Pelham and Pelham (No 2)
[2019] FamCA 694
•19 July 2019
FAMILY COURT OF AUSTRALIA
| PELHAM & PELHAM (NO. 2) | [2019] FamCA 694 |
| FAMILY LAW – CHILDREN – With whom a child lives – Best interests of children – Where a Recovery Order was issued for the children the subject of proceedings before the conclusion of the trial in circumstances where it was in the children’s best interests – Where the mother maintains the allegations of physical, sexual and emotional abuse perpetrated by the father towards her and the children and submits the children should return to live with her – Where no corroborative evidence was adduced to support these allegations and a finding is made that they did not occur, save for a single incident of violence admitted to by the father – Where the father submitted the children should be able to spend time with the mother and that he should be required to liaise with her in relation to decisions concerning the children – Where the Independent Children’s Lawyer submitted the mother should spend no time with the children and the father is to retain sole parental responsibility for them – Where Orders made include that the children are to live with the father, that he is to have sole parental responsibility for the children and a six month moratorium is placed on any time the father my allow the children to spend with the mother. |
| Family Law Act 1975 (Cth) |
| Harridge & Harridge [2010] FamCA 445 M v M (1988) 166 CLR 69; [1988] HCA 68 N & S & the Separate Representative (1996) FLC 92-655; [1995] FamCA 139 W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892 |
| APPLICANT: | Mr Pelham |
| RESPONDENT: | Ms Pelham |
| INDEPENDENT CHILDREN’S LAWYER: | Sue Duncan |
| FILE NUMBER: | BRC | 3331 | of | 2018 |
| DATE DELIVERED: | 19 July 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 15, 16, 17, 18 & 19 July 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jordan |
| SOLICITOR FOR THE APPLICANT: | Parry Coates Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Lyons |
| SOLICITOR FOR THE RESPONDENT: | Stevenson McNamara Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Oakley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Sue Duncan Legal Aid Queensland |
Orders
That all previous Orders made in these proceedings be discharged.
That the children, X born in 2007, Y born in 2009 and Z born in 2013, (“the children”) shall live with the father.
That the father shall have sole parental responsibility for all decisions to be made in relation to the long-term care, welfare and development of the children.
That the children shall not spend any time with the mother for at least six (6) months from the date of these Orders and, thereafter, only with the father’s written consent or in accordance with another Order of this Court.
That the children shall not communicate with the mother by telephone, text message or email for at least three (3) months from the date of these Orders and, thereafter, only with the father’s written consent or in accordance with another Order of this Court.
That pursuant to s 121 of the Family Law Act 1975 (Cth) leave be granted to the father to provide copies of the reports of Ms R and Dr H, the ex tempore reasons for judgment given on 18 July 2019, and the ex tempore reasons for judgment of today, to any counsellor or psychological therapist he engages with therapeutically or to whom he takes the children for counselling or psychological therapy.
That pursuant to s 121 of the Family Law Act 1975 (Cth) leave be granted to the mother to provide copies of the reports of Ms R and Dr H, the ex tempore reasons for judgment given on 18 July 2019, and the ex tempore reasons for judgment of today, to any counsellor or psychological therapist she engages with therapeutically in the future.
That the mother be restrained from approaching the children, going anywhere near any home in which the children are living, going anywhere near any school the children are attending or communicating with the teaching or administration staff of any school the children are attending, without the father’s written consent or in accordance with another Order of this Court.
That the father be permitted to provide a copy of a sealed copy of these Orders to the Principal and administration of any school the children are attending.
That the Independent Children’s Lawyer be discharged.
That pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pelham & Pelham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 3331 of 2018
| Mr Pelham |
Applicant
And
| Ms Pelham |
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
This Court is being asked to make a parenting Order in relation to three subject children: X, born in 2007; Y, born in 2009; and Z, born in 2013.
Pursuant to s 61D(1) of the Family Law Act 1975 (Cth) (“Family Law Act”), a parenting Order confers parental responsibility for a child or children on a person but only to the extent to which the Order confers on the person duties, powers, responsibilities or authority in relation to the child.
Pursuant to s 61D(2), a parenting Order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent, if any, expressly provided for in the order or necessary to give effect to the order. Section 61C(1) of the Family Law Act expressly confers parental responsibility for a child who is not 18 years of age on each of the parents of that child. Section 61DA(1) of the Family Law Act imposes the obligation on this Court, when making a parenting Order, to apply a presumption that it is in the best interests of the child or the children for the parents to have equal shared parental responsibility for that child or children.
A parenting Order conferring equal shared parental responsibility for a child on both parents imports, through the provisions of s 65DAC of the Family Law Act, the statutory obligation on both parents, when the exercise of parental responsibility involves making a decision about a major long-term issue in relation to the child, to consult the other parent in relation to the decision to be made about that issue; to make a genuine effort to come to a joint decision about that issue; and, most importantly, to actually make that decision jointly. The corollary of that is that if the decision cannot be made jointly, then it cannot be made at all by one of the parents acting alone or unilaterally.
However, pursuant to s 61DA(2) of the Family Law Act, the presumption set out in s 61DA(1) does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. If the presumption does not apply, the Court may make such order as to parental responsibility as it considers to be in the best interests of the children.
Even if the presumption is not displaced by a finding of abuse or family violence, the Court still has the discretion not to make an order conferring equal shared parental responsibility on both of the parents if it considers that it is not in the best interests of the children to do so. If, however, an order is made giving the parents equal shared parental responsibility, then mandatory consideration must be given to the question of whether the children spending equal time with each of the parents would be in their best interests and also to the question of whether the children spending equal time with each parent is reasonably practicable: see s 65DAA.
If the Court does not make an order for the children to spend equal time with each parent, then, if parental responsibility is shared equally, the Court must then give mandatory consideration to the children spending substantial and significant time with each parent. If an equal shared parental responsibility order is not considered to be in the best interests of the children, then the orders providing for which parent the children are to live with and how much time they spend with the other parent and in what circumstances that time is spent, are determined by this Court having regard to the paramountcy of the children’s best interests.
Where the evidence that is before the Court in parenting orders proceedings includes allegations that a parent has sexually abused a child or children, determining those allegations is but one aspect of determining the proper parenting orders to be made. The High Court of this country has made it clear that this Court is not required to determine either that the alleged sexual abuse did actually happen or that it did not actually happen, but rather that this Court has a duty, in such cases, to determine and make such orders as, in the opinion of the Court, will best promote and protect the interests of the child; see the case of M & M (1988) 166 CLR 69, 76; [1988] HCA 68 (“M & M”). The High Court observed that in doing this, that is, determining the proper order to make in the best interests of the child:
The Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access –
– I add, as were the terms used in the legislation, the Family Law Act, at the time the High Court handed down its judgment in M & M –
but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.
In M & M, the High Court also relevantly observed that:
The resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The judges of the High Court said:
The ultimate and paramount issue to be decided in proceedings for custody of or access to a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
The High Court judges’ reference to the paramount issue which this Court is enjoined to decide is reference to the statutory requirement that the Court’s task in determining the proper parenting orders to make in respect of any child is to be undertaken by this Court with mandatory regard to that child’s best interests being the paramount consideration. In that respect, the Family Law Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests. They are set out in s 60CC of the Family Law Act.
As is well-known, at least to those legal practitioners sitting at the bar table in this Court, each year this Court hears very large numbers of parenting cases involving allegations of sexual abuse alleged to have been perpetrated by one parent against children. In the eight and a half years that I have been a judge of this Court, I have, as you might expect, heard and determined very many such cases. Despite that, in deciding each and every individual such case I consider that it is always still worth reflecting upon the seriousness of the central issue: the factual determination about allegations of sexual abuse. Fogarty J, a former judge of this Court, said in his judgment in the Full Court decision of N & S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139 (“N & S”) that:
It is difficult to overstate the importance of protecting children from sexual abuse and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long term, can be devastating.
I am certain that that statement remains “as poignant and relevant” today as the Full Court of this Court said it was in their judgment 14 years ago in W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892 (“W & W”). However, I hasten to observe that the High Court judges went on in their judgment in M & M expressly to say the following:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof with due regard to the factors mentioned in an earlier High Court decision of Briginshaw & Briginshaw.
In that case, Dixon J, as he then was, said this:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters –
His Honour said –
reasonable satisfaction should not be produced by –
and I emphasise –
inexact proofs, indefinite testimony, or indirect inferences.
Relevantly, their Honours continued and said:
In resolving the wider issue, the Court must determine whether, on the evidence, there is a risk of sexual abuse occurring if custody or access be granted, and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.
The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account into deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
The test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
I add here to that, that the same is said if that would expose the child or children to an unacceptable risk of emotional or psychological abuse, and I would add to that, even if it would expose the child or children to an unacceptable risk of physical abuse.
This has become known as the “unacceptable risk” test. It was discussed further by the judges of the Full Court of this Court in W & W, who said:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard on the balance of probabilities that abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required, in a case where sexual abuse allegations are raised, to consider whether abuse has been proven on the balance of probabilities, as well as considering whether or not an unacceptable risk of abuse exists. The High Court, in M & M, recognised the difficulty in defining with any degree of precision what constitutes an unacceptable risk, and the cases determined after that decision testify to the difficulty. However, the questioned posed by Fogarty J in N & S do provide a structure or framework which may assist a trial judge to assess future risks to a child.
At paragraph 105 of that judgment, the Full Court judges, referring to that earlier judgment of Fogarty J in N & S, said:
Fogarty J discussed the question of what is meant by the term “unacceptable risk”, and he reviewed earlier authorities, concluding that it is inevitable that courts will have to make some effort to quantify the relevant risk. He then said, “In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations?
To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child or children? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?”
Murphy J also discussed the question of risk assessment in his judgment in his single-judge decision of Harridge & Harridge [2010] FamCA 445. Having referred to N & S¸ his Honour proceeded to adopt the following list of inquiries in relation to risk assessment:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
With respect to Murphy J, I also consider these useful questions to consider in the process. Having said all that, I now turn to the central, if not decisive, issue in this case; that is, the mother’s allegations that the father has sexually abused the children.
In giving these ex tempore reasons this afternoon, I also refer to and incorporate all of those ex tempore reasons that I gave in my oral reasons yesterday for the Recovery Order that I made on Tuesday evening. In those reasons, I set out much of the chronology and history of this case, which I do not intend to repeat in the delivery of these reasons. I say this, and I acknowledge and expect that it is probably already understood by everyone in the courtroom, but I am satisfied by all of the evidence that I have read, seen and heard in this trial and by my observations of the father and the mother in this courtroom over the last five days that the father did not sexually abuse the three children of their marriage, as is alleged by the mother.
I am satisfied that the father did not physically, sexually or financially abuse the mother in way that she has alleged in her case. I am satisfied that the father did not expose the children to any sexual activity between him and any other person at any time during the length of the relationship between the mother and the father, during which the children were alive and old enough to understand or have some understanding of such things if they were observing them.
I am equally satisfied that the father did not drug the mother and have sex with his own grandmother. I am equally satisfied that he did not have sex, non-consensual or consensual, with his mother-in-law, the mother’s own mother, as she alleges, although I note that, during her counsel’s submissions, there seemed to be an apparent withdrawal of the assertion that that had happened. I am equally satisfied that the father did not have sexual relations with any of his neighbours, or any of the couple’s friends, or any of the mothers of children who went to prep or school with the children of the mother and the father, as is alleged by the mother. In short, I accept all of the father’s evidence of denial of each and every one of those allegations made by the mother as honestly given by him.
It follows that I do not accept that the many matters of fact that the mother asserts happened actually did happen. I do not accept her assertions that the three children were sexually abused by their father, and, though the father has already and always readily conceded and admitted that on one occasion he – and this is a description I offer – disgracefully punched the mother in the mouth in a fit of anger, I do not accept the mother’s assertions that he attempted to kill her in many and varied ways throughout their relationship. I do not accept and categorically reject her assertions that the father tried to get the children, or at least one of them, at some time, to kill her.
I do not accept and categorically reject her assertions that he had some sort of language code between him and the children that would enable him to give a command in code to one or more of the children to act on his instructions to physically harm or try to kill their mother. As I said in yesterday’s reasons – and again I refer to the opinions expressed by Dr H, the psychiatrist who examined and assessed both of the parents – many of the mother’s allegations have a particularly bizarre quality to them.
Indeed, as Dr H said, and I adopt his expression, many of the allegations made by the mother, the accounts given by her, are simply “un-understandable” to the ordinary, reasonable person. Indeed, I also refer to and accept the opinion of Dr H that, indeed, the mother’s account of just how she reacted and responded over time to the acts of abuse she says she observed and experienced herself is completely “un-understandable” and, I add, not credible. I observe, at this point, that the mother has not been able to put any corroborative evidence in affidavit, oral or documentary form before the Court to support her claims.
The proposition put to her by Mr Jordan of counsel, who appeared in the trial for the father, that she had not produced – to use his words – “one iota of evidence” to support her assertions is, indeed, an accurate proposition. This, I have to say, is in circumstances where there would be, on her case, if it is true, cogent corroborative documentary evidence in existence that she could have found and adduced into evidence before this Court. Indeed, I note at this point that on at least five particular issues or parts of her case, her claims, her evidence was clearly and obviously disproven with evidence produced or adduced in the trial.
Those include her evidence about her contact with the DV Connect emergency assistance line on Friday, 2 March 2018, where she told the Court that during the course of that telephone communication with DV Connect, the person at the other end of the telephone, acting in the emergency contact capacity, informed her that their use of technology told them that the father was on his way home at that moment with intent to kill her and that she needed to get herself and the children out of that house as quickly as possible.
There was evidence called from a person whose capacity and experience and position I accept would enable her to know whether, indeed, that would have been said to the mother, and I am satisfied that it would not have. I am satisfied that DV Connect does not and did not at the relevant time have that technological capacity. It is completely understandable that they would not, when one thinks about it as a matter of logic, at least the second part of what I am about to say – have that capacity at their fingertips and at their ready to be able to advise someone that they are talking to at the other end of the phone that a named person is on their way home with intent to kill.
Whilst they might, one day, potentially have the capacity to determine the whereabouts of a named person by the triangulation of their telephone and the GPS data that goes with that, they would hardly have the technological capacity at their fingertips to determine someone’s intent at a particular time.
Secondly, the mother asserted that on three separate occasions she made emergency 000 telephone calls to the police – twice on the one day, 25 March 2017, to report, she says, the rape of their daughter by the father, which she says she observed the night before. Another occasion, she says she made a call to 000 when she had, I think, from memory, the day before witnessed or observed the father raping their son, Y, anally whilst he was on all fours in front of him.
She produced absolutely no evidence of such 000 calls and accepted without argument the proposition put to her by counsel for the Independent Children’s Lawyer that the Independent Children’s Lawyer had contacted police, who had searched their records of 000 calls for 25 March 2017 and found no record of such a call having been made to them that day about the alleged rape of a female child the evening before. Indeed, the evidence the mother gives of the alleged police response to her during those three 000 calls is unbelievable, incredible, and I reject it as untruthful. By that, I mean I do not accept that it is the truth of what happened.
Thirdly, the mother gave evidence about events that happened on Saturday, 25 March 2017, outside her house on the driveway, involving her neighbours, a couple whose names I do not need to say at the moment. In short, that evidence sounded incredible when first heard. I indicated to the legal representatives for the father that I required them to locate and make available to the Court those neighbours to give evidence about what was alleged to have occurred that day. They did, all the way from Switzerland, where they are currently spending time, and each of them forcefully denied any knowledge or memory of the matters that were asserted by the mother that had happened that day.
They were cross-examined by the mother’s counsel, who put all the allegations to them in accordance with the mother’s evidence, and I understood and appreciated their responses to be responses of incredulity. I detected no dishonesty, no avoidance of answering, nothing in the way they answered the questions that would make me think that they were not telling the truth about what happened that day. Acceptance of their evidence as completely truthful has the consequence of completely disproving the evidence given by the mother and the need to reject it as completely false and not representational of anything like the truth.
Fourthly, the mother said that when she was speaking to Detective G of the City M Child Protection and Investigation Unit of the Queensland Police Service on or around 11 April 2018, when she took X, their daughter, to the police to be interviewed for the second time in two weeks about allegations of sexual abuse, she informed Detective G that she had also observed the father rape their son, Y, and sexually abuse the other boy, Z, by fondling his penis when he was reading a book with him.
Detective G was served with a subpoena that I gave leave to issue at short notice, at the application of the counsel for the Independent Children’s Lawyer. Detective G gave oral evidence over the phone from Town M. He denied that the mother had told him about allegations of sexual abuse against the boys and I accept his denial. In fact, I am satisfied that the first the allegations of sexual abuse against the boys emerged was at a later date, in between the first court appearance which was in front of Judge Egan in the Federal Circuit Court in May or June 2018 and a second court appearance before Judge Coates in late July 2018. Again, I reject the mother’s evidence as false.
Just finally, before the mother knew that Dr J, her GP in Town N, was going to be called to give evidence, she told the Court that she had provided Dr J with Dr H’s written report and that they had discussed it and Dr J had assured her that there was nothing to worry about, that there was nothing wrong with her. Dr J was called and gave evidence. She told the Court that she had received a copy of Dr H’s report, sent to her by email by the mother. She had only read a portion of it, which was the beginning of Dr H’s curriculum vitae, which alerted her, she thought, to the fact that she should not be reading such a document and she did not.
She said she had a conversation with the mother that simply went to:
Have you seen Dr H’s report?
Yes, I have received it. Have not read it, except that little bit at the start.
and then:
He thinks I am crazy. Do you?
No, I do not think you are crazy.
Again, this disproves the assertions made by the mother to a significant degree, in respect of the evidence she gave about that, further fortifying me in my satisfaction as to the central issue; that is, my satisfaction that the father positively did not sexually abuse these children.
I refer to, again, the recorded interviews of X, by two different police officers over a couple of weeks shortly after separation of the parties in late March and early April of 2018, the one recording of Y, taken at around that time, as well. I refer to documentary written recordings, effectively, of departmental Child Safety Officers’ interviews with Y and X later in 2018, the content of which were recorded in departmental notes that were produced under subpoena. I observe, in that respect, the Child Safety Officers met with Y and interviewed him at his school, well and truly in the absence of the mother, but met with X at the home, again, in the absence of the mother, and discussed matters pertaining to the allegations of sexual abuse against the children and, generally, their attitude and feelings towards their father.
In all of those interviews, there were no disclosures of any sort that would even give one cause to think that there was some potential for sexual abuse to have happened. In addition, these children have been seen regularly, over a long period of time, since they have been living in Town N with their mother, by trained people, or a person, whose name I recall to be Ms S who comes to the household and talks to the children. She comes from a non-governmental, non-profit organisation known to all of us in this sphere as T Services formerly the V Services, an organisation that has been doing this sort of voluntary, non-government, non-profit work since as long ago as 1988.
She had been specifically tasked with talking to the children about protective behaviour. She, or other officers of the organisation or an organisation like it, have been tasked with checking out the household and seeing that everything is going okay there. There has not been a disclosure by any of the children about anything inappropriate that their father has done recorded by Ms S or any other person that has been seeing them ever since. In addition, no disclosures have been recorded by the General Practitioner Dr J, who the children have been going to and seeing in Town N.
So the Queensland Police Service, through a number of different officers involved in the investigation and not even related to each other, and I mean by that, one in Brisbane and later, one in City M, determined that there was no case made out against Mr Pelham, the father, and that there would be no point in charging him. I add to that, they decided that it was not even a case meriting seeking him out and interviewing him, as happens in many of these sorts of cases.
Additionally, as I think I mentioned in yesterday’s reasons, Detective G did not even consider it necessary to interview the boy, Y, after he had interviewed X, notwithstanding the fact that the mother had told Detective G that when she observed the father having sexual intercourse with X, she also saw Y standing there in the doorway, observing what was happening. The police officer was so unconvinced about the need to ask Y any questions that he decided it would be inappropriate to interview the boy about it.
The Department of Child Safety, however, after they interviewed the children later in the year, having by then received the mother’s allegations that all of the children had been sexually abused by their father, appropriately and responsibly also sought out and interviewed the father in Brisbane.
I have read the account in the documents produced by the department of that interview, and I say nothing in that causes me to deviate one iota, if I can use that expression, from the satisfaction that I have already arrived at in respect of the father being completely clear of any allegations of sexually abusing the children.
So, this case comes down to this. The mother is simply saying, “this is what I saw, this is what I experienced, believe me.” Unfortunately for the mother, I do not. As I have said, I reject the evidence she gives as representational of actual events that occurred.
So, that leads me to consideration of the next question of importance. Are these allegations, as bizarre as many of them are, that I have completely rejected as representational fact, stem from delusional memory attributable to some sort of mental illness or even physical illness, or are they the product of conscious, wilful and malicious lie?
I acknowledge, respectfully, the oral submissions made by Ms Oakley about this earlier today, and I say, at this point, many of those submissions I accept as reasonably based.
Particularly, I acknowledge that the chronology, as I pointed out yesterday and as Mr Jordan pointed out and took me through to some degree again today, suggests that prima facie the mother has, on occasion, as she became aware or increasingly aware of not being believed in respect of the allegations she was making, ramped up the seriousness and significance of the allegations.
That in itself is, I acknowledge, consistent with lying and making them up wilfully to try and achieve tactically that which she seemed to be realising she was not achieving up to that particular point in time.
I also point out and acknowledge, as I have already observed openly in discussion between bench and bar earlier today, what I say I have observed as a lack of congruence between what might be belief, on the one hand, of the allegations and the seriousness of them, no matter how bizarre, and her emotional affect and emotional responses, particularly during the course of her cross-examination and particularly during the course of this trial.
Frankly, from where I sit, I would have to say her emotional affect just simply did not sit with and appear to be consistent with a person who truly and genuinely believes all of the allegations that she has put before the Court.
However, I acknowledge at this stage, having heard the submission from Ms Lyons of counsel, who appeared for the mother, that the lack of congruence in emotional affect and genuine belief, may very well be a symptom of a psychosis or a mental illness, in any event.
On the other hand, I have and acknowledge the opinion of Dr H, who was retained as the expert in the case to examine, interview and assess the mental health of the parties, and to offer his opinions.
Dr H, for those who do not know who are in the courtroom, is a very experienced, often-used psychiatrist in these sorts of cases. He does not come to this case with any lack of background or experience in doing what he was required to do in this case. He is respected. He is a doctor whose opinions it would take much for me to reject.
With all due respect, and I say that with all due respect to Ms Lyons and her instructing solicitor, and also to the mother, in this particular case nothing causes me to reject the opinion of Dr H in this case.
Particularly, he pointed out, and I am conscious of and accept, the absolute bizarreness of many of the matters that the mother believes, most particularly, and I point to the one that I raised with the mother’s father today, the allegation that she made that she had fainted or collapsed in a car park, that the father had run over her head in a four wheel drive or in a car/truck, that he had then got out and kicked her in the head several times with steel-capped boots.
Her belief is that she suffered at least three fractures of the skull in that event, again, which she said was acknowledged to her by Detective G, which he denied and knew nothing of. The mother said that she was put into the car, in the state that she would have been in after being run over and kicked in the head by someone. She said that her son Y was with her in the front seat. She then was told to go home, and no one sought medical assistance for her.
She said she was lapsing in and out of consciousness on the way home. She remembers Y telling her to avoid another car that was on the road, beside and in front of her, and she said she has memory of Y leaning over and steering the car, while she was lapsing in and out of consciousness.
It is difficult to accept that a person lapsing in and out of consciousness could still have their foot firmly planted on the accelerator, or be able to use the brakes. So the bizarreness of what the mother has alleged in that circumstance is easily identifiable, and I simply point to the fact that her own father agreed that that was difficult to believe when those factual circumstances were outlined to him.
Furthermore, Dr H expressed the view that it appeared to him that the mother actually believes the things that she was saying, and I have observed, during the course of this trial, her apparent steadfast holding on to that belief or, at least, her apparent steadfast holding on to the expression of that belief.
I have to say that, having regard to everything that has transpired this week, having regard to the evidence I have heard about the mother being told in the lead-up to this trial, “Expect to lose your children”, having regard to the fact that the views expressed by Dr H in the report and the treatment he said the mother would need to attend to, which she seemed to have some understanding of, having regard to Ms R’s recommendation in her Family Report of last year that the children should be placed in their father’s fulltime care with the mother only having supervised contact, and having regard to the mother’s steadfast clinging to, at least, the expression of belief of these things in itself is difficult to understand as the actions of a rational and psychologically healthy person.
Even in the face of the clear outcome of the case as it emerged during the course of the week transpiring, I have to say her apparent clinging to the steadfast expression of belief, which I even observed during submissions in her body language, makes it difficult and, really, impossible for me to conclude that she does not have some sort of mental health disorder and that these allegations are all attributable to a malicious and wilful lie.
Indeed, having regard to Dr H’s evidence and his reference to the need to exclude an organic cause, and then, once that is excluded, a longitudinal psychiatric assessment to consider schizophrenia as a possible option or, alternatively, a delusional psychosis, and not being an expert in psychiatric health or medicine at all myself, I feel bound not to decide that there is not a psychiatric or mental health reason explaining, firstly, the mother’s allegations and her apparent steadfast clinging to the expression of belief in those.
I accept, especially after having heard Ms Oakley’s submissions, that there is an element in this case of the mother telling lies. I have no doubt about that. Some of the matters, particularly where she was caught out on and started to realise, in my view, the bizarreness of some of her own allegations, caused her to start changing her evidence and making up other things that just, in themselves, were incredible.
So I accept that there has been a degree of lying on her part – wilful, false evidence – but I am unable to say that it is all of one, that is, all based on mental health problems, or all of the other, that is, all just wilful, malicious lying on the part of an otherwise healthy woman, and am unable to determine the extent to which all of her false allegations are attributable to either cause, and I simply refrain from doing so. I deliberately note this in these oral reasons for the orders that I am going to make.
I specifically want to point out by that, and make it clear that I do not rule out a mental health cause for the case that the mother has mounted, continued to mount, and clung to in the circumstances of this case.
The mother’s position is this, ably put to the Court by Ms Lyons: that the mother should be believed and that, according to her belief, I should accept that the father sexually abused these children, and therefore, they should live with her. She should have sole parental responsibility for them and they should not see their father or, alternatively, she says, if I do not think that they should not see their father, I should make an Order that they have supervised time with him somewhere in the City M area supervised by the mother. As I remarked in the exchange between Ms Lyons and myself, that she be the supervisor was an extraordinary submission in itself.
Again, it either throws serious doubt on the credibility of the mother’s expressed belief that the father is the man that she says he is. Or, again, it throws her state of mental equilibrium into question. Alternatively, she says, through Ms Lyons, that if I am against her and if I determine that the children’s best interests will be served by living with their father from this time on, that I ought to make Orders that the children get to spend time with her for all of the Easter holidays, all of the June/July holidays, all of the September/October holidays and one half of the Christmas holidays in each year, supervised by the maternal grandparents.
Ms Lyons submits to me, on behalf of the mother, that I would consider that any risk to the children that I might otherwise be concerned about, in terms of physical and/or emotional harm, would be significantly ameliorated by the presence of their maternal grandparents supervising that time with the mother. With all due respect to Ms Lyons, to the mother and, most importantly, with all due respect to the maternal grandparents, I do not accept that. I will not be ordering that the mother has supervised time with these children that is supervised by her parents.
I will give some brief reasons for that and I preface the reasons I give with an assurance to the maternal grandparents that I do not mean to cause them any distress or upset, nor I do mean to suggest to them that I do not consider them to be good people. The way in which this trial has transpired and the evidence that has been given by them and that has otherwise come out during the course of the trial about their involvement causes me to determine that the risks – that is, the unacceptable risk of either physical harm and/or emotional harm – that I consider the children would suffer or would be placed at if they were put into the unsupervised care of their mother for any length of time, in circumstances where I intend to make Orders that they live with their father would not be suitably mitigated or ameliorated by their maternal grandparents being present.
I am satisfied that, although the maternal grandparents and the mother have a relationship, frankly and respectfully, I do not consider it, on the evidence, to be a very close one. Indeed, I heard evidence from the maternal grandmother conceding that her relationship with her adult daughter is not as close as the relationship between the father – that is, the maternal grandfather – and his daughter. I am satisfied on all of the evidence that the mother herself clearly does not consider the relationship between her and her parents to be a close one. She has not adduced, although she talked about needing their support, evidence of them believing her and proving that they are a credible and meaningful and serious form of support.
She has moved away from where they live and, through her mother, I was told she did not want to continue to stay with them. She has only been seeing them on about two occasions per year over the years. Again, respectfully, I say to the grandparents that the evidence satisfies me that the family of the maternal grandparents and their three adult children is, indeed, not a close one. The mother is not close with her two adult brothers and, as I heard, the children of the mother and the father in this case do not even know or barely know their first cousins on their mother’s side.
Additionally, although I was told by both of the grandparents, who only came down to the Court and became involved in the case at the last moment, when it became obvious that this was the issue that was ultimately one of serious import to the mother and her family – that is, whether or not her parents could supervise time. I was told that they do not, and I find that they have never really been, informed by the mother of all the circumstances of her allegations. Indeed, one of the very serious allegations the mother made, namely that the father had forced himself sexually upon her mother at some point in their relationship, was one that the mother’s mother, the maternal grandmother, was only apprised of this week and she rejected it, telling the Court that was not true.
She would not even accept the proposition advanced by the mother that she cannot recall it because of the traumatic nature of it. I accept that. Clearly, the mother has not considered it appropriate or necessary or helpful to confide in her father and her mother to the full extent that one might expect of a woman who has been calling out for help and support from every source that she can over the last 18 months. She has not deemed it appropriate or necessary or desirable, whichever it might be, to get that from her parents.
She has not deemed it necessary to share with them all of her concerns. I heard evidence from both parents that when she told them that she had a belief or suspicion that the father had sexually abused their children, they both told her they could not believe it. They both told the Court that they did not believe it. I am inclined to think that, rightly, their position was that they could not believe it. I am not sure that they absolutely determined that they did not believe it and, even if they did, I have to say, I am not persuaded that they did anything to try and persuade the mother that it was not true or to get to the bottom of why she might be saying that it was true, if they did not actually believe it.
As I ascertained from the maternal grandmother, no steps were taken to shift the mother from her course even if they considered that her course was a false one. This week they again acted without question when the mother asked them to take Z to the police station and have his bruises checked out because she said they evidenced that he had been attacked by his father or his paternal grandparents during recent supervised visits.
Indeed, the maternal grandfather confirmed when I asked him that he had not even asked the mother whether she had raised it with the father himself, a man who he said to me he did not believe would do this sort of thing. In the circumstances, I am not convinced or persuaded that supervision of the children’s time with the mother for the sort of lengths of time that was submitted to me by the maternal grandparents is in the best interests of the children.
I do not accept that such supervision in these circumstances just outlined would shield the children from the unacceptable risk of harm, both physical and psychological, that I consider they would be exposed to. I am, with all due respect to the maternal grandparents, not prepared to accept that they would be able to intervene and cause the mother to submit to their will, either collectively or individually, if they saw something that disturbed them. I am not convinced that if another false allegation of sexual abuse was raised during such time, that they would act in a way to cause it to be shut down immediately.
In those circumstances, I will not make that order.
The mother, in her alternative proposal put to the Court today, seeks orders that the children be at liberty to telephone her at all reasonable times. She seeks an order that she attend upon her general practitioner within 28 days to obtain a mental health plan. I will just say with respect to that one, I will not make that order. That is a matter for the mother and the way she deals with her mental health and the mental health issues raised in this case is now going to be a matter entirely for her and her parents if they are able to support her.
What she does with Dr H’s report is entirely a matter for her. With respect to the order she seeks in respect of liberty for the children to telephone her at all reasonable times, I am not going to make that order either. As I indicated during exchange between bar and bench, I do not consider that telling the children or allowing them to call their mother whenever they want would be conducive to their best interests in the circumstances of this case where they may be subjected to questioning by the mother.
Just in that regard, I observe and acknowledge that the evidence seems to be that they have been protected from direct exposure by the mother to her beliefs. That is not to say, and it is acknowledged in the documents that I have seen from Child Safety at least, that the children have not been indirectly exposed to the mother’s beliefs through the amount of involvement that they have had with police, departmental officers, counsellors, psychologists, family report writers and the like. Plainly, they have been indirectly exposed to the mother’s beliefs.
The fact that she has not directly exposed them to her beliefs is unusual and, again, it raises questions about the congruence of that behaviour with her beliefs, but it also raises a question of the possibility that she knew or knows that if she raises these issues with them, they will deny and tell her the actual reality which is it never happened and that that may cause further conflict between her and the children. I am not going to make an order that they be at liberty to telephone her.
The mother seeks that an order that this order be authority for the children’s school and/or treating health and/or allied health practitioners to provide information to the parents at the requesting parent’s expense, that the parents notify the other parent of any emergency or medical situation for the children as soon as reasonably practicable, that the parents ensure they keep the other informed of the school and names of the children’s treating health and/or allied health practitioners. I do not intend to make any of those orders.
The mother seeks an order that the mother will provide and is permitted to provide, pursuant to s 121, the report of Dr H to her general practitioner and treating mental health practitioner, including but not limited to a counsellor, social worker, psychologist and psychiatrist. I will return to that. I expect I will make such an order.
The Independent Children’s Lawyer’s case, as submitted to me by Ms Oakley of counsel, was that the orders I should make will be fairly limited. Ms Oakley submitted that I should make an order that the father has sole parental responsibility for the children, I should make an order that the children live with the father. I should make an order that the children not spend any time with the mother. Effectively, that was it. They would be amongst some of the shortest orders I have ever made if I did that. The submissions that Ms Oakley made in support of that were, I have to say, sensible, credible and pretty well based in the evidence and law.
Indeed, as I have spoken about determining unacceptability of risk and I have already said I am satisfied that if these children have unsupervised time with their mother or even supervised by their maternal grandparents, that the level of risk of them suffering some sort of physical arm as a consequence of the mother’s mental health decompensation, given that the circumstances have now completely changed in that they will not be living with her anymore and they will be living with the man who she expresses genuine belief is a monster and/or the level of emotional harm if, indeed, she does not have a mental health problem and has simply falsely made up the allegations, is an unacceptable level as well.
I say that because I simply observe any parent who upon separation wilfully and maliciously makes up the sorts of allegations that the mother has levelled at the father in this particular case cannot be expected to ever in the lifetime of those children as minors do anything positive to encourage and facilitate a meaningful relationship between those children and that other parent. It is simply beyond comprehension that they could, if they feel it is necessary or appropriate to go to those lengths to try and deny the children a relationship with a man who I am satisfied otherwise is a good and decent father to these children. There would be no hope for her ever to be able to facilitate a meaningful relationship whilst she continues to falsely and maliciously maintain those allegations.
So having said all that, I accept that the submissions made by the Independent Children’s Lawyer, as I have already said, are reasonably based. However, there is a slight dilemma that faces me, and it is one that I rarely face in a situation like this in that the other parent, the father, is actually submitting through his experienced counsel that the orders should not go quite that far. He submits that although he should have sole parental responsibility, the order should require him to liaise and communicate with the mother and seek out her views and then ultimately make the decision, unilaterally if necessary, but with regard to the mother’s views. He seeks, as well as the order that the children live with him on a fulltime basis, an order that they be made available to spend time with their mother in a supervised contact centre in Brisbane at least a couple of times a year, and that is an order that would, if I made it, apply whether he likes it or not, and if he changed his mind about that he would have to come back to Court and ask the Court to change it. He would be bound by it.
I understand and appreciate from the evidence I have seen and heard, particularly Mr Pelham in the witness box himself, particularly the evidence of Dr H orally given especially, Mr Pelham is of the sort of personality that perhaps explains partly why he is submitting that these orders should be made. The evidence is that Mr Pelham was of course trying hard to keep the relationship together, even though the mother was determined to leave him at the beginning of last year.
The evidence is that even after she made some of these horrific allegations against him, he was still talking about the prospect of reconciliation. He professes a deep and committed Christian faith. He professes a belief in marriage. No doubt that is attributable to the teachings of his Christian faith. No doubt some of this position that he adopts is attributable to a deep down genuine love, in the past at least, if not still to some degree, for the mother, notwithstanding the allegations she has made against him, and also no doubt demonstrates the degree of compassion and feeling that he has as a person as a former partner of the mother, but also as the father of their three children, and the recognition of, I accept, the importance of their mother in their lives to this point in time and no doubt into the future.
Having said that, though, I am satisfied that there is no need to make the orders that the father seeks, although he asks for them, and that the orders that should be made in this case are more in line, and will be more in line with those that are submitted should be made by the Independent Children’s Lawyer. I say that because the reality in my view is this: the Independent Children’s Lawyer will be discharged by these Orders that I make today.
Ultimately, whether or not these children get to see their mother will in the first instance in the future, both foreseeable, medium term and long term for the remainder of their childhood, depend on the position adopted by the father himself. Now, if it is that he has a position of compassion and understanding like he is pronouncing through his counsel today, and that that continues, and that he has a firm belief that the children should see their mother at some stage in the future, that will be a matter for him. If that happens outside of the watchful eye of this court or the Independent Children’s Lawyer, then that is a matter for him, ultimately only perhaps to be caught, if necessary, by the ever observant eye of the Department of Child Safety.
I am satisfied that the father, aware of the concerns and my findings about the state of the evidence as to the mother’s mental wellbeing and/or her malicious falsehoods in the case, will be unlikely to act in a way that is contrary to the best interests of the children and unlikely to let her see the children outside of the supervision of a contact centre, or maybe the supervision of his parents, without being satisfied by the mother that she: (a) does not have a mental health problem of any sort – and that would take some satisfaction, I would think, along the long of that recommended by Dr H – and/or (b) that she no longer truly or expressly holds to the beliefs that she asserts about him, and that she accepts that they were false and demonstrates some remorse.
If, even though she does not do any of those things he thinks that she should, and considers it is in the children’s interests for her to see the children at a contact centre, then that can be arranged between him and the mother; that is a matter for them. I do not consider it in the best interests of the children to impose the obligations on the father that, with respect, he asks the Court to impose on him with the orders that he asked for. Nevertheless, I accept his capacity to act in their best interests, and ultimately if he is satisfied that the children should see their mother, then he can let that happen.
Furthermore, if I am wrong about that, as the mother might ask me to accept or say to me I am, and she is able to prove to him at some stage in the future that (a) all of this was not based on mental health problems, or (b) if it was, that she is over them and she has had the appropriate treatment as prescribed by Dr H, and that the psychiatric longitudinal assessment and therapy that she has received has improved her wellbeing and helped her realise the delusional nature of her beliefs, then he may very well let her have time.
If she is able to show him that it was not mental health based and that she does not hold to those beliefs, and that she is remorseful for the position she took and she is able to convince him that in the best interests of the children he should let her see them in some way or another, I am sure he will do that. But if I am wrong and he does not, and she meets all of those challenges, then she will have to come back to the Court to convince a judge like me that it is time that she be allowed to see her children and that it is in their best interests. For all those reasons, I am making these Orders, and these are final Orders.
ORDERS DELIVERED
The reasons I give for the Order I just made are essentially contained within the reasons I have already given. They also relate to the fact that there is currently a Family Violence Order that has some restriction that needs to be clarified and dealt with. The restriction in that Order relates to the father, and this makes it clear that it is the mother who is not to go near the children.
But further, I am, at this point, satisfied that unless restrained, there is a risk that the mother might approach the children through the school or may approach the school and try to appraise them of her beliefs, and I consider that it is an unacceptable risk of causing the children physical or emotional harm and justifies the restraint that I Order.
ORDERS DELIVERED
The reason for that is so that the school is notified that they are not to have any communication with the mother and that is not to be allowed at the school. So if the father is of the view that the mother ought to be appraised of the children’s ongoing educational, sporting, cultural achievements at the school, and or their state of health, and or be provided with any photographs of the children, that is a matter for his parental discretion. I am satisfied, as I said earlier, that he is the sort of man who, if he considers that it is a good idea, that it is in the best interests of the children – and it is likely that he will – that he will provide such things to the mother.
I am also satisfied, I say, as I remarked earlier, that the relationship or relationships between the father and his parents and the maternal grandparents is not entirely fractured, and that there remains – and I hope and have an expectation that, notwithstanding my judgment this afternoon, that it will not become fractured and that the goodwill that I accept still exists between them will continue, and that, in that way and through that existing relationship, the children should and will get to have an ongoing relationship with their maternal grandparents that is of value to them. I would urge the grandparents and the father to work with that basic foundational framework to see if that can be achieved.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 19 July 2019.
Associate:
Date: 27 September 2019
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