Morse & Duarte

[2017] FamCA 1039

FAMILY COURT OF AUSTRALIA

MORSE & DUARTE AND ANOR [2017] FamCA 1039

FAMILY LAW – CHILDREN – UNACCEPTABLE RISK – Where the children were removed from the mother by the Department of Family and Community Services and currently reside with the father – Standard of proof for establishing an unacceptable risk – Where findings are made that the mother’s partner has sexually assaulted two people, one of which was a child – Where the mother’s partner is found to be an unacceptable risk to the children – Where it is found that the mother would not be able to protect the children from the risk posed by her partner – Orders made for the children to live with the father and the father to have sole parental responsibility – Orders made for the children to spend supervised time with the mother and for the mother’s partner to be restrained from coming into contact with the children – Provision made for the father to extend the mother’s time with the children at his discretion if certain conditions are met.

FAMILY LAW – PRACTICE AND PROCEDURE – ADVERSE INFERENCE – Whether an adverse inference could be drawn from the mother and her partner’s failure to attend interviews with the Family Consultant – Consideration of the rule in Jones v Dunkel – Distinction drawn between failing to adduce evidence and failing to provide evidence to an expert – Where an adverse inference cannot be drawn.

FAMILY LAW – JURISDICTION – CROSS-VESTING LEGISLATION – Where the issue of whether a caveat was lodged unlawfully was transferred from the Supreme Court of NSW to the Family Court – Where the Court has jurisdiction to determine whether the father had a beneficial interest in the property by virtue of the accrued jurisdiction – Where it is found the property is held on trust for the father and the mother – Where the defence of laches is not established – Where the father had the right to lodge a caveat over the property.

FAMILY LAW – PROPERTY – TRUSTS – Where the father seeks a determination that the property owned by the mother and her new partner is held on trust for him and the mother – Where the property was purchased entirely with the use of matrimonial funds – Where the father did not consent for the property to be purchased in the name of the mother’s partner – Where the presumption of advancement does not apply – Where a resulting trust is established – Where a constructive trust is also established.

FAMILY LAW – PROPERTY – Application for the adjustment of property interests pursuant to s 79 of the Family Law Act – Where the father seeks 70 per cent of the net assets of the parties – Where each parties’ paid legal fees are added back into the asset pool as notional property – Where the parties’ contributions during the marriage are agreed to be equal – Where the father made greater initial and post-separation contributions – Where the father’s contributions are assessed at 62.5 per cent – Where an adjustment of 5.2 per cent is made in the father’s favour pursuant to 75(2) – Orders made for an overall adjustment of 67.7 per cent to the father – Orders made for a superannuation splitting order.

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 44, 46
Evidence Act 1995 (Cth) ss 131, 138, 140, 140(2)(c)
Family Law Act 1975 (Cth) ss 60B, 60CC, 60CC(3), 60CA, 60CG, 61C, 61DA, 62G, 68B, 69ZN(5), 69Y, 69ZV(2), 69ZV(3), 75(2), 79, 79(1)(a), 79(4), 79(4)(e), 79A(1)(d), 75(2), 75(2)(l), 75(2)(na), 75(2)(o)
Family Law Rules 2004 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) s 5
Real Property Act 1900 (NSW) s 74F, 74P

Baumgartner v Baumgartner (1987) 164 CLR 137
Bevan & Bevan (2013) FLC 93-545
Buffrey v Buffrey (2006) 12 BPR 23,619
Calverley v Green (1984) 155 CLR 242
Chapman & Chapman (2014) FLC 93-592
Damberg v Damberg (2001) 52 NSWLR 492
Ferraro and Ferraro (1993) FLC 92-335
Gabini & Gabini [2014] FamCAFC 18
Gillim & Gillim & Ors (No 2) [2014] FamCA 701
Grefeld & Grefeld and Anor (2012) FLC 93-508
Hickey and Hickey (2003) FLC 93-143
In the Marriage of Warby (2002) FLC 93-091
Johnson & Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
Kawada & Kawada (2012) 47 Fam LR 415
Kowaliw and Kowaliw (1981) FLC 91-092
M v M (1988) 166 CLR 69
Markoska & Markoska [2011] FamCA 572
McLay and McLay (1996) FLC 92-667
Murdock & Madden [2011] FamCAFC 219
Muschinski v Dodds (1985) 160 CLR 583
N and S (1996) FLC 92-655
Stanford v Stanford (2012) 247 CLR 108
Trustees of the Property of John Daniel Cummins v Cummins (2006) 224 ALR 280
Tryon & Clutterbuck & Attorney-General of the Commonwealth (Intervenor) (2010) FLC 93-453
Tryon & Clutterbuck (No 2) (2009) FLC 93-412
Vadisanis & Vadisanis [2014] FamCAFC 97

APPLICANT FATHER: Mr Morse

RESPONDENT MOTHER: Ms Duarte

SECOND RESPONDENT: Mr Tolman

FILE NUMBER: SYC 737 of 2014

DATE DELIVERED: 1 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATES: 26, 27, 28, 29, 30 June 2017, 3, 4, 5, 6, 7 July 2017, 2, 3 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Slater & Gordon Solicitors

ADVOCATE FOR THE RESPONDENT: Self

ADVOCATE FOR THE SECOND RESPONDENT: Self

Orders

Parenting

(1)All prior parenting orders are hereby discharged.

(2)The father is to have sole parental responsibility for the children H born … 2006 (“H”), J born … 2010 (“J”) and K born … 2012 (“K”) (collectively referred to as “the children”).

(3)Whenever the father makes any decision which changes some aspect of the children's long term arrangements such as schooling, or makes an important decision about some aspect of their health, he is to notify the mother of same in writing.

(4)If the father considers it necessary or appropriate to do so, he may seek the mother’s input, in writing, in relation to any arrangement for, or significant aspect of, any of the children’s lives.

(5)The mother is restrained from bringing the children into contact with Mr Tolman at any time or under any circumstance other than that which might be specifically permitted by the father in writing from time to time.

(6)The mother is restrained from knowingly approaching within 200 metres of the father’s residence or his place of work. Should the father’s place of work in the transportation field, the mother is permitted to travel via this form transportation as part of her normal transit use, however, she is not to approach the father or speak to him on any such occasion unless the father has previously agreed that she may by providing that permission in writing.

(7)The mother is restrained from permitting or encouraging the children to call any person except the father by any name which includes the words “dad”, “daddy” or “father”.

(8)The mother is to have supervised time with the children as follows:

(a)   On one occasion each fortnight on a day nominated by the father (to be the same day of the week on each visit so far as that is practical) for a period of two hours.

(b)  The supervisor is to be one approved by the father and, for the first six occasions, the mother undertakes that such time is to be supervised by a supervisor provided by an agency which provides supervisors for parents’ time with children. The father is to provide the mother with a list of three agencies he would nominate for the purpose of providing a supervisor for the mother’s time with the children under these orders and the mother is to choose one agency and advise the father of same in writing. The father is to ensure that the agencies nominated will provide a written report of such time to both the father and the mother within seven days of each event. The mother is to meet the cost of the supervisor.

(c)   The mother’s time with the children on the first three occasions of supervised time is to take place at a site nominated by the father. Thereafter the mother is to provide the father with a list of places at which she proposes to spend her time with the children and she may only spend time at such place as approved by the father (and the supervising agency, if applicable) in writing.

(d)  After six occasions of the mother spending supervised time with the children where that supervision is provided by an agency supervisor, the mother may seek the father’s approval for another person, persons or an organisation to be the supervisor of her time with the children. The mother is to provide contact details for any such persons or organisations to the father at the time she nominates such person or entity and the father is to be permitted to speak with any such nominated person about the role of supervisor should he wish to do so. Should the father approve such person or organisation as a supervisor then the mother may exercise her time with the children in the presence of that person.  Where the mother nominates a person she is not to do so unless she has shown such person a copy of these orders. Should such nominated person be accepted by the father then the mother is to provide a copy of the orders to that person before the first occasion on which supervision by that person takes place.

(e)   In the event of the mother seeking the father’s approval for a particular person or persons to supervise her time and in the event the father accepts such person or persons, then before the first occasion upon which the mother spends time in the presence of that supervisor, she is to provide the father with a copy of a written acknowledgement by such persons that they have been provided with a copy of these orders and accept they are to supervise the mother in the presence of the children and are to ensure none of the following events occur:

(i)Any contact with Mr Tolman, including contact by telephone or any electronic means.

(ii)Any discussion with the children by the mother in which she is critical of the father, makes denigrating or derogatory statements about him.

(iii)Any discussion regarding matters of her religious beliefs with or in the presence of the children which directly or by clear inference the children may reasonably be seen to understand the mother is being critical of the father’s religious beliefs or lack thereof.

(9)The father may, in writing provided to the mother at any time, suspend the requirement for the supervision of the mother’s time with the children for such occasion or occasions which he considers appropriate to do so.

(10)The father may in writing to the mother increase the amount of time, increase the frequency and vary the site where the mother is to spend that time with the children. Where the father provides that in writing, the mother may agree to the changes in writing and if she does so unequivocally, then she may spend such time with the children as that writing permits.

(11)In the event that the mother no longer resides with Mr Tolman and the father is satisfied there will be no contact by the children with Mr Tolman and where the father is satisfied the mother is otherwise compliant with the court orders, then the father is to consider extending the time the children spend with the mother to overnight time in her home. If he offers to the mother a change of the time the children spend with her to include overnight time and the mother accepts unequivocally in writing the conditions upon which such offer is made, then such time is to continue until the father gives notice in writing that it is to cease.

(12)The mother’s time with the children, under these orders, is to be suspended during any part of the children's school holiday periods where the father has made arrangements for him to spend time with them as a holiday activity or for them to holiday at a site which makes it impractical for the mother to have the time required by these orders with the children. Where that happens the father is to provide make up time for the children to spend with the mother and he is to nominate in writing to the mother the times and sites at which any such makeup time takes place. The makeup time is to be subject to the supervision order provided herein unless the father waives such requirement in writing to the mother.

(13)The mother is to have telephone time with the children on two occasions each week for up to 15 minutes or such longer period as the father allows. The phone calls are to be on Tuesday and Thursdays each week at 6.00 p.m. unless the father notifies the mother of a different time or day of the week for such contact. So far as can be arranged the father is to ensure that all three children are present and able to participate in the phone call. The father is to monitor such calls for as long as he considers necessary. The father is to terminate any phone call where he considers the words spoken by the mother to the children are inappropriate or the children or any of them become distressed.

(14)The mother is not to approach or have any contact with any of the children’s schools or personnel otherwise than as follows or otherwise provided for in these orders:

(a)   On any occasion the father provides his written consent/invitation;

(b)  On any of the children’s end of year speech days or presentation days, howsoever named, to which parents are invited or expected by the school to attend;

(c)   On any other occasion when parents are invited or expected by the school to attend for a specific event and where the mother has first given not less than 48 hours written notice by email or text message to the father of her intention to attend and the father has provided by return email or text his written consent for that specific attendance.

(15)Whenever the mother attends at any of the children’s schools she is to conduct herself in a manner which will not embarrass any of the subject children were they to know of such behaviour nor is she to interact with any school employee or other person attending the school on that occasion in a combative, challenging or aggressive manner.

(16)Should there be any occasion where the father has reasonable reason to believe the mother has acted in a manner contrary to order (15) hereof he may give her written notice that she is not to attend that school again other than in circumstances where he provides his written consent to her so doing. If such notice is given the mother is thereafter restrained from attending at such school until she holds the father’s written agreement that she do so.

(17)The father is to ensure that each school the children attend are authorised to send to the mother emails, school reports, school notices which they send to parents in the ordinary course of business.

(18)The father has leave to publish a copy of the Parenting Orders made herein to each of the children’s schools.

(19)Wherever in these orders there is provision for either party to give notice or communicate with the other then such communication is to take place by email or text message between the parties’ selected email address and notified mobile telephone number.

(20)Each parent is to provide to the other an email address to which written notice can be given to the other and a mobile phone to which a text message may be sent to and received by the other. Each parent is to ensure their email account and mobile phone device is checked no less than one occasion each day to ensure that knowledge of any communication from the other parent is seen and acknowledged.

(21)Should it transpire that the mother elects not to exercise time with the children or have telephone time with them for any period exceeding one month then the father is to send to the mother on the first day of each month where in the previous month she has had no contact with the children an email which provides her with a summary of the children's activities, achievements, milestones and information about them which he considers the mother would be interested to know. Such communication is not to exceed one A4 page of material, however, it is to be more than just in a “dot point” form.

(22)Mr Tolman is restrained from coming into the presence of any of the children, remaining in the presence of any of the children or communicating with any of the children unless he holds a consent in writing from the father permitting same and then only to the extent such written permission or consent allows. He is also restrained from attending any of the children’s schools or any place where it is reasonably predictable the subject children will be.

(23)Should the father have cause to engage any counselling services for any of the children then, if he considers it is necessary or may be helpful to the person providing such service to have access to the reasons for the Court making these orders, he is permitted to provide a copy of same to any such person.

(Property Orders continue on the next page)

Property

1. The Court makes a declaration that the mother and Mr Tolman hold each of their right, title and interest in the property at B Street, Suburb C, more particularly described as the land with folio identifier 12/260121 (“the Suburb C property”) upon trust for the father and the mother as tenants in common in equal shares.

2. Pending compliance with the orders herein requiring payment by the mother to the father of $523,455, or the distribution of the sale proceeds of the Suburb C property, should such sale be required, or the transfer of the legal title to the property to the mother and the father, the mother and Mr Tolman are restrained by injunction from selling, transferring, assigning, mortgaging, or otherwise encumbering, alienating or disposing of their interest in the Suburb C property.

3. Should the father provide notice in writing to the mother and Mr Tolman requiring that they transfer their legal title to the Suburb C property to the mother and the father, they are to forthwith sign and deliver to the father’s legal representatives, any document provided to them by the father’s legal representative necessary to register a transfer of the title to the Suburb C property, into the names of the mother and the father as tenants in common in equal shares.

4. The mother and father are to cause the proceeds of sale of the property at S Street, Suburb Q NSW (including any interest earned) currently held by DD Solicitors, Suburb P to be paid to the father forthwith. Service of this order upon the principals of DD Solicitors will act as authority from each of the mother and the father for the payment to the father of that fund.

5. On or before 5.00 p.m. on Monday 26 February 2018 the mother is to pay to the father the sum of $523,455.

6. That simultaneously upon the payment by the mother to the father of the sum required by order (28) hereof, the father shall sign any document provided to him by the mother, which evidences that his beneficial interest in the Suburb C property ceased with the receipt of the said payment. Additionally the father is to provide to the mother, in exchange for and at the time of that payment, a duly executed form of withdrawal of his caveat registered against the title to the Suburb C property.

7. Until the father is required by these orders to provide a duly executed form evidencing the withdrawal of his caveat over the Suburb C property, the mother and/or Mr Tolman are restrained from taking any action in any form to have the caveat removed or discharged.

8. In the event that the mother fails, for any reason, to pay to the father the sum required to be paid to him pursuant to order (28) hereof, within the time specified, then the Suburb C property is to be sold for the best available market price and upon completion of the sale the proceeds, after meeting sale expenses as specified hereafter, are to be paid 49.8 per cent to the father and the balance to the mother.

1. The mother and the father are to implement the sale of the property by causing the following to happen:

   (a)     Cause an agreed agent and auctioneer to be appointed to sell the property (can be the same person to act as agent and auctioneer);

   (b)    Cause the property to be offered for auction within six weeks of engaging the agent/auctioneer;

   (c)     Cause an agreed reserve price to be notified to the auctioneer;

   (d)    The father shall pay and be responsible for the payment of the auction expenses payable before the Suburb C property’s auction;

   (e)     In the event that the Suburb C property is not sold by auction within fourteen (14) days after the said auction, then the mother and father shall do all acts and sign all necessary documents and the father shall pay all monies necessary to procure a second auction within a further five (5) weeks of that date, unless the agent and auctioneer advise an alternative date or method of sale is more appropriate, such auction otherwise to be upon the same terms and conditions as apply to the first auction.

   (f)   If the Suburb C property is not sold by auction as specified in these orders then the mother and the father are to cause the property to be listed for sale with the agreed real estate agent by private treaty at an agreed price.

2. Mr Tolman is to sign any document necessary to be signed by him and otherwise do all things necessary to facilitate the sale of the Suburb C property as required by these orders.

3. Should either the mother, the father or Mr Tolman fail to do what is required of them, in a timely manner, to comply with the order for sale of the Suburb C property, then any one or more of them may apply to the Court for the appointment of as trustee for sale of the Suburb C property. Any such application is to be accompanied by a written consent of the person sought to be appointed as Trustee for Sale.

4. On settlement of the sale of the Suburb C property, the proceeds of the sale shall be applied as follows:

   (a)     To pay all costs, commissions, and expenses of the sale and to pay any Council and Water rates and maintenance levies outstanding in respect of the Suburb C property;

   (b)    In payment of any Trustee for Sale’s costs for acting on the sale;

   (c)     In payment to the father for reimbursement of costs incurred by him on the sale;

   (d)    In payment to the father of 49.8 per cent of the sum then remaining.

   (e)     In payment to the mother of the balance remaining thereafter.

5. Pending the payment of the funds required by order hereof from the mother to the father or the completion of the sale of the Suburb C property the mother is to meet the outgoings on the property including rates and taxes and utility expenses.

6. Pursuant to Section 90MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable in respect of the interest held by the father with EE Super bearing member number …22, the mother shall be entitled to be paid the base amount, namely $53,012 and there be a corresponding reduction to the entitlement the father would have received from EE Super.

7. That the operative time for the purposes of order (37) of these orders shall be calculated from four (4) business days after the date that a sealed copy of these orders is served upon the Trustee of EE Super or the date the Trustee advises the father in writing that there is no objection to the splitting order set out herein, whichever is the latter.

8. The father is to forthwith cause notice of the intended splitting order, to be served upon the Trustee of the EE Super Fund, and seek the Trustee inform him of any objection to the order becoming operative. Upon receipt of the response from the trustee of the EE Super Fund, the father is to cause a copy of same to be provided to the mother by ordinary pre-paid post. 

9. Upon the Trustee advising the father there is no objection to the splitting order set out herein, these Orders bind the Trustee of EE Super to observe the requirements of the Act and the Family Law (Superannuation) Regulations 2001.

10. The father be solely entitled to retain as his property:

    (a)       The father’s bank accounts;

    (b)       The father’s motor vehicle; and

    (c)       The father’s personal belongings;

    (d)The father’s superannuation entitlements (subject to the splitting order made herein.)

11. The mother be solely entitled to retain as her property:

    (a)       The mother’s bank accounts;

    (b)       The mother’s motor vehicles;

    (c)       The mother’s personal belongings; and

    (d)       The mother’s superannuation entitlements.

12. Each party shall be solely entitled, to the exclusion of the other, to all other property and chattels of whatsoever nature and kind in the possession of such parties at the date of the making of these orders.

13. Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders or any debt that party is owing to third parties.

14. Each party has liberty to apply for further orders which are necessary to implement the orders made herein, including further orders relating to the sale of the Suburb C property including an order for the appointment of a Trustee for Sale and a writ of possession.

15. The mother, the father and Mr Tolman shall do all acts and things and sign all documents to give effect to these orders.

16. If any party refuses or neglects to sign, within seven (7) days of a written request to do so, any documents necessary to effect the terms of these orders, a Registrar or such other officer or person as may be appointed by the Family Court of Australia or Federal Circuit Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

17. The proceeding in the Supreme Court of NSW number … including the cross-claim filed 3 July 2017 in this Court, is dismissed.

18. Should any party seek an order for costs in relation to that proceeding they must file in this Court an application for costs within 28 days from the date hereof.

19. The father is to sign any document provided to him by the mother as may be necessary to transfer to her his interest in a parcel of shares in FF Ltd should the mother so desire. If the mother does seek the entitlement of the mother and father in that parcel of shares she is to provide to him any necessary document necessary to transfer to her the shares within 28 days of the date of these orders.

20. Any notice required to be given by the father to the mother and/or Mr Tolman will be sufficiently given if provided in writing addressed to those persons at the postal address of the Suburb C property and sent by ordinary pre-paid post.

21. All outstanding applications are otherwise dismissed.

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 Morse & Duarte and Anor 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 737 of 2014

Mr Morse

Applicant

And

Ms Duarte

Respondent

And

Mr Tolman

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an Application for Final Orders filed by Mr Morse (“the father”), seeking orders in respect of parenting and property. Those orders are opposed by the first respondent Ms Duarte (“the mother”) in respect of parenting and property, and by the second respondent Mr Tolman in respect of property.

2. The applicant and the first respondent are the parents of H born in 2006, J born in 2010 and K born in 2012 (collectively referred to as “the children”). The children now live with the father. The mother seeks parenting orders which would, if made, change that circumstance. The second respondent is not a party to the parenting case, however, he was a witness in the mother’s case and is a member of her household.

3. The hearing in this matter covers parenting and property issues. It is the culmination of a lengthy and difficult litigious history where the mother has mostly acted for herself. The children the subject of this determination, were removed from the mother’s residential care following the formal intervention of the Secretary/Director of the Department of Family and Community Services (“FACS”) on about 24 June 2014. The children were placed in the care of the father by FACS, and that circumstance was then supported by an order made by Justice Stevenson in this Court on 10 July 2014. By the orders made that day, FACS was granted leave to intervene in the proceeding and became a party. On that date the children were represented by an Independent Children's Lawyer. Other orders were made that day. The orders included a provision for the mother to have supervised time with the children at a supervised contact centre.

4. On 21 November 2014 the mother filed an Application in a Case seeking orders in relation to the Form 4 documents filed 12 June 2014 and 13 June 2014. On 8 December 2014 Justice Rees ordered that application be consolidated with the substantive application to be determined by the trial judge. Her Honour ordered “That…the mother’s application for a declaration that the Forms 4 [sic] are invalid is a matter for determination by the Trial Judge.” Notwithstanding that order the mother pressed for the application to be determined as a preliminary matter prior to the final hearing.

5. I understand the mother’s case to have been that her application in relation to the Form 4 documents needed to be determined before the Court embarked upon a trial, because if any relevant Form 4 was invalidly issued or if there was a failure to adhere to the strict requirements set out in either the Family Law Rules 2004 (Cth) or the Family Law Act 1975 (Cth) relating to the issue of a Form 4, then there was no jurisdiction validly permitting the Court to make any parenting orders. If she was successful in that case then the mother submitted that it followed there would be nothing to determine in relation to the parenting dispute between the parties.

6. In order to accommodate the mother I did ultimately hear and determine her case in relation to the issue of the Form 4s at the same time as I heard her application to discharge the Secretary of FACS and also the Independent Children's Lawyer as parties to the proceeding. I did hear and determine those matters making orders and publishing reasons on 16 May 2017. As will be seen it was unnecessary to make an order discharging the Secretary as a party, as I had made an order, by consent of all parties, to discharge the said party, on the application of the Secretary on 27 April 2017.

7. On 6 February 2015 Registrar George made an order removing the matter from the Magellan list and expediting the matter for allocation of a hearing date. On 18 February 2015 Registrar George made directions preparing the matter for listing before a Docket Judge. She noted “both respondents have advised that they will not participate in the preparation of a Chapter 15 report.” The respondents there referred to were the mother and Mr Tolman.

8. The matter was placed into the docket of Justice Rees who made orders on 3 June 2015 to prepare the case for hearing. The orders included the appointment of Dr GG as a single expert. In the order appointing the single expert and ordering the preparation of an expert’s report, Justice Rees noted that “the wife who is present in Court has indicated to the Court that neither she nor [Mr Tolman] will participate in the interview process with [Dr GG].” Her Honour further noted “The wife has been advised that it may be detrimental to her case if she chooses not to participate in the preparation of the report.” Justice Rees also ordered that the trial of the parenting matter would proceed on the basis that the whole of the Evidence Act 1995 (Cth) would apply to the taking of evidence.

9. The orders made on 3 June 2015 included a requirement for the mother and father to file and serve trial affidavits by 11 December 2015. The matter was listed for dates to be allocated for hearing at the end of 2015 should the matter be ready for trial.

10. Notwithstanding directions made for the mother and Mr Tolman to file an affidavit setting out their evidence in chief, neither did so. At the commencement of the trial, I granted leave to each to adduce their evidence in chief orally. It is important to know that Mr Tolman is a party only in the property case. He was a witness called by the mother in the parenting case.

11. In order to assist the mother with giving her oral evidence in chief in the parenting case I indicated to her that if she was represented I would expect she would provide evidence to address the matters set out in s 60CC of the Family Law Act and in particular subsection 60CC(3). I further recommended she have regard to Part VII of the Family Law Act. By way of further assistance I provided her with a copy of an order I sometimes make in parenting cases, where I direct the filing of trial affidavits. The document provides a series of topics which in many cases, where fact is provided, will be relevant to the determination of the parenting case. That document provided as follows:-

    Parenting

    1.I direct each of the parties to file and serve an affidavit, sworn/affirmed by themselves, which addresses only the following matters:

    a.What are your proposal with regard to:

    i.Housing:

    ·where will the children live with you?

    ·who else will reside in the accommodation with you and the children?

    ·who else do you anticipate might also spend overnight time in the accommodation with you and the children as a visitor?

    ·What facilities will be provided in the house for the children? (e.g. will the children share a bedroom with any other person? What play equipment will they have? Are there any pets in the accommodation? What educational facilities will be available at the accommodation? What communication facilities will be available at the accommodation for the children to use to communicate with the other parent? Etc.;)

    ii.Schooling:

    ·which school do you propose the children will attend?

    ·where is the school located?

    ·how will the children travel to and from the school?

    ·What role do you propose the other parent will have in the children’s schooling;

    iii.Supervision of the children:

    ·who will care for the children if you are unavailable at a time when the court orders provide for the children to be in your care?

    ·Are you proposing the children will attend any before or after school care facility? If so give details.

    ·If you are proposing any of the children’s time with a parent or other person should be supervised who do you propose will be the supervisor?

    ·What is the cost of the supervision and who will pay for it?

    iv.Health:

    ·which GP or medical facility do you propose the children will attend should they require non urgent medical treatment?

    ·does either child have any particular illnesses or conditions which require frequent medical supervision? If so, set out details of the condition and any medications prescribed to treat the condition.

    ·Is there any medication which needs to be administered to any of the children at a time when you propose the children will be in the care of the other parent? If so provide detail.

    ·Is there any ongoing medical treatment or therapy which the children will be required to attend upon whilst they are in the care of the other parent? If so provide details.

    v.Extra-curricular activities:

    ·What extra-curricular activities do you propose the children will participate in?

    ·Do you propose the children participate in those activities or training for those activities whilst in the care of the other parent?

    ·What is the cost of each extra-curricular activity you propose for the children?

    ·Who do you propose will pay the costs of any extra-curricular activity you have outlined?

    ·How do you propose the children will be transported to and from each activity?

    ·What role do you propose the other parent will have in each of the nominated extra-curricular activities?

    vi.Overseas travel:

    ·Do you propose the children should be permitted to travel overseas with you?

    ·If overseas travel is proposed when do you propose such travel would take place (e.g. in school holidays only) and what destinations do you propose the travel should include?

    ·Do you propose the children should be permitted to travel over-seas with the other parent?

    ·If overseas travel is proposed for the children with the other parent, when do you propose such travel would take place (e.g. in school holidays only) and what destinations do you propose the travel should exclude?

    ·How do you propose the children’s necessary passports and visa requirements should be obtained?

    ·Who do you propose would meet the costs of obtaining same?

    ·Who will hold the passports between travel events?

    b.Specify any concerns you have regarding the parenting ability of the other parent. In relation to each concern described, set out specific evidence, which illustrates how that concern arises.

    c.Specify any concerns you have about the impact upon the children, yourself or any other significant person arising from the current parenting orders/arrangements.

    d.Set out any other heading necessary to address a matter relevant to a finding necessary to be made under section 60CC(3).

    e.Set out any other headings necessary to address issues of fact between the parents or other parties.

1. When it came time for the mother to give her oral evidence in relation to the property case I provided the mother with a copy of s 79 of the Family Law Act and a copy of s 75(2) for her assistance. I also provided her with a copy of the order I frequently make to assist a self-represented litigant in providing facts which will usually be relevant to the determination of a property case.

Special provision for the mother during her cross-examination of witnesses and also when otherwise addressing the Court

1. It is often, in my experience, a difficult exercise for a judge to sort evidence from submission and evidence from statements made during argument or cross‑examination where a party is a litigant in person. In order to assist both the mother and myself I asked her to take an oath to tell the truth at the commencement of the trial and informed her that whenever she was addressing the Court, giving evidence herself or cross-examining a witness I would understand she was telling the truth and on her oath. As such I was able to accept, where she was asserting a fact, that it was her evidence such a fact was true. 

2. The mother told the Court she accepted that the oath she took to tell the truth when giving her oral evidence (she was the first party to give evidence) would apply to all of her oral enunciations made in the presence of the Court “on the record”.

3. This circumstance was of great assistance to me as the mother on a number of occasions sought to explain a line of cross-examination where it was of assistance for the Court to be able to use that explanation as her sworn evidence and thereby avoided the necessity to have her re-sworn at that time, or at a later time, to have an important piece of evidence incorporated into the body of material which the Court could have regard to in deciding the case.

1. As the mother was the respondent in the case there did not seem to be any prejudice which might flow to the father of the proposed course, added to which there was no objection raised.

Orders sought

1. The father relied upon his Fourth Amended Initiating Application filed 29 January 2016. That sought both parenting and property orders. The mother sought that there be no parenting order made.

2. The parenting orders sought by the father were few in number and can be concisely stated as follows:

   ·Sole parental responsibility to the father;

   ·The children live with the father;

   ·An injunction restraining the mother from approaching the father’s residence, his place of work, the children’s school;

   ·An injunction restraining the mother from bringing the children into contact with Mr Tolman;

   ·An injunction restraining Mr Tolman from approaching the children’s school or place of residence;

   ·Orders requiring that the father keep the mother informed about aspects of the children’s lives.

3. The property orders sought by the parties will be discussed in the property section of these reasons.

Background Facts

1. Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.

2. The father was born in 1963. The mother was born in 1977.

3. The parties commenced cohabitation in April 2003. They were married in 2004. Separation occurred in either September or October 2013 (the father did not leave the former matrimonial home until 13 October 2013). The parties were divorced in 2015.

4. There are three children of the marriage, H born in 2006 (aged 11), J born in 2010 (aged 7) and K born in 2012 (aged 4) (hereafter collectively referred to as “the children”).

5. Following the separation the children remained living with the mother.

6. In October 2013 the mother commenced cohabitation with Mr Tolman who was born in 1967. They initially cohabited in the parties’ former matrimonial home at Suburb Q and when that was sold they purchased a property at B Street, Suburb C NSW (“the Suburb C property”). That property is the subject of an order sought by the father in the property proceeding before the Court. To the extent that the mother might contest that she and Mr Tolman cohabited before they moved to the Suburb C property, the evidence against such a conclusion is such that I am satisfied there was cohabitation. Both the mother and Mr Tolman informed the Court that they had been “married under God” in October 2013. The mother informed the Court Mr Tolman attended the house almost every day. He fulfilled domestic duties. The mother provided a level of financial support including paying a significant amount of money to his lawyer engaged to defend him against the charges of sexual assault laid against him following the complaint of Ms HH. The mother and Mr Tolman’s first child M was born in 2014.

7. Since their cohabitation the mother and Mr Tolman have had two children born to them namely M born in 2014 and II born in 2016.

8. The father commenced the proceeding in early 2014 and the first parenting order was made by me on 24 March 2014. Those orders were interim orders and provided for the children to live with the mother and spend time with the father. The father pressed for orders for the children to live with him and sought an urgent hearing. The orders made 24 March 2014 provided as follows:

   1.   I order that the parents have Equal Shared Parental Responsibility for the children [H] born … 2006, [J] born … 2010, and [K] born … 2012.

   2.   The children are to live with the mother.

   3.   The children spend time with the father as follows:

   a.   Each alternate weekend on both Saturday and Sunday from 1.00 p.m. until 5.00 p.m. with changeover to take place at the [Suburb P] Shopping [Mall] outside the St George Bank. The first occasion to be Saturday 29 March 2014.

   b.   In addition to the alternate weekend time, the father is to have time with the children on one day during each week between the hours of 1.00 p.m. until 5.00 p.m. upon the following basis: the father is to give the mother not less than 5 days’ notice by email of the day in each week that he selects. The father’s time with H on such days is to commence by him collecting H at the conclusion of his school day at the [F Pre School]. His time with [J], should it fall on a day that [J] attends preschool, is to commence from the conclusion of [J’s] preschool day. The changeover venue for the week day is otherwise to be at the same place at the [Suburb P] Shopping [Mall] as changeover takes place for weekend time.

   4.   The parties are to attend a Child Inclusive Conference with a Family Consultant at 9.00 a.m. on 30 April 2014

   5.   I appoint an Independent Children’s Lawyer to act on behalf of each of the named children and I direct each of the parties’ legal representatives to provide to the Independent Children’s Lawyer when the identity of that person is known, a copy of each application and affidavit which has been filed by their client in the proceeding thus far.

   6.   I restrain the mother from allowing or encouraging any of the children from calling Mr Tolman, the mother’s partner, daddy, dad, father, or any such similar name.

   7.   The father is to have reasonable telephone time with the children.

   8.   I order that the mother not permit any of the children to be left in the care of Mr Tolman unsupervised by her.

   9.   I grant leave to each party to relist the matter on 48 hours’ notice to the Court and to the other party.

   10.  I adjourn any outstanding applications to the Judicial duty list on 14 May 2014 at 9.30 a.m.

   11.  I vacate the attendance required on 7 April 2014. (emphasis added)

9. In the orders of 24 March 2014 there was a restraint ordered in relation to the children being allowed or encouraged to call Mr Tolman “daddy, dad, father, or any such name.” I have highlighted that part of the order above as it became a matter addressed in the evidence in the final hearing.

10. The circumstances of the children living with the mother changed on 16 June 2014 when the Department of Family and Community Services (herein referred to as “FACS” or “the Department”), through its officers, issued an instrument under section 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). That instrument caused the children to come under the care responsibility of the Minister for Family and Community Services. An order under section 46 of the Children and Young Persons (Care and Protection) Act was made in the Children’s Court on 1 July 2014. The order was made was for a period of 10 days. On 10 July 2014, Justice Stevenson of this Court made orders, a result of those orders being that the Secretary of FACS became a party to these proceedings and thereafter no further Children’s Court order was operative. FACS was thereafter satisfied that the orders made by this Court were sufficient to meet their concerns about the children and any risk they may face.

11. Interim parenting orders were made on 25 July 2014 by Justice Stevenson. Those orders provided the following in relation to the time the mother was to spend with the children:

    UPON APPLICATION TO THE COURT THIS DAY IT IS ORDERED:

    1.All previous parenting orders in relation to the children

    [H] born … 2006

    [J] born … 2010   and

    [K] born … 2012

    are discharged.

    2.The children shall live with the father.

    3.The father shall have sole parental responsibility for the children.

    4.The children shall spend time with the mother on no less than one occasion each week at a supervised contact centre or otherwise supervised by a professional supervisor agreed in writing between the parties (such as Dial-an-Angel).

    5.The mother be and hereby is restrained from bringing the children (or any of them) into contact with [Mr Tolman].

    6.Pursuant to section 68B(1)(c) of the Family Law Act 1975 the court grants an injunction restraining the mother, Ms Duarte, from entering or remaining in:

    6.1Any place where any of the children may from time to time reside, including but not limited to [O Road, Suburb P];

    6.2[F School], [G Street], [Suburb C] or

    6.3[E Pre-School], [S Street], [Suburb Q].

    7.The Independent Children’s Lawyer (“the ICL”) has leave to serve a sealed copy of these orders on the Principal of F School and the Director of E Pre-School forthwith.

    8.The father shall forthwith do all acts and things necessary to make an appointment with a community-based infant/child mental health specialist recommended by the ICL for the purposes of an assessment as to appropriate counselling or other support services to assist the father in managing the children’s transition to his full time care.

    9.Upon the commencement of Term 3 2014, the father shall arrange for the school counsellor at F School to resume such involvement with H as he/she deems appropriate.

12. The supervised time for the mother was not fulfilled because of events which, where relevant, are recited hereafter. Further orders, however, were made by the Court on 23 March 2015 which provided for a different type of supervision of the mother’s time with the children. That order provided as follows:

    IT IS ORDERED THAT

    1.Order number 4 made 25 July 2014 be amended to read as follows:

    “pending further order, the children shall spend time with the mother on the following: - each Tuesday for 2 hours between 3.00 p.m. and 5.00 p.m.; each Saturday between 10.00 a.m. and 12.00 noon. The time is to take place within the [Suburb R] park near the [Suburb R] shopping Centre. If the weather is inclement, it is to take place in the gazebo within [Suburb R] park, or any other such place as the mother and father shall agree by text message.”

    2.The times and days that the mother is to spend time with the children may be varied by consent between the mother and father and Independent Children's Lawyer.

    3.All of the mother’s time with the children  pursuant to these orders is to be supervised by Ms D (sic).

    4.I note that the supervisor has today signed a written undertaking to the Court setting out her obligations in relation to the children’s time with the mother.

    5.The Court notes that minor changes to the orders may be agreed between the mother and father from time to time.

    6.This matter is adjourned to 1 May 2015 before me to consider any variations to the current times the children spend with the mother pending the first day of trial listed 3 June 2015.

13. In November 2015 the mother ceased spending time with the children for reasons and/or in circumstances later set out herein.

14. On 11 April 2016 further orders were made providing for the mother to have unsupervised time with the children upon her providing an undertaking specified in the order. The order and terms of the undertaking are as follows:

    IT IS ORDERED THAT

    1.   Other than paragraphs 1 and 5 of the Application in a Case filed by the mother on 11 November 2015 is adjourned to a date to be fixed should the mother seek to press the remaining portions of that application.

    2.   The orders of the Court made 25 July 2014, 23 March 2015, 1 May 2015 and 3 June 2015 are varied only as herein provided.

    3.   It is a condition of the mother spending time with the children that she first signs and files in the court the undertaking required by the court order, and that she serves on each of the other parties a copy of that signed undertaking.

    4.   The Undertaking to the Court, to be signed by the mother in the presence of an independent adult witness is to be in the following form:

    I, [Ms Duarte] of [B Street, Suburb C] in the State of N.S.W. being the mother of the children [H] born … 2006, [J] born … 2010 and [K] born 2012 and being the respondent in proceeding number SYC 737 of 2014 in the Family Court of Australia hereby undertake to the court as follows:

    I will spend time with my children abovenamed, pursuant to the court orders made 11 April 2016, in the following circumstances:

    (a)I will ensure that the children are not brought into contact with my partner/husband [Mr Tolman].

    (b)I will not speak to any of my children about their father [Mr Morse] in any derogatory, disparaging or negative way.

    (c)I will not speak to any of the children in relation to my religious beliefs in any way which may convey to the children a negative message about their father’s religious beliefs or otherwise or the manner in which they live with the father or the way in which he undertakes their care.

    (d)I will not discuss with any of the children any matter relating to the court proceeding between the father and myself or between the father and any other party in the proceeding in this court or any other court in which we may be involved in litigation.

    (e)I will not make any derogatory or disparaging remark about any aspect of the children’s schooling.

    (f)I will not make any comment or statement or use any words in the presence of the children which they could possibly understand to be critical of the father or the manner in which he is caring for them.

    (g)I will ensure, to the best of my ability, the children are not exposed to hearing any other person speak in a manner which would be contrary to the requirement I have undertaken to comply with in this undertaking to the Court.

    In signing this undertaking to the Court I understand that if I act contrary to the provisions of the undertaking I could be dealt with by the court in the same manner as is available to the Court to deal with persons who contravene parenting orders made by this Court.

    Dated :

    ………………………..

    [Ms Duarte]

    ………………………..

    (witness)

    5.   The mother is to spend time with each of the three children each Saturday from 10 a.m. to 2 p.m.

    6.   Unless otherwise agreed to in writing (exchange of emails or text messages sufficient) The changeover at the commencement of the time is to take place at [Suburb C] Tennis Courts, [L Street, Suburb C].

    7.   The mother may have a friend/other person (but only one) attend upon the changeover with her.

    8.   The father is permitted to have friend/other person (but only one) accompany him to such changeovers.

    9.   The father is permitted to have another person deliver and collect the children for changeovers as provided for herein. The person who makes the delivery of the children to the mother at the commencement of the time the children are to spend with her is to be the same person who collects them at the conclusion of that particular occasion of time with the mother and if that is not possible then the father is to make the collection himself.

    10.  In the event of the father choosing to have another person deliver the children to the mother at the commencement of the time provided for in this order he is to notify the mother of the identity of that person by text message or by email if that is possible.

    11.  The Independent Children's Lawyer is to prepare a minute of consolidated order so that there will be one document which contains all the operative parenting orders, injunctions and facilitating orders which affect the children. Once completed the Independent Children's Lawyer is to serve on each other party a copy of the proposed minute and in the absence of any objection thereto, the Court proposes the consolidated form of the parenting orders will be sanctioned by the Court when the matter is next before the Court.

    12.   Any party to the parenting proceeding may apply to the Court for urgent orders, should that be necessary, upon first giving 48 hours’ notice to the court and the other parties. Any application for a recovery order may be made on 24 hours’ notice.

    13.  After 1 August 2016 the mother may apply to the court to extend the time she spends with the children and the terms of the undertaking now required by the Court.

    14.  The mother is permitted to show a copy of the court orders to [Mr Tolman].

    15.  In the event that the mother and the father agree in writing to some alteration to these orders they are to forthwith upon such agreement being made, provide a copy of such agreement to the Independent Children's Lawyer and the Secretary of Department of Family and Community Services.

    16.  NOTE: The Court recommends that the mother have another person with her at times she spends with the children so that person may corroborate that the mother has adhered to her undertaking should it be alleged against her that she has contravened that undertaking made to the Court.

15. The mother has said that she would be prepared to accept the terms of the undertaking if it was in the form of an order, however, she would not sign the undertaking as she says it would be a form of consent to such an order which consent she would not be prepared to give. She also said that one of the conditions breached her right to practice her religion freely and that was another reason she would not sign the undertaking.

16. As a result of the mother failing to give the undertaking, which step was a condition of the order for unsupervised time with the children, she has had no face-to-face time with the children since November 2015. To say the least, that is a lamentable circumstance for both the children and the mother given the findings which appear hereafter as to the relationship between the children and the mother.

17. In her oral evidence the mother explained that the supervisor was no longer prepared to supervise the mother’s time with the children. The supervisor was Ms D, the niece of Mr Tolman. The mother said that matters of liability became an issue. She explained the liability she was concerned about was who would be liable in a civil and/or criminal sense for any injury sustained to any of the children whilst in the care of the supervisor and/or the mother. This concern was particularly focused upon the possible injury being occasioned to any of the children when they refused to co-operate in the process of returning them to their father at the end of the mother’s time with the children. The mother said that at that time she had no parental responsibility (referring to the orders of the court granting the father sole parental responsibility) and she was concerned whether that circumstance might have some legal consequence should she be required to chastise any of the children or physically handle them as part of what was required to ensure they were returned to their father.

The Issues

1. The issues to be determined fall into two broad descriptions, namely, parenting and property.

2. In relation to property, the key issues which are addressed in these reasons are as follows:

   ·    What is the property pool of the parties? This involves an assessment of whether the Suburb C property is held on trust for the mother and father in tenants in common by the mother and Mr Tolman.

   ·    Whether the caveat lodged by the father over the Suburb C property was unlawful. (This is also referred to as “the caveat case”, which was transferred from the Supreme Court of NSW to the Family Court of Australia).

   ·    Determination of the Trial balance sheet.

   ·    What were the contributions of the parties? I note that the parties reached an agreement in Court to have the Court assess their contributions during the cohabitation as equal. This agreement excluded the weighing of initial contributions and, of course, post‑separation contributions.

   · Should there be an adjustment pursuant to s 75(2) of the Family Law Act?

3. In relation to the parenting case there are a number of key issues which will be addressed in these reasons. Those issues can be broadly identified as follows:

   ·Does the mother’s proposal to have the children live with or spend time with her in the presence of Mr Tolman pose an unacceptable risk to the children?

   ·Is it probable that the mother will be able to live with or spend time with the children in such a manner as enables the children to be able to continue a meaningful relationship with the father?

   ·Is the mother’s view or opinion of the father such that it will impact upon the children’s relationship with him should the children be primarily living with the mother?

   ·Is the mother’s character such that it is possible or probable that she will expose the children to conflict with persons in authority in the community in which they live (school, police, Government departments such as Department of Family and Community Services, medical practitioners, hospital personnel etc.)

1. The matters required to be addressed in s 60CC and elsewhere in Part VII of the Family Law Act are also important to the determination.

Credit

The father

1. Mr Morse presented as a concerned and sensitive parent. He gave his evidence in a sensitive manner. This was particularly so in relation to what he had to say about and to the mother during his cross-examination by the Independent Children's Lawyer and the mother.

2. I observed that the father listened carefully to the mother’s questions during his cross-examination by her and he answered her questions in a calm and metered way. That was so even when what she put to him might reasonably have provoked an emotive response.  The father’s sensitivity was particularly evident when speaking about the mother’s time with the children.

3. At one time, whilst giving evidence, the father became tearful. He was giving evidence about the occurrence at the offices of the Suburb JJ branch of the Department of Family and Community Services (details are set out hereafter). He described the helpless feeling he had whilst he sat enclosed in a room, having taken the children there to engage in a supervised visit with the mother. He described how he could hear, from a nearby room, the children screaming for help. His immediate response he said was to rescue his children, however, he was unable to do so because the door was locked. He was left to deal with the children’s distress when he was re-united with them shortly thereafter.

4. The mother submitted the father had been dishonest in the evidence he gave about the “Medibank Private health insurance policy”. The mother included an extract from the court transcript in her written submission.  In that the mother put to the father he had removed her from the family Medibank insurance  policy. He denied that and said he had closed it off. Nothing arising from that exchange challenges his credit. No other evidence before the Court is said to contradict that evidence.

The mother

1. The mother gave her evidence in chief orally. Although having been ordered to file a trial affidavit as early as 2015, she had failed to do so. She provided a reason for that to the Court. As stated earlier, the mother’s evidence continued to be given as she addressed the Court and cross-examined witnesses.

2. The mother appeared as an honest witness who, I am satisfied, endeavoured to give her evidence in a helpful and mostly straightforward manner. She was polite and respectful. She was largely calm and pleasant in her interactions with the Court.

3. The mother did present as being “on a mission” to obtain support for and justification of her relationship with the FACS officers who had been in contact with her or the children. She clearly saw herself as being inappropriately dealt with by those officers as her evidence alleged. She was clearly harbouring an underlying anger at the manner in which the children were removed from her and also clearly and stridently prosecuted a case of lack of justification for the removal. The clear thrust of her case was that Mr Tolman was never a risk to the children or her.

4. The mother’s case included assertions to the effect that it was unreasonable, in the circumstances, for FACS to have taken any action in relation to the children and that the action taken was somehow initiated in a mischievous and unreasonable manner by the father making a complaint to the FACS Helpline or resulting from service upon the Department of Form 4 “Notice of Child Abuse, Family Violence or Risk of Family Violence” by each of the father’s legal representative and the Independent Children's Lawyer.

5. In the possible furtherance of her grievances with FACS officers, the mother focused a considerable portion of her cross-examination and her evidence in chief on that subject.

6. On the last day of the cross-examination of the mother by the father, her presentation changed, in that she failed to address the questions asked of her or alternatively provided answers which were far more extensive than the question asked (or proposition put) required. I did bring to her attention the possible consequence of such presentation (i.e. that it may entitle the father, at the conclusion of the case, to submit that the weight to be given to her evidence should be diminished).

7. In cross-examination the mother was challenged about the reason she wore the “spy watch” to a meeting with her children at the FACS offices in Suburb JJ. She said that part of the reason was to take a home video of her children. She also said part of the reason was to record her interactions with the case workers. I do not accept the mother’s evidence that she intended to record the interaction with the children as a “home video”. I conclude that she wore the secret recording device in order to collect evidence which she could use against officers of the Department of Family and Community Services. 

8. It was put in submission by the father that the mother had either fabricated or engaged in some degree of exaggeration when providing evidence to the Court about an incident where she had said, in an affidavit sworn 13 May 2014 and filed in an interim application, “he looked at me with a proud and threatening face while holding the dagger-shaped knife about a metre away from me and the children.” This is said to have occurred at the children’s school fete following separation.

9. In oral evidence in this hearing the mother provided a different version of that incident and the father’s counsel put to the mother that there was no mention in her affidavit that he was “holding the knife to his throat”. She agreed that was so. It was put that when she told this Court he was holding the knife to his throat she was lying. She denied that. I accept the father’s evidence in relation to the incident which denies the behaviour described by the mother. Details of this incident appear later.

10. In relation to the evidence given by the mother about the interaction between the father and herself at the school fete I accept the evidence of the father. There is a significant difference between the evidence given by each parent. The father called a corroborative witness who I accept. I am unable to conclude that the mother had consciously fabricated her evidence to the point of submitting that the father was threatening suicide, however, if she was not knowingly fabricating the evidence then it does raise for me a concern for the mental health of the mother.

11. On the morning of 7 July 2017 the mother was in the witness box being cross‑examined by the father’s counsel. On some occasions during the earlier part of her cross-examination (on previous days) I had on occasions (but not extensively) spoken to the mother and asked her to answer the question she had been asked rather than being discursive into other evidence or arguing with the father’s counsel. I had been reasonably confident, having seen her response to those interventions by me that she had heeded my words and thereafter for some time largely addressed her answers to the questions/propositions asked of her or put to her. However, on the morning of 7 July 2017, her presentation in the witness box changed slightly. She was more defensive when giving her evidence, and she was not apparently accepting direction from me to answer the question she was asked.

12. After that change it was necessary for me to record that the mother had not answered the question she had been asked or had failed to admit or deny a proposition which was put to her. That behaviour by the mother did undermine the confidence I could have that she was properly considering the matter put or the question asked and giving a considered answer as opposed to not being careful to ensure her answers were correct.

13. There was an issue between the parties as to whether the mother had informed the father she proposed to buy the Suburb C property in joint names with Mr Tolman. The mother claimed he did have that information before she was committed to buy the property and the father claimed he did not. I have carefully considered the evidence on that matter and I do conclude that the father’s evidence on that matter is to be preferred.

Mr Tolman

1. Mr Tolman presented as a confident and assertive witness. He appeared to take considerable time to read any document provided to him for that purpose. He said he suffered from dyslexia which he said made it difficult to digest “chunks of data”. He claimed he could read “pretty well”. He said “I’m now reading a lot better than I ever used to”. However, I observed that he appeared to take significant time to read any document shown to him in cross-examination. As a consequence I asked the father’s counsel to read any portion of a document or affidavit he wished to bring to Mr Tolman’s attention.

2. Notwithstanding Mr Tolman had been a party to the proceeding, in that he was a party to the “caveat proceeding” transferred to this Court by the Supreme Court of NSW, he had failed to provide any affidavit evidence as had been ordered. I granted leave to Mr Tolman to give his evidence in chief orally. That was in relation to “the caveat case” (namely, the property proceedings) and also as a witness for the mother in her parenting case.

3. Mr Tolman was a party to the proceeding because he was a party to the action brought in the Supreme Court of NSW. That proceeding involved the court being required to determine whether the father in this proceeding had an interest, capable of sustaining a caveatable interest, in the property at Suburb C acquired by the mother and Mr Tolman in their joint names. There was no evidence provided to show that Mr Tolman contributed any funds to the purchase of that property.

4. Apart from giving evidence in his own case, Mr Tolman was called as a witness in the mother’s parenting case. Once again he had not provided an affidavit. The mother was permitted to call evidence in chief from Mr Tolman orally.

5. On occasion Mr Tolman avoided answering the question asked of him or the proposition put to him in cross-examination. I was not confident that Mr Tolman was always telling the truth. When being cross-examined about the circumstance surrounding his being charged with sexual assault upon Ms HH Mr Tolman did not confine himself to answering the question asked of him as the evidence set hereafter illustrates. He also engaged in a battle of sorts with the father’s counsel about acknowledging he was being asked about “penile vaginal intercourse”, instead insisting he was “making love”. This apparent coyness was not present when he told police in January 2013 that he had “nookie” with Ms HH.  

6. One of the issues in the case was whether the father had consented to or had prior knowledge of the mother’s proposal to buy her property at Suburb C in joint names with Mr Tolman. In cross-examination of Mr Tolman on that issue, it was put twice by the father’s counsel, and repeated for Mr Tolman once by me, in clear and simple English that “you [Mr Tolman] did not personally tell Mr Morse, either in words or by something you wrote and delivered to him, that you were going to become one of the title holders of the Suburb C property”. I conclude that Mr Tolman deliberately chose to avoid answering that proposition. He said “yes he knew I was going to be on the title”.

7. The other aspect about the evidence of Mr Tolman which was highlighted by the father’s counsel was an apparent change in the evidence he gave following an adjournment of the Court part way through Mr Tolman’s evidence. The inconsistencies were put to him and he was asked if he had spoken to the mother about the evidence he had given on the important issue of whether the father had prior knowledge of the intent of the mother to purchase the Suburb C property in the joint names of the mother and Mr Tolman. My conclusion is that despite his denials, I am satisfied there was some conversation between the mother and Mr Tolman that made him realise it was important for him to change his evidence on that matter.

8. It was put that Mr Tolman did not ever hear the mother tell the father that Mr Tolman was to be one of the title holders of the Suburb C property. He said “Yes I did.” I consider that answer to be untrue.

9. Mr Tolman was cross-examined about a number of matters going to the parenting case. The topics largely went to the issue of whether allowing Mr Tolman unsupervised contact with the subject children would pose an unacceptable risk for the children. As will be seen I have found that conclusions, based upon the balance of probabilities, when assessing the evidence brought against Mr Tolman, provide for findings that Mr Tolman had engaged in behaviour which was abusive with both a child and an adult.  As such I have reached the conclusion that Mr Tolman was probably deliberately untruthful with important evidence he gave to the Court.

Detective Sergeant Y

1. This witness gave evidence by video link from South Australia. He presented as an honest, clear and concise witness. He gave his evidence in an unemotional manner. He did not present as having any particular agenda in relation to the content of his evidence. Where he was able to recall events and he provided his recollection of particular relevant facts. He was a compelling witness. He was quick to inform the Court where he had no recollection of a particular matter to which his attention was drawn.

2. Given the amount of time which had elapsed since the events took place about which he was cross-examined, his memory appeared sound. His readiness to concede he could not recall memory of particular matters added strength to the weight which the Court could give to his evidence.

Ms KK

1. This witness presented as very straightforward and honest. The mother did not put to her that the mother was not the person Ms KK had identified as “the lady” in her affidavit and moreover the witness positively identified the mother as the person she had referred to in her affidavit.

Ms BB

1. Ms BB is an officer engaged by Department of Family and Community Services. She had contact with the Morse family at relevant times. She was required for cross-examination by the mother and was cross-examined extensively.

2. Ms BB presented as a confident witness. She addressed the questions and propositions put to her by the mother. There was nothing about the way in which she gave her evidence or its content which suggested her evidence should be treated with caution. I accept she was a witness of truth.

Ms D

1. Ms D had sworn two affidavits in the interim proceedings heard by the Court in this matter. She was required for cross-examination. She was cross‑examined by the father’s counsel. She gave her evidence in an apparently honest and straightforward manner.

Parenting

Evidence in the father’s case

Affidavits of the father

1. The father relied on two affidavits in these proceedings, one sworn by him on 28 January 2016 and the other on 25 May 2017. The evidence contained in his affidavit evidence was largely unchallenged. I accept the following from his affidavits.

2. Prior to separation in 2013, the father deposed that he was actively involved in the care of all three children, including attending all appointments during and after the mother’s pregnancy, changing nappies, cooking, and performing general chores around the home. When J was born, the father took six weeks off work. When K was born, the father took five weeks off work.

3. The father deposed that as the children grew older, he continued to be actively involved in their care.

4. The father deposed that after he and the mother separated in September 2013 he discovered that she was in a relationship with Mr Tolman. Mr Tolman began spending an increasing amount of time at the former matrimonial home in Suburb Q, despite the father telling the mother that Mr Tolman was not welcome in the home. In October 2013 the father moved into rental accommodation in Suburb P. He said he chose that address so he could remain close to the children.

5. After moving out of the former matrimonial home, the father spent time with the children on two occasions from 3.00 p.m. to 7.30 p.m. between October and November 2013. When the father asked the mother if he could have the children overnight in November 2013, the mother said she wanted funds released for a deposit on a new home. When the father refused, the mother said “Well then no way are you going to see the kids on the weekend”. The father deposed that the mother then began limiting the time he spent with the children.

6. On 10 November 2013, the father entered the former matrimonial home using his key and asked whether the children could spend the day with him. The mother refused. He told H and J to put their shoes on and that they would be spending time with him. Mr Tolman was holding K and refused to let the father hold her. The father told the mother she could pick up H and J at 7.30 p.m. from his parents’ home and left without K.

7. On 12 November 2013 the mother refused to let the father see the children and the father let himself into the home using his key. He said hello to the children and left. He later received a call from police advising that the mother had alleged that he pushed her. The father denied that and said his sister had been present at the time.

8. On 16 November 2013 the father and his sister attended Suburb LL Police Station. The police officer called the mother to see whether she would allow the father to see the children. The mother said no and that she did not want the father attending the former matrimonial home. The police advised the father not to go to the home whilst the mother and children were present. The father then sought legal advice.

9. On 18 November 2013 he received a phone call from a staff member at H’s school who advised that H had not been to school for four days and they had been unable to contact the mother.

10. On 25 December 2013 the father called the mother to speak to the children for Christmas. The mother did not allow him to speak to the children and was uncontactable for the rest of the day.

11. On 28 January 2014 the father contacted H’s school as he was attending a parent-teacher meeting that evening. The staff advised that H had not attended school that day.

12. On 29 January 2014 the father received a call from the school principal who advised H was at school. The father attended the school and saw H for ten minutes. The following day the father attended J’s preschool and spent ten minutes with J. On 31 January 2014 the father spent one hour with J at his preschool.

13. On 12 February 2014 the husband initiated parenting proceedings in the Family Court. Interim parenting orders were made on 24 March 2014 which provided, inter alia, that the father spend time with the children every alternate weekend on Saturday and Sunday from 1.00 p.m. to 5.00 p.m., and one weekday each week from 1.00 p.m. to 5.00 p.m. The orders also provided for the father to have telephone contact with the children.

14. The father commenced spending time with the children pursuant to those orders on Saturday 29 March 2014.

15. He deposed that following the March 2014 orders, the mother did not facilitate him having telephone contact with the children.

16. The father deposed that he continues to have “very serious” concerns for the children’s welfare in their mother’s care. His main concern is the mother’s relationship with Mr Tolman. The father’s concerns stem from his understanding that Mr Tolman was charged with sexual offences in relation to his former partner. The father later became aware of Mr Tolman being charged with three instances of sexual offences against minors in South Australia.

17. Whilst the children were living with the mother and spending time with the father pursuant to the orders made in March 2014, the father believed that the mother was not facilitating his relationship with the children. He deposed that the children were permitted to call Mr Tolman “daddy”.

18. On 9 April 2014 the mother failed to facilitate the children spending time with the father pursuant to the orders. The father asked for make-up time the following Tuesday and the mother again failed to facilitate contact. The father was scheduled to spend time with the children on 27 May 2014, however, the mother failed to make the children available despite the father giving more than five days’ notice.

1. The mother, however, objected to the father being allowed to reopen his case to rely upon that evidence. She said:

   I object to the proposal to tender/adduce any further evidence in our case at this point in time, on the basis that the procedures involved appear to be contrary to the jurisdiction granted by the Evidence Act. I note that the case was supposed to have been adversarial and under the Evidence Act …

2. I do not propose to have the parties appear further in Court to deal with this aspect of the case. I will make an order which will see the splitting order I propose to make have effect upon the provision of notice of the order the Court has made for the splitting of the father’s superannuation in favour of the mother.

3. The Supreme Court of NSW proceeding transferred to this court I will dismiss for the reasons stated above.

   997.    Should any party seek an order for costs in relation to that proceeding they must file in this court an application for costs within 28 days from the date hereof.

I certify that the preceding nine hundred and ninety-seven (997) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 1 December 2017.

Associate: 
Date:  1 December 2017

SCHEDULE 1

Transcript of exhibit M10

Morse & Duarte
Transcript of Exhibit M10
[square brackets denote words the transcriber is unsure of]
Voices recorded:
Mother
Receptionist – A receptionist at DOCS (also possibly referred to as “another voice”) Wears a black and white patterned skirt
Female Voice - attributed to  Ms  AA, or K-Ms X) DOCS Worker. Wears a purple tope
Male Voice – attributed to …, a DOCS worker. Wears brown trousers and a dark top
Voice 1 (female) – Emergency services operator on telephone
Voice 2 (female)– Ambulance services operator
Unidentified voice 1– this is attributed “…”, a lady who is seen wearing a red top
Unidentified voice 2 – Female in the room with the children prior to the mother’s arrival. She seems to leave when the mother starts to spend time with the children.

The top of the mother’s face is visible. Camera then pans to a ladies’ sanitary bin. The mother appears to leave a bathroom stall and then exits a bathroom into a corridor.
There are voices in the background but they are indistinct, and do not seem to be aimed at or related to the mother. Possibly television playing.

The mother then exits the building to what appears to be a road. Trees and cars can be seen. The mother walks. Pavement can be seen. Traffic and Wind heard

2.20/ 15.46.51

Mother: [indistinguishable]

The mother sits down – there is conversation hear in the distance, unrelated and indistinct.
The mother speaks at 3.32/ [time stamp cannot be seen], apparently on a telephone:
“Hi, hi darling, I’m just about to go up now, ok … sorry? … no, I can’t see her yet. I might give her a quick buzz. OK, thank you, I love you, bye … [indistinguishable]”
The mother remains seated. There is the sound of a zipper opening or closing, then what sounds to be pages being turned
At 4.30/ 15.49.02, the mother speaks (quotes Psalm 21:7-13 (TRANSCRIBER’S NOTE: her words were not distinguishable in parts, and the text in brackets was inserted by carrying out a word search of words which were distinguishable, ascertaining the bible passage read by the mother and finding the closest translation of what could be made out from the American New King James translation on the website “Bible hub” to fill the gaps.))

Mother: For the king trusts in the LORD, and through the mercy of the most High he shall not be moved. Your hand shall find out all your enemies: your right hand shall find out those that hate you. You shall make them as a fiery oven in the time of your anger: the LORD shall swallow them up in his wrath, and the fire shall devour them. [Their fruit shall you destroy from the earth], and their seed from among the sons of men. For they intended evil against you: [they imagined a mischievous device,] which they are not able to perform. Therefore you make them turn their back, when make ready your arrows on your strings against the face of them. Be exalted, Oh LORD, in your own strength: [so will we sing and] praise your power. Amen.

Mother remains seated. Unrelated voices in background – not distinguishable.

6.24/15.50.56

Mother: Praise the lord

The mother stands and walks past some cars and crosses a street.

7.18/15.51.50

Mother sings as she enters into a building, walks through corridors and enters an elevator, then exits the elevator. The words sung:

Mother: Allelu, allelu, Allelu, Alleluia, Praise ye the Lord. Allelu, allelu, Allelu, Alleluia, Praise ye the Lord. Praise ye the Lord, Alleluia. Praise ye the Lord, Alleluia. Praise ye the Lord, Alleluia. Praise ye the Lord. Allelu, allelu, Allelu, Alleluia, Praise ye the Lord. Allelu, allelu, Allelu, Alleluia, Praise ye the Lord. Praise ye the Lord, Alleluia. Praise ye the Lord, Alleluia. Praise ye the Lord. Allelu, allelu, Allelu, Alleluia, Praise ye the Lord. Allelu, allelu, Allelu, Alleluia, Praise ye the Lord. Allelu, allelu, Allelu, Alleluia, Praise ye the Lord.

8.18/ 15.52.50 Mother enters what seems to be a reception area. A NSW waratah symbol can be seen briefly.

Mother: Good afternoon. I’m just wondering if you have the paperwork to serve for me?

Receptionist: I don’t know, but [Ms  AA’s] your case [worker], isn’t she? I’ll give her a call.

Mother: Thank you

8.43/ 15.53.15 (voice in the background – indistinguishable)

The mother appears to turn around and take a few steps before sitting in a chair

8.48/ 15.53.19 Mother sings:

Mother: Praise ye the Lord, Alleluia. Praise ye the Lord, Alleluia. Praise ye the Lord, Alleluia. Praise ye the Lord. Allelu, allelu, Allelu, Alleluia, Praise ye the Lord. Allelu, allelu, Allelu, Alleluia, Praise ye the Lord. Praise ye the Lord, Alleluia. Praise ye the Lord, Alleluia. Praise ye the Lord, Alleluia. Praise ye the Lord. Allelu, allelu, Allelu, Alleluia, Praise ye the Lord. Allelu, allelu, Allelu, Alleluia, Praise ye the Lord. Praise ye the Lord, Alleluia. Praise ye the Lord, Alleluia. Praise ye the Lord, Alleluia. Praise ye the Lord.”

10.01/ 15.54.34 Mother sings. The tune remains the same as that sung before, but the words are not English.

10.28/ 15.55.01

Blonde Lady in a red jacket enters

Lady: “hello, [how are you?]”

[indistinguishable, voice not identified]

Unidentified voice 1 “I’m just a friend, yeah”

Female Voice: Ok

[Indistinguishable, possibly Unidentified voice 1]

Mother: “[--] we have the papers?”

Female Voice: “yes I’ve got them, but I think it’s important that you have the contact”

Mother: No

Unidentified voice 1: No, no

Mother: I need the papers now

[indistinguishable]

Female Voice: I’ll give them to you, but you really need to focus on the children’s contact

Mother: [indistinguishable]

Female Voice: and have you got the paperwork to – in regards to

Mother: I won’t be signing it

Female Voice: in regards to the contact [indistinguishable]     

Mother: my legal advice

[Indistinguishable]

Mother: I need the paperwork [indistinguishable]

Female Voice: And I’ll give it to you.

Mother: Good. Thank you

Female Voice: and [indistinguishable] you need to focus on the children’s contact, not on the paperwork

Mother: [indistinguishable] focussing on the paperwork

Female Voice: No, no it’s between 4 and 5 your contact

Mother: No, no

Female Voice: Yes it is

Mother: 4 o’clock

Female Voice: Contact is between 4 and 5

Mother: 4 o’clock  you need to serve me those papers

Female Voice: yes,  and, but your contact is between 4 and 5

Mother: That’s excellent

Female Voice:  so [indistinguishable]

Mother: I’ll wait here for the papers to be served

Female Voice: I’ll get you those. But then, um,  if you miss out on some of um the contact

Mother: well, that will be my responsibility

Female Voice: It will be yours,  and I will be documenting it.

Female Voice leaves the room (purple top seen)

[indistinguishable] voices in background?

Lady in black dress passes in sight of the camera12/15.56

[indistinguishable] supervised between 4 and 5 (unidentified  speaker) (12.50)

[indistinguishable]

Mother: [indistinguishable] 4 ’clock [indistinguishable]

13.14/ 15.57.48 Children’s voices (in distance), [indistinguishable]

Mother: [indistinguishable]

Children’s voices (in distance), [indistinguishable]

13.24/ 15.57.57

Female Voice (same voice as earlier): I’m not (possibly - [indistinguishable])

Sound of door closing

Female Voice: The, um paperwork plus the um explanation in regards to the emergency care and, um, protection order

Mother: Well, there’s a problem. It’s after 5, it’s after 4.

Female Voice: sorry, you don’t have to get it ‘til 5 or anything

Mother: 4 o’clock.

Female Voice: [indistinguishable]. Um, You have, um, and you deliberately came up right on time, but that’s – it didn’t matter, it didn’t have to be served -

Mother: [indistinguishable]

Female Voice: That’s just a, um, report, if you’re interested in it, in regards to [H’s], um um, education

Mother:  [indistinguishable] door closes in background.

Female Voice: [K][ ]isn’t quite [indistinguishable] with our case worker at the moment. So she’s quite distressed, rather than being with H. So I think it would be good to go in

Mother: [indistinguishable] it would be

Female Voice: And have contact now, rather than that –

Mother: Are we making sure -

Female Voice: - you  have all night to do that

Mother: No I’ll do it now, because if it’s not correct

Female Voice: […] Can you witness that I’ve given that to her, please?

Mother: I need to sign for it?

[Receptionist]: Sure, do I need to -

Female Voice: no, just witness she’s been, um, given it to her

Mother : [indistinguishable]

Woman in black patterned skirt and black top wearing id tags enters frame, not face shown

Cough heard

Mother: Why is it after 4 o’clock that this was given?

Female Voice: It doesn’t matter what time. it’s  lodged by 4 o’clock. It’s different to family and, um, Family, um, court. … you’re taking up precious time that you could be in with your child.

Mother: I’m aware of that, but it’s very important this is correct. Otherwise I’ll be taking them home.

Female Voice: No, I’m sorry, you won’t be taking them home. They’re in the care of the, um, Secretary.

Mother: If this has been filed correctly. Where is the Court? Children’s Court of New South Wales.

Female Voice: Thank you

Mother: How come it’s not on every page?

Female Voice: It doesn’t have to be on every page.

[indistinguishable] Voices heard, but words not distinguishable. Woman in black patterned skirt walks out of frame.

Mother: so you are applying for an emergency care and protection order?

Female Voice: That’s the order [indistinguishable] um um the [explanation]

Mother: [indistinguishable]

Mother: Could you please point out to me where you’ve actually written down what the immediate [indistinguishable] of harm is?

Female Voice: All of the information in the affidavit, the application, it’s got the um, information [indistinguishable] if you want to read it. I would suggest you read it at home instead of now when you could be with your children.

Mother: Um - Could you just summarise for me verbally so I don’t have to read it all now? What the –

Female Voice: You know what the concern – this is all manager case work as well –

Mother: Oh right, so –

Female Voice: [indistinguishable] … isn’t here this afternoon.

Mother: Alright. Could you just explain in one brief  sentence – what was the immediate risk of serious harm?

Female Voice: the immediacy is that you’re not working with us to do a risk assessment and there are concerns about [Mr Tolman’s] sexual – sexual, um, assault charges and the violence that incurred with his other partner - [indistinguishable]

Mother: But there was no violence with his other partner, that’s why he doesn’t have an AVO

Female Voice: I’m sorry but there is um, charges and the court is in November and, um, we’re, um, acting on probabilities

Unidentifed voice 1: What probabilities

[Mother]: So the probability that someone with no criminal record and no AVO would do what?

Female Voice: They could either harm you as well as – or – and the children be witness to that, or they sexually abuse um, the children and it was part of the Family Court order that they be supervised –

Mother: Which they have been

Female Voice: [indistinguishable] You wouldn’t allow us in the home, even to, um, look at –

Mother: Well I did say you that were welcome to come in with a warrant

Female Voice: [indistinguishable]

Mother: I welcomed you in with a warrant

Female Voice: [indistinguishable] Child Protection Act is about it’s about working with us to ensure that the children are safe

Mother: But you never told me that if I didn’t let you in that you would come and snatch them away from me

Female Voice: You wouldn’t allow us to talk. You continued to –

Mother: I said you could come with a warrant and that we would talk further after the Court on the 10^th of July

Female Voice: [indistinguishable]

Mother: So I wasn’t blocking anything

Female Voice: [indistinguishable] And  [they] said we have only 30 days to do it and, also, we needed to start it immediately – these children needed to be assessed at that time

Mother: Well, you didn’t say that to me

Female Voice: I’m sorry, [indistinguishable] [ yes, …]

Mother: Madam

New voice (male?): [indistinguishable]

Mother: No, I just wanna know, I want one sentence – Who is the alleged person that the children are at risk of abuse from

Female Voice: [Mr Tolman] (at this point speaker is  visible: a female with grey hair wearing a purple top, purple scarf, and glasses)

Mother: What is the abuse that you allege

Female Voice: I told you –

Mother: [indistinguishable]

Female Voice: Listen, we are just going around in circles

Male voice: [indistinguishable]

Mother: [indistinguishable]

[parties talk over one another]

Mother: it doesn’t matter who she is. She’s a

Female Voice: What was your name?

Male voice: [indistinguishable]

Different Voice: [indistinguishable]

Mother: Don’t give your name

Female Voice: I’m sorry, yes It would be better to give your name

Mother: no              

Male voice: [indistinguishable]

Mother: She’s under no legal obligation to give her name. Um, she is here aiding me with legal advice, so

Male voice: Legal advice is fine, but [indistinguishable] you’re missing time with your children.

Mother: I’m aware that but I but I want to make sure that I know exactly what the issues are. Have the children’s w -

Different voice: [indistinguishable]

Mother: Has the children’s worker been [assessed medically] today?

Female Voice: It doesn’t have to be assessed every day

Mother: Today, I’m  just asking [indistinguishable]

Male voice: Do you want to see your children this afternoon?

Mother: I do, and we’ll get there

Male voice: All right. Well – [indistinguishable]

Mother: But I don’t 

Male voice: Well, you need to get there now, not keep them waiting with strangers, when they can go back home with their father

Different voice: [indistinguishable]

Male voice: yes?

Mother: I need to [indistinguishable]

Male voice: [indistinguishable]child focussed here. Child focus is you – you want to see your children and they want to see you and [indistinguishable]

Male voice: [indistinguishable] for a weekend, and deal with [indistinguishable] on Monday and it’ll be in court on -

Different voice: Tuesday at 2.00

Male voice: Tuesday at 2.00 – and that’s a hearing, yes?

Mother: So can I just make it clear – what is it that I - you need of me on Tuesday

Female Voice: [indistinguishable] to attend, either by yourself or with counsel.

Mother: And where is the location

Female Voice: … Court … on … Road

Mother: I’m sorry, I’m really unclear about where exactly in this document you actually state what the immediate risk is [indistinguishable] if you could just point it out

Female voice: It’s just [indistinguishable]

Mother: [indistinguishable] point it out

Male voice: Right now, [indistinguishable] focussed on the children 

Mother: I’m asking you to show it to me

Female Voice: [indistinguishable]

Male voice: [indistinguishable] the whole document does that

Mother: Right well –

Male voice: the court will deal with that [indistinguishable]

Mother: The thing is that you haven’s asked me to sign for this

Female Voice: No, I don’t need to

Male: [indistinguishable] [you don’t need to]

Female Voice: I’ve had someone witness that you’ve received [indistinguishable]

Mother: Ok, Well I’d just like to lodge with the witness that I object. I believe that this is a mistake. My children were extremely

Male voice: This isn’t the place to do that

Mother: I’m just saying

Male voice: OK

Mother: My children were extremely well looked after their whole lives. I’ve never put them in day care or anything. They are perfect. I’ve delivered them at 1 o’clock in good faith in perfect condition

Male voice: Again, [indistinguishable]

Female Voice: [indistinguishable]

Mother: Could you just look after this for me?

Voice: [indistinguishable]

Mother and male and woman in purple top are walking down a corridor

Female Voice: I notice you didn’t sign the documentation in regards to [indistinguishable] Nothing to do with putting down their father, or it’s just about having good time with the children [indistinguishable]

Mother: So where are the children?

Female Voice: They’re here

Male voice: Hey

Voice in background: Hey

Male goes through a door

Male voice: Here’s mum

A room with children is seen

Lots of voices at once

Mother: [indistinguishable]

Child: Hi mum

Mother: What happened to [K]? [indistinguishable] reading your bible. Darling. Darling. What happened to [K]?

Unidentified voice 2: [indistinguishable]

Female Voice: Um, She was distressed because she was waiting for you, and you weren’t child focussed at all

Mother: No, that’s not what, sorry

Female Voice: um, … will be doing the contact, and, um, there is a room um, that, um, [indistinguishable] window there, [indistinguishable] we will be, [indistinguishable]

Mother: come this way [indistinguishable], J [indistinguishable] [indistinguishable] [look at mummy]

Sound of door closing

Child: [indistinguishable]

Mother: [indistinguishable]

Child: [indistinguishable]

Mother: So good to see you. I’m sorry about what [indistinguishable]

Child: [indistinguishable]  

Mother: Darling

[indistinguishable] [[J] don’t]

22.20/ 16.06.55

Mother: This eye of yours, did you hit your eye?

Child: I got some sand in it

Mother: you got some sand in it? Where did that happen?

Child: [indistinguishable]

Mother: Ooooh [indistinguishable]

Mother: I love you, I love you. [indistinguishable] what I think [indistinguishable]

Mother and child talk [indistinguishable]

Noise of playing another child talks [indistinguishable]

Mother talks quietly [indistinguishable]

Mother: take these shoes off. These hard soled shoes are not good for your skeleton.

23.37/ 16.08.12

Voice 1 on telephone: Emergency. Police, fire or Ambulance

Mother: Ambulance please

Voice 1 :  [indistinguishable]  Ambulance. What place, town is the emergency in?

Male voice in background [indistinguishable] 

Mother: New south Wales, ah, Sydney

Voice 1: [indistinguishable]  Sydney it is

Phone ringing

Mother: I’ve just made an emergency phone call

Legs in grey/brown trousers in view, with a child to the right, looking in the direction of the camera

Male voice: I appreciate that, but you need to [indistinguishable] 

Camera pans up. Male face seen, then settles on a torso in a grey top, forearms pulled in against torso. One hand is holding a white phone and a piece of paper

Male voice: Sorry

Mother: No. You cannot stop an emergency phone call

Voice 2 on telephone: Ambulance Emergency, what suburb, please

Mother: Sy – I’m in Sydney, at …, and there’s a man hovering over me in a threatening manner

Voice 2: [indistinguishable]  [Are you safe?]

Male voice: Excuse me

Mother: He just touched my foot

Male voice: Excuse me

Voice [indistinguishable]  ?

Mother: Please, I’m at the DOCS

Male voice: No

Mother: And my baby

Voice 2: We can’t locate that street in Sydney, What suburb in Sydney?

Mother: [Suburb JJ]

Voice 2: [Suburb JJ], is it?

Child’s voice [indistinguishable] 

Male voice: Excuse me

Mother: I’m in [Suburb JJ]. Please help me

Voice 2: [Suburb JJ]

Mother: Please help me. I’m in [Suburb JJ]. We’re at DOCS, … Avenue. I need the ambulance immediately

Male voice: [indistinguishable] 

Voice 2: …, is it?

Male voice: Excuse me

Mother: No, …. Please [indistinguishable] the man . He’s hovering over me, and it’s [indistinguishable] 

Voice 2: Are you ok? So just [indistinguishable] 

Male voice: Excuse me

Voice 2: You’re in [Suburb JJ], what’s your phone number please

Mother: #...

Voice 2: Ok. How old are you?

Mother: I’m 36. My baby’s sick. My baby – My baby’s not right. She’s 19 months old.

Male is seen to exit through a door.

Voice 2:  Ok, your baby – so you’ve got a problem with your baby there at the moment? [indistinguishable] 

Male voice heard in background [indistinguishable] 

Mother: Yes, she’s 19 months old

Voice 2: [indistinguishable] 

Mother: she’s limp and she’s not showing any normal signs of vivaciousness that I’m used to.

Voice 2: Ok

Male seen re-entering room. Blonde child seen sitting on the floor in front of him. Man stands in view of the camera, but not close

25.08/16.09.44

Voice 2: Are you with your baby now?

Mother: I am. She’s 19 months old

Voice 2: Is she awake

Mother: Yes, she is awake

Voice 2: is she [indistinguishable] 

Sound of Door

Mother: Yes, she’s breathing

Male: She’s calling triple 0

Mother: Sorry? I’m calling an ambulance

Another voice: [indistinguishable] 

Other: Sorry

Voice 2 in background [indistinguishable] 

25.22/16.09.59 Mother: (At this point the mother’s voice increases in volume and becomes higher-pitched) No you can’t interrupt   [indistinguishable]  [a call to] emergency [indistinguishable]  ask for [indistinguishable]  (the pitch of the voice raises towards the end of this sentence)

Voice 2 in background [indistinguishable] 

Other: Sorry

Mother: (in in a loud high pitched voice) NO. HELP [indistinguishable] 

25.29/16.10.05 At this point the sound quality becomes very poor – The mother is heard crying in a loud high pitched voice, “NO” and “STOP” are the only distinguishable words; at least two distinct children’s voices are heard screaming. The visual is distorted and unstable – at one point the woman in the purple top and the man in the brown trousers are seen.

There is a short lull

Voice 2: Are you alright?

Mother: (in in a loud high pitched voice) [indistinguishable] 

25.37/16.10.13Again at this point the sound quality becomes very poor – The mother is heard crying in a loud high pitched voice “NO” and “STOP”; at least two distinct children’s voices are heard screaming. The visual is distorted and unstable – at one point the woman in the purple top is seen.

26.01/16.10.37

Children seem to be removed from the room as the sound of crying diminishes. A dull thud sounds – possibly the closing of a door

Voice 2: [indistinguishable]  [address]

Mother: [indistinguishable]  They’ve taken the children because I made an emergency phone call that  DOCS [indistinguishable]   The baby’s not right. The baby is not right [kay] ? [she needs treatment]

Voice 2: Listen, are you with the baby now?

Mother: [indistinguishable] they took her away [indistinguishable]. [They took the children away] [indistinguishable]  [They just came and they took them.]

Voice 2: You’re All right. You’re All right. What’s your first name?

Mother: My name’s [Ms Duarte]

A corridor is in view at this point, and the mother appears to be walking down it

Voice 2: [Ms Duarte]. All right, [Ms Duarte]. I’ve got some help coming [indistinguishable]  [stay on the line] OK? [I’ve got the ambulance]

Woman in red top is visible

Mother: I’ve got the ambulance [indistinguishable] 

Voice 2: [indistinguishable]  Stay on the line

Mother: I’m staying on the line. I’m staying on the line.

Voice 2? [indistinguishable] 

Unidentified voice 1: What happened?

Mother: [K] isn’t right. I called the Ambulance and  they took the three kids away.

Unidentified voice 1: What’s wrong with [K]?

Mother: I don’t know. She was limp. She won’t – she’s not showing any vivaciousness or [indistinguishable] 

Mother: [indistinguishable]  [she looked]  like a completely different person

Mother: Are you still there?

Voice 2: Yeah, yeah, I’m still here, [Ms Duarte]. So, who’s in the room with you right now?

Mother: I’m [indistinguishable]  on my own [because] they came,

Voice 2: yep

Mother: the two docs, they just came because  they got cranky that I made the call, and then they, then they took the children away.

Voice 2: [indistinguishable]  What’s the building called?

Mother: Sorry?

Voice 2: What’s the building called that you’re in?

Mother: I don’t know, it’s number …. [I’m in the foyer]   now.

Voice 2: [indistinguishable] 

Mother: It’s the DOCS

Voice: [indistinguishable] 

Mother: It’s the Family and Community Services

Voice 2: Ooooh, is it? OK, got you now. All right, you’re all right [Ms Duarte]. I’ve got help coming. Are you on your own now in the foyer?

Mother: No, my friend’s here.

Voice 2: Ok, good, all right. Where’s the baby now?

Mother: I don’t know, they took her. They took her out the back door.

Voice 2: There was 2 doctors do that, did they?

Mother:  No, 2 DOCS workers

Voice 2: DOCS workers, Ok,

Mother: DOCS Workers

Voice 2: OK, got you  now.

Mother: They got very angry that I was making the emergency call.

Voice 2: [indistinguishable]  that’s all right. So the 2 DOCS workers have taken your baby away. Ok. All right. So I understand now [Ms Duarte], and I’ve got help coming for you, OK?

Mother: Thank you.

Voice 2: Help’s coming, All right, [Ms Duarte]? I’ll stay on the line with you as long as I can, OK?

Mother: Thank you

Voice 2: [Ms Duarte], are you all right now? Did anyone hurt you at all?

Mother: No, nobody, nobody’s hurt me, but as soon as he -  as soon as he knew I was making an emergency call ‘cos I saw that my baby wasn’t right when I got in the room, he got angry and came - hovered over me and he  tapped my toe with his foot, [wanted to]  grab the phone, I think, but he didn’t lunge for it. And then, as soon as the phone call – the next [indistinguishable]  came in, and they just ripped the children away, and the children were all screaming .

Voice 2: Is there more than one child with you there, is it, [Ms Duarte]?

Mother: Yes, yes.

Voice 2: How – how many kids have you got there that are yours?

Mother: Four[indistinguishable]  there’s three.  28.30

Voice 2: Ok, all right. It’s all right, [Ms Duarte]. Help’s on the way, ok? I’ll stay on the line with you, you tell me if anything else happens. OK?

Mother: Everyone’s disappeared 

Voice 2: Ok. And you’re now in the foyer on level 6 though, is that right?

Mother: Yes

Voice 2: OK

Mother: In the foyer of the Family and Community Services.

Voice 2: Six

Mother: Ambulance

Mother: I’ve called the ambulance

Different voice: [indistinguishable] 

Mother: For K.

Different voice: [indistinguishable] 

Mother: She wasn’t right

Different Voice: [indistinguishable] 

Voices heard in background on telephone (call centre?) – unconnected to conversation.

Voice 2: How old are you, [Ms Duarte]?

Mother: I’m 36.

Voice 2: Thanks [Ms Duarte]. And your baby is 19 months old.

Voices heard in background on telephone (call centre?) – unconnected to conversation.

Unidentified voice 1: Did you really

Mother: [indistinguishable] 

Unidentified voice 1: [indistinguishable] 

Voice 2: I’ll stay on the line, I’m attending to something. Tell me if anything changes, if you need to talk to your friend there, that’s fine. But I want you to tell me in anything changes, OK?

Mother: All right

Voices heard in background on telephone (call centre?) – unconnected to conversation.

Voice 2:   I’m still here, [Ms Duarte], OK?  Not far away.

Mother: Yes, yes, Thank you. Thank you

Voices heard in background on telephone (call centre?) – unconnected to conversation.

Voice 2: I’m  typing notes in, ok?

Mother: Sure.

Voice 2: Just  making sure the address is right, OK?

Mother: Sure

Voices heard in background on telephone (call centre?) – unconnected to conversation.

Mother: (voice raised in pitch) [indistinguishable]  They’re laughing! [indistinguishable]  my baby away and  [indistinguishable]  they’re laughing . [They’re just] laughing!

Voice 2: [indistinguishable]   on our way, [indistinguishable]  Ok, [Ms Duarte]

Mother: Yeah, sorry, they’re behind this screen.  I’m  flabbergasted.

Voice 2: Got lots of help coming, OK [Ms Duarte]? I’ll find out what’s going on and make sure your baby’s ok, all right?

Mother: Thank you very much

Mother: I haven’t seen the baby since Tuesday. They’ve - They just came and took them.

Voice 2: OK. How old are the other children?

Mother: 3 and 7

Voice 2: OK

Mother: They were also very upset but – but, um, they did [greet] me. I could tell that they were very subdued in nature, but didn’t seem to be looking like   there was anything  actually medically wrong but ah, as soon as I opened the door I could see that [K] wasn’t her usual self.

Voice 2: ok

Mother: and then when I held her, she just  went all limp on me when I picked her up. Her [skin tone was good, but]

END OF RECORDING