Newberry and Newberry (No 2)

[2014] FamCA 822

FAMILY COURT OF AUSTRALIA

NEWBERRY & NEWBERRY (NO. 2) [2014] FamCA 822

FAMILY LAW – CHILDREN – application to vary – where the mother is a witness of no credibility – where the parties engaged in a full trial approximately twelve months ago – where the mother has failed to take notice of the reasons provided then – where the mother was prepared to have third parties swear false affidavits in her case – where the mother was adept at falsifying documents – where the mother has consistently engaged in conduct likely to undermine the father’s parenting – s128 certificate – where the mother was negatively influencing the children’s perception of their father – where the papers are referred to the Attorney General.

FAMILY LAW – CONTRAVENTION – where the application for contravention and application to vary were heard concurrently – where the father asserts there was a reasonable excuse for any contravention – where that which goes to reasonable excuse is also that which goes to establish risk.

Evidence Act 1995 (Cth) s128
Family Law Act 1975 (Cth) s70NAE

APPLICANT: Ms Newberry

RESPONDENT: Mr Newberry

INDEPENDENT CHILDREN’S LAWYER: Bridges Family Law

FILE NUMBER: BRC 11190 of 2011

DATE DELIVERED: 12 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 26 August 2014, and 4, 5, 9 and 11 September 2011.

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bridges Family Law

Orders

1. Orders 6, 7, 8, 9, 10, 11, 12, 14, 15 of the Orders made 14 June 2013 (as amended 19 June 2013) are discharged.

2. The children shall spend time and communicate with the mother in the manner agreed in writing between the parents and, failing  agreement for a period of two (2) hours per fortnight outside school hours at QQ Contact Centre in Brisbane or, if the parties agree, at RR Contact Centre at the Gold Coast.

3. Each party forthwith do all things required of them by the Contact Centre to facilitate the commencement of supervised time between the children and the mother as soon as practicable.

4. Each party is responsible for any cost associated with any intake session required of them by the Contact Centre.

5. The parties share equally in the costs of the children spending time with the mother at the Contact Centre.

6. The children have the opportunity to communicate with the mother by way of letter and email with such emails to be sent to an email address provided by the father and the father have liberty to peruse such email/letters to ensure they contain only age appropriate communication.

7. The mother is at liberty to provide gifts to the children at a frequency of not more than once per month and the father is permitted to ensure that such gifts are age appropriate before the children receive the gifts.

8. The children communicate with the mother by telephone once per week, on Wednesday at 6.00 pm, and the father is at liberty to place the telephone call on loud speaker and supervise the call and terminate the telephone call in the event that the conversation is inappropriate.

9. The children communicate with the mother via Skype once per fortnight on the weekend during which the children are not spending time with the mother: on Sunday from 6.00 pm, with the father to supervise the Skype communication.

10. The mother shall be restrained and an injunction shall issue restraining her from approaching within 20 metres of the father or the children in a public place.

11. The mother shall be restrained and an injunction shall issue restraining her from attending at the children’s home, any school, day care, vacation care and before or after school care facility at which the children attend.

12. The mother shall be restrained and an injunction shall issue restraining her from contacting the children other than in accordance with the terms of this Order.

13. The father has leave to provide any psychologist or therapist of whatever nature upon whom the children attend with a copy of:

    (a)       this Order;

    (b)       a copy of the Reasons for Judgment delivered 12 September 2014;

    (c)       a copy of the Reasons for Judgment delivered 14 June 2013;

    (d)a copy of the report of Mr AB, Family Consultant, dated 16 July 2014.

14. That unless the father becomes physically or mentally incapable of parenting the children, the mother is restrained and an injunction issue restraining her from commencing proceedings seeking parenting orders at any time before 15 September 2019 without first obtaining the leave of the Court.

15. Any application by the mother for leave to commence proceedings seeking parenting orders must be served on the father but he is not required to participate in the hearing of the application for leave.

AND IT IS ORDERED BY CONSENT

1. The Applicant father Mr Newberry born … 1972 and the Respondent mother Ms Newberry born … 1977 be restrained and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of M born … 2006, a female, and L born … 2008, a female, and R born … 2009, a female, from the Commonwealth of Australia.

2. The children, M, L and R be and are hereby restrained from leaving the Commonwealth of Australia.

3. It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of two years.

4. Upon expiration of the period referred to in Order 18 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List. 

AND IT IS FURTHER ORDERED THAT

1. A Registrar of the Court forward:

   (a)a copy of the Reasons for Judgment delivered today; and

   (b)a copy of the Reasons for Judgment delivered by the Honourable Justice Kent on 14 June 2013; and

   (c)a copy of the affidavit material filed in relation to the Application for Contravention filed 29 November 2013 and the Amended Initiating Application filed 25 March 2014; and

   (d)a copy of the Exhibits,

   to the Attorney-General’s Department under cover of a letter informing the Attorney-General that I hold concerns in relation to the possible commission of a crime or crimes.

2. The Directions Hearing listed for 17 September 2014 before Registrar Brooks is vacated.

3. All extant applications are otherwise dismissed.

4. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION:

A.If after the expiration of the period set out in Order 18 above any parent seeks that the children’s names remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Newberry & Newberry (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11190 of 2011

Ms Newberry

Applicant

And

Mr Newberry

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The speed with which the Reasons in this matter are delivered reflects the Court’s level of concern about the impact on the children of the continued operation of the existing Order made in June 2013 by Kent J.  Given this, it is hoped that those hearing or reading these Reasons will excuse any infelicities of expression or inelegance of language and look, instead, to the underlying intent as reflected in my finding that a continuation of the June 2013 Order is not in the children’s best interests because spending time with the mother on an unsupervised basis will expose them to an unacceptable risk of both psychological and physical harm.

2. Should it be thought necessary, I incorporate those brief reasons, provided to the parties at various stages during the hearing, as providing an explanation for:

   a)the manner in which I have proceeded to determine the outstanding applications for contravention of, and variation to, the June 2013 Order; and

   b)my consideration of the principle identified by the term “the rule” in Rice & Asplund; and

   c)the source of power relied upon to make the Orders made today; and

   d)the evidence ultimately before me. 

3. Despite quite voluminous material, resplendent with significant detail, the issues requiring determination really can be summarised thus:

   a)did the father contravene the Order, in the period from July 2013 until December 2013, by failing to provide the children for overnight and holiday time at those times and in the manner provided for by the June 2013 Order?

   b)did the father contravene the Order from December 2013 onwards, by failing to provide the children for weekend, weekday and holiday time on occasions, and if he did, did he have a reasonable excuse for that action?

   c)are the children at an unacceptable risk of harm if they spend unsupervised time with the mother, such that the imperative of protecting them from the same requires the imposition of supervision over their time with her - even where such a result will have the consequences on the amount of time and their relationships, as adverted to by Mr AB, the Family Consultant, during the course of his cross-examination?

4. Being a liar does not, of itself, necessarily mean that someone is an incapable, unsuitable parent or one who poses such risk to children that their time with them should be supervised. 

5. What it does, however, mean- if established- is that the Court may well determine not to accept that parent’s account or denial of, or explanation for, behaviours toward the children alleged by the other parent, especially if those behaviours are not, of themselves, inherently improbable. 

6. The mother is a witness of no credibility at all.  She has been quite willing to prepare false documents for the purpose of attempting to obtain the proof mandated by the June 2013 Order.  Regard need only be had to her fanciful explanation of an apparent stranger’s involvement in contacting her, purportedly, when the children left the school in May 2014 to conclude that she is more than capable of completely fabricating an account which she thinks will assist her.

7. She has not cared who she has involved in her deception. She appears completely lacking in insight and uncaring about the potential impact on others of her subterfuge. Once armed with the protection of a certificate, issued pursuant to section 128 of the Evidence Act1995 (Cth), she was only too willing to accept immediately that the entire contents of an application for tenancy, which forms one of the exhibits, are false.

8. I cannot and do not accept any of her evidence, unless it is corroborated by other evidence.  I cannot and do not accept the contents of any written document upon which she has sought to rely unless it, too, is corroborated by other evidence, as she has shown herself only too willing, and too adept in creating false documents.

9. She is a witness for whom the giving of an affirmation, or the taking of an oath, means nothing. 

10. The Court does not support, or generally condone, the repeated recording of children.  However, the circumstances of this particular case make the father’s actions, in recording the children’s comments on occasions, understandable.  Unless I otherwise indicate, I accept the father’s evidence.  Given my definitive and unwavering assessment of the mother’s absence of credibility, I prefer his evidence where his evidence and that given by the mother conflict. 

11. I accept the evidence of Mr AB, the Family Consultant who interviewed the children and parties on 7 July 2014.  I also accept the evidence given by Dr BB, a psychologist, who saw all three children in about January this year and who has continued to provide therapeutic support to M and L.  I reject any suggestion her evidence should be discounted or ignored because she has not had any contact with the mother.  The particular relevance of her evidence is that it provides the Court with a snapshot of the impact upon the children of exposure to the mother on an unsupervised basis.

12. The parties participated in a six day parenting trial before Justice Kent in late May/early June 2013.  Each then sought the primary residence of their children, M born in 2006, L born in 2008 and R born in 2009. 

13. On 14 June 2003, Justice Kent made orders and delivered Reasons for Judgment.  The relevant provisions of the June 2013 Order may be summarised as follows:

    ·the children live primarily with the father, and he have sole parental responsibility for them.

    ·the children spend time with the mother each Tuesday and Thursday from after school until 6 pm, each alternate weekend, for half of school holiday periods, and on other significant days.

    ·the children’s overnight alternate weekend time, holiday time, and time during what I have termed the Easter celebratory days, not occur until the mother provided the Independent Children’s Lawyer and the father proof of her having permanent residence, the proof required being a copy of a tenancy agreement or lease, duly signed by the landlord, in her name as tenant, or, if in the name of another as tenant, accompanied by a letter from the tenant authorising the mother and children to live in the house.

    ·until the mother supplied the necessary proof of permanent residence, the children spend time with her each Tuesday and Thursday from after school until 6 pm and each alternate Saturday and Sunday from 10 am until 3 pm.

The current applications

1. On 29 November 2013 the mother filed an Application for contravention.  In it, she alleged that, on the dates and in the manner particularised, the father contravened the terms of the June 2013 order by failing to provide the children to spend time with her.  She later filed an Amended Application for contravention and in it, made allegations of a similar nature, asserting similar behaviour on the part of the father, on those dates and times particularised. 

2. On 25 March 2014, the father filed an Initiating Application (headed “Initiating application – amended”) seeking that the existing order be varied to impose supervision over the children’s time with the mother. 

3. The obvious consequence of acceding to the father’s application will be that the children’s time with the mother will be significantly diminished, as Contact Centres can usually offer no more than two hours per fortnight to any family.

4. On 4 April 2014, the Acting Principal Registrar ordered that the hearing of the application for interim orders sought by the father be listed before the judge before whom the mother’s application for contravention was listed.  The April 2014 Order contains the notation that the father would offer the mother time with the children each Tuesday and Thursday from after school until 6 pm, but otherwise contended he had a reasonable excuse for his non-compliance with the terms of the June 2013 Order.

5. On 23 April 2014, Registrar Brooks made procedural orders designed to ensure that each party was made aware of the other’s position in respect of the outstanding applications and that each file and serve all affidavit material intended to be relied on at the hearing of the respective applications in a timely manner.  This is particularly relevant, given the mother’s ongoing applications to rely on late-provided affidavit material, a request for additional time within which to obtain affidavits from proposed witnesses and the manner in which the same fell away as the hearing progressed.

6. On 15 May 2014, Benjamin J adjourned the hearing of the applications to 26 August 2014.  His Honour appointed an Independent Children’s Lawyer and ordered that a family report be prepared.  He also restrained the parties from issuing any subpoena to Dr BB, the psychologist to whom I have already referred, but gave the Independent Children’s Lawyer and the author of the family report leave to speak with her, on the proviso she tell them of any concerns she had about the appropriateness of entering into such discussions.

The manner in which the applications were heard

1. The parties first appeared before me on 26 August 2014.  Reference to the exchange between the Court, the parties, and the Independent Children’s Lawyer on that date, and again, on 4 September 2014, will reveal my rationale for proceeding as I have.  Neither the parties nor the Independent Children’s Lawyer took any objection to the course I proposed to take, and did take, to dispose of the outstanding applications on a final basis.

The competing cases

1. The mother says the father contravened the terms of the June 2013 Order when he failed to provide the children to spend time with her.  She also says, in essence, that the Court would not be persuaded he has established a reasonable excuse for any failures to provide the children.  Rather she asserts, he has acted as he has because he does not want her to be in, or play any part of or in, the children’s lives.  She says he sought the imposition of supervision over her time at the trial last year, at least initially, and following that event, determined deliberately to withhold the children, without reasonable excuse, in order to achieve - through his own actions - that which, in one sense, he failed to achieve before Justice Kent.

2. If her submissions are accepted and the Court concludes that the father contravened the order in the manner she alleged, she seeks that the children simply spend time with her in the manner ordered by Justice Kent.

3. The father contends he did not contravene the June 2013 Order during the period from when it was made until December 2013 because the mother failed to comply with the requirement imposed by Clause 7 of the same, such that he was not required to provide the children to spend overnight time with her.

4. In so far as there is any asserted contravention arising out of a failure to provide the children to spend day time only, he relies upon a reasonable excuse, as he does to deal with those contraventions alleged to have occurred post-December 2013. 

5. In essence, the father says he had a reasonable excuse for his decision to contravene the order by failing to provide the children on occasion because he believed, on reasonable grounds, his failure to provide them was necessary to protect their health or safety and the period during which they did not spend time with the mother was not longer than necessary to protect the same: that is, as I understand his case, he relies on s 70 NAE(5) of the Family Law Act.

6. The father asserts he acted to restrict the children’s time with the mother to protect them from ongoing exposure to her destructive and destabilising influence.  He suggests she did not really accept the outcome of the hearing before Justice Kent but set about a deliberate and systematic process of undermining his parenting of the children.  He advocates, as I understand his case - or at least the tenor of it - that she did so with the intention of effecting a change to the current Court-imposed parenting regime.

7. The father asserts that those matters upon which he relies to establish a reasonable excuse for contravening the June 2013 order are the same matters which will persuade the Court to conclude that the children will be at an unacceptable risk of psychological, emotional and physical harm if they continue to spend unsupervised time with the mother.

1. The mother opposes the father’s application to vary the terms of the June 2013 order by the imposition of supervision over the children’s time with her.  Her case remains that it is in the children’s best interests to spend time with her in accordance with the terms of that Order. 

2. The evidence establishes that the children’s visits with the mother commenced on 20 June 2013, that they first spent overnight weekend time with her on 27 July 2013, and spent additional time on 11 August 2014, 24 August 2013, and between 28 September 2013 and 6 October 2013. 

3. The evidence also establishes that M and L spent from 7 January 2014 until 27 January 2014 in the mother’s care, after she removed them from the ZZ Youth Organisation vacation care, and, further, that they spent time with her from 16 May 2014 to 18 or 19 May 2014, after she encouraged them to leave the school premises and meet her.  This is the event in the evidence in which a woman is purported to have called the mother, or communicated with her, to tell her the children had left the school.

4. The evidence also establishes, I consider, that the mother has consistently been late in returning the children to the father at the conclusion of time. 

5. I am persuaded that, since the June 2013 Order was made, it is highly likely the mother:

   ·has deliberately engaged in behaviour at changeovers which increases the children’s distress in returning to the father’s care;

   ·has either made derogatory comments about the father in front of the children, or in their presence or hearing, or has failed to take appropriate care to avoid exposing them to such comments;

   ·has permitted S, or failed to act to restrain or reprimand S, from making derogatory, negative, or undermining comments about the father in the presence or hearing of the children;

   ·told the children to tell their teachers that the father is naughty or bad;

   ·has told the children they cannot tell their father anything and, by that, has enjoined them to keep secrets from him;

   ·has told the children the father doesn’t love them or only pretends to love them;

   ·has returned the children to his care either without underwear or naked on occasions (including as recently as April/May of this year) and has undressed them and changed them at the entrance to the father’s home – actions which I consider highly likely to have contributed to the children’s distress and upset, or changed behaviour, on return to their father’s care; behaviour or actions which demonstrates a complete lack of appreciation of the likely impact of the same on the children.

6. Further, the mother’s behaviour in acting in this manner has also occurred on occasion when two teenage boys were present.  It was clear from her evidence, during cross-examination, that she could see nothing wrong with such behaviour. 

7. I consider, and find, that it is highly likely the mother deliberately told the children the father has not let them spend more time with her, or has failed to shield them from this view.  I consider it highly likely she has engaged in discussions with the father about whether the children could spend additional time with her, in front of them.  For example, I refer to the incident in which there was discussion about the organisation of a Halloween party. 

8. I also am persuaded that the mother has engaged in the action of asking the father that the children spend additional time with her after the time for their return has already passed.  I consider that the mother has either deliberately permitted the children to have, or failed to prevent them from having, access to court documents.  I am also persuaded that she was likely to have been a party to, or at least the creator of, a circumstance in which S felt it an appropriate course to convey to M that M was to take photographs of the inside of the father’s home. 

9. I accept that M told the father she took photos, even though she knew it was wrong, because the mother would get mad with her.  I consider this is a clear example of the mother’s ability, through her interaction with the children, or her failure to prevent others interacting with them, to have one of them – the eldest, M, who is clearly most effected by the current circumstances – acting contrary to a manner in which that child herself had already identified as being an appropriate course of conduct.

10. I am persuaded by the evidence that the mother has either deliberately or inadvertently told the children, or permitted them to hold the view, that the father is spying on her;  that he called the police about her.  I am also persuaded that it is more likely than not that the mother has told the children she wants them, or at least some of them, to tell the judge, the family report writer, or an adult involved in this proceeding, that they want to live with her.

11. I am also persuaded that it is highly likely the mother has asked the children, whilst with her, if the father has done anything bad to them.  I am persuaded that it is more likely than not that the mother has shown M, or permitted M to look at, documents, or has otherwise exposed her to the view that the father lied to Justice Kent, and/or that the proceedings and current parenting arrangement were such that the children were meant to be spending week about time with each parent.

12. I am also persuaded, on the evidence, that it is more likely than not that, on occasions, the mother has permitted the children to be driven in a motor vehicle, or motor vehicles, on occasions operated by unlicensed drivers and/or people not yet of an age lawfully to obtain a driver’s licence.

13. I am persuaded that, on occasions, the mother has deliberately sought agreement from the father that the children spend additional time with her in circumstances where the children were present, were aware that she was undertaking that course, and she knew – or ought reasonably to have known – it was highly unlikely he would agree.  I consider such an action deliberately exposed the children to a situation in which they were only too aware that it was the father who was a disagreeable or restrictive parent or the one who was acting to prevent them from spending additional time with the mother.

14. I am persuaded, on the evidence, that on an occasion the mother attempted to remove R from childcare by attending there without notice to the father.  I am also persuaded the mother acted to remove M and L from vacation care at ZZ Youth Organisation without notice and in circumstances where it is highly likely she had followed, or had someone else follow, the father, so as to be able to locate where the children were going.

15. I am also persuaded it is highly likely that the mother has either told M, or permitted M to think, that she could change her name (which was conveyed to M as having been picked by the father) if M formed the opinion that she wanted to do so. 

16. I am persuaded that it is more likely than not that the mother deliberately encouraged or directed M and L to leave the school premises on 16 May 2014 after the father had dropped them to school.  I am not in any way persuaded by her explanation of how it was that the children came to be in her care.  I reject completely the fanciful suggestion she was contacted by a stranger upon whom the children had approached with a request that that person contact her.

17. I am persuaded that it is more likely than not that, in about late May of this year, the mother provided M with a mobile telephone which was secreted into a stuffed toy which M took to the father’s home.  I am also persuaded it is more likely than not that the mother enjoined M to keep a secret from the father of - not only her possession of the telephone - the fact that she was told by the mother to use it to contact her or to contact her in what was described as emergencies.

18. I am persuaded it is more likely than not that the mother has, on occasion, deliberately, or through carelessness, exposed the children to her negative and uncontained views about the father.  I am also persuaded she has provided them, on occasion, with information about Court events and what has happened:  for example, after the last appearance or the appearance before Tree J on 18 March 2014.

19. I am also persuaded the mother arranged, on or about 13 June 2014, to collect M and L from school.  On that occasion, both children were stopped from leaving the school premises via the back entrance.  I am persuaded it is highly likely the mother deliberately encouraged M to run away from the school premises on 18 July 2014 and to approach her vehicle and that driven by an accompanying person.  I am also persuaded the mother secreted M in the car under a blanket.  The whole event, I am persuaded, occurred and unfolded in the manner described by the father in his affidavit material - I accept his account of it.

20. I accept and conclude it is more likely than not that the mother has told M, on more than one occasion, from early August 2013 onward, to tell friends and teachers that the father had touched her private parts.  I accept the father’s evidence of M’s accounting to him that the mother had promised her a computer and puppy if she told people this.  I consider this is consistent with the mother’s presentation to Mr AB during the course of the interviews for the preparation of the family report; it is also, in one sense, consistent with his recounting of her comment that she would “like” to believe the father had not sexually abused the children.

21. I do not accept the mother’s evidence that she did not make that comment to Mr AB.  I consider the evidence establishes that it is highly likely the mother had further conversations with M during the time M spent with her in January 2014 about the issue of the father allegedly touching her privates.  I accept the father’s evidence of M’s comments to him, in early February 2014, as set out in his affidavit material. 

22. I consider it more likely than not that the mother has deliberately recounted matters of a historical nature to the children in a manner which resulted in L recounting to Dr BB that the father has been responsible for certain injuries and/or scars when that is not, in fact, the position at all.

23. I am persuaded on the evidence that the mother has, despite the clear admonition contained in the Reasons for Judgment delivered by Justice Kent last year, continued to lie, misrepresent and manipulate other adults to support her in some way. 

24. I am also persuaded she has deliberately submitted at least one false application for tenancy - the document contains false details and she signed the name of a person she purported had witnessed it. 

25. I am well persuaded the mother has either encouraged or permitted the children to think, wrongly, that scars or injuries suffered by S in the past were caused by the father. 

26. I record that the evidence establishes that the children have been highly distressed, anxious and aggressive after spending time with the mother. For example, after spending time with her from 7 January 2014 until 27 January 2014, upon returning to the father, L told him she hated him and didn’t want to live with him.  When he greeted her, she spat in his face; she later said he lied all the time, was mean to S when she was little, was mean to all of the mother’s family and took all of her (the mother’s) money.  I accept the father’s recounting that L said the mother and S had said these things in her presence.  I also consider it highly unlikely that the father would have said such things to L. 

27. I also consider that L’s behaviour on that occasion appears to have been completely out of step with her usual behaviour. 

28. A further example of L’s disrupted behaviour was later - after 27 January 2014 - when she again spat at the father, slapped his face and hit him repeatedly on the chest, told him that she hated him, told him that he had lied to the judge and was mean to S and that she and her sister had to live with the mother. 

29. I accept the evidence of Ms N, the speech therapist who assists L, particularly in respect of her observations of L’s regression after the January 2014 time with the mother. 

30. I do not accept, as the mother conveyed to Mr AB, that the father’s refusal to accept - particularly in the period until December 2013 - that she had fulfilled the obligations imposed on her by the June 2013 Order was a disguise for his real motivation to undermine her relationship with the children.  I do not accept her contention that the claim he makes that the children are at risk of emotional and psychological harm whilst in her care is also a disguise or part of a motivation to undermine her relationship with them.  I do not accept the mother’s contention that she has not exposed the children to her negative views of the father. 

31. I reject the suggestion that the mother has not had the opportunity to influence them in the manner suggested by the evidence.  I reject the suggestion that the upset the children have demonstrated at leaving her is not causally related to her interaction with them.  I reject her assertion that she has not encouraged the children to say things to the father as outlined in his affidavit material.

32. I accept the father’s account that he arrived at a conclusion that continued time with the mother on an unsupervised basis in the manner prescribed by the June 2013 Order exposed the children to a significant risk of psychological harm. 

33. As I have already said, I have concluded it is highly likely that, during their time with the mother, she exposed the children to her negative views of the father and of his parenting of them and quite deliberately permitted them to start to form a view - as expressed by M - that he is bad or naughty.  These things are simply not made out on the evidence. There is no foundation in the evidence for any such conclusion. 

34. I accept the father’s evidence that the mother’s capacity to influence and/or manipulate the children is such that contact and time with her has rendered them emotionally disturbed.  I also accept, as I have already said, that the mother’s actions - for example, in undressing them at his home - do nothing to temper or dampen those expressions of emotion. 

35. I am not persuaded that the mother has, in any way, attempted properly to facilitate the children’s return to the father and their acceptance of the parenting regime implemented as a consequence of the June 2013 Order. 

36. I note that, when Mr AB spoke with M for the purpose of the preparation of the family report, he recorded she expressed a distinctly more positive perception of her mother than her father. 

37. I accept the children have enjoyed their time with the mother. For example,   M told Mr AB she enjoys her time, has not felt worried or scared with the mother and really wants to spend time with her.

38. I accept Mr AB’s evidence as to his conclusions and opinions about M’s presentation to him.  I also accept his evidence, during cross-examination, about his concerns when, having asked M if there was anything else she would like to be different and to say what she liked most about each parent, she replied she didn’t know if she, “has best things about dad because he yells and smacks us every day, and when I was five he touched me in the private.” 

39. I do not accept that, when M told Mr AB - as he records in his report -“that with daddy it’s a sad terrible life,” she was recounting accurately or correctly her current living arrangements. 

40. I accept Mr AB’s evidence that the mother’s behaviour in exposing the children to, and involving them in, adult issues, as I have already found she does and has, is reflective of her lack of insight.  I also accept his evidence to the effect that overcoming such lack of insight generally requires long term commitment to therapy - which may be difficult, given that a lack of insight may tend to lead to non-compliance and a non-recognition of the necessity to engage in such therapy. 

41. I accept Mr AB’s evidence that the reports made by M had a rehearsed quality, lacked context and were very narrow.  I also accept the information provided by M was provided in such a manner that it was highly likely she was repeating things heard.

42. I accept Mr AB’s evidence to the effect that it is highly unlikely for a child of M’s age to retain information, in relation to Court proceedings, she has encountered in a brief moment unless she is somehow embroiled and invited into the conflict. I find it is more likely than not she has been so embroiled and invited into the conflict by the mother. 

43. I accept Mr AB’s evidence that the cumulative effect of ongoing exposure to behaviours such as those I have already outlined could include the risk of the children rejecting their father; further, it has implications for their mental health in terms of self-esteem and anxiety in that children whose sense of self is interfered with usually, or may tend to, have a lot of anxiety which, of itself, can result in poor school outcomes.

44. I also accept Mr AB’s evidence to the effect that it may be appropriate that supervision of the children’s time with the mother to occur until the youngest child, R, is between the age of eight and ten years of age, at which time she would be likely better able to cope, as would the other children, with spending time with the mother. 

45. As I have said already, I accept the evidence of Dr BB, the psychologist who has seen the children this year.  On the first occasion she saw all three of them. She recorded that R appeared happy and content and showed no outward signs or concern.  I consider it more likely than not, however, that R’s age may well be responsible in that she is probably, at this stage, too young fully to appreciate the impact - or to take on board the impact - of the exposure to the mother’s comments and behaviour, as I have found is established. 

46. I note and accept that, when they attended upon her, both M and L conveyed to her that the father was stopping them living with the mother and that the judge was going to tell him off.  I also accept her evidence to the effect that those children frequently commented that the father was going to get into trouble from the judge; they also conveyed to her information supposedly contained in Court documents.  I accept the father’s denials of involving the children in any discussions about Court proceedings or showing them Court documents. 

47. I accept Dr BB’s account that the children had commented to her about being physically harmed by the father; they referred to injuries which they claimed he had caused which were not actually grounded in reality.  I accept Dr BB’s evidence that, on occasion, L told her that the mother told her of a particular event, whilst M said she remembered a particular event.  These are events that are said to have occurred when M and L were toddlers or very young. 

48. I also accept Dr BB’s evidence that, on occasions when the children attended upon her after spending time with the mother, she noted their behaviours to be significantly worse:  angrier,  they fought with each other,  were spiteful to the father and increasingly more hyperactive.  I accept Dr BB’s evidence that M and L reported to her, on occasion, that the mother had arranged for them to leave the school grounds and meet her. 

49. I accept her evidence that the children have not made similar negative statements about the mother.  I conclude that their failure to mention anything critical of the mother to Dr BB is indicative that the father is not denigrating the mother in his household.  I accept Dr BB’s evidence that the language the children use to her in many respects is not reflective of language likely to be used by children of their age and is often beyond their years.  I am persuaded that the mother has actively involved M in being deceitful and has colluded with her to encourage her to leave the school grounds. 

50. I accept Dr BB’s evidence to the effect that continued exposure to the mother and her behaviours, as I have found them to be, poses a significant risk of further opportunities for collusion and for the implanting of stories that are simply untrue.  I am also well persuaded that, when children are told that either of their parents have done something bad, at the ages that these children are, it is more likely than not that they internalise that information - I consider it more likely than not that such internalised information may well be reflected in disturbed behaviour. 

1. Whilst I accept, as Dr BB did, that irregularity of interaction with the mother has no doubt played a part in the children’s distress and disruption, I also consider it more likely than not that her own actions whilst they are with her (as I have already outlined) have contributed significantly to the distress they have suffered. 

2. I accept Dr BB’s evidence that the events and the detail provided by the children to her of past events were both too in-depth and detailed for the children simply to be making the stories up.  This evidence was given by her in response to suggestions by the mother that, in essence: couldn’t it simply be that the children were angry with the father and angry generally because they were not spending time with her or seeing her and they were simply making stories up?  I reject this suggestion completely. 

3. I accept Dr BB’s evidence that the children have told her they have seen documents and emails at the mother’s house which relate to the court proceedings. 

4. I also accept Dr BB’s evidence that the degree of information provided by the children to her, during the course of their interaction with her, indicates that their exposure to adult issues is not an occasional event, but quite frequent.  I also accept her evidence that it is unlikely that M was making up any of her reports because of the consistency and depth of reporting.  I consider it significantly harmful to the children that, according to Dr BB, they are reporting to her or putting together events which simply do not belong together. 

5. In this regard, I refer to the evidence relating to the horse incident and her evidence and concerns about the children reporting a distinct memory of events which occurred prior to them being of an age where they are likely to have been able to retain their own independent memory of an event sufficient to provide a basis for a factual recounting of it.  By way of further example, I refer to Dr BB’s evidence about the factual recounting of disagreements between the parents when the children were less than 12 months of age. 

6. I also note Dr BB’s report makes it clear that, when she first commenced her therapeutic relationship with the children, her initial view was that their relationship with their mother ought be preserved and supported.  I accept that, such has been her observations of the impact on the children of exposure to the mother’s unrestrained interaction with them, she no longer holds this view.  From her interaction with the children, Dr BB has reached the determination that the impacts on the children of spending unsupervised time with the mother are so significant that she proposed a six month moratorium over their time with the mother. 

7. I find that, during the period from the making of the June 2013 Order until December 2013, the mother did not comply with the requirement, imposed by Clause 7 of that Order, to provide proof of permanent residence in the manner mandated.  Thus, the obligation imposed on the father during this period was to provide the children to spend time with her each Tuesday and Thursday from after school until 6 pm and each alternate Saturday and Sunday from 10 am until 3 pm.  Insofar as the father failed to provide the children on any occasions during this period, I am satisfied, on the evidence before me, that he had a reasonable excuse for so acting. 

8. Insofar as the father failed to provide the children to spend time with the mother from December 2013 until the present date in the manner prescribed by the June 2013 Order, I am similarly satisfied - given the findings I have made about the mother’s behaviour and the impacts of the same upon the children - that he had a reasonable excuse for so acting. 

9. As the proceedings in which the parties are engaged are proceedings which are for parenting orders and the father’s application is to vary the existing parenting order, it is clear I may make such parenting order as I think proper. 

10. In doing so, I must have regard to the Objects of Part VII of the Act and to the Principles which underpin those Objects.  In deciding whether to make a parenting order – here, to vary the existing parenting order in the manner sought by the father and supported by the Independent Children’s Lawyer - I must regard the children’s best interests as the paramount consideration.

11. I must consider, therefore, whether there is a benefit to the children of a meaningful relationship with both parents: an affirmative finding of this does not, of course, depend simply on there being a lack of danger of physical or psychological harm arising from time or communication with the mother. 

12. Whilst the spectre of a complete cessation of the children’s time with the mother was raised during the course of the hearing, this consequence was not supported by Mr AB. 

13. Whilst it is not in dispute that the children want to spend time with their mother and enjoy that time, there remains a very real and unpalatable possibility that, if the mother’s future behaviour is not significantly modified, a time may come where the benefit to the children of having a meaningful relationship with her will be outweighed by the cost to them of ongoing interaction.  However, I note that no party submitted or sought orders to that effect at this point.

14. Given the findings which I have made, as recounted, I have reached the conclusion that the imperative of protecting the children from psychological or physical harm requires the imposition of supervision over their time with the mother.  I consider that, whilst this may well cause them some distress, the mother’s actions mean this is the only way in which the children will be able to settle fully into the father’s primary care and continue to have the opportunity to develop relationships with both him and the mother. 

15. I consider and find that the toll on the children - particularly M - at this point in time of continued exposure to the mother’s deliberate manipulation is such that it cannot be allowed to continue unchecked.

16. It appears the mother has seemingly learned nothing from reading the Reasons prepared by Justice Kent.  That is bewildering.  It suggests either a complete determination to continue unabated, or a complete inability to appreciate the impact of behaviours on the children and to change them, even when faced with the possibility of significant curtailment of the opportunity to interact and be involved in the children’s lives. 

17. I am, of course, cognisant of the likely impact on the children of a decision that their time with the mother occur on a supervised basis.  Not only will this bring with it an inevitable significant reduction in the amount of time itself, it will also mean that, for the very first time for these children, their interaction with the mother will occur within the confines of a Contact Centre and under the confines of supervision.  It will also restrict the children’s ability and opportunity to interact with S, their half sister.

18. I have concluded, however, that the mother’s manipulative skill is such that there is no other option.  Given that the mother has clearly demonstrated a significant ability to manipulate adults to join with her - to the extent that they have previously been prepared to place inaccurate accounts of events into affidavits - what chance do her own young children have to withstand her subtle pressures? 

19. I am conscious of the general concern about long term supervision orders.  I take into account and accept the evidence given by Mr AB in relation to the same.  I acknowledge that, because of its impacts upon children and their relationships with a parent - as outlined by Mr AB - such an order is often regarded as one of last resort. 

20. However, in this case, for these children at this time, their best interests mandate such an order. 

21. The imperative of protecting them from psychological harm cannot be underestimated.  The necessity to protect them from the significant risk of both short and long term psychological harm via continued exposure to their mother’s unrestrained and uncontained behaviour outweighs the impost supervision is likely to impose upon the development of their relationship with her. 

22. No party sought orders which would see the imposition of a moratorium over the children’s time with the mother.  I note, however, that Dr BB’s evidence was to the effect that the children would benefit from the imposition of a six months moratorium over such time.  It was also abundantly clear from Mr AB’s evidence that he did not support an order in such terms. 

23. Even had a party sought such an order, I would not have been persuaded, on the evidence, that it was in the children’s best interests.  The risks to the children from exposure to the mother’s behaviour - as outlined above - can be managed by the imposition of supervision. 

24. For R in particular, who thus far has not demonstrated the effects or impacts of such exposure, a complete cessation of time with the mother for a six month period would, it seems to me, be more likely than not to cause significant harm; particularly in circumstances where, as I have said, she has not yet demonstrated or exhibited any effects or impacts of exposure to the mother’s behaviour. 

25. Should it have been necessary, I would have preferred the evidence to Mr AB to that of Dr BB, noting however, as I do, Dr BB’s position as a therapeutic support for the children and the person from whom they have received such therapeutic support. 

26. I accept Mr AB’s evidence to the effect that he expected the children may well develop the ability to manage interaction with their mother in a self protective sense by the time R is about eight to 10 years of age.  I consider it is more likely than not that, by then, they will have had sufficient experience of the father’s parenting - and be themselves sufficiently emotionally and cognitively mature - that unsupervised interaction with the mother will not place them at an unacceptable risk of harm.  Such was the tenor of Mr AB’s evidence. 

27. When this evidence is combined with the appreciation that the children have already been involved in the preparation of family reports, I am persuaded that it is in their best interests for the Court to make an order that, absent the father becoming physically or mentally incapable of caring for the children, the mother should not be permitted to apply to vary the Order made today before November 2019 without first obtaining the leave of the Court. 

28. Such an order reflects my attempt to balance the necessity for the children to be protected from the costs of ongoing litigation between their parents whilst affording to the mother the opportunity, with leave, to seek to vary or have made an order different to that which I intend to make. 

29. I return to that with which I started:  to emphasise that the orders I intend to make today are not to punish the mother for her complete lack of veracity or any other fault but, rather, because they are, in my determination, those orders which will best ensure the children’s right to have a meaningful relationship with both parents and to be protected from harm. 

30. I am well persuaded, for the reasons I have expressed, that they are in the children’s best interests – for these Reasons, I intend to make orders in the following terms.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 12 September 2014.

Associate: 

Date: 22 September 2014