PELHAM & PELHAM

[2019] FamCA 693

FAMILY COURT OF AUSTRALIA

PELHAM & PELHAM [2019] FamCA 693

FAMILY LAW – CHILDREN – Recovery Order – Where counsel for the Independent Children’s Lawyer made an ex parte application for a Recovery Order for the three children who are the subject of these proceedings – Where the Order was made but was not to be executed unless a further application was made – Where a further application was made in the presence of the legal representatives (but not the parties) for the Order to be executed – Where the application was supported by the counsel for the father but opposed by counsel for the mother – Where the Order was made for the recovery of the three children as, given the written and oral evidence given by and about the Respondent (as well as her presentation in Court giving and hearing this evidence), they were deemed to be at an unacceptable risk of harm remaining in her care and it was therefore in their best interests to do so.

Evidence Act 1995 (Cth)

APPLICANT: Mr Pelham

RESPONDENT: Ms Pelham

INDEPENDENT CHILDREN’S LAWYER: Sue Duncan

FILE NUMBER: BRC 3331 of 2018

DATE DELIVERED: 18 July 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 16 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT:

Mr Coates

Parry Coates Family Law

COUNSEL FOR THE RESPONDENT: Ms Lyons

SOLICITOR FOR THE RESPONDENT: Ms McNamara
Stevenson & McNamara Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Oakley

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Duncan

Legal Aid Queensland

Orders (made on 16 July 2019)

IT IS ORDERED

1. That the Independent Children’s Lawyer be granted leave to proceed ex parte.

2. That a Recovery Order issue addressed to the Marshal of the Family Court of Australia and to all Officers of the Australian Federal Police Force and to all Officers of the Police Forces of all the States and Territories of Australia.

3. That such persons are authorised and directed to find and recover the children, X born … 2007, Y born … 2009, and Z born … 2013, (“the children”) and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the children may be found.

4. That upon recovery, the children are to be delivered to Ms F at Child Dispute Services at Level 3 of the Commonwealth Law Courts Building, 119 North Quay, Brisbane in the State of Queensland or to such other address as agreed to between the person executing the Recovery Order and the Independent Children’s Lawyer.

5. That the Recovery Order lie in the Registry and not be executed until further Order of the Court.

6. That the Recovery Order remains in force for a period of six months.

IT IS FURTHER ORDERED

1. That the Recovery Order ordered earlier now be executed by the Marshal of the Family Court of Australia and Officers of the Australian Federal Police Force and Officers of the Queensland Police Service as soon as it can possibly be executed, and paragraph 5 of the Order made earlier today be discharged.

2. That as soon as it can practicably be arranged, the police officers who take the three children into their care pursuant to this Recovery Order cause the three children to be delivered to their paternal grandparents, Ms D Pelham and Mr B Pelham, at the Brisbane Domestic Airport terminal.

3. That until further order, the children shall spend time with the father, Mr Pelham, with such time to be supervised by the paternal grandparents and that at all such times that the father may be unable to be in their presence, such as during the time he is at court, they shall remain in the care of one or both of their paternal grandparents.

4. That the costs of flying the children from City M to Brisbane shall be met by the applicant father, Mr Pelham.

5. That the mother not be advised of the making of this Order until the children are safely in the care of police officers executing the Recovery Order.

6. That the Australian Federal Police inform the applicant father and his parents as soon as the children are safely in their care and keep them informed as to the arrangements for transporting the children from City M to Brisbane, including as to their anticipated time of arrival at the Brisbane Domestic Terminal.

7. That the Australian Federal Police notify the Independent Children’s Lawyer and the solicitors for the mother and the father as soon as the children are safely in their care upon the execution of this Recovery Order.

8. That the Independent Children’s Lawyer and/or her counsel shall notify the Judge’s Associate by telephone as soon as the children are safely in the care of the Federal Police, where after the Associate shall notify the Judge.

IT IS NOTED that the application made in the absence of the mother and the father and the paternal grandparents, though made by the Independent Children’s Lawyer and supported by the father’s counsel, was strongly opposed by the mother’s counsel.

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

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. At 10.00 am on Monday, 15 July 2019, I began hearing a parenting Orders dispute between the Applicant father, Mr Pelham, and the Respondent mother, Ms Pelham. They are the parents of three children: a girl, X, who was born in 2007 and is now 11; a boy, Y, who was born in 2009 and is now 10; and a boy, Z, who was born in 2013 and is now six.  The Court, of course, has the benefit in this trial of the assistance of an Independent Children’s Lawyer  (“ICL”) who was appointed some time ago and has been working in the case ever since.

2. Just after the luncheon adjournment on Tuesday, the second day of the trial, I was asked to hear an ex parte application by counsel for the ICL.  For the benefit of the parties, who may not know, ex parte is a legal term.  It is a Latin term and means in the absence of the parties or in the absence of the appearance of the parties.  In this case, I was asked to do it in the absence of their legal representatives, as well. I entertained the application.

3. I had some idea, of course, at the time, what it may be about, having spoken to the lawyers for all of the parties before the luncheon break that day in the absence of their clients and any member of the public sitting in the back of the Court. I expressed some concerns that I was holding in respect of the wellbeing of these children at that particular time.

4. The barrister for the ICL asked me to make a Recovery Order, directed at the Marshal of the Court, officers of the Federal Police and officers of State and Territory police forces, to find and recover the children X, Y and Z. She asked me to make an Order that, after they were recovered, or as part of that Recovery Order, that they be delivered to their paternal grandparents and placed into their immediate care until further Order.

5. Counsel for the ICL also asked me to cause that Recovery Order not to be executed at that particular time, but for it to lie in the registry.  That means that she asked me not to cause the Order to be directed to the Federal Police straight away for their actioning, but to wait further application or submissions by her in the event that they would be forthcoming after the conclusion of the cross-examination of the Respondent mother, which was at that particular time still in progress.  Counsel for the father was still in the course of his cross-examination of the mother when that application by Ms Oakley of counsel for the ICL was made.

6. I heard submissions in support of those applications and had exchanges with Ms Oakley, which were, of course, recorded and transcribed and will be available in transcript form, if anyone ultimately needs to see them, and determined that the issue of the Recovery Order and the non-execution of it at that particular point in time was indeed an appropriate course having regard to the paramountcy of the best interests of these three children.

7. The parties and their lawyers were all called in to the Court, of course, and not informed that that had happened. The cross-examination of the mother was continued by counsel for the father and finished during the course of Tuesday afternoon. Then Ms Oakley for the ICL began the conduct of her cross-examination. It went on for some particular time and Ms Oakley, indeed, asked some questions of the mother, eliciting evidence around issues that were obviously of concern to her instructing solicitor, the ICL, but also were of concern to the Court, having been flagged by me to the lawyers before lunch, and also in the exchange between Ms Oakley and myself after lunch on that day.

8. Before finishing her cross-examination of the mother, at 4.15 pm which is at the end of the normal Court day, Ms Oakley again asked the Court if she could be heard on a further application in the absence of the parties themselves, but not their lawyers. She also asked me to clear the Court of any other persons who were sitting in the back of the Court, who I note included, at that stage, the paternal grandparents, who are the parents of the Applicant father. I acceded to that request and at that particular point in time, once the Court was cleared of everyone but the lawyers, the lawyers for the mother and the lawyers for the father were first informed of what had happened on an ex parte basis earlier that day.

9. Ms Oakley then made an application for me to actually discharge the abeyance of the previous Recovery Order and actually order for it be executed that evening. She asked me to order the Federal Police and/or the Queensland Police to go and recover the three children; that is, to go to the place where they were residing in the care of their maternal grandparents and to take them into their custody, so to speak, and cause them to be delivered to their paternal grandparents, by air travel to Brisbane.

10. I heard submissions from Ms Oakley in support of that, with reference to the evidence. I heard submissions from Mr Jordan of counsel, who appears for the father, effectively, in support of the same application. I heard submissions from Ms Lyons of counsel for the mother strongly opposing the application. Ms Lyons submitted to me that such a course was premature and should not be undertaken at that particular time, but rather ought wait the outcome of the proceedings.

11. I heard and considered Ms Lyons’ forceful submissions and considered those submissions of counsel for the father and counsel for the ICL and had regard to the evidence that I had heard and read in the matter to that point in time. I rejected the submission of Ms Lyons and made further Orders that afternoon ordering the execution of the Recovery Order that I had made earlier that day. 

12. Out of an abundance of caution, but certainly not out of any disrespect or concern for the professional integrity of the two lawyers acting for the mother, I also ordered them not to inform the mother that I had made such an Order. I made an Order that specifically restrained the mother from being told what was in fact happening until after the children were safely in the custody of police executing the Recovery Order. 

13. I also made Orders that the children, once recovered and brought to Brisbane, were to live in the supervised care of their father, supervised by his parents until further Order of the Court. I also ordered that, in the absence of the father (for example, whilst he was at Court for the remainder of the trial), they were to be cared for by one or both of their paternal grandparents during that time.

14. I ordered that my Associate be informed as soon as the children were in the care of the police. I had some anticipation that the Recovery Order may be executed on Tuesday evening, though did not necessarily think it would definitely happen that night, but rather that it might happen early yesterday morning. I had heard nothing before I retired to bed on Tuesday night, so I anticipated that they had not been recovered, but that that would happen yesterday morning. When I came to Court yesterday morning, we still had not received any information, in accordance with my Order, that the children had been recovered. As I understand now, they had not been. 

15. The trial proceeded, the mother was asked to return to the witness box and she did that. I acknowledge she did that not knowing that I had ordered for the children to be recovered and flown to Brisbane. Her cross-examination by Ms Oakley continued for some further time and the matter proceeded through the course of yesterday without there being any information provided to the Court that the children had been recovered. 

16. Late yesterday afternoon before the adjournment at the end of the day, again, in the absence of the parties and any member of the public sitting in the back of the Court, the Court was informed that indeed the children had not yet been recovered.  The Court was informed that to the best of the knowledge of the lawyers involved that the mother still did not know about the Order, that her parents had taken the children, quite coincidentally and without knowledge of the Order I had made, to the Town N Police Station yesterday. That was apparently in respect of a matter that is going to become the subject of some further evidence that I have given leave to the father’s legal representatives to lead from a police officer stationed at the Town N Police Station, which is to be heard later today.

17. After retiring to my chambers after the adjournment, I communicated with administrative staff of this Court and required them to make contact with the Australian Federal Police through the Marshal of this Court. I was armed with the knowledge provided by counsel for the father that the paternal grandfather had in fact flown to City M yesterday afternoon so that he could attend in Town N and collect the children or have the children delivered to him by police once the Recovery Order was executed yesterday afternoon.

18. Armed with that knowledge, I asked the administrative staff of the Court to require the Marshal of the Court to make contact with the Australian Federal Police and to tell them that the Court had an expectation that its Order would be complied with and that the Recovery Order would be executed as soon as possible. 

19. When I came into Court this morning, I was informed that recovery of the children had taken place at 5.20 pm yesterday afternoon. As I indicated to counsel, including, particularly, counsel for the mother on Tuesday afternoon when I rejected her submissions and made the Order, I intended to give oral reasons for my Order in Court in the presence of the mother and the father, but most importantly, the mother, after the children had been recovered and I was satisfied that they were safe and in the care of their paternal grandparents. In doing so, I was acknowledging and respecting both the mother’s need to understand why I made the Order that I did, and, indeed, my obligation to give adequate reasons for Orders such as this.

20. These are my reasons that I am delivering now on an ex tempore basis. 

21. The relationship between the Applicant father and the Respondent mother began in or around 2004. They married in 2006, and, as I have already said, in 2007, 2009 and 2013, they happily welcomed their three children to their family and to the world. Sadly though, their relationship and their marriage, did not survive.

22. In this litigation, seriously divergent accounts are given by each of them as to the history of their relationship during their marriage and, effectively, the reasons for the breakdown of that relationship. Those I shall return to. Marriage counselling began between the two of them sometime in or around January of last year, 2018.  The parties both apparently agreed to see a counsellor arranged, organised and provided to them through a particular church of the Christian faith that they had been attending.

23. Evidence that is before the Court shows that the father attended that counselling with the hope and anticipation that it would assist in helping them bridge gaps in their relationship, to mend the difficulties that they were having, and to save their marriage. The mother attended such counselling, apparently, according to the expression of her intention recorded in documents that I have seen, for a different purpose. The documents recorded that she attended it with a view to helping them end their relationship and separate amicably.

24. On 2 March 2018, the father came home to an empty house. The mother and the children were gone. He did not know where they had gone. I do not understand him to even have had advanced warning that they were going and that they would not be there, though I have seen evidence of text messages exchanged between them in the lead-up to that day and possibly even during the course of that day, which I understand was a Friday. The mother had indeed told the father by text message that she did not want him to come home, and she wanted a divorce from him. 

25. On Monday, 5 March, not having heard from the mother or the children, the father went to the police station somewhere nearby where they lived and reported them as missing. Later in March, my understanding is that the mother accessed emergency accommodation provided to her through the networks that support women who are fleeing situations of domestic violence and who have circumstances of desperation, and who need to be cared for and have their whereabouts kept secret.

26. The mother went to the police station seeking their assistance at some stage during the time after her departure from the former matrimonial home. She sought their assistance, according to her, in bringing an application against the father for a family violence Protection Order.  She asserts that police refused to assist her, saying that she did not have any visible signs of having been a victim of violence and, therefore, they were unable to assist her.  Nevertheless, as many people do, she made her own application to the local Magistrates Court for a family violence Protection Order, seeking the protection of herself and her three children, with the husband being the Respondent to the application, against whom the Order would be directed.

27. That was listed for hearing in the local Magistrates Court on a day late in March, 2018. Between when the mother had left and taken the children and that day, the father had not seen the children at all or heard from them, to the best of my understanding. That day, the mother obtained a Temporary Protection Order. Her application, which is before the Court, or at least a version of it, included and was supported by a document that she had prepared and typed herself through the use of a computer. It was described by her and headed as a “Victim Impact Statement”. That was a five-page document of some significance in this case.

28. It detailed over that five pages a history of alleged physical, emotional, sexual, and financial abuse levelled at her, and indeed the children, by the father from virtually the moment they commenced their relationship, even before they married. I shall return to mentioning that document a little later.

29. On the day that the parents were both at the Magistrates Court for the hearing of the family violence application, the father, who had by then obtained lawyers and had commenced proceedings in the Federal Circuit Court in this registry for parenting Orders, caused the mother to be served with that application. My understanding of the orders that the father sought in that initial application that he filed is that they were orders whereby he and the mother would have equal shared parental responsibility for their three children and share the physical care of those three children, also on an equal basis. I understand the father to have applied for an equal time shared care arrangement in the form of a week about-arrangement, where they would live with him for a week and then live with their mother for a week. Not insignificantly, in my view, very shortly after that, the mother quickly left Brisbane and went to North Queensland, taking the three children with her.

1. My understanding is that the two eldest children of the marriage, the girl and the eldest boy, were interviewed by a female officer of the Queensland Police Service Child Protection and Investigation Unit (“the CPIU”). Indeed, the children were interviewed by police on Sunday, 25 March 2018, some three days before the appearance of the parties in the Magistrates Court on the family violence Protection Order hearing. At the time, therefore, that the children were interviewed by police, it seems, I am satisfied at least at this point, the mother was unaware that the father had commenced or was about to commence proceedings in which he was going to be seeking equal shared parental responsibility and shared care of the children.  As I have said, I understand the evidence establishes that she became aware of for the first time on Wednesday, 28 March, a few days after they were interviewed by police.

2. The evidence is that the mother did not contact police herself to arrange those interviews that took place that Sunday but, rather, had been attending medical and allied health services at the local medical centre run by the BB Services, at which she was seeing or speaking to a psychologist in the course of obtaining some therapeutic assistance. Indeed, documentary evidence of notes taken by the person that she was seeing in the course of those interviews are in evidence and reflect that the mother reported to them that she had become concerned that her daughter had been the victim of sexual abuse by her father.

3. The reported basis of her concern was that she had noticed some discharge or evidence of discharge in the child’s underwear during recent washing of that underwear.  The notes reflect that the person who she was speaking to told her that that would require a mandatory notification to the Department of Child Safety that would probably trigger a chain of investigation by the Department and the Queensland Police Service. It is apparent on the evidence that that person caused such a notification to be made, at least to the Queensland Police Service. The CPIU then caused the interviews with the children to take place on the Sunday afternoon, 25 March, as I have referred to.

4. The interviews were undertaken individually by the police officer concerned, with X and Y. They were lengthy. They lasted for almost an hour each. They were conducted and videoed in accordance with s 93A of the Evidence Act 1995 (Qld). Recordings were retained by police and they were played in this trial when it commenced on Monday morning. It was apparent from viewing those that the police had also been told by either the mother or whoever it was that notified them that the mother had asserted that the children had told her that they had been forced or made to watch their father having sexual intercourse with a female neighbour of the parties at some point in the not too distant past. 

5. I can only presume from the evidence that I have that the police officer concerned was also aware that the mother was concerned herself that the female child had been sexually abused by the father having regard to the information she conveyed to the psychologist at the BB SERVICES. During the interview, the children made absolutely no disclosures of any concern. Indeed, I could not form any impression that they were hiding or refusing to divulge something along the lines of that which their mother had apparently told police. Indeed, they seemed to be children who, quite appropriately and consistently with their age, knew very little about sexual intercourse and they seemed, from my observation, to be children who had had very little exposure to any issues pertaining to sexual intercourse.

6. The police, following those two interviews, determined not to take the matter any further. By that, I mean they determined not to press any charges against the father, and to the best of my knowledge, there is no evidence that they even interviewed the father or sought to. As I have already said, shortly thereafter, the mother learned that the father had applied to Court for parenting Orders and she moved to North Queensland with the children. Her parents live in Town L, which, as I understand, is a couple of hours drive south of City M.  She and the children spent some time, in her own words, “couch-surfing” their way up to North Queensland.

7. She spent some time staying with her parents in Town L but then through the good agency of the domestic violence networks that I have already referred to, she and the children were offered emergency accommodation in Town N. They have been living there ever since. Within two weeks (or close thereto) of the previous interviews that took place on 25 March, the eldest child, X, was again presented to police and interviewed again.  This time, she was presented to a male detective of the CPIU in City M. His name was Detective G.

8. I have now heard, since I made the Orders that I did on Tuesday, that the mother and the child were accompanied to the City M Police Station by the person with whom they were staying who apparently was insisting that they had to go to the police station. According to Detective G, the mother was very apprehensive about doing so. Nevertheless, it seems the child was presented to the police on the basis of a further complaint that she had been sexually abused by her father. 

9. Notwithstanding what I have already said about the nature of the way in which the mother’s concerns of sexual abuse was raised prior to the interview of 25 March, the claim on this occasion being investigated by the police officer was the mother’s own claim that she had on occasion witnessed with her own eyes her husband sexually assaulting their daughter. Now, I mentioned before the five-page Victim Impact Statement that the mother had annexed or attached to her family violence application only a few weeks before. The allegation that she made to the police officer that resulted in the interview of X on 11 April 2018 and that the mother has maintained ever since, was, quite significantly, at least in my view, not mentioned at all in the detailed lengthy five-page Victim Impact Statement that she had attached to the domestic violence application just a few weeks before.

10. Indeed, it was not mentioned at all in the notes that the psychologist took that led to the notification made by the psychologist that resulted in the interview of X that took place on 25 March. Very significantly, it was not even mentioned to the police officer who interviewed X on 25 March. 

11. Detective G interviewed the child again and videoed it in the form of a s 93A interview. That video was played in Court at the end of the other two on Monday morning and watched by the parties, the lawyers and myself.

12. The child, then 10, made no disclosures. She said nothing that gave any indication that she had been sexually abused in any way by her father or in the very serious form as described by her mother in evidence in this case.  The detective told the Court today that he determined that the matter could not be taken any further immediately after having interviewed the child.  The mother has said in evidence and the detective agrees, that the mother said to him that when she walked into the bedroom to witness her husband sexually assaulting their daughter, she saw the child straddling him whilst he was lying on his back on the bed and that she saw his penis come out of her vagina and that she also observed their son Y to be standing at the door. The detective said the inference was that from what she was saying, she was telling him that she believed that their son Y was also witnessing his sister being raped by their father.

13. The police officer nevertheless determined not to interview Y after having finished his interview with the child X, believing, because there were no disclosures and the matter was not going to be taken any further, it would not be appropriate to interview the child Y. Interestingly, I also add here, as it now has come out that the mother asserts that she also told Detective G that day, something that is now part of her case in this trial; that is, that she had, on an occasion sometime after having witnessed her husband sexually assaulting their daughter, happened to come into a bedroom to witness her husband anally raping their son Y whilst he was on all fours on the floor or on the bed in front of the husband. Detective G today denied that any such information was conveyed to him that day, and pointed out his duty as a CPIU officer would have been to immediately interview that child Y, if that information had been conveyed to him as the mother says it was. 

14. Indeed, the detective said today that to the best of his knowledge, that information has never been the subject of a direct complaint by the mother to the police, but he did observe that his reading of the file in preparation for his evidence today confirmed to him that the Department of Child Safety had at least notified the Police Department at some stage in the period since that allegation had been made that the mother had also seen the father raping the boy. 

15. Having watched that second interview with the child X, my assessment of the child that I formed in respect of the first interview was not different at all in respect of my observation of her in the second interview.  Perhaps, in the second interview, she seemed a little bit more outgoing and extroverted than she was in the first interview - not quite as shy. In the second interview, again, she said nothing that would cause me to think that he was hiding or refusing to disclose something as serious as that that was alleged. She indeed made denials, plausible denials in my view, of anything that would even suggest the possibility of sexual abuse.

16. Now, the children have been living with their mother in Town N ever since, and my understanding is that they have only seen their father on a few occasions since then. Principally, two of those occasions have been this year, once the matter was transferred into this Court, and following a hearing by Senior Registrar Spink earlier this year of an application brought by the father for interim time with the children. 

17. The matter had progressed in the Federal Circuit Court last year. Judge Egan, on the first occasion, quite appropriately ordered a child inclusive Family Report, one of the child inclusive memoranda that the Federal Circuit Court often obtain early in the process. On a subsequent occasion, Judge Coates ordered the appointment of an ICL and transferred the matter to the Family Court, requesting it be considered for inclusion in the Magellan list. My understanding is that he did not make any orders for the father to spend time with the children, and hence the application was pressed before Senior Registrar Spink earlier this year when the matter finally reached the Family Court’s list.

18. The allegations that the mother makes in her case in these proceedings are lengthy and very disturbing. They go right back to, as I have said earlier, the period of the relationship between the two parties before they even married, which indeed perhaps highlights the extraordinary nature of the allegations, having regard to the fact that the parties then married and remained married for all the years that they did. 

19. I will not detail all of them. The mother alleges that in the pre-marriage period, when she was accompanying her future husband on a trip to Town P, the area where his parents live and his grandmother was living at the time (who is since deceased), she was drugged by the father and put into an unconscious or semi-conscious state, whereupon she was able to then hear what she believed was evidence of the father rifling through the possessions and drawers of his grandmother, and then having sex with his grandmother in her bedroom. The mother alleges that on another holiday, the father had sex with a family friend of theirs, and was caught doing so. The mother alleges that the serious physical violence that she says he perpetrated against her through the entirety of the relationship began even before they married.

20. In contrast, the father’s evidence is that on one occasion prior to their marriage, the mother punched him in the jaw during some dispute or altercation, pointing out to him at the time that she had grown up with two brothers and knew how to handle herself.

21. I just say as an aside here, there is other evidence before the Court in the form of records from the Queensland Police Service that record in the mother’s criminal history, the fact that she was before the Magistrates Court in Town Q in 2003, not long before she met the father. She appeared before the Court and was found guilty of a charge of obstructing police. No conviction was recorded by the Magistrate, but nevertheless she was fined $125 on that occasion. Police records that go with it say that the circumstances under which that charge emerged arose out of the mother being taken to the watch-house by police after a domestic disturbance, and during the course of a search that was being undertaken by a female police officer, the mother head-butted the police officer in the cheek. The mother in her evidence in this Court told the Court that it was just a misunderstanding, and that she had wrongfully been taken to the police station because it was her partner who was being violent to her, rather than her being the one causing or creating the domestic disturbance. That was, of course, a partner different to the father in this particular case.

22. Then the parties married. The allegations, however, do not abate in respect of what the father was responsible for in terms of abuse and violence on an ongoing basis. Indeed, the mother asserts that the father sexually abused their daughter X at some stage while she was a newborn infant. 

23. She asserts that she caught him sexually abusing her, somewhere between the ages of two and eight weeks old. In evidence, she asserts that he did that as an act of revenge against her because of the attention that she was giving to the baby instead of to him. She says that she took photos of the physical evidence of that assault, clearly evincing an understanding of the need to, or the desirability of, obtaining evidence if you are going to make allegations that a person has sexually abused someone. She says though, that the photos were deleted by the husband off her phone. 

24. Then the evidence is that the parties established a family day care business in their home, whereby the mother stayed at home looking after their children, but also took in babies from other families. There is some conflict in the evidence about whether or not it was an informal family day care situation where they just offered care to families of their friends, or whether or not it was a properly accredited family day care organisation through K Services. 

25. I see the mother still nodding, effectively negativing the first of those alternatives, as she did in Court here in her evidence, maintaining the assertion that it was a properly accredited family day care organisation. Of course, if that is true, it causes me great concern, having regard to the fact that the mother asserts in her case that she was already aware and conscious of the fact that the husband was a sexual abuser of newborn babies. That she would then go about organising to run a family day care centre in her home, thereby exposing other children, not only her own, to ongoing sexual abuse in itself is very concerning. So too, is the next piece of evidence I will refer to.

26. The mother asserts that the father sexually abused a female baby who was one of the family day care children that she was looking after. She asserts that he sexually abused that child in the same way that he sexually abused their newborn daughter some years before. Again, she asserts it was an act of revenge by the father, having witnessed the mother engaging in a passionate kiss on the lips from the father of that baby just some time before. 

27. The mother also alleges, in addition to the allegations made about the sexual abuse of their own children by the husband, that he indeed raped her mother (the maternal grandmother) during the course of their relationship. When asked if that was the case, why her mother was not a witness that she was relying upon in these proceedings to give that evidence, she simply said her mother did not want to talk about it at the time that it happened, and therefore she chose not to ask her if she would swear an affidavit and provide evidence in support of her case. 

28. She also says that he had sex with various neighbours, seemingly asserting that he had sex with three mothers who were mothers of other children in the same prep group as one or more of their children, one night in a car park at a hotel somewhere near where they lived. She alleges that he had sex with a cousin.

29. It is clear now from the evidence that I am referring to and the allegations made by the mother that she has had an ongoing concern about the father having sex with lots of other people outside their marriage. 

30. Ultimately, of course, as I have said, the allegations culminate in the assertion that she witnessed him raping their daughter, and then some weeks later raping their eldest son. In respect of the allegation of rape of their daughter, she asserts that that happened on Friday, 24 March 2017 - not much more than two years ago, a year before their separation. She asserts that the rape of their eldest son occurred some weeks after that.

31. Before I return to that, I observe that today, the detective told the Court, and the police notes reflect it, that the mother told him in City M that she had seen their daughter being raped on 2 March 2018.  The mother, of course, denies that and asserts that she did not tell him that. That, indeed, is the date we know that she separated from the husband, and one can only speculate further on the issue at this particular point in time. I do not consider I need to.

32. The mother’s evidence is that on the day after the day on which she says the rape of the daughter took place, the father left the home, and she determined to do something about reporting the rape that she had witnessed the night before. She said she rang 000 and spoke to the police at the end of the phone and told them what had happened and that she had seen her daughter being raped. Her evidence is that the police officer whom she spoke to said, “We don’t do callouts of those sort of things; you will need to take your daughter to the hospital”, or words to that effect. 

33. She said that she was carrying her daughter out of the house because she could not walk because of the pain she was in from the sexual assault, when her neighbours next door observed them through the window. She said that her female neighbour opened the window and asked whether her daughter was okay, to which the mother responded, “No, she’s not okay, she has been having sexual intercourse with her father.” She said that that drew, one would expect, the necessary emergent response from the neighbours, with the husband coming out straightaway and coming to see them on the driveway, obviously, to see if he could offer support, is the inference.

34. She said that neither of the cars were there, and the evidence is that they had two, and that she believes that her husband had deliberately and wilfully moved hers and hidden it somewhere in the neighbourhood before he drove off in his so that she would not be able to take the child to the hospital. In the course of this evidence, she told me that one could drive to the paediatric emergency department at the L Hospital in about 10 minutes from their home and acknowledged that one could do that by taxi if necessary.

35. Though she said the husband of the woman of the couple next door offered to drive them to the hospital, she witnessed her daughter vehemently rejecting that proposal, saying, “I’m not going with him”, to which she said she saw the husband of the couple next door smirking, which she considered to be reflective of a sense of guilt on his part, as she believed that he had probably been involved in the sexual assault of his daughter as well. 

1. She said that she then went back inside and rang 000 again and was given the same sort of response. Then after that, of course, she says she did not take the child to the hospital as she could not, and then soon thereafter, her husband returned home and knocked her unconscious by striking her on the head with a rolling pin, from which she did not regain consciousness for some indeterminate period of time. 

2. I just add at this stage, evidence was given yesterday in this Court, insisted upon by me in response to that evidence about the neighbours, by those neighbours, who are currently on a trip to Europe for some reason unknown to the Court, and who gave evidence by telephone from country W.  They were cross-examined by counsel for the mother, who quite appropriately put the propositions of fact to them asserted by her client (the mother), and both quite vehemently denied the assertions that were being made by the mother.

3. Neither of them had any memory of the incident referred to, in circumstances where one would expect them to have such memory of an event that only happened just over two years ago.  I have to say, at this point in time, I found their denials quite credible. I accept their honesty. 

4. There are two other allegations that I want to refer to at this particular point in time. The mother, in her case, alleges that on another occasion during the course of their relationship, she was in a car park with her son, Y, having taken him to a gymnastics class or training session, whereupon she (the mother) had a seizure and collapsed to the ground. She says that whilst collapsed on the ground, a car, which she says was her husband’s, ran over her head. Her evidence in Court, at least, was what she meant by that, effectively, was that her hair was lying down behind her, a car drove onto her hair, drove with one of the wheels up against her head, stopping against it, as if it was a speed bump in a car park. I must say that initially, I had the impression from all the evidence and all the reports that she had asserted that the car had actually run over her head, and it was during the course of raising that with her that she gave the clarification or explanation that I have just referred to.

5. There are a couple of different versions of this episode that I certainly have determined exist from the material I have read. One of them includes the allegation that her husband kicked her in the head whilst she was on the ground with his steel-capped boots that he was wearing. She says then that she was physically raised from the ground, put into the driver’s seat of her car and told to drive home. She says that her son was sitting next to her. They were driving home. Whilst driving, she was lapsing in and out of consciousness and only able to make it home because her son took over the driving, or the steering, at least, of the car on the way home.

6. She says that there was another car driving beside them and in front of them that her son was saying to her they had to avoid whilst they were on this trip home, and she says when she got home, her husband was there. It is another part of her evidence that she believed her skull was fractured three times as a consequence of that particular incident. 

7. I have to say there is not one piece of corroborative evidence in any form that gives any credence to that particular story. Most particularly, I note the absence of any medical evidence supporting any of that. 

8. Indeed, on another occasion she asserts that the husband physically assaulted her quite badly on the lounge in the presence of the children, who he insisted, she says, stay and watch him assault her. That assault, she says, consisted of about 40 hard punches to the head by him. She gave evidence that it happened a couple of days before she did attend upon a medical appointment at the BB SERVICES. The medical records simply reflect an examination by the doctor of her ears because of ongoing otitis media problems that she was having with her ears. There is absolutely no corroboration in the notes of the doctor of her assertions about the injuries she sustained in that alleged physical assault. I acknowledge and observe here though, that the father agrees that on one occasion, he did, indeed, unfortunately and regrettably, punch the mother in the mouth in an argument or in the course of an argument that they were having.

9. All of that evidence has been very disturbing.  The mother, during the course of the preparation of this matter for trial, attended upon Dr H, a psychiatrist, who is very experienced in providing mental health assessments of parties in these high-conflict parenting cases in this particular Court.  Dr H provided a written report, that I had read in the preparation for hearing the trial, and its contents disturbed me greatly. 

10. I have now had the advantage of hearing oral evidence from Dr H and observe him being cross-examined, and I have had the advantage of the expression by him of his opinion, having regard to some further evidence that he has been provided with from Ms Oakley, counsel for the ICL, and, indeed, that he heard about from me, during the course of his evidence this morning. However, when I made the Orders that I am now giving my reasons for, I did not have his oral evidence. Suffice to say that having heard his oral evidence this morning, I am even more fortified in the view that the Orders I made in respect of the recovery of these children were appropriate and in their best interests.

11. Dr H, in his report, spoke of the mother’s history and her presentation as being quite perplexing. He mentioned that he had had reports, presumably from documents and from the father, of significant change in the mother’s behaviour and demeanour in more recent times. He observed that she had become increasingly preoccupied with concerns around the father’s infidelity with neighbours, friends, other acquaintances, members of his own extended family, his grandmother and the maternal grandmother, as I have already spoken about.

12. He was concerned that the mother has developed a psychotic illness. He said, though, that the subject was quite perplexing because of a lack of other symptomatology. He said it could possibly be explained by an organic cause. He said this might explain her claims of having seen the father having sex with others and her claims of having seen him raping their children. He said that it could possibly be schizophrenia, a mental health illness, but he said before he made that determination, the psychosis being the product of an organic process, would need to be excluded. 

13. The doctor actually interestingly said that he leaned away from the view that the mother’s allegations were pure fabrications, conscious and willing lies. He said that because he said she seems to believe the allegations that she made.  Nevertheless, he pointed out that most of these allegations are “un-understandable”, in his words, meaning that in hearing them and the reasons for them given by the mother, an ordinary, reasonable person would not come to the same conclusions or understand the evidence the mother was relying upon to form these conclusions in the same way that the mother has. He also said that the mother’s own described behaviour after allegedly witnessing the rape of her children in circumstances described by her in itself was “un-understandable”. He said these things raise very serious concerns about the mother’s ability to protect the children, and, I add to that, other children, from the risk that they were being exposed to at the time in the way the mother alleged they were harmed.  He said it raises serious concerns about her ability to protect children potentially into the future. 

14. He said he was concerned that the mother has profound character pathology, and that that is potentially secondary to a serious mental and/or physical illness. He raised concerns about the mother’s capacity in all these circumstances with respect to decision-making. He questioned her judgment and her behaviour and says that it’s potentially being impacted upon by these morbid belief processes and experiences. He strongly recommended that the mother seek assessment with a suitably qualified medical practitioner. 

15. He said she would benefit from a neurological or neuropsychiatric “work-up”, as he called it, that excluded an organic basis for the symptoms. He said that she would need a longitudinal assessment by a suitably qualified psychiatrist and she ought to provide her general practitioner and that psychiatrist with Dr H’s report for them to read and consider professionally because of the access that he had had to much other collateral information that they might not get purely from the mother.

16. During the course of her cross-examination on Tuesday, the mother was asked about that and whether she had at least shown the report of Dr H to her general practitioner, Dr J. The mother said that she had. She said she had discussed it with Dr J and asked Dr J for her views, and effectively said that Dr J had told her that there was nothing to worry about.

17. I was informed as part of the submissions that I heard from the ICL supporting the application for the Orders that I made that Dr J was going to be called, and would give evidence to the effect that she had not read Dr H’s report, and, therefore, the evidence that the mother had given could not be relied upon in that vein. 

18. As it stands now, I have, since I made the Orders, heard from Dr J.  Dr J’s evidence was that she had received by email a copy of the report of Dr H sent to her by the mother. She said she has started to read it, and when she got to the point of seeing Dr H's CV, curriculum vitae, set out, she determined that it was probably not something that she should read or, put a different way, that it was probably a document that she should not read. 

19. She conceded that when she saw the mother, the mother asked her did she receive Dr H’s report. She said that she had. I did not understand her to have informed the mother that she read it because she had not. I am satisfied that Dr J would not have told the mother that she had read all the report in circumstances where she had not, but she had told the mother that she had received it. Her evidence was, and to some degree slightly consistent with what the mother was saying, that the mother has said to her, “He thinks I’m crazy.  How about you?  Do you think I’m crazy?” and Dr J’s evidence was that she responded to the mother, “No, I don’t think you’re crazy”.

20. I accept that that was the exchange between Dr J and her patient, having heard that from Dr J, and I must say Dr J, in my view, went out of her way to give evidence that assisted her patient as much as she possibly could, a phenomena not uncommon with general practitioners who I see and experience giving evidence in this Court.  It is, in my view, a fact of commercial life associated with general practice that general medical practitioners tend to give evidence supporting their patients. That said though, I consider that exchange between Dr J and the mother not to have been a reasonable basis for the mother asserting that Dr J had read the report and told her there was nothing to worry about, and that, at the point of time on Tuesday when I made the Order that I did, I was of the understanding that Dr J was going to tell the Court that she had not read the report, and, in essence, that is the evidence she gave. 

21. I was of the view that, in those circumstances, the mother had not and has not sought appropriate treatment and has not accepted or recognised that which Dr H opines and recommends in his report, and I am still of that view.  That was the basis upon which I came to the commencement of the hearing of the mother’s evidence with significant concern. My concern only continued to rise and increase to the level that caused me, ultimately, to be satisfied that the Recovery Order needed to be made, once I saw the mother in the witness box and observed her demeanour, and once I heard the evidence that she gave, both in answers to questions under cross-examination by Mr Jordan, but also from Ms Oakley, and also answering the questions that I occasionally put to her myself.

22. I just have to add, also, that Dr H particularly noted the bizarreness of many of the allegations that the mother has made, of which I have already mentioned. “Bizarre” is certainly a descriptor of those allegations that I would accept and endorse. The matters of evidence that fell from the mother that caused me even greater concern in the light of all of that which I have already outlined were effectively about a couple of different aspects or issues.

23. The mother said in her evidence that she had not or never entertained the thought that the children could ever be returned to a man who has sexually abused them, as she says that the father has. When asked to think about the possibility that it might happen, she said, “I try not to think about it”. She said, “I guess I’m just hoping and praying”.

24. But nevertheless, interestingly, when she was asked if she would move back closer to live near the children if they happened to be living with their father so that it would make it easier to spend time with them, she said:

    No, not necessarily.  I need to be around my parents right now, people who care about me and who will take care of me.  I think that’s the healthiest place to be right now.

    There might be something in that, in any event, but I was just a little bit troubled about the rather nonchalant nature of what her ongoing relationship with the children might be in the event that they were placed with the father. Indeed, she went on to say, “There’s always the telephone”. When asked by counsel would that suffice, she said, “It would have to”.

25. That was rather troubling. The other area of her evidence that was very concerning and probably gave rise to my acceptance of the submissions made and the application made by counsel for the ICL, was reference to the Victim Impact Statement, where the mother had said that her son, Y, had told her he wished he could go to heaven. She acknowledged that he knew what that meant. The family is a religious family, apparently, adhering to a form of the Christian faith that the church that they had been attending practised. 

26. Indeed, the text messages that the mother sent to the father in the lead-up to the separation on 2 March last year had a rather disturbing religious preponderance. I say rather disturbing, and I do not mean to suggest that I am disturbed by the fact that people profess a faith and adhere to it, or even that they might quote passages of the Bible to each other, but in circumstances where the mother now claims and has claimed over the last year or so that the father has sexually abused and raped their children before her very eyes, she was preoccupied in the text exchange by reference to passages from the Bible and assertions to him that he had been unfaithful to her. 

27. The text exchanges contain no particularity or detail about who he might have been unfaithful to her with and no reference to any allegations such as (my words), “You raped our children, and where does that put you in God’s eyes?”, if one believes in a God, as she purported to. On the other hand, the father’s text messages were not consistent with messages of a man who was the violent, deviant monster that the mother would have the Court believe he was. Indeed, his messages were more consistent with his assertion that he was trying to save the marriage and the assessment of his personality being an “anxious avoidant” one by Dr H. So against what I call that incongruent preponderance - reference to religion and passages from the Bible - that the mother was demonstrating in her communications with the father at the time of separation, I see and consider these references to her son saying he wanted to go to heaven, her reference to their daughter, X, questioning her own existence and asking why God would want to make her and put her here if she had to put up with what she was having to put up with. The mother agreed with counsel’s proposition that the children were thinking about their own deaths because they were so desperate to get away from their father. 

28. She went on in that Victim Impact Statement to talk about the psychotic breakdown of all of them - her and her children. She was saying that she was experiencing a psychotic breakdown all at the hands of the father and his behaviour, but she was speaking on behalf of her three children, quite disturbingly, saying that she considered them as having a psychotic breakdown as well.

29. She went on to refer to the fact that they were spiralling into depression and suicide. Now, that evidence, the explanations that she gave for it in cross-examination by Ms Oakley, which I was somewhat troubled by, and everything that I have referred to already, led me to the conclusion that there is or was, on Tuesday evening when I made the decision, an unacceptable risk presented to these children remaining, essentially, in the care of their mother, albeit being looked after by her parents in Town N. 

30. In circumstances where the ultimate outcome of this case might be that I make Orders that the children live on a full-time basis with their father, and in circumstances where the prospect of that being a realistic outcome began to emerge as a much more likely prospect during the ongoing conduct of the trial, what prompted me to act in the way that I did in making the Order was concern for the wellbeing for the children in the event that the mother reached a position where she thought that that which she considered to be the worst possible outcome for these children, that is, them being placed in the care of their father, the man she believed to be a violent, deviant monster, might, in the circumstances of her state of mental health, place them at some serious risk of harm.

31. I considered that risk unacceptable and I considered it unacceptable to go on any longer, and that is also the basis upon which not only I ordered them to be recovered, but the principal reason why I made an Order that the mother not be told about it until they were safe. 

32. Having heard Dr H’s evidence this morning, particularly his opinions in response to some questions that Ms Oakley and I asked him about things that fell from the mother during the course of the hearing, some of those which fell from her after I had made the Recovery Order already, I am, as I said earlier, even more strongly fortified and comforted in knowing that I consider the decision I made was in the best interests of the children.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 18 July 2019.

Associate: 

Date:  26 September 2019