This was particularly having regard to Child B’s “demonising” of her father during the CAIT interview, after being “prepared” for the interview the day before hand in a two hour session with Ms H. I refer to this issue in more detail later in these Reasons.
28 [Ms L] was not required for cross-examination by the father. Accordingly, I accept her evidence as unchallenged.
The independent, professional witnesses
29The parties and the ICL were all given leave by me to cross‑examine the professional witnesses. The professional witnesses gave their evidence after all of the other witnesses had given their evidence: Therapist B on 15 June 2020, followed by Therapist A on 16 June 2020 and Dr M on 17 June 2020. I considered that each of Therapist B and Dr M gave their evidence in a professional and helpful manner, and I have no hesitation in accepting their evidence. I also considered that Therapist A was professional and helpful in giving her evidence, save that at times, I gained the impression that Therapist A was somewhat uncritically accepting of the children’s narratives about the father. In particular, under cross‑examination she appeared unwilling to engage with the issue of whether the children had been harmed by the mother in the light of matters raised by me (after I had the benefit of hearing all the evidence of the parties and their witnesses). It raised some concerns in my mind that Therapist A had potentially lost her objectivity in this case.
FACTUAL BACKGROUND:
30The father was born [in] 1965 and was 54 years old at the time of trial. He is currently employed as a [tradesperson], and lives with Ms B and her two daughters. The father’s extended family all live in the Eastern States of Australia.
31The mother was born [in] 1969 and at the time of trial was 50 years old. She lives in [City A] with the children and Mr G. The mother has two adult-children from a previous relationship, Mr F and [Ms N]. The mother’s extended family lives in Perth, save that her sister, Ms C, lives overseas and has done so for many years. The mother is estranged from her extended maternal family, including her adult children. However, the father continues to have a functional relationship with various members of the extended maternal family, including Mr F, Ms N and Ms C.
The early years of the parties’ relationship
32The mother and father first met in 2004 and they commenced a relationship shortly thereafter. At the time the father was working in Western Australia but lived in Victoria. The early part of the parties’ relationship was unremarkable, save for two significant events:
a)Firstly, the mother was involved in disputed parenting proceedings with her former husband, [Mr O], in respect of their children Mr F and Ms N. (Dr M was also appointed as the single expert witness in that case). It was in this context that in early 2005, a series of allegations were made against the father by Mr O and his new wife, including that the father: (1) had given Ms N a bruise the shape of a hand on her upper outside thigh; (2) had taken a photograph of Ms N whilst she was going to the toilet in a bush; (3) asked Ms N if she had washed her “bits” when she came out of the shower and when she said yes, asked if he could have a look; and (4) said to Ms N on the phone that he and the mother want to make babies and enquired whether Ms N knew how that was done. The father admitted to smacking Ms N on the outer thigh hard enough to leave a mark, but denied the other allegations.
b)The Department for Community Development (as it then was) undertook an investigation and wrote to both the mother and father on 17 October 2005[24] confirming the outcome, namely: (1) the Department concluded that Ms N had been physically abused by the father, but did “not have strong concerns for the wellbeing of [Ms N] at this time”. In this regard, the Department’s Child Maltreatment Allegation Investigation Outcome Report dated 1 September 2005 recorded that: “While it was clear that [the father] had lost his temper with [Ms N] and inappropriately and with force physically hit her this appears to be an isolated incident. [The father] was visibly and verbally remorseful following the incident and [the mother] had immediately made the decision that [Ms N] was not to be under the sole supervision of [the father] in future”;[25] and (2) the allegations of a sexual nature were not substantiated, with the Department finding that, “[t]here was no evidence to confirm the information that [Ms N] gave and she was not consistent with the detail of these events. In the interview with [the father] and [the mother] they were able to give reasonable explanations in relation to these incidents including the photograph allegedly taken while [Ms N] was going to the toilet. This is also in the context of [Ms N] clearly wanting to spend more time with [Mr O] and that her mother is contemplating a move to the Eastern States to live with [the father].”[26]
c)Secondly, the mother was involved in criminal proceedings against her stepfather who was accused of sexually abusing her over a prolonged period whilst she was a child. In 2005, the stepfather was convicted and sentenced to 10 years’ imprisonment, later reduced to eight years on appeal. Following the conclusion of the criminal proceedings, the mother participated in a medico-legal assessment undertaken by [Dr P], a Consultant Psychiatrist.[27] In May 2006, Dr P reported a number of psychological impacts on the mother arising from or relating to the sexual abuse she suffered at the hands of her stepfather, including: (1) suffering chronic post-traumatic stress disorder; (2) the mother’s decision to leave school early at the age of 15; (3) a pattern of early childhood self-hatred, introversion and loss of social skills/networks based on issues of secrecy; (4) a sensitivity to rejection based on the mother’s perceived rejection by her mother and subsequent lack of support from her family and subsequent estrangements, and of perceived abandonment by those she could not trust and recurrent states of dissociation; and (5) a perceived, and probably correct, view of childhood as having been stolen from her.[28] Dr P also described the mother reporting being hypervigilant for danger – “especially when her daughters[29] are with their biological father (although she does not suspect him of sexual abuse in such circumstances) but she is suspicious of him in many other ways.”[30] For clarity, I note the reference to “biological father” is to the mother’s first husband, Mr O.
[24] Mother’s trial affidavit filed 25 September 2018, page 85.
[25] Mother’s trial affidavit filed 25 September 2018, page 82.
[26] Mother’s trial affidavit filed 25 September 2018, pages 83 and 84.
[27] Father’s trial affidavit filed 3 September 2018, annexure M.
[28] Father’s trial affidavit filed 3 September 2018, annexure M, page 104.
[29] It appears that reference to daughters in plural is an error, as the mother only had one daughter (Ms N) at the time.
[30] Father’s trial affidavit filed 3 September 2018, annexure M, pages 97 and 98.
33In mid-2006, the father relocated to Western Australia and the parties commenced living together. The parties then married in December 2006. Child A was born [in early] 2007, followed by Child B [in mid] 2008. I am satisfied that the parties’ marriage was an unhappy one: marred by frequent disagreements, including from the stresses and strains on both parties of having to juggle their busy work commitments and their care of two very young children.
Historical allegations of family violence
34The mother, in her affidavit material, raised a number of historical allegations against the father, of family and domestic violence and inappropriate behaviour.[31] The vast majority of those allegations were not put to the father in cross-examination, noting the father stated explicitly in his affidavit material that his failure to specifically traverse an allegation did not constitute an admission.[32] In family law cases, where the parties give their evidence in chief by way of affidavit, particular care ought to be taken in making the tactical decision to “let sleeping dogs lie”, particularly where there is clear indication on the face of a party’s affidavit material that they do not accept the case being advanced against them. In this case, I am satisfied that it is appropriate to draw the inference that the mother did not take issue with the father’s non-acceptance of her allegations against him, given the decision of her counsel not to cross-examine the father on these matters, notwithstanding that her counsel was given the further opportunity to do so.[33]
[31] For example, see the mother’s trial affidavit filed 25 September 2018, pages 3 – 32.
[32] Father’s affidavit in reply filed 12 October 2018, [4]. Further, the father did specifically traverse a number of allegations in that affidavit.
[33] At the end of the mother’s counsel’s cross examination of the father, I gave the mother’s counsel a further opportunity to cross-examine the father in relation to the key planks of the mother’s case, including but not limited to her allegations of historic family violence, which she took up to a limited extent.
35The father was cross-examined about the following matters:
a)In early 2008, whilst the mother was pregnant with Child B, the parties argued in their bedroom. The mother was holding Child A at the time. The mother alleged that the father pushed her violently, causing her to fall on the bed.[34] However, I prefer the father’s evidence (in his affidavit in reply[35] and under cross‑examination) that there was an altercation, but that he pushed the mother away from him, causing her to fall backwards onto the bed, after she attacked him physically, lashing at his chest with her nails. I am satisfied that the incident reflected poorly on both parties.
b)I accept the father’s evidence (in his affidavit in reply[36] and under cross-examination) that in early 2009, when Child A was approximately two years old and Child B was less than one year old, he punched holes in two doors in the parties’ home during an argument with the mother.[37] The father could no longer remember the specific details of the argument, other than recalling: (1) feelings of stress and “pent up frustration” with the mother; and (2) that Child A was present.[38] I am also satisfied that this incident reflected poorly on the father.
c)In mid-2012 (and following the parties’ separation in February 2012), a mandatory report was made by Child A’s school teacher after Child A disclosed the father had hit him in the head. I accept the father’s evidence under cross-examination that he accidentally hit Child A while trying to stop Child A fighting with Child B. I am also satisfied that the Department conducted an investigation and concluded that the allegations of physical harm were not substantiated.[39]
[34] Mother’s trial affidavit filed 25 September 2018, [35].
[35] Father’s affidavit in reply filed 12 October 2018, [13].
[36] Father’s affidavit in reply filed 12 October 2018, [14].
[37] Mother’s trial affidavit filed 25 September 2018, [54].
[38] Child A’s age as recounted by the father is consistent with the approximate timeframe given by the mother for this incident in her trial affidavit, that is, early 2009. I did not accept the mother’s evidence under cross-examination by the ICL that the event occurred much later, in 2011 or 2012, and considered that the mother’s revised timeframe was an attempt by her to explain why Child A was able to remember the incident, as opposed to knowing about it because the mother discussed it with him.
[39] Memorandum of the Department for Child Protection and Family Support dated 19 May 2017, page 2.
36The father did not seek to cross-examine the mother’s witness, Ms L. Accordingly, I accept Ms L’s unchallenged evidence that she witnessed the father become angry at the mother on occasions, including verbally abusing her. I also accept Ms L’s evidence that she saw the father become angry and aggressive at the mother’s [business] [in early] 2012, and that he threw and kicked things before leaving. Again, I am satisfied that these instances of family violence reflected poorly on the father.
The parties separate, and care arrangements for the children
37The parties separated under one roof in February 2012.
38Despite the finding of the Department (referred to in paragraph Error! Reference source not found.(c) of these Reasons), the mother contacted the Department in June 2013, July 2013 and twice in October 2013, requesting the Department provide her with a letter substantiating that the father physically harmed Child A. The Department properly declined to do so on each occasion.[40]
[40] ICL’s cross-examination of the mother, Day 5 of Trial, 12 June 2020.
39In or about September 2013, the father contacted a Family Relationship Centre to arrange family dispute resolution. The Centre in turn wrote to the mother by letter dated 18 September 2013 extending an invite to participate in the process to “facilitate a parenting agreement”.[41]
[41] Mother’s trial affidavit filed 25 September 2018, page 100.
40In October 2013, the father returned from working away to find the mother and children (who were then aged six and five) had moved out of the parties’ home.[42] The father then engaged solicitors, who wrote to the mother about parenting arrangements for the children.[43] On 30 October 2013, the mother responded[44] with a proposal for the children to spend time with the father, pending mediation. In that letter the mother required the father to give an undertaking in relation to various matters before she would facilitate time, including that the father: (1) not hit or smack either of the children with his hand or other implements; (2) be attentive, focussed, alert and not fall asleep when the children are awake; (3) provide safe travel in vehicles for the children, including having appropriate restraints fitted to the vehicle; (4) not view pornographic materials or engage in inappropriate actions relating to same while the children are in his care; (5) not denigrate the mother to the children (although this was framed as being mutual); and (6) ensure the safe return of the children at the proposed time.
[42] Mother’s trial affidavit filed 25 September 2018, page 101.
[43] The inference that the father’s solicitors wrote to the mother about parenting arrangements arises from paragraph [119] of the mother’s trial affidavit filed 25 September 2018.
[44] Mother’s trial affidavit filed 25 September 2018, pages 104 and 105.
41In December 2013, the parties participated in family dispute resolution and agreed that the children would live with the mother and spend each alternate weekend with the father from 9am Saturday to 4pm Sunday (save that the children would also spend the Friday night with the father, if his work schedule permitted).
42Towards the end of 2015, the father obtained employment in [the Eastern States]. However, the father continued to travel to Perth each alternate weekend and the children spent time with him from afterschool Friday to Sunday evening.
43On 16 March 2016, the mother emailed the father requesting that he: (1) ensure that Child B had her own bed at his home; and (2) encourage Child B to sleep in her own bed. The mother also advised the father she considered it inappropriate for Child B to sleep in his bed all night.[45] The father responded the same day,[46] affirming that the children were safe in his care, requesting the mother to respect his judgment and privacy when the children were in his care, and complaining about the mother’s interference and her refusal to facilitate additional time in between the allocated alternate weekend visits. The father mentioned that he was aware that Child B occasionally slept in the mother’s bed, together with Mr G, ostensibly to highlight the hypocrisy of the mother’ position. The father ended his response with a request that the children be permitted to spend additional time with him, through to the Monday morning of his allocated weekend (or 4.00pm Monday if a public holiday).
[45] Mother’s trial affidavit filed 25 September 2018, [136] and page 113.
[46] Mother’s trial affidavit filed 25 September 2018, page 114.
44The next day (17 March 2016), the mother responded[47] and said (among other things): (1) that it was Child B who had raised the issue of not having a bed, and that Child B was too scared to speak with the father directly about the issue because she was afraid he would be angry; (2) it was true that Child B did come into the mother’s room at night, but if so the mother would return her to her own bed. Child B would also go into the mother’s room early in the morning, but the mother was already awake by that time; and (3) the children were exhausted after returning from the father’s weekend, because they were allowed to stay up very late at night, which resulted in it being difficult to get them up for school, and resulted in the “odd complaint” from Child A’s teachers that he had fallen asleep in class. The mother otherwise ignored the father’s request for additional time with the children, and instead invited him to make ad hoc requests on seven days’ notice “if mutually convenient”.
[47] Mother’s trial affidavit filed 25 September 2018, page 115 and 116.
45On 28 March 2016, the mother wrote again[48] to the father. I set out the mother’s letter in full, below (errors are as per the original):
[48] Mother’s trial affidavit filed 25 September 2018, page 118.
Once again I am writing to you to try and avoid having to go down an expensive legal path.
Your last weekend starting on the 18th March 2016, even after correspondence, you did not make a bed available as requested and as in the signed mediated agreement and co-slept with [Child B] again.
I am prepared to submit affidavits concerning sleeping in the same bed as you and witnessing your wet dreams and pelvic thrusting motions in your sleep. I would prefer not to go down this path or bring it into the public forum, however given your refusal to comply with the written agreement, has given me no choice but to bring it up.
I will also to swear to the multiple occasions I walked in on you masturbating whilst watching pornography on the computer in an open room without a door. Another person who was staying in the house will state they witnessed the same behaviour from you.
Here are three options:
1.Suspend your visitation weekends completely and take custodial matters to court and let a judge decide.
2.I will drop [Child B] to you at 9am on Saturday mornings, collect her at 6pm Saturday night, drop her back 9am Sunday morning and collect her again at 4pm Sunday evening.
3.You make her bed available for her to sleep in and encourage her to sleep in her own bed in her own room.
The school psychologist will be talking to [Child A] and [Child B] regarding protective behaviours so they knew what is appropriate behaviour from an adult and how to reach out and tell someone if there is an issue that makes them feel uncomfortable.
I am also prepared to take them to the protective behaviours course that DCP have recommended.
Please advise your intentions at your earliest convenience.
46I am not persuaded that the mother’s allegations contained in her letter about the father’s alleged sleeping habits were true. I am also not persuaded that the mother’s allegations about the father viewing pornography, even if they were true, indicated that the children were at risk of harm from such activity. Despite the mother’s threats, it appears that the children’s alternate weekend time with the father continued. For his part, the father gave the following evidence about the co‑sleeping issue, which I accept:
[30]…I state that I have always tried to persuade the children to sleep in their own bed, however given I only saw them only once every second week, I did not see any harm in allowing them to sleep with me, as they often requested. We would usually watch a DVD and I always wore shorts and a t-shirt.
[31]…I state that I did provide both children with their own beds and set up their rooms hoping to encourage them to sleep in them willingly. I even placed a TV in [Child B]’s bedroom so she could watch her DVD’s. Neither children ever complained of having to sleep in my bed as [Ms Milton] has stated, and they regularly asked to.[49]
[49] Father’s affidavit in reply filed 12 October 2018, [30] and [31].
47I am not satisfied that the father’s actions in allowing the children to co-sleep with him were sinister in any way and I consider that his explanation as to why the co-sleeping arrangements continued were understandable. I am also satisfied that the ongoing disagreement between the parties about the issue was made more difficult by the legacy of the mother’s own history of child sexual abuse, including her hyper-vigilance and trust issues surrounding the children.
48In May 2016, the parties corresponded about the arrangements for the July 2016 school holiday period.[50] The mother complained in her trial affidavit that the father had not notified her of his intention to spend the majority of the holiday with children in a one bedroom caravan.[51] The mother went on to say, however, that the children “had a lovely time on holiday but complained about the sleeping arrangements and not having their own bed available”.[52] It was also around this time that the mother said she spoke with Child A and Child B and encouraged them to let the father know they were big enough to shower and bath themselves and sleep in their own beds.[53]
[50] Mother’s trial affidavit filed 25 September 2018, [142] and page 119.
[51] Mother’s trial affidavit filed 25 September 2018, [142].
[52] Mother’s trial affidavit filed 25 September 2018, [142].
[53] Mother’s trial affidavit filed 25 September 2018, [143].
49On 7 August 2016, the mother collected the children from the father’s home, and alleged that Child B told her that: (1) she felt sick and had a “sore front bottom”, and otherwise complained of a sore tummy; and (2) that daddy had bathed her and the soap hurt her in the front genital area.[54] There was no evidence that the mother raised these concerns with the father or with any other independent agency at that time. However, the mother’s evidence under cross-examination was that Child B had complained about having a “sore front bottom” at other times, which the mother assumed was as a result of Child B reacting to pool chlorine and/or different brands of soap. There was also evidence that the mother and Mr G treated Child B for this complaint at times, including by providing Child B with a special cream to apply to her genital area.
The father requests more time with the children
[54] Mother’s trail affidavit filed 25 September 2018, [144].
50On 21 September 2016, the father emailed[55] the mother and asked to collect the children one day early (on Thursday, 29 September) for his weekend, given it fell during the school holiday period. Despite the father having provided seven days’ notice of his request for additional time (as previously demanded by the mother), the mother simply replied and said “No, it’s not possible”.[56]
[55] Father’s trial affidavit filed 3 September 2018, page 39.
[56] Father’s trial affidavit filed 3 September 2018, page 39.
51The following day (22 September 2016), the father emailed[57] the mother and said:
As it is important to the children and myself to spend as much quality time possible whenever opportunities arise I expect you in future to be more flexible in a fair way by accommodating my desire to accomplish this and can only assume that it is simply out of spite that you have rejected my request without a valid reason. I find your reply of ‘no’ to be quite rude and in no way acceptable behaviour towards me when I have always tried to abide by your guidelines with regards to time frames when requesting extra time with Child A and Child B.
I can only hope that I am mistaken and you have something genuinely planned directly around the children that prevents me from having access to them on this particular occasion, otherwise there should be no reason for them not to spend extra time with me. I would greatly appreciate some form of proof of this occasion and in future.
I am sure that if the shoe was on the other foot you would respect my requests in these matters.
[57] Father’s trial affidavit filed 3 September 2018, page 39.
52On 23 September 2016, the mother responded, joining issue with the matters raised by the father, but otherwise ignoring his request for the children to spend an additional night with him during the school holidays.[58] The mother asserted that, “[a]ctivities for school holidays are planned well in advance and then made firm after I have not received a request from you for extra time. I will again state that 21 days prior to commencement of the holidays is a fair and reasonable notice”.[59] On 25 September 2016, the father responded and gave notice of his intention to “again seek mediation and renew the current parenting plan with the outlook to eliminate future misunderstandings and to maximise opportunity to spend time with the children in a fair and reasonable manner”.[60]
[58] Mother’s trial affidavit filed 25 September 2018, page 120.
[59] Mother’s trial affidavit filed 25 September 2018, page 120.
[60] Father’s trial affidavit filed 3 September 2018, page 40.
53The father did arrange family dispute resolution but the mother refused to participate. The relevant FDR certificate was issued on 6 December 2016 and confirmed the mother’s refusal to participate.[61]
The father’s roster changes: the father requests to swap weekends, and the mother refuses
[61] Father’s trial affidavit filed 3 September 2018, page 41.
54In December 2016, the father commenced new employment on a FIFO basis from Perth, on an eight day on / six day off roster. As from January 2017, the weekends the father was to work coincided with the weekends the children would ordinarily spend with him. On 19 December 2016, the father notified[62] the mother of the change, and proposed the parties swap weekends. The father also asked to see children during the January school holiday period, from 10 January to 16 January 2017, and from 24 January to 30 January 2017. On 21 December 2016, the mother responded,[63] complaining it was a busy time for her and that she was “unable to time line” the arrangements proposed by the father. Further, the mother said, “[i]f you had notified me 30 days before the school holidays, arrangements would not have been made, however I will see what I can do and if I am able to change things around after the busy Christmas period for retail [is] over.” The mother otherwise requested to collect the children at 12 noon on Christmas Day, so she could attend Christmas lunch with her father.
[62] Father’s trial affidavit filed 3 September 2018, page 42.
[63] Father’s trial affidavit filed 3 September 2018, page 43.
55The father responded that same day, agreeing to cancel his arrangements for Christmas Day to accommodate the mother’s request, and said, “keeping in mind the short notice, if you could please consider me having them for some time next week and/or next weekend” and “I return to work on the 2nd of January which is the start of the mentioned weekly roster”.[64] The father’s evidence was that the mother did not respond to his email, and as such he went ahead with Christmas lunch plans of his own. When the mother arrived to collect the children on Christmas Day, the father refused to hand them over.[65]
[64] Father’s trial affidavit filed 3 September 2018, page 44.
[65] Father’s trial affidavit filed 3 September 2018, [28].
56In my view, both parties’ actions reflected poorly on them: (1) the mother in frustrating the father’s efforts to spend more time with the children, including by continually refusing the father’s requests for additional time and changing the goal posts in relation to the prior notice she sought from the father; and (2) the father in reneging on the arrangements for Christmas Day. I am satisfied that after Christmas Day 2016, the mother’s approach to the children spending time with the father hardened considerably.
The mother refuses to facilitate contact until mid-February 2017
57On 27 December 2016, the mother emailed the father and said:
In regards to your request emailed to me on the 19th December, plans, booking and commitments for the children have already been made for the school holidays and are not able to be changed.
In regards to changing your weekend rotation, I am unable to swap weekends until mid-February at the earliest.[66]
[66] Father’s trial affidavit filed 3 September 2018, page 46.
58On 29 December 2016, the father emailed the mother and said:
Although I understand you are disgruntled over Christmas lunch I ask you to please reconsider your decision to not allow me access to the children for what will be around 7 weeks. This is not only upsetting to me but also unfair punishment to [Child A] and [Child B] for something that neither myself or they were to blame.
I stated quite clearly in response to your request to have them for lunch that I would agree to it if you would allow me some reasonable time with them during this week and/or weekend. There was no reply in writing nor was there any communication at the time I picked up [Child A] and [Child B] from your kiosk so I could only assume you were not willing to go ahead which was disappointing as I had cancelled a lunch booking.
The kids were really looking forward to spending some quality time with me and also having some fun with their new christmas presents. I was also planning to take them across to see mum and dad for a few days during the second week I have them.
If you truly are committed to the happiness of the children then I again ask you to please reverse your decision and allow them to be with me commencing January 10.[67]
[67] Father’s trial affidavit filed 3 September 2018, page 47.
59The mother permitted the father to spend time with the children [in early] 2017 at McDonald’s for Child A’s birthday. The children have not spent time with the father since.
60The mother maintained in her trial affidavit that she did not preclude the children from spending time with the father in early-2017, and that the father was free to see them on his usual weekends.[68] I am not persuaded that this was the case. In my view, apart from the brief visit at McDonalds, the mother effectively stopped the children from spending time with the father, at least partly in retaliation for the Christmas Day 2016 debacle. I am not persuaded that the mother could not make arrangements for the children to spend some time with the father during the summer school holidays (to accommodate his roster changes) and consider that her actions in this regard were neither reasonable nor child-focussed.
The father proposes parenting orders; the mother raises allegations of abuse
[68] Mother’s trial affidavit filed 25 September 2018, [158].
61On 25 January 2017, the father’s solicitors wrote to the mother and proposed that the parties enter into consent orders setting out the parenting arrangements for the children, including an increase in the amount of the time the children would spend with the father.[69] By this time, the father had not seen the children for nearly four weeks. On 6 February 2017, the mother’s solicitors responded, stating that the mother was not prepared to permit the children to spend time with the father as she was, “concerned for their welfare” whilst in the father’s care, and that the mother would be filing a Form 4 Notice of Child Abuse or Family Violence (or Risk) in response to any parenting application made by the father. The letter went on to say:
In about 2005 and about 2010, your client was reported to the Department of Child Protection (“DCP”) for physical abuse of a child in his care. Both reports made to the DCP did not originate from our client’s complaint. Recently, our client has been informed by the children of similar incidents that have occurred whilst they were with your client. Our client is not prepared for the children to be placed at risk in your client’s care.
We understand that issues of your client’s physical discipline of the children and your client’s anger management problems have been raised previously. Further, your client has not sought to change his inappropriate behaviour such as the co-sleeping with the children and lack of adequate adult supervision and care in his household.[70]
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