Mullen & Acken (No 2) - [2011] FamCA 772

FAMILY COURT OF AUSTRALIA

MULLEN & ACKEN (NO. 2)

[2011] FamCA 772

FAMILY LAW – CHILDREN – Interim hearing – With whom a child spends time – With whom a child communicates.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Goode & Goode (2006) FLC 93-286
Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Re: H & Ors (1996) 1 All ER 1

APPLICANT:

Ms Mullen

RESPONDENT:

Mr Acken

INDEPENDENT CHILDREN’S LAWYER:

Mr D Piekarski

FILE NUMBER:

MLC

10068

2010

DATE DELIVERED:

13 July 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

13 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Mulvany

SOLICITOR FOR THE RESPONDENT:

TJ Mulvany & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

IT IS ORDERED THAT:

1.This matter (involving parenting orders and a final alteration of property interests) be listed for final hearing before me to commence on 21 November 2011 estimated to take 8 to 9 days, NOTING THAT the Court will not sit on Friday 25 November 2011.
2.This matter be adjourned for mention before me on Tuesday 18 October 2011 at 9.00 am for directions for trial and in particular directions for filing of evidence and amended applications or responses.
3.The recordings provided by the father of telephone conversations between the girls and the mother in May and June 2011 be marked Exhibit “C1” and be accessible on the Court file in the form of a memory stick.
4.Until further order, the father have sole parental responsibility for the children S born … September 1998, E born … March 2000 and T born … December 2001.
5.Until further order, paragraph 2 and 3 of the Order made by Federal Magistrate Connelly on 5 May 2011, for the children to spend supervised time with the mother, be and is hereby suspended.
6.Until further order, the Order made by me on 5 May 2011, in respect of telephone communication between the mother and the children, be and is hereby suspended.
7.The mother be entitled to communicate with the children (or any of them) by sending letters, cards and/or gifts not more frequently than once every 14 days via the independent children’s lawyer (“ICL”) and the ICL have discretion as to whether the letters, cards and/or gifts will be on-forwarded to the children.
8.In the event that the ICL takes the view that an item sent by the mother ought not be provided to the children (or any of them), the ICL should notify the parents of his decision in writing.
9.The father do all acts and things necessary to obtain the support of a psychologist or counsellor, as agreed between himself and the ICL, to support him in his parenting of the children.
10.The father do all acts and things necessary to ensure that the children attend upon a psychologist, counsellor or appropriately qualified person as is agreed between himself and the ICL for the purpose of therapeutic counselling.
11.I reserve liberty to the father at the final hearing for the mother to be responsible for all, or any, of the costs of the psychological treatment of the children but otherwise he is to be responsible for payment of same at the first instance.
12.The ICL have liberty to provide copies of any documents in this matter including, but not limited to:-
a.      the family report of Ms M dated 4 May 2011;
b.      a transcript of the evidence given by Ms L this day;
c.      the Parent and Children’s Issues Assessment of Ms L, family consultant, dated 17 June 2011;
to:-
i)      any psychologist or counsellor treating the children, the mother or the father
ii)     the proper officer of any school attended by the children (or any of them); and
iii)    to any previous psychologist or counsellor upon whom the children attended, including, but not limited to:-
1.Mr Z; and
2.the counsellor known as “[A]” who sees S at school.

13.Pursuant to s62G(2) a report is to be prepared by a Family Consultant nominated by the Manager, Child Dispute Services of this Registry of the Court to be prepared in early October 2011 and be released, if possible, by 14 October 2011.
14.For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents related to the issues.
15.The report writer has leave to read any document produced on subpoena once permission to inspect has been granted to a party or the Independent Children's Lawyer.
16.Ms L be at liberty to discuss with any counsellor or psychologist treating the children (or any of them), or the father, any matters pertaining to the family.
17.IT IS DIRECTED that pursuant to s11F of the Family Law Act 1975 Ms L, together with any other family consultant nominated by the Manager of Child Dispute Services of this Registry of the Court, meet with the children and explain these orders to them and at her discretion invite the independent children’s lawyer to their appointment with the children.
18.The costs of this day be and are hereby reserved.
19.In the event that the mother proposes to rely on her affidavit sworn on 24 March 2011 at the final hearing she notify the father, via his solicitor, to that effect by not later than 4.00 pm on Friday 7 October 2011 and the father file and serve any objections he has to the admissibility of that document or parts of that document by 12.00 noon on Friday 14 October 2011.
20.The parties shall attend and ensure the children S born … September 1998, E born … March 2000 and T born … December 2001 attend all necessary appointments for the preparation of the Family Report.
21.Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

AND IT IS NOTED THAT the father has informed the Court that he has arranged for the removal of all photographs of his brother, W Acken, from the home of the paternal grandparents.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10068 of 2010

Ms Mullen

Applicant

And

Mr Acken

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

ex tempore

After a mention and interim hearing of this matter, which has occupied most of the day, I pronounced orders at about 4.45 pm and indicated that I would deliver my reasons subsequently. These are those reasons.
The children are S, who is 12 and a half years old, E, who is 11 years old, and T, who is nine and a half years old. As well, there are competing applications for final alteration of property interests. The issues of most importance today are those pertaining to the girls and, in particular, whether interim parenting orders made by Federal Magistrate Connolly and myself on 5 May 2011, which provided for the mother to spend supervised time with the children and for twice weekly telephone communication, should be further varied or suspended.
The proceedings commenced in Courtroom 4D. However, the mother’s continual interjections and interruptions were too disruptive for the proceedings to continue. At an earlier hearing, on 1 July 2011, at which the mother was similarly disruptive, I warned the mother that she would be required to appear from another courtroom unless she refrained from talking over others and me.
In the event, I ordered that the mother appear from Courtroom 2K which is fully linked into this courtroom by video facility but from which the sound of the mother’s interjections and interruptions could be muted. Relevantly, I ordered:-
1.That the mother forthwith attend Court 2K at this Registry of the Court.
2.Until further order, henceforth the mother participate in the proceedings from Court 2K in this Registry by video link facility between that court room and this court room (4D).
3.I reserve liberty to the mother and to each other party to the proceedings to apply for the mother to be able to appear personally and be heard from this court room (4D) but that any such application address the issue of the mother’s interjections and interruptions to the proceedings.
AND THE COURT NOTES that in the event a party fails or neglects to participate in the proceedings the Court may proceed to determine the proceedings or any urgent applications arising therein (including any appropriate ex-parte applications) without further input by the non-participating party and without further notice to them.
Initially, the mother refused to leave the court and I asked for the Australian Federal Police to attend to remove the mother. The attendance of the Federal Agents was not for the purpose of placing the mother in the other courtroom, it was merely to clear my court so that I could, without disruption by her, attend to other matters which were listed before me and, in due course, the balance of this matter. By the time the Federal Agents attended, the mother had departed. No one from this matter was in my courtroom when the Federal Agents arrived so I ordered that a transcript be prepared of my brief discussion with them. That transcript should be made available to the parties.
We experienced some technical problems with implementing the muting facility in the other court, in part because the mother’s voice was raised in the other courtroom to an extent that the Court Officer in the other court room could not hear my direction to activate the mute button. Ultimately however, adjustments were made, new microphones were brought in and the arrangement worked tolerably well.
I informed the mother that I would be unlikely to order an alteration to the two court arrangement unless I could be satisfied that she would not disrupt proceedings by interjecting, interrupting and talking over others.
I accept that a poorly behaved litigant does not necessarily equate to a poor parent. However, in this case the mother’s lack of containment and demeanour in Court on 1 July 2011 and today does have some bearing on my assessment of her capacity to comport herself appropriately during supervised face to face time with the girls.
The relevant test for the Court’s assessment of evidence is found in s 140 of the Evidence Act 1995 (Cth). Section 140(1) requires the facts in issue to be proved by the party with the persuasive onus on the balance of probabilities.
Lord Nicholls discussed the standard of proof to a balance of probabilities in Re: H & Ors[1] in the context of a wardship application. His Lordship relevantly stated:
Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.[2] (emphasis added)
[1] (1996) 1 All ER 1.
[2] Ibid 16.
In these reasons a statement of fact is a finding of fact.
No party has filed any formal applications in a case.
The mother’s application is that the children be forthwith returned to her, so that they can return to a northern Victorian town and reside with her there. She seeks sole parental responsibility and wants a Department of Education school psychiatrist, one Mr Z “to be brought in to the proceedings”. The mother was unable to explain precisely what she meant.
The father seeks that the existing order which provides for the children to communicate with their mother by telephone twice each week be suspended until further order. He seeks that the orders for the mother to have supervised face-to-face time with the children similarly be suspended until further order. He seeks that the mother’s entitlement to provide cards and gifts and letters to the children be regulated and be sent through the independent children’s lawyer, but not otherwise directly or indirectly to the children. The independent children’s lawyer is to have a right of veto for on-forwarding the mother’s communications to the children. The father seeks that he engage a psychologist for therapeutic treatment of the girls and for himself to assist in his parenting of the girls. He seeks that the outcome of this application, and in particular any cessation of the communication which currently exists between the mother and the girls, be explained to the girls as soon as practicable by a family consultant. He also seeks that, until further order, he have sole parental responsibility of the girls, which would in effect alter the statutory arrangement whereby both parents have parental responsibility.
The father’s application is supported entirely by the independent children’s lawyer who also sought that the mother’s entitlement to send gifts and cards and letters to the children be exercisable not more frequently than once per fortnight and that, in the event the maternal grandparents want to communicate with the girls in that way, the frequency of letters, cards, or gifts from them be limited to either special occasions or no more than once per month.
I will not repeat the facts and matters which appear in the reasons for decision delivered by Connolly FM on 5 May 2011, for which the case neutral citation is [2011] FMCA 429, or my own reasons also delivered on 5 May 2011, for which the case neutral citation is [2011] FamCA 359.
It is sufficient to note that following the parents’ separation in March 2009, the mother and the children lived in rental accommodation in E, a suburb of Melbourne, and the children attended E Primary School. The father lived in the former matrimonial home at B suburb, where he still resides. By agreement, the father spent time with the girls each alternate weekend and twice a week after school. In November 2010, the mother unilaterally removed the girls to the northern Victorian town and refused to return them to Melbourne. Court proceedings promptly ensued.
On 20 December 2010 the matter came before Connolly FM who made certain orders by consent and fixed a final hearing date for all matters of 27 April 2011. The girls’ time over the school holidays was split between the parents, a report was ordered to be prepared at the joint expense of the parents and it was ordered that if the family report writer recommends that an assessment by a consultant psychiatrist of either or both of the father and the mother is appropriate, the parties shall attend upon a psychiatrist agreed by Mr Mulvany (the father’s solicitor) and Mr Dunstan (then the mother’s solicitor) and the fees would be shared equally and, like the family report writer’s fees, be met out of the proceeds of sale of the former matrimonial home. The mother was represented by Bowlen Dunstan & Associates Pty, solicitors.
It was also requested that an independent children’s lawyer (“ICL”) be appointed for the children. In due course, Daniel Piekarski of Victoria Legal Aid was appointed. The role of the ICL is to form an independent view, based on available evidence, of what is in the best interests of the girls and then act in these proceedings in what he believes those best interests to be.[3] Mr Piekarski is not a legal representative retained by the girls and he is not bound by any instructions from them.[4] The role of the ICL is to deal impartially with the parties, ensure that any views expressed by the girls are fully put before the Court, to analyse documentary evidence, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The ICL is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[5] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[6]
[3] Family Law Act 1975 (Cth) s 68LA(2).
[4] Ibid s 68LA(4).
[5] Ibid s 68LA(5)(d).
[6] Ibid s 68LA(5)(e).
Before me, Ms Boymal of Counsel appeared on behalf of the ICL. The ICL also attended Court. The mother has been critical of the ICL for arranging “six [different] barristers” to appear at various hearings. I do not know who has previously appeared. The mother is also critical of Mr Piekarski for failing to inform the court of S’s wish to spend some of the current school holidays with her. As will become apparent, I have listened to many hours of telephone conversations between the mother and the girls and heard the mother ask one or other of the girls on numerous occasions to write to the ICL and tell him their negative experiences in the father’s household, how unhappy they are and how much they want to live in northern Victoria with her and attend school in northern Victoria. The mother was particularly directional of her requests to S to email a number of pages to the ICL. It transpires that despite many requests, S has sent just the one letter to Mr Piekarski recently to the effect that she wanted to spend some of the current school holidays with the mother. In a subsequent telephone conversation, S told her mother that she was assured her request would be raised with the judge. I cannot recall whether or not it was raised on 1 July 2010 but, for reasons which will become apparent, all that could be done to safely bring the children into the company of their mother was done on that day.
Returning to the relevant history, on 31 January 2011, the proceedings came before Connolly FM. The mother was represented by counsel. The court had received a family report from Ms M (which I will discuss in detail later). It was ordered that the children reside with the father and have alternate weekends with the mother and be able to communicate with them by telephone and other social media including email, text messages and Facebook outside school hours and not later than 10 p.m. each evening. An earlier order for psychiatric assessment of the mother was confirmed and provision was made for the father to be assessed as well. The orders are engrossed as having been sought ‘by consent’ but the mother denies that she consented to them. I have looked at the minute of order on the court file and each page of the minute appears to have been initialled by the mother including the notations which include:-
The mother consents to these orders without prejudice to her application to relocate to [the northern Victorian town] with the children and without any admission that these orders are in the best interest of the children and that these issues will be determined on a final basis in April.
That the parties will rely on the General Statement of Agreement dated 31.1.11 and annexed to these orders in addressing all queries from the children pending the final hearing of this matter.

The General Statement of Agreement is also on the court file but appears to be initialled by the father and the independent children’s lawyer only (not the mother). It reads:-
31/1/2011
General Statement of Agreement
We all agree that we need the help of the judge to work out a solution we can all live with.
The judge has the time to help us in April so we will have to wait until them.
In the meantime (until then) you will stay in [E suburb] with Dad. [E] and [T] will go to [E] Primary School & [S] will go the [E] Secondary College.
Mum will be staying in [northern Victoria] but you will see her every 2^nd weekend.
On 31 March 2011 the parents attended a conciliation conference with Registrar Riddiford. No overall agreement was reached as to financial issues and they remain unresolved.
On 11 April 2011 this matter came before Connolly FM who, inter alia, requested, pursuant to s 91B, that the Department of Human Services Victoria intervene in the proceedings. The mother was self represented on this occasion. There was no intervention but on 14 June 2011 Department of Human Services provided a report in response to the request. To date no party has addressed me on the report.
On 5 May 2011 Connolly FM assessed the matter as inappropriate to proceed in the Federal Magistrates Court, which deals with a very high volume of shorter and contained cases, and transferred these proceedings to this court. With utmost respect, I agree with the judge’s assessment that the nature of this case and the manner in which it will be presented requires that it be heard in this court, which has somewhat more flexibility in the application of its resources.
Connolly FM ordered that until further order, the girls were to reside with the father, and have only supervised time with the mother. His Honour’s reasons disclose that the change of residence was due to the likely adverse impact upon the children of the mother’s behaviour. In this respect his Honour had a family report by Ms M, psychologist, dated 20 January 2011. The family report is an annexure to the affidavit of Ms M affirmed on 4 May 2011 and filed by the independent children’s lawyer.
Ms M reported that the presentation of the mother at the interview on 20 January 2011 caused her concern in that the mother:-
trembled during the interview and her hands at times were uncontrollably shaking so that she could barely hold and read documents. Throughout most of the interview, she displayed disorderly thinking processes and at times had difficulty in answering questions directly. At times [the mother’s] accounts of incidents and changes of topic appeared as a form of stream of consciousness and in some instances, it was difficult to understand how the issues were connected. The majority of the interview was spent discussing her concerns and beliefs about [the father] and what he has allegedly done. She repeatedly referred to her “Further and Better Particulars” filed during her Intervention Order proceedings. She spoke in derogatory terms of the [father] and in addition to making allegations of violence and harassment, was very distrustful of him and made other allegations which if untrue, would indicate unusual beliefs or demonstrate disturbed thinking processes.[7]
[7] [2011] FMCAfam 429, at [5].
The extensive extracts of Ms M’s report in the reasons FM Connolly indicate that his Honour placed reliance on the contents of the report of Ms M including the following paragraphs which were, amongst others, extracted by his Honour at paragraph 5 of the reasons:-
56. I have a number of concerns about [the mother’s] functioning and how it may have impacted on the children. I noted [the mother’s] high anxiety, shaking, reported loss of weight, disorderly thinking and the obsessive like nature of her discussion of [the father], her presentation at interview and the documents she was alleged to have produced. I am of the opinion that [the mother] is experiencing a high degree of stress and that it has most likely affected her reasoning and functioning. My concerns extend beyond what may be an adjustment disorder with additional symptoms of anxiety.
57. [The mother] has a highly negative view of the [father] and appears to communicate it to the children. She has discussed the matrimonial issues in the presence of the children and from comments made by the children as well as her reports of what the children tell her, she has few if any boundaries in what she discusses with them. I am of the opinion that she projects her anxieties on to the children and that she makes few distinctions about her needs and those of the children. The children have had to live as though these anxieties and perceptions are also theirs. If as alleged, she also asks [S] to find information for her and to continually report to her against her father, then she is behaving in a manner directly contrary to the children’s welfare and damaging the child’s perception of her role and her relationship with her father. [S], as well as the other children, have needed to become suspicious in order to voluntarily report back to their mother and if the children continue to be exposed to [the mother’s] perceptions, it is difficult to say as to whether they too may develop ideas of persecution.
58. The most concerning of the allegations in relation to the children, were those [the mother] described as “[S’s] sexual thoughts about her father” and the alleged “dreams about sex and her father”. If it is true that the child repeatedly reports her father’s alleged behaviour at bed time to her mother, I would suggest that this is most likely to be at the mother’s urging or caused by the mother’s need to have [S] report this and other issues. I am also significantly concerned about the genesis of these alleged “sexual” thoughts noting that the mother has been the only one to use this term. If this analysis is correct, then it is not unreasonable to consider [the mother’s] behaviour to be abusive and adversely affect [S], her relationship with her father and her future belief about her sexuality. [S] by both her own report and that of her father, has begun to self mutilate by cutting her hair. Although it is not extensive, [S] is only 12 years old and self mutilation can begin at this age and become established and more severe as a child progresses through adolescence. It is vital to change the circumstances for this child and to begin to put into place an environment better conducive to her well being.
59. [The mother’s] beliefs about [the father], including her belief that he is harassing and persecuting her by his own behaviour and through the children, and her need to return to his theme during the interview, was of further concern. It raises the question as to whether [the mother’s] conduct is sufficiently disturbing to warrant a referral to a psychiatrist for an assessment. [The father] denied the allegations of making harassing phone calls, causing the children to leave messages, causing others to call her or send her gifts. If the facts do not support her beliefs, then it is possible that [the mother] may be experiencing some form of persecutory ideation or paranoid thinking in association with or in addition to her anxiety. I recommend an assessment by a psychiatrist who would be in a position to undertake a full history.
60. The question of whether the children should remain living with [the mother] in [northern Victoria] has a number of considerations. My primary concern is [the mother’s] mental health status and the adverse impact she is having on the children at present. A return to the residence and care arrangements which existed prior to the mother’s relocation would be detrimental to [the mother] and the children. [The mother] would not have the support of her family, the conflict between the parties is likely to continue and the conditions which gave rise to [the mother’s] mental health status would persist. In these circumstances, the children would then continue to be in a situation of ongoing conflict between the parents and I would have similar concerns about their welfare.
61. I do not consider that it is in the children’s best interest at present to remain in the sole residence of the mother given my concerns for her current mental health and the impact of her behaviour on the children. Although the children reported that she has relaxed to some extent while they have been in [northern Victoria], they also reported her as being unavailable and persistently concerned with her court and other proceedings. My observation and assessment of [the mother] at interview indicated that her anxiety remains high, and her beliefs and disturbed thinking remain a concern. The claimed better conditions in [northern Victoria] had not had a noticeable effect on reducing these symptoms.
The report appears to me to be comprehensive and well-reasoned. I do not understand why it is dated 20 January 2011 and refers to a relevant telephone discussion with the father as having occurred on 25 January 2011, but I assume that will be explained in due course. The opinions expressed by Ms M are untested. I gather that there was no opportunity for the mother or others to cross examine Ms M before Connolly FM and there has been no opportunity to do so before me.
On 1 July 2011, the mother stated that she had previously sent her submissions (criticisms) of Ms M’s report to my Associate for my attention. I made clear that I had not received, much less read, any such document. That does not mean that the mother’s correspondence was not received by the Court. However, it has most likely been quarantined with documents which are not filed and served or common to the parties which, after all, are the only documents to which a judge can be referred. The mother is self represented and, as such, is responsible for informing herself of the court’s procedures in a timely way. She may do so by a combination of reading the legislation, the Family Law Rules 2004, by seeking legal advice, looking at the Family Law Courts Website[8] and this Court’s website[9] and/or by consulting agencies such as a legal service or Victoria Legal Aid. However the mother chooses to inform herself of the appropriate procedures, she should be aware that evidence and applications are filed and served on all parties and that, absent a specific order, submissions are not made to a judge in letter form and never to the exclusion of other parties to the proceeding. There are very limited situations in which a litigant can correspond with my Chambers and no situation in which a litigant can do so without notice to all other parties. In any event, I consider that the mother disputes many aspects of Ms M’s report and all parts of the opinion which is adverse to her. I regard Ms M’s opinions as being clearly and cogently expressed but untested. I cannot, and do not, accord Ms M’s opinions and any disputed facts relied upon by her the same weight or probative value that I could accord to evidence given by a witness who had been cross-examined and not successfully challenged.
[8]
[9]
When the matter was first before me on 5 May 2011, the mother announced that she would not exercise her entitlement to spend supervised time with the girls. As that was all to which she was entitled under the orders of Connolly FM, the girls would have no time or communication with her. Whereas Connolly FM had ordered that the independent children’s lawyer explain the outcome of the proceedings to the children, that was in the context of his Honour’s understanding that the children would be spending face to face time with the mother. I indicated that if the court had resources to do so, then pursuant to s 11F, that the children have the outcome explained to them by a family consultant who was to report back to the court on the children’s adjustment to the change in their residence. On 10 May 2011 there was a telephone mention before me at which time I made the s 11F order for a parent and children’s assessment. The mother was notified of the mention, but could not be contacted by telephone for the purpose of being linked in to the mention.
The girls were seen by family consultant, Ms L, on 20 May 2011. The family consultant also saw the father on 20 May 2011 and again on 15 June 2011. On 1 July 2011 the family consultant gave evidence that she believed that the mother had been aware of the assessment sessions but elected not to attend. Instead, she wrote a letter to the family consultant dated 17 June 2011 and received at the Registry on 21 June 2011 (Exhibit “A”). The family consultant’s assessment is dated 17 June 2011 and predates the mother’s letter. The assessment makes it clear that the mother did not participate in the process.
In her assessment, the family consultant identifies the key issues as being:-
•         The impact to the children of the change in primary care arrangements.
•         [The mother’s] ability to emotionally support the children around the change to their care arrangements.
•         The uncertainty for the children around the long term arrangements and the impact of this on their emotional and psychological wellbeing.
•         [The father’s] allegations around [the mother’s] mental health and resulting impact to her capacity to spend time with the children in the absence of risk.
The family consultant describes the parents’ understanding of the children’s needs as follows:-

This assessment could not incorporate [the mother’s] current views given her non-participation. Given also that the focus of this assessment has been to assess the children’s wellbeing since the change to their primary care arrangements, the information presented below, based on the meetings with [the father], focuses on his observations of the children’s current wellbeing, rather than on the broader issues as they relate to the parenting arrangements.

This being said, at the time of the second meeting with [the father], on June 15 2011, he reported that the girls appear to be settling in to his care and overall are coping as well as can be expected. He expressed ongoing significant concern however regarding their current communication with their mother and the emotional impact this has on them. [The father] described that the girls become highly unsettled after speaking with their mother; are often unable to sleep for hours; and in the worst example, he has seen [T] “in a foetal position on the floor, in tears”. [The mother] is unsure how to manage the children’s emotional distress and while he believes the children need to communicate with their mother, he does not feel that the current arrangement of twice weekly phone calls is sustainable or beneficial to the girls if they continue to experience such high levels of distress.

[The father] identified the importance of [the mother’s] role as the girls’ mother and expressed his confusion as to how to re-establish their relationships with [the mother] if she does not address the issues currently preventing her from having a more meaningful relationship with the children.

The family consultant summarises the situation as follows:-

A Family Report was prepared by Ms [M] dated 20 January 2011. This assessment provides initial expert advice to the Court with a specific focus on the children’s current wellbeing since the change to their primary care arrangements.

[The mother’s] perspective on the children’s current wellbeing could not be ascertained due to her non-participation. The writer has therefore, out of necessity, formed views on the children’s own reported experiences, the reported observations made by [the father], file and subpoenaed material and the family report of Ms [M].

The girls maintain that their preference is to live with their mother. Quite simply, they identify their mother as their primary attachment. They lack an understanding of why their primary care arrangements have been altered and lack any sense of stability around the current arrangements. The children’s presentation is congruent with the uncertainty they are experiencing around the future care arrangements and their natural and understandable feelings of grief and loss around their relationship with their mother. [The father] appears to be managing their distress in the best way he can within the constraints of the current circumstances. And to his credit they do appear to be settling in to his care. Their ability to fully engage with their father as their primary carer (for however long this may be the case) and engage in their school environment and peer relationships, would be greatly assisted by them being given some sense of direction around the future parenting arrangements.
[The father] expressed concern that the children’s ability to settle in his care is perhaps being compromised by [the mother’s] narrative around the current and future parenting arrangements. According to [the father], this is evidenced by the significant emotional distress demonstrated by all three girls following phone communication with their mother.
If the Court is satisfied that the nature of [the mother’s] phone communication with the children is causing the children distress, in that [the mother] attempts to elicit negative information about [the father] and/or serves to destabilise the children’s sense of stability in their father’s care, thought may need to be given to reducing the frequency and length of the phone communication. Whilst it will likely be difficult for the girls to speak with their mother less often, longer periods between phone calls would reduce the stress associated with any destabilising effects being experienced as a result of their communication with their mother. Ideally the children’s phone calls with their mother would take place on a Friday or Saturday evening when they do not need to prepare for school the following day.

The family consultant attended court on 1 July 2011. As is usual for matters in the Less Adversarial Trial process, she sat in the witness box even when she was not actually giving evidence. She was well positioned to observe the proceedings including the mother who sat at the end of the bar table closest to Miss L.
The father made an oral application to suspend all telephone communication between the children and the mother and sought to rely on the 30 or so taped conversations between the mother and children from early May 2011 to late June 2011. It was always contemplated that the recordings would be made. The father’s recordings were tendered as were the mother’s. However, due to the mother’s apparatus, her recordings could not be copied. Arrangements were contemplated for the mother’s recordings to be transcribed through the court recording process but, ultimately, the cost was too great for the court to bear and it was not done. The mother’s recordings were returned to her. The father’s recordings were copied and provided to everyone, including the family consultant. I ordered that they be listened to before the hearing today by anyone who wished to rely upon them and I said that I would hear them (which I have).
On 1 July 2011, the mother said she would see the children on a supervised basis if that was the only way she could see the girls face to face. The mother’s behaviour at the bar table was aggressive from the beginning of the hearing, but by this time, the mother’s behaviour at the bar table had deteriorated. She interjected continually. She was abrupt and rude. Notwithstanding that she is obviously intelligent, eloquent and functions at a high level, it was difficult to contain her. My observations of her in court led me to doubt whether mere supervision of time between herself and the children would afford sufficient protection to the children. The family consultant agreed that she doubted that the mother’s behaviour could be contained by a private supervisor within the community and not in a contact centre. The independent children’s lawyer informed the court that any private supervision could not commence for another three weeks in any event. In these circumstances, the family consultant indicated that she would supervise a visit between the girls and the mother at Child Dispute Services and assess the interaction for the purpose of assessing the likely efficacy of supervision within the community. She also said that she would take the opportunity to listen to the recorded telephone conversations between the mother and the girls.

The girls were brought to the Registry by the father on Monday of this week (11 July 2011). The mother attended with the maternal grandmother. The family consultant gave oral evidence about the visit and was cross-examined by all parties to a limited extent. I will deal with that evidence later in these reasons. No party filed any further evidence for today’s hearing. As indicated, the father and independent children’s lawyer expanded their applications to include an order suspending the order for supervised time between the mother and the girls in light of the mother having indicated that she would exercise her rights under that order.
As with all parenting matters, it is the best interests of the children which is the paramount consideration. There is a well recognised legislative pathway.[10] The procedure for making interim decisions must necessarily be an abridged process and the scope of the inquiry is significantly curtailed compared to that which may be undertaken at a final hearing. As the Full Court in Goode & Goode (2006) FLC 93-286 commented at paragraph 68:
…where the court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The court also looks to the less contentious matters, such as the agreed facts and issues not in dispute, which would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
[10] Which has been identified in cases such as Goode & Goode (2006) FLC 93-286.
It is not contested that from separation until December 2010, the mother was the primary carer of the children. The family consultant, Ms L, gave evidence that the mother was the primary emotional attachment for the children, and I do not understand that to be in issue. It is common ground that a psychologist, Ms M, has questioned the mother’s mental health, and whilst not purporting to make a diagnosis outside her area of qualification and expertise, she recommended that the mother and father by psychiatrically assessed.
The mother is very critical of Ms M and says that she is corrupt and incompetent. Ms M recommended that the mother submit to a psychiatric assessment. The father also agreed to be assessed notwithstanding that there was no recommendation to the effect. In my experience the probative value of a psychiatric assessment of one party is enhanced if the other party is also assessed by the same psychiatrist. The father has submitted to that assessment, which was conducted by Dr D, and published to the parties. The mother refused to do so. She says that the order requiring her attendance for the purpose of assessment was not made by consent, as the court record would indicate, and that she will not abide it.
It is also common ground that from 5 May 2011, the mother was entitled to exercise supervised face-to-face time with the children each alternate weekend, but refused to avail herself of that opportunity.
It appears that the mother’s case is predicated on a large scale conspiracy waged against her, which extends to, and beyond, Connolly FM, myself, the father’s solicitors, family consultants of this Registry of the Court, the Child Protection Society, the former solicitors for both the father and the mother, and the father’s current solicitor. In this context the mother alleges that certain orders which have been made in these proceedings have never been made before in any other proceedings before this Court, and she relies upon that as proof that she is being victimised or persecuted, and is the object of corruption. These orders of which the mother complains are those made by Connolly FM on 5 May 2011 (change of residence and supervision of time between herself and the girls) and the order that I indicated I would, and did, make today. Today’s order requires her to give notice to the father’s practitioners in the event that she proposes to rely upon a very lengthy, perhaps 250 page, affidavit at the final hearing, so that the father’s practitioners can prepare their objections to that affidavit. The mother also took issue with the publication of my last reasons, on 5 May 2011, on the Family Court website under a pseudonym. It is not clear to me as to whether the mother persists with this as a particular of the corrupt behaviour she complains about following the explanation to her of the Court’s procedures to anonymise reasons for decision which are published electronically.
The mother further alleges that there has been extensive tampering with documents. She refers continually to Mr Mulvany, solicitor, having tampered with an application for an intervention order made on her behalf. Most recently she says that her recordings of the children’s conversations were tampered with whilst in the custody of the court. In particular, the mother alleges that some comments made by the children or one of them about whether she liked going to her school have been removed from the recordings. Neither the father nor the independent children’s lawyer admit there is any truth in the mother’s allegations, but the fact that she makes them in the terms that she does is a matter of record. That said, they are untested. There simply will not be an opportunity to test all of the mother’s allegations until a final hearing. Accordingly, I have appointed one as soon as practicable.
In summary, there is a lot of evidence to be tested at a final hearing, but not a lot of common ground upon which I can draw in the meantime. But for the mother’s behaviour, the girls would be living with her now in Melbourne or northern Victoria. The mother has resisted any psychiatric evaluation by the nominated practitioner in circumstances where that assessment may well have explained her behaviour and motivations or lessened the concerns held by Ms M and accepted by Connolly FM when he concluded:-
10. There are many allegations and counter allegations made by the parties which cannot be determined at this stage, and indeed, will not be able to be determined until the evidence can be tested. However, the most significant factor at this stage is the independent evidence of the report writer, Ms Beatrice [M]. That indicates a degree of risk that the mother poses to the children because of the state of her mental health. There is no doubt that these children love their mother and will, as the ICL submits, want to see her. However, for the reasons I have already canvassed, I am of the view that if the children were placed in the mother’s care in an unsupervised situation, they may well suffer emotional harm and trauma. In the presence of Ms [M], [the mother] was unable to restrain herself with respect to her criticisms of [the father], and her anger towards him. Furthermore, it seems likely that she would continue to involve the children in the court proceedings, and the conspiracies that she herself believes are being waged against her. Apart from causing the children stress and trauma with such behaviour, the derogatory comments about their father are potentially damaging the children’s relationship with him. For these reasons, I propose to order that the time the children spend with the mother be supervised.[11]
[11] Reasons for judgement delivered on 5 May 2011 as [2011] FMCAfam 429, [10].
The mother is responsible for the conduct of her own case. Her refusal to abide the arrangement to undergo a psychiatric assessment if the family report writer recommended that she do so (which occurred) and refusing to avail herself of the supervised time with the girls pursuant to the Order of 5 May 2011 have not assisted her case.
In discerning what is in the children’s best interests vis-à-vis the applications before me today, section 60CC(2) sets out the primary considerations, and section 60CC(3) sets out the additional considerations.
The first primary consideration is an assessment by the Court of the benefit to the children of having a meaningful relationship with both parents. The second primary consideration is what (if anything) is required to protect the children from physical or psychological harm, and from being subjected to, or exposed to, abuse, neglect or family violence. The second primary consideration is relevant in relation to the allegations of each parent against the other of emotional abuse to the children and the mother’s allegation that the father has brought the children into contact with the father’s brother. Both considerations are relevant to this interim proceeding. The additional considerations provide vantage points from which the best interests of the children can be discerned and eventually determined.
Dealing with events chronologically, I will deal with the recordings of the telephone conversations between the children and their mother, between May and June 2011, and then with the evidence of the family consultant in relation to the supervised visit which occurred in the Court between the mother and the children on Monday of this week.
I have listened only to the father’s recordings of the conversations, because the mother’s recordings were not available to me, they having been returned to her when they could not be transcribed in the Court. The recordings are on 30 files, and run for a total of approximately 10 hours. I have listened to all of them. My comments are based on a careful consideration of all of the recorded conversations. I wish to mention, for the benefit of those judicial officers who may come after me, I considered that the recordings required to be listened to in their totality in order to do fairness to all concerned. It was only by listening to all recordings that one is able to appreciate repeated themes, emphases, and the reaction of the children over time.
The mother’s conversations with the children reveal the girls to be intelligent, loving of their mother, polite, tolerant and keen to engage the mother on topics of interest to her.
The earliest tapes in May 2011 were of conversations in which the mother was highly interactive with the children, and they with her. The conversations sounded normal and positive. Each child spoke to the mother for 15 or 20 minutes, and the mother spoke fluently about their school life, drawing on their history together, and on her experience as an educator. She is currently a teacher of Year 9 and Year 10 students in northern Victoria. Even the early conversations, however, were peppered with the mother not losing any opportunity to be critical of the father, or to have the children discuss and ponder his inadequate parenting, his personal weaknesses and her better relationship with each of them and understanding of them.
The mother is consistently effusive in her praise of each child’s ability to appreciate and analyse the behaviour of others, to an extent which is, in my assessment, somewhat beyond their years. The children obviously enjoy the mother’s positive attention. For instance, she says that they have exceptional and adult perspectives on life. However, my impression is that the mother then requires of the children that they also appreciate and accept her view of history, and her view of their current unfortunate predicament of living with the father. The mother’s perspectives, which the children are expected to, and largely do, adopt, are unremittingly negative of the father, his girlfriend, his family, of their current schools, and, in fact, everything that is not associated with her or which represents something in which she cannot participate.
During the conversations the mother implies that she is the only parent who appreciated their special attributes.
The discussions between the girls and the mother demonstrate the mother’s strong ability to engage the children in topics that interest them. However, my overwhelming impression is that the mother uses the topical subjects in her conversation to bide time until she can reintroduce the theme of being critical of the father. The import of the mother’s comments about the father is that the children should be able to identify how he is a substandard parent, not just inferior to her but unable to care for them adequately; that they are neglected in his care and accorded less importance by the father than, say, his girlfriend (about whom she is either critical or derisory).
The mother reinforces to the children that they are most unfortunately placed in the father’s household, and, whilst there, are missing out on a rich and fulfilling life with her and her family, and that the schools that they are currently attending are inadequate to their needs.
In summary, the mother’s propounded theme is, I am satisfied, destabilising and undermining of the current care arrangements for the children with the father. In the early stages of the recorded telephone conversations the children readily engage with the mother in a critical and negative assessment of the father, his household, their school, and they offer support to the mother’s view that she has been unjustly dealt with and agree that there is “no reason at all” as to why the girls have been removed from her care. Even at this early stage, I did not detect that the girls were actually comforted or obtained any solace from these conversations, but more so that they were compliant in what they perceived to be the mother’s need to talk negatively about the father and to have them recognise particular negative aspects to his parenting and personality.
In the more recent conversations of June 2011 my impression is that the children had much less interest in the mother’s preoccupations with the poor aspects of the father’s parenting. Whilst they were happy to talk about day-to-day matters, they were much less inclined to indulge the mother and to prolong those aspects of the conversation in which she invites them to join in her criticism of the father or to accept her overtures to rehash the familiar themes.
The themes that regularly arise in the telephone conversations develop from being, in the early stages, a negative view of the father to more recently include corruption within the court by the father’s lawyer, Mr Mulvany, and by the lawyers who previously acted for the mother and the father, as well as, of course, judicial officers such as Connolly FM and myself.
In the mother’s conversations with the children she accepts absolutely no responsibility for the current circumstances. She never once alludes to her unilateral move from Melbourne to northern Victoria as an explanation or justification for the court’s intervention and alteration of care arrangements. The mother states consistently, and with increased fervour, that there is no justification to separate her from the children, and that this is the first case “in the history of the court that it has ever occurred”. The mother is skilled in her dismissal of the enquiries from the girls such as “why don’t you get a lawyer?”, and “why don’t you come back to Melbourne?”
I am satisfied that the mother, in her conversations with the girls, misleads them by stating that she has done everything possible to re-establish her care of the girls. She pays no regard to or is dismissive of the following aspects of her case:-
i)her unilateral move to northern Victoria, which was the catalyst for the present proceedings instituted by the father;
ii)her refusal to return to Melbourne, which provided the context for the father’s residence application;
iii)her refusal to submit to a psychiatric assessment (unlike the father, who has done so);
iv)the mother’s rejection of the interim decision of Connolly FM for a change in residence and her failure to appeal the decision in spite of saying that she would;
v)the mother’s refusal, as at May 2011, to see the girls on a supervised basis, as provided for in the orders of Connolly FM;
vi)the mother’s refusal to participate in the counselling session with the girls on 20 May 2011, or with the father on 15 June 2011, the purpose of which was to gauge the girls’ reaction to the change in their parenting arrangements and to assist their wellbeing in that context.
The mother constantly invites the children to accept that they are the victims of a conspiracy directed primarily at her, but which involves them. She talks about them as the very unfortunate victims of the conspiracy with which she has to contend. She says she knows that there will be lawyers somewhere who will stand up for her and for them. There is no suggestion by the mother to the girls (or as I discern, anyone else) as to why she has been singled out as a victim of systematic injustice. However, community wide corruption and victimisation of her are at the core of her more recent conversations with the children.
Taken as a whole, the mother’s discussions with the children include repeated attempts by her to ignite and then fuel a sense of grievance in the children about everyone, including their teachers and friends and, really, anyone not aligned with her.
I don’t underestimate the difficulty of the mother communicating with the children only by telephone, when she has been their primary carer for some years after separation. Indeed, in the early conversations it is easy to admire the mother’s communication skills, her ability to engage with the children’s interests, and only the occasional interjection of her complaints and accusations against the father. As the conversations progress however, it’s apparent that the mother is less able to contain her grievance, and appears to seek at every available turn in the conversation to interject them, to the point that she seems to be focused on her own needs to talk about the father, the proceedings and the injustices, but not particularly interested in what the children are saying to her.
Her needs include directing the children to write to the independent children’s lawyer, and to tell the father to stop the proceedings immediately by instructing his own solicitor to that effect. She tells the children to write down their grievances, to tell everyone they can, to tell their psychologists, and to “hang in there”, a comment regularly used by her, which is clearly meant to convey that the children should be or are suffering.
I am satisfied that the girls’ acceptance of the mother’s point of view is likely to leave them feeling wretched, miserable, isolated and deprived. The mother’s message is that they should not trust the father and his family.
Recording number 28 was a conversation between the father and the mother. In this conversation, the mother adopts a similar intimate tone for the father as she uses for her conversations with the children, and which was, in all probability, how they spoke when they were in an intact relationship. The conversation is a useful window into her thought processes, and reveals some disturbing behaviour. She adopts a fairly intimidatory and vengeful attitude when she tells the father that she has disseminated material which will be embarrassing to the father to “thousands of people” whom he knows or who know of him. The mother says that she disseminated the material because she needs to attract a lawyer to act on her behalf, but in the same conversations, she says that she circulated material widely, including to a radio station. The mother describes a far-reaching web of conspiracy against her, to the extent that she has been singled out for unique treatment. She frequently says words to the effect of “this has never happened before”.
The father’s apparent means of coping with the barrage from the mother in this particular conversation was to resist being drawn into the mother’s maelstrom of ideas. He adopts a particularly low key response, asking for details of what the mother has published or done, but to no avail. Earlier recordings of conversations between the mother and the children also reveal disagreement between the mother and the father over the children calling the mother on her mobile telephone facility rather than a land line. The mother purposefully and, in my view, inappropriately told the children that the father had no concerns about incurring telephone costs at an increased rate. It is an issue which she allowed intrude on her telephone communication time with the girls. It portrayed the father to the girls as being somewhat mean and petty and punitive of the mother when, in fact, he was not.

The evidence of the family consultant, Miss L, about the recorded telephone conversations to which she had listened was consistent with my own impressions of all of the conversations between the mother and the children. Likewise she found that the father’s reaction to the mother in the recording numbered 28 was low key and indicated that he did not want to be involved. She agreed that these were techniques which, whilst useful for the father, were unlikely to be useful for the children, and wholly supported the proposal of the father and the independent children’s lawyer that the father obtain expert psychological assistance for the girls by way of therapy, and for himself by way of therapy and teaching him some necessary parenting skills to bring to bare on his fairly recent role as a primary carer.
The family consultant expressed the view that her significant concerns about the adverse effect on the children of the telephone conversation centred around the mother’s apparent lack of boundaries. She identified the subtle and not‑so‑subtle invitations from the mother for the children to collude in a criticism of the father as an ineffectual parent, and identified that the mother encourages the children to describe things that the father has done wrong, as well as aspects of the father, Ms X (his girlfriend), the children’s school and the paternal grandparents that fall far short of her and her family. I will order that the family consultant’s evidence be transcribed so that it may be read in full. I found the family consultant to be a clear and confident witness. I accept her evidence.
The family consultant identified that the mother’s conversations would lead the children to conclude that many individuals were not trustworthy, including the father, his lawyers and his family. The family consultant assessed the content of the conversations, generally, as being undermining of the father’s care of the children, with the overall effect that, even though the children enjoyed speaking with the mother, the telephone conversations were likely to deprive them of an ability to settle in the father’s household and make firm and stable connections with their school and peer groups.
The family consultant expressed the opinion that the girls had become attuned to the mother’s need to be critical to the father and were likely to adjust their reports to their mother in order to satisfy her needs.
All in all, the family consultant accepted that the girls may well be experiencing the negative reactions that the father says they experience following the mother’s telephone calls, and supported the father’s application to the court that the telephone communications cease immediately. In making this recommendation, the family consultant said that she was aware that the children will miss speaking to their mother, and may well worry about her, but that, on balance, the negative impact of twice weekly, or even once weekly, telephone conversations with their mother was having an adverse impact on the girls.
The family consultant’s description of the supervised visit between the mother and the girls on Monday 11 July 2011, was even more disturbing. The mother and the maternal grandmother attended Child Dispute Services. The family consultant observed the mother to appear anxious. In particular, the mother’s hands were shaking. She communicated with forced speech and appeared not to be focused on seeing the children.
At an early point, the mother indicated that she would not proceed with the supervised visit unless the maternal grandmother could accompany her, and unless the Deputy Manager of Child Dispute Services, Ms H, was excluded. This was apparently communicated to the father. The father’s response was to the effect that he thought that the children would be upset not to be seeing their mother, and was supportive of the counsellor’s persisting in an effort to get the mother to see the children. Eventually, the mother and maternal grandmother said that they would participate in the visit.
Whilst the mother’s early interactions with the children were quite appropriate and positive, the family consultant said that she had “an overwhelming sense that the mother was not child‑focused, and the mother took any opportunity to emphasise her position (in front of the children) that the children were not being looked after or were not happy”. The children were all very pleased to see their mother, but within about three or four minutes of the visit the mother began to talk to the children about the family consultants having “lied”.
The family consultant described how the mother “lined the children up against the wall” and asked them to confirm or to deny certain things, and likewise asked the counsellors to confirm or deny certain statements. The family consultant described the mother’s behaviour as being highly inappropriate. The family consultant said that S was trying to appease her mother, as was T, but to no avail. The maternal grandmother was not observed to be trying to moderate the mother’s behaviour at all. It is, in my view, significant that the maternal grandmother did not attempt to soothe the mother’s anxiety or intervene to control the mother’s behaviour and to protect the girls. It could not have been lost on the mother and the maternal grandmother that the interaction between them and the girls was being monitored by the family consultants.
At one point, the mother approached the family consultants, not within the presence of the children but, according to Ms L, in the presence of the maternal grandmother, and said to Ms L:-
“Are you happy, you child‑abusing corrupt bitch?”
The family consultant said that she observed that, when the mother was farewelling the children, the mother looked over the head of one of the children and whispered “child abuser” to the other family consultant Ms H.
The family consultant supposed that the mother might have been anxious about appearing at court or in the counselling section, and that her negative behaviour could escalate as a result of that anxiety. The family consultant expressed the view, however, that not even seeing the children face‑to‑face moderated the mother’s behaviour and that, on the contrary, the mother appeared to have no ability to self‑regulate or to protect the children from the distress that her behaviour caused them. The family consultant described the mother’s behaviour in front of the children and her comments about the father, and about the history of the matter, as behaviour which is “really undermining of their current care arrangements”. She expressed her worry “about the ability of an individual supervisor to be able to protect the children from that behaviour of the mother”.
In summary, the family consultant confirms her previous significant concerns about the mother’s ability to contain her behaviour in any supervised access environment. She assesses the mother as having little insight into the impact that her behaviour has upon the children, and little or no ability to restrain that behaviour when in the presence of the children.
Certainly from my comments on 1 July 2011 and the family consultant’s evidence the same day that she was concerned about the ability of a privately retained supervisor to contain the mother’s behaviour, the mother should have deduced that her behaviour during the time supervised by the family consultants could impact upon the viability of her being able to exercise any entitlement to have supervised time with the girls henceforth. The family consultant’s evidence leads me to conclude that the mother was unable to appreciate the inappropriateness of her actions or, importantly, the children’s distress. Alternatively, if the mother was cognizant of the girls’ distress, that she could not resist channelling her negative views of the father and the family consultants and the court system through the children at the cost upsetting the children. Likewise, the maternal grandmother missed the cues of her granddaughters’ distress or was prepared to prioritise the mother’s need to express herself over the emotional wellbeing of the girls.
In the circumstances, the family consultant said that she would not recommend any supervised time between the mother and the children implemented by a private agency, outside the context of a contact centre. That said, the family consultant said she had similar concerns about any time which could be spent in a contact centre as, even in that highly structured setting, the safeguards would be insufficient to protect the children from the “emotionally abusive” behaviour of the mother. The family consultant opined that she has “real concerns about anyone regulating the mother’s behaviour”.
The family consultant was cross‑examined by the mother to a limited extent. I found it necessary to reframe many of the mother’s questions, because they came in the form of speeches or included propositions of fact which were not accurate or were not accepted and were therefore unfair questions. The gist of the mother’s cross‑examination is that the children are missing her and suffering from being removed from her care.
The family consultant readily conceded that the children miss their mother, worry about their mother, want to see their mother and would prefer to live with their mother. However, the family consultant’s very real reservations about the mother’s mental health and what she observed to be the negative impact of the mother’s actual behaviour on the children was not shaken in cross‑examination. Also, it occurs to me that most of the matters which the mother raised, in relation to the harmful effects of the children being separated from her, were matters that the mother would have considered on 5 May 2011 and thereafter, when she refused to avail herself of any supervised face‑to‑face visits with the children.
My impressions from the evidence of the family consultant is that the children would be continuing to grieve the loss of their mother, which is a situation with which they have grappled for months now, and that the visit last Monday would have left the children with a real sense of the mother not coping well. I accept that there was some positive interaction between the children and the mother last Monday. However, the unpredictability of the mother’s inappropriate behaviour and the sheer force of her personality leads me to conclude that supervision in any form will be inadequate to protect the girls from harmful interactions with the mother. I accept the evidence of the family consultant that the girls have a pressing and immediate need to be able to settle in their father’s care, and that she has assessed the behaviours of the mother, in person and by telephone, as being destructive of that course.
I indicated to the mother that, in the event that she took issue with statements attributed to her by the family consultant, such as calling Miss L “child abusing, corrupt bitch”, or Ms H a “child‑abuser”, she should in cross-examination, put to the family consultant what actually occurred. The mother put questions which were consistent with the mother having referred to the family consultants as liars, but the mother did not did put to the family consultant that the words “child abuser” and “corrupt bitch” were not uttered as alleged.
I asked the family consultant to express an opinion, to the extent she was able to do so, on what the immediate to medium‑term effects would be for the children in the event that the regular telephone communication with their mother was to be continued. The family consultant said that she would expect that the children, but T in particular, would suffer significant mood problems, there would be impediments to her day‑to‑day functioning, and that the negative influence fed to her by the mother would have an adverse impact upon T’s ability to form relationships with her peers, and relationships generally, including with her father. It would impact on her performance at school and compromise her ability to assimilate into the school environment. Moreover, the mother’s attitudes, if adopted by T, would lead T to conclude that her paternal family was not safe and that she should disengage from her caregivers and that environment.
I discerned from the issues assessment of 20 June 2011 that the family consultant had, at that time and before listening to any recorded conversations, considered that repositioning and reducing the frequency of telephone communication might be sufficient to stem the negative impact on the children of the mother’s messages and their ability to settle into their life in the father’s household and at school. In response to my question, the family consultant was firm that all telephone communication should now cease and that supervision of time spent would be inadequate to insulate the girls from the mother’s destructive behaviours.
In the context of s 66(3)(a), I consider the views expressed by the children, and other factors such as their maturity and level of understanding, and am required to determine what weight should be given to the children’s views. I am satisfied that the view of the children would be that they want to see their mother, that they want their mother to receive fair treatment within the justice system, and that their preference would be to live with her. All of that is consistent with the children’s love of the mother, their alignment with her and the fact she was their primary carer from separation in 2008 until 2010. However, having regard to the abusive elements of the mother’s interaction with the children and the assessment by the family consultant of the harm to the children if they continue to be exposed to the mother’s behaviour, I do not accord the children’s views to be reunited with their mother very much weight as to the outcome. I do, however, have regard to the fact that they will be disappointed and sad at the outcome.
I take into account the nature of the children’s relationship with their parents and with other persons. I accept that the children are primarily attached to the mother. They are also comfortable with the father. They are not as comfortable with the father as they are with the mother. However, in some part that must be attributable to the attitudes expressed to them by the mother over the last year. The family consultant opined that because of the strength of the girls’ bond with the mother, the bond is not going to diminish because they do not get to see or speak with her. I accept that evidence.
I accept that the children have a close and loving relationship with the maternal grandparents and their extended family on their mother’s side. I accept that, for the time being, the children are probably more comfortable with the maternal side of their family than they are with the paternal side of their family.
I accept that the children have adopted a somewhat oppositional stance in relation to the father’s partner, Ms X, to the point that they perceive her to be a competitor for the father’s time and attention, as well as a much less capable mother figure than their own mother. I note, however, that in one of the telephone conversations, S refers to the father’s partner in reasonably complimentary terms to a friend.
I have considered the willingness and the ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent. I am satisfied that the father’s current opposition to the child spending time with or communicating with the mother is based on his genuine concerns about the mother’s mental health and the behaviour to which the children will be exposed in her care or whilst communicating with her. Having listening to the mother’s conversations with the children about the mother, I am confident that she is unlikely to permit the children to have a close and approving relationship of the father, or that she could, with any credibility, try to convince the girls otherwise.
In the context of section 60CC(3)(d), I have regard to the effect on the children of changes in their circumstances. In particular, the cessation of the telephone communication they currently have with the mother and the disappointment that they will not be seeing the mother face to face. I accept that the children will be upset and sad. I accept that the children have, for some months now, grieved the fact that they do not live with their mother. However, my impression is that what the girls miss is the mother that she used to be, rather than how she currently presents. That will not diminish the fact that the girls worry about and are concerned for her wellbeing. I accept that the girls need therapeutic support and consider the father’s acceptance of the recommendations in that regard to be positive.
I consider the capacity of each of the parents, and other people, to provide for the needs of the children, including the emotional and intellectual needs of the children. This is largely what this case is about. Having heard the evidence of the family consultant, I am satisfied that the mother is currently unable to recognise the children’s legitimate emotional needs and to act appropriately in their presence. On this interim basis it is compelling that the family consultant described the mother’s behaviour to the children on Monday of this week as “emotionally abusive”.
The mother raised her capacity to teach as proof of her capacity to parent. She stated that she teaches at “[a] Community College”. The recorded conversations contain references to Year 9 and Year 10 students. If the mother is holding down a teaching position at a secondary school in northern Victoria, she may be able to function rationally in that environment. However, at this interim stage, her behaviour in relation to parenting matters over the last ten or so months does not appear to have been rational or sensible or child focussed. There are many facts and allegations about which I cannot make findings. The mother is intelligent and high functioning. She speaks well. Her training as a teacher likely assists her in presenting and ordering her thinking on certain topics, like the father’s deficiencies and the corruption and conspiracies of which she says that she is the victim of. However, if at the final hearing the mother does not succeed in proving her allegations against the father and others, it will be difficult for her parenting case to be recast to achieve an outcome acceptable to her. I mention this now because, having set the matter down for final hearing, the time in which the mother can reconsider aspects of her case, like undergoing a psychiatric evaluation, is running out.
Based on the evidence of the family consultant, in relation to the maternal grandmother’s behaviour on 11 July 2011, I have no confidence that the maternal grandmother will act as a moderating force or influence on the mother. The family consultant said that the maternal grandmother did suggest to the mother that she sit down and remain calm, but that was after the children had left the mother’s presence, which was too late.
Pursuant to section 60CC(3)(g), I am required to take into account the maturity, sex, lifestyle and background of the children. I do this in a general sense as well as specifically, but would note here that the children are intelligent, eloquent, well behaved, polite children and that must, in large part, be attributable to the upbringing which they received from their parents and in particular the mother. The deficits which are now raised about the mother’s behaviour and parenting capacity are not necessarily of longstanding and it is in this respect that a psychiatric evaluation of the mother by Dr D may have assisted her position in this proceeding. The presentation of the children in their telephone conversations indicate that they have received significant and a high quality of nurturing in their young lives.

The mother alleges that the father has engaged in violent behaviour with women, in particular a woman at a service station. She alleges that he has killed seven family pets. I do not disregard these allegations. They are untested but even if true, they do not appear, from the deliberations of either of the psychologists who have been involved with this family on a reportable basis, being Ms M or Ms L, to be of equivalent importance to the disturbing behaviour of the mother vis a vis the children at the moment. I am satisfied that, on this interim basis, the children are not at risk of abuse from the father’s brother. The father’s household has no contact with his brother.
Each party seeks sole parental responsibility on an interim basis.
I am required to consider whether the presumption in section 61DA that equal shared parental responsibility is in the best interests of the children or to apply in this case. In my view, it does not. This is an interim proceeding and there is sufficient evidence about the mother’s behaviour being abusive and having a negative impact on the children, to lead me to conclude that the presumption in favour of equal shared parental responsibility cannot apply at this stage. Given the mother’s entrenched and absolute opposition to the father and his parenting of the children, it would be wholly unrealistic for me to assume that the parents could or should share parental responsibility at this point in time.
Having regard to the accepted need of the children to enter into therapy with a psychologist or psychiatrist, that it is appropriate for the father to have sole parental responsibility on an interim basis. This does not mean that, ultimately, the court will not be satisfied that the children would benefit from parental responsibility for them being shared between the mother and the father. At the moment however, emotions are very high. There is an enormous amount of tension between the parents, the mother is oppositional in the extreme to the father and I am satisfied that it is simply impractical for the parents to consult, consider and agree on major long terms decisions in relation to the children. Accordingly, I acceded to the father’s application for interim sole parental responsibility.
Because the father has sole parental responsibility on an interim basis, it is not necessary for me to consider whether it is appropriate or practicable for the care of the children to be shared. I think it goes without saying that in the circumstances of this interim application, it is neither in their best interests nor practicable for the care of the children to be shared. The mother unilaterally moved her residence hundreds of kilometres away from the children’s home in Melbourne and the father. Shared care is not feasible whilst the mother continues to live at this distance from the children. The emotional safety and general wellbeing of the children dictates that they need to live with the father and at this time have no communication or time with the mother. Likewise, substantial and significant time with the mother is not appropriate.
In the context of the final disposition of this case, I indicated to the parties that I may have some availability to hear this matter, finally, in the week of 24 October 2011. However, there is some doubt as to whether I will actually be in the Registry, in which case it would need to be reallocated. A firmer and more preferable date to me appears to be for the two weeks commencing on 21 November 2011, but not including Friday 25 November 2011, when I am unavailable to sit. The common estimate of the length of the hearing seems to be eight to 10 days and this would provide the parties with a hearing of nine days duration. Hearing this matter any earlier would see it be interrupted or adjourned part-heard.
There should be a family report prepared and it would be of assistance if that could be prepared by the time the matter is mentioned before me for directions in mid-October 2011. It is important for the family report writer, who is likely to be Ms L, to have access to any treating psychologists or psychiatrists of the children, the father and the mother. That said, there is nothing that leads me to believe that the mother is likely to seek any form of psychiatric care or psychological support between now and a final hearing.
I expect that the family report writer will have contact with the previous treating psychologists of the children (or any of them) or those with whom they came in contact through school. That will include Mr Z and A. The mother is very approving of Mr Z and, I discern, much less approving of A. These are psychologists in the employ of the school system. They should be able to give evidence about the presentation of the girls and parents historically. It would be of assistance to the court if the psychologists could be informed of enough of what has transpired over the last eight to ten months to be able to express a view on whether there has been an alteration or deterioration in the mother’s behaviour. That would involve them looking at the report of Ms M, the issues assessment of Ms L, a transcript of Ms L’s evidence and some of the recorded telephone conversations, in particular, number 28 between the father and mother.
On 24 March 2011, the mother swore and subsequently filed a very lengthy affidavit. The solicitor for the father has semaphored that he will object to parts of that affidavit. The mother says that the affidavit is her evidence-in-chief or her “trial affidavit”. If that is so, it means that there will be no evidence from the mother’s perspective of what has transpired since April 2011. In the recorded conversations, the mother says that she has sent out material in these proceedings to “dozens of lawyers” to try to get a solicitor to act on her behalf. I can not exclude the possibility that the mother might obtain legal representation and that some decision will be made by her then-lawyers about reliance on all or any of her previous affidavits. The father should not be put to the expense of having his solicitors prepare objections to such a long affidavit if the mother may elect not to rely upon it. Accordingly, I will require the mother to notify the solicitors for the father if she does intend to rely upon that affidavit. If she notifies them that she will rely upon the affidavit, they are at liberty to prepare their objections and run their case accordingly. If the mother does not notify the father’s solicitors that she proposes to rely upon that affidavit, then it is likely that she will not be permitted to do so, with the consequence that I will disregard that evidence at the final hearing.
I therefore impress upon the mother the need to abide the order in relation to notification about reliance on her lengthy affidavit.
Finally, I have not addressed the difference in the evidence which can be adduced in the financial proceedings as opposed to the parenting proceedings.
The parenting applications are proceedings to which the Less Adversarial Trial provisions of Division 12A of Part VII of the Act apply. Section 69ZT operates to exclude various divisions and chapters of the Evidence Act 1995 (Cth) which deal with general rules about giving evidence,[12] cross examination,[13] documents, hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character. However, the provisions of the Evidence Act still apply to evidence pertaining to the financial (non-parenting) aspects of the case. There is one legislative pathway for financial matters[14] and another very specific pathway for parenting matters but all evidence is received together. Understandably, difficulty can, and does, arise when, with the benefit of hindsight, evidence cannot be neatly categorised as pertaining to one set of proceedings or to the other.
[12] With the exception of ss 26, 30, 36 (s 69ZT(1)(a) of the Act refers).
[13] With the exception of s 41 relating to improper questions.
[14] For instance, see Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.
Section 69ZT(3) provides that, in exceptional circumstances, and having regard to various matters such as the importance, nature and subject of evidence, probative weight and natural justice, the Court can decide that certain excluded provisions of the Evidence Act 1995 (Cth) should operate in the proceedings. No party has made such an application to date. I would be reluctant to require the parties to incur the cost and inconvenience of two trials but will wait to see what transpires.
For the above reasons, I am satisfied that the orders that I have made are in the best interests of the children. That concludes the reasons for judgment.

I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 July 2011.

Associate:

Date: 19 July 2011