Pettit and Anor and Fairs and Anor
[2016] FCCA 2693
•20 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PETTIT & ANOR & FAIRS & ANOR | [2016] FCCA 2693 |
| Catchwords: HELD – Mother to retain sole parental responsibility for the two children, for the children to live with the Mother and the Step-Father and for there to be no time or communication between the children and the Father and the Step-Mother – children allowed to spend time with their step-siblings on a monthly basis – prohibition on electronic communication. FAMILY LAW – Contravention – where the Father filed a Contravention Application against the Mother alleging a breach of Order 3 of the Orders dated 6 October 2015 – contravention proved – reasonable excuse. FAMILY LAW – Contravention – where the Father alleges breaches of Orders 4(a) and 4(b) of the Orders made 6 October 2015 – where the only evidence is an unofficial transcript of a recording obtained illegally – insufficient evidence – contravention not found. FAMILY LAW – Contempt – where the Father filed a Contempt Application alleging that the Mother wilfully disobeyed the Orders of 6 October 2015 and 30 May 2016 – in circumstances where the Mother found to have a reasonable excuse – application dismissed. FAMILY LAW – Vexatious proceedings – where the Mother makes an application pursuant to Section 102QB of the Family Law Act 1975 (Cth) – held proceedings not vexatious – application dismissed. |
| Legislation: Evidence Act 1995 (Cth), s.138 |
| Cases cited: AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Goode & Goode (2006) 206 FLR 212 |
| First Applicant: | MR PETTIT |
| Second Applicant: | MS PETTIT |
| First Respondent: | MS FAIRS |
| Second Respondent: | MR FAIRS |
| File Number: | MLC 6856 of 2014 |
| Judgment of: | Judge Bender |
| Hearing date: | 20 July 2016 |
| Date of Last Submission: | 24 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 October 2016 |
REPRESENTATION
| Counsel for the Applicants: | In Person |
| Solicitors for the Applicants: | Not Applicable |
| Counsel for the Respondents: | Mr Testart |
| Solicitors for the Respondents: | Pearce Webster Dugdales |
| Counsel for the Independent Children's Lawyer: | Mr Eidelson |
| Solicitors for the Independent Children's Lawyer: | Schetzer Constantinou |
ORDERS
All previous parenting Orders be discharged.
The Mother have sole parental responsibility for the children
X born (omitted) 2001 (“X”) and Y born (omitted) 2003 (“Y”).
X and Y live with the Mother.
The Applicants, their servants and/or agents (save as set out in Orders
(7)-(11) herein) be and are hereby restrained from spending time with or communicating or attempting to communicate with X and Y or either of them by any means (including but not limited to telephone, text message, email, via “applications” and/or games, online forums and the like).
For and by way of clarification of Order (4) herein, the servants and agents of the Applicants include the Applicants’ children and family members.
In the event that X and Y or either of them:
(a)contact and/or communicate with the Applicants or either of them by any means, they shall immediately report same to the Respondents and be and are hereby restrained from responding to such contact and/or communication; and/or
(b)attend upon the Applicants or either of them at their home or any other location, they shall immediately telephone the Respondents or either of them and arrange for X and Y or either of them to be collected.
Communication between the Applicants, X and Y occur only by letter, card or gift on one occasion each calendar month and at Christmas, Easter and each of X and Y’s birthdays, with the Mother to pass on to X and Y such communications and the Mother be at liberty to “vet” same and, at her discretion, refuse to pass it on.
In the event the Mother exercises her discretion pursuant to Order (7) herein, she notify the Father by email within seven days of the exercise of that discretion and the Father will be at liberty to provide substitute communication for that month.
The Mother shall encourage and assist X and Y in making a prudent response to the Father’s communications pursuant to Order (7) herein.
Commencing the last Sunday in November, the Mother shall do all acts and things necessary to facilitate X and Y spending time with their siblings Z born (omitted) 2004 (“Z”), V born (omitted) 2005 (“V”) and W born (omitted) 2008 (“W”) for no less than one day per calendar month at times and places as may be agreed between the parties and failing agreement on the last Sunday of each month (save for Christmas Day 2016 when such time shall take place on 18 December 2016) between 10.00am and 3.00pm at the place nominated by the Mother by email to the Father no less than seven days prior to the time taking place (“the nominated place”).
For the purposes of the time X and Y spend with Z, V and W pursuant to Order (10) herein, Z, V and W shall be taken to and collected from the nominated place by a single member of the Father or Step-Mother’s family who will be permitted to remain with Z, V and W during the visit but will be restrained from providing X and Y with their contact details or passing any communication to X and Y from the Applicants or either of them.
The Applicants, their servants and agents be and are hereby restrained from contacting X and Y’s health practitioners or schools.
The Mother shall:
(a)keep the Applicants appraised by email of the names of all of X and Y’s treating practitioners and notify them of their ongoing treatment and any serious illness or injury, suffered by X or Y; and
(b)authorise any school attended by X and Y to forward to the Applicants at the Applicants’ expense copies of all school reports, photograph order forms and bulletins usually provided to parents.
The Mother is authorised to provide a copy of these Orders to all of X and Y’s treating health practitioners and the principal/s of X and Y’s schools.
The Mother shall continue to do all things necessary to ensure X and Y receive all appropriate medical care.
The parties be and are hereby restrained by injunction, by themselves, their servants and/or agents from:
(a)denigrating, belittling, rebuking or criticising any other party or any member of any other party’s household, within the presence or hearing of X and Y or either of them; and
(b)discussing with X and/or Y any matter of fact or opinion concerning any issue connected with this proceeding.
IT IS NOTED that publication of this judgment under the pseudonym Pettit & Anor & Fairs & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6856 of 2014
| MR PETTIT |
First Applicant
| MS PETTIT |
Second Applicant
And
| MS FAIRS |
First Respondent
| MR FAIRS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an extremely difficult and distressing parenting matter with a long history before this Court.
It relates to the living arrangements for the children X born (omitted) 2001 (“X”) and Y born (omitted) 2003 (“Y”).
X has been given a diagnosis of gender dysphoria and identifies as a male. He was previously (X's previous name omitted). X has also been diagnosed with Autism Spectrum Disorder.
The Father was born on (omitted) 1977 and is aged 38 years. He is unemployed.
The Step-Mother, Ms Pettit, was born on (omitted) 1986 and is aged 29 years. She is a student.
The Mother was born on (omitted) 1979 and is aged 37 years. She is a (occupation omitted) working flexible hours around the needs of her family.
The Step-Father, Mr Fairs, was born on (omitted) 1975 and is aged 41 years. He is employed on a full-time basis as a (occupation omitted).
The Father and Mother commenced cohabitation in 2000 and married on (omitted) 2002. They separated in (omitted) 2003. At separation X was just two years of age and the Mother was pregnant with Y.
The Father and Step-Mother forged a relationship shortly after the Father and Mother separated. The Father and Step-Mother married on (omitted) 2010 and have three children: Z born (omitted) 2004 (“Z”), V born (omitted) 2005 (“V”) and W born (omitted) 2008 (“W”).
The Mother commenced a relationship with the Step-Father in 2004 and they married on (omitted) 2009. They have a son, U born (omitted) 2011 (“U”), who is aged 5 years.
When the Father and Mother separated, X and Y lived with the Mother and spent regular time with the Father.
In July 2014 the Father over-held X and Y. The Father commenced proceedings in the Federal Circuit Court of Australia on 5 August 2014.
On 19 January 2015 interim orders were made for Y to return to live with the Mother and spend alternate weekends with the Father and for X to continue living with the Father and spend supervised time with the Mother.
Final parenting orders were made by consent on 6 October 2015. Those orders were made during the running of the final hearing and after only the Father had given his evidence. The Mother, Step-Mother,
Step-Father and the experts’ evidence was not heard.
All parties agreed that, these current proceedings are in reality continuation of the proceedings that concluded in October 2015.
The final parenting orders made on 6 October 2015 provide in part as follows:
(1)The Mother have sole parental responsibility for X and Y;
(2)X and Y live with the Mother;
(3)X and Y spend time and communicate with the Father as follows:
·no face to face time whatsoever with X and Y until 6 April 2016;
·thereafter, every second weekend from after school Friday until 6:00pm Sunday;
·from Term 1 2016 for half school holidays;
·time at Christmas and on Father’s Day;
·after 6 April 2016 by telephone each Thursday;
(4)The parties be restrained by their servants and agents from denigrating each other or members of their household and from discussing the proceedings in the presence or hearing of X and Y;
(5)The Father be restrained from communicating by email, any form of electronic or social media, telephone, text message, befriending X or Y on social media or providing them with a device that would enable X or Y to communicate with the Father.
A notation to the 6 October 2015 orders states the orders were made on the undertaking of Ms Pettit to be bound by the terms of Orders (4) and (5) and of Mr Fairs to be bound by Order (4).
On 15 December 2015 the Step-Mother, Z, V, W, the Step-Mother’s sister and her two children and the Step-Mother’s parents all attended Y’s Primary School graduation.
The Step-Mother did not ask the Mother if she and her family could attend the graduation and she did not advise the Mother of her intention to attend this ceremony with all her family.
When the Step-Father realised the Step-Mother and her family had attended the graduation, there was an exchange between he and the Step-Mother. The exact nature of this exchange is disputed.
On 21 December 2015, following Y’s graduation ceremony the Step-Mother made application for and obtained an ex-parte intervention order against the Step-Father and the maternal grandmother for the protection of Z.
In the applications and summons for the intervention order against the Steo-Father, the Step-Mother alleges the Step-Father “screamed in my face in front of all the children” and approached Z and told her the police would be attending in half an hour to take her mother away. The Step-Mother alleges the maternal grandmother screamed at and elbowed Z and yelled at and pushed her mother.
X and Y recommenced spending time with the Father and his family on 6 April 2016. When the Step-Mother collected X and Y on that day she recorded X and Y’s complaints about the Mother and Step-Father’s care of them without their knowledge or consent.
During the weekend of 6 April 2016 X had two nose bleeds. After the second nose bleed the Step-Mother took X to her family’s local general practitioner Dr C. On 9 April 2016 the Father, X and Y returned to Dr C. X made allegations of inappropriate care by the Mother and the Step-Father. Given X’s complaints, Dr C who compelled to make a mandatory report to the Department of Health and Human Services (“DHHS”).
On 10 April 2016 the Father send an email to the Mother which in part states:
“On 8 April 2016 X suffered from two blood noses.
…
Ms Pettit took X to (Medical centre omitted) and X was seen by Dr C.
…
On 9 April I attended (Medical centre omitted) and Dr C spoke with X and Y.
X’s discussions regarding the past 6 months included:
(a) that he has ongoing blood noses
(b) that his Lovan has been increased from 10mg/day to 40mg/day in the last 6 months
(c) that he was routinely experiencing nausea, headaches and loss of apetite
(d) that his grades have dropped
(e) that he had been taken to the Hospital B due to threats of suicide, self-harm and attempts of attacking others
I have serious concerns regarding the welfare of X and his ability to thrive in his present environment.
…
Both Y and X have requested to come and live with me. I would like them to commence living with me immediately. I believe that this is in their best interests.”
X and Y spent time with the Father and Step-Mother on the weekend of 22 April 2016. The Step-Mother again recorded X and Y’s conversations over the weekend. She also recorded a call made by X to Kids Helpline in which X reported abuse by his Mother and Step-Father whilst in their care. The recordings were again done without the knowledge or consent of X and Y.
It is the Father’s evidence that when X and Y attended his home on 6-10 April 2016 they asked why the Step-Father and maternal grandmother were no longer involved in driving them to spend time with he and their half siblings. It is the Father’s evidence X and Y were told by him it was because of the interim intervention orders against the Step-Father and grandmother. It is the Father’s evidence that X and Y then asked “to be added to the intervention order”.
On 13 May 2016 the Father made application to the (omitted) Magistrates’ Court for an intervention order against the Step-Father for the protection of X and Y.
The Step-Mother’s intervention order applications came before the (omitted) Magistrates’ Court on 26 April 2016. The Step-Mother’s Applications were listed for a contested hearing on 1 August 2016. Most concernedly, the learned Magistrate ordered that on 1 August 2016 X and Y should be in attendance and they be represented by Victoria Legal Aid in the expectation they give evidence at the final hearing.
On 2 May 2016 the Mother forwarded the following email to the Father:
“Dear Mr Pettit,
I write to inform you that, after agonising over your and Ms Pettit’s renewed attempts to undermine the orders made last year about the parenting of X and Y, I have decided that you will no longer be seeing the children.
You well know the abjectly vile machinations in which you and Ms Pettit have engaged, but for the purposes of clarity, I set out the major matters which have informed my decision:
·Ms Pettit’s decision to provoke a confrontation at Y’s graduation ceremony, in breach of the orders. This was an event at which she was not invited, and which the orders prevent her from attending. The attempt by her, by going to the Police in an attempt to pre-empt criticism by having them “interpret” the orders in her favour, indicates the depth of premeditation that you and Ms Pettit have put into subverting the orders.
·Ms Pettit’s abuse of the process of the Magistrates’ Court in seeking Intervention Orders against Mr Fairs, not only on her own behalf, but also on behalf of your children with her, and further (as she has threatened at Court recently), to make an attempt to obtain an Intervention Order on behalf of X and Y. There is no merit whatsoever to Ms Pettit’s claims, as you well know, and her embroiling children in giving evidence in order to bolster her bankrupt and untrue claims is an outrage for which she will answer in due course, in the event she continues with her vexatious proceeding in the Magistrates’ Court. Be assured that if there is any attempt whatsoever to further the threats in respect of my own children, I will take the necessary steps to obtain an anti-suit injunction against her, and you, without further notice.
·Ms Pettit’s attempts to embroil both X and Y in the Intervention Order proceedings by discussing them with both children.
·Your, and Ms Pettit’s breaches of the orders in taking X to doctors on the very first visit, on the pretext of a “blood nose”, but really to allow you and Ms Pettit to manipulate him into renewing the false assertions of abuse that were dealt with last year, constitute emotional and psychological abuse that I will no longer tolerate.
·Ms Pettit’s clandestine communications with X, also along the lines of “abuse”, in direct breach of the orders made last year.
Mr Pettit, I am no longer going to tolerate any further attack on my parenting, and I am prepared to use the proper authority given to me by the orders to ensure that the children are protected from your and Ms Pettit’s psychological abuse and manipulation of them.
Accordingly, I repeat what I said above: you will no longer see the children. I invite you to take whatever Court proceedings you may be advised in the face of this information, but be aware that I will fiercely contest them, and I will produce this letter as the basis, at first instance, of my decision. I have available significant evidence as to the improvement in X’s psychological condition whilst in my care, and in the absence of your and Ms Pettit’s influence, and will also use that in the event you choose to commence proceedings.
I would only be prepared to reconsider my decision if the following conditions were met by you and Ms Pettit:
1. You and Ms Pettit openly acknowledge that you have sought to:
a. Undermine the orders;
b. Undermine the arrangements concerning my sole parental responsibility;
c. Undermine the children living with me;
2. You and Ms Pettit undertake to cease and desist any further such undermining behaviour;
3. Ms Pettit acknowledges there is no merit to her Intervention Order proceedings, and forthwith withdraws them.
I take this opportunity to warn you that any attempt by you and/or Ms Pettit to take the children out of my care before there is a valid order of a court exercising Family Law jurisdiction will result in me seeking an urgent Recovery Order.
Do not attend at either of their schools, and do not allow Ms Pettit to do so. Do not communicate with either children, or allow Ms Pettit to do so. Do not come to our house expecting the children to be delivered to you; it will not happen.
Yours faithfully,
MS FAIRS”
X and Y have spent no time and have not communicated with the Father or the Step-Mother since 2 May 2016.
On 23 May 2016 the Father filed an Initiating Application in this Court seeking orders for equal shared parental responsibility, that X and Y live with him and spend alternate weekends and half holidays and shared special occasions with the Mother. This application was listed on 16 June 2016. The Father sought to have his application listed more urgently than this date but the Registrar refused to do so.
On 30 May 2016 the Father attended the Registry of the Court and sought to file an Application to have the decision of the Registrar not to urgently list his Initiating Application reviewed. This application was listed before Judge Jones on that day. Her Honour made an Order that Order (3) of the Orders made 6 October 2015 continue to apply and for the Father to serve all material on the Mother by 3 June 2016 and otherwise directed the matter remain listed on 16 June 2016.
On 3 June 2016 the Father filed a Contravention Application and Contempt Application.
On 14 June 2016 the Mother filed a Response seeking all of the Father’s applications be dismissed, that the Court make a vexatious proceedings order against the Father pursuant to section 102QB of the Family Law Act 1975 (Cth) (‘the Act’) and that on an interim basis the Orders for time and communication between X, Y and the Father be suspended.
The current applications first came before me on 16 June 2016. On that occasion orders were made as follows:
·the matter listed for urgent final hearing on 20 July 2016;
·
the Step-Mother be joined as Second Applicant and the
Step-Father be joined as the Second Respondent;
·appointment of an Independent Children’s Lawyer;
·the Independent Children’s Lawyer be requested to:
(i)speak to X and Y;
(ii)have X and Y’s treaters provide reports to the Court as to X and Y’s current health and to be available to give viva voce evidence at the final hearing;
·the parties be restrained from filing further affidavits without leave of the Court.
An interim order was also made suspending all orders for X and Y to spend time and communicate with the Father.
After discussions with the Father and Step-Mother the following notations were included in the 16 June 2016 Orders:
A.The First-named Applicant has agreed to forthwith discontinue his Application for an Intervention Order against the Second-named Respondent which is currently listed for mention in the Magistrates’ Court at (omitted) on 12 July 2016.
B.The Second-named Applicant has agreed to forthwith discontinue her Application for an Intervention Order against the Second-named Respondent and the maternal grandmother which is currently listed for a defended hearing in the Magistrates’ Court at (omitted) on 1 August 2016.
The hearing of the evidence and the submissions of the Independent Children’s Lawyer and the parties concluded after four days on
23 July 2016. The judgment was reserved.
On 15 August 2016 the Mother filed an Application in a Case seeking that the matter be re-opened and that further evidence be adduced in relation to an incident with X in 8 August 2016.
The Respondents did not oppose this application and further evidence was heard on 22 and 24 August 2016.
On 8 August 2016 when the Mother went to collect X and Y from school at 3:10pm, X was not at school.
When X could not be located, the Mother, Step-Father and the maternal uncle frantically searched for X in the area around the school.
The Mother also called the Father and left a message asking him to urgently contact her. The Father at no time returned the Mother’s call.
The Mother also called the Step-Mother. She left no message for the Step Mother.
X arrived at the home of Ms H at approximately 3:20pm. Ms H is an acquaintance of the Step-Mother’s. Her step-son B had played (sport omitted) with Y. X only met Ms H on one occasion and that was in 2015. X had never been inside Ms H’s home, although was once in a car that collected a team member from outside Ms H’s home.
Ms H spoke to the Step-Mother at 4:17pm and advised her X was with her. She told the Step-Mother that X had told her he ran away from school because he was scared of the Mother and
Step-Father who had been abusive of him the night before. X told Ms H he would “hurt himself” if made to return to the Mother and Step-Father.
As a result of X’s level of distress and his threats of self-harm,
Ms H contacted the police and DHHS.
The police notified the Father that X was with Ms H. The Police also notified the Mother that X was safe but not where he was.
The police attended Ms H’s home and spoke to X. As X continued to threaten self-harm, an ambulance was called and X was taken to Hospital B where he was seen by the mental health clinician on call. The parents were advised by DHHS he was being taken to hospital.
Upon being advised that X had been taken to hospital, the Mother and Step-Father went to Hospital B. After approximately three hours and further assessment by DHHS and the mental health clinician, the Mother and Step-Father were permitted to see X and allowed to return with him to their home.
High school B is 8.2 kilometres from Ms H’s home. X told Ms H that he had left school at around 2:00pm and had been running and hiding for hours before getting to her place. X told the Mother he had been in text contact with the Step-Mother on the morning he had run away and that she had given him her mother’s number and that the Step Mother’s mother had fetched him from the shops near the school.
Ms H did not see how X arrived at her home.
The Evidence
The Applicants rely on the following affidavit material:
a)the affidavits of the Father sworn 23 May 2016, three affidavits sworn 3 June 2016 and an affidavit sworn 17 August 2016 relating to the further evidence led in the proceedings;
b)the affidavit of the Step-Mother sworn 15 June 2016 and the affidavit sworn 17 August 2016 in relation to the additional evidence adduced in the matter;
c)the affidavit of Mr S sworn 16 July 2016;
d)the affidavits of Ms Pettit’s mother, Ms V, and of Ms I, Ms Pettit’s sister, both sworn 16 July 2016. Neither Ms V nor Ms I were available for cross-examination. As such their evidence was not considered by the Court; and
e)the affidavit of Ms H sworn 16 August 2016 in relation to the additional evidence adduced in the matter.
The Father, Step Mother, Mr S and Ms H gave viva voce evidence at the final hearing.
The Respondents rely upon the following affidavit material:
a)the affidavit of the Mother sworn 14 June 2015 and the affidavit sworn 12 August 2016 in relation to the additional evidence heard in the matter;
b)the affidavit of the Step-Father sworn 14 June 2016 and the affidavit sworn 12 August 2016 in relation to the additional evidence led in this case;
The Mother, and the Step-Father gave viva voce evidence at the final hearing.
The Independent Children’s Lawyer relies upon the following:
a)affidavit of Dr E sworn 19 August 2015;
b)affidavit of Dr N sworn 21 August 2015;
c)affidavit of Dr N sworn 21 September 2015;
d)affidavit of Dr R sworn 18 July 2016;
e)affidavit of Associate Professor T sworn 18 July 2016;
f)section 67Z Response from DHHS dated 15 June 2016 prepared by Senior Child Protection Practitioner G;
g)viva Voce evidence of Dr D; and
h)viva Voce evidence of Ms M.
Associate Professor T and Dr R also gave viva voce evidence at the final hearing.
Dr E and Dr N were not required by the Court for cross-examination. I made the decision that X and Y would not be required to attend for a further family report for the purposes of this hearing given the extent of their therapeutic treatment as well as the multiple interviews by police and DHHS arising from the various notifications made by the Applicants and others.
The Court notes that the Applicants do not accept and take serious issues with the reports and conclusions reached by both Dr N and Dr E.
Dr E
Dr E is a consultant psychiatrist who undertook psychiatric assessments of all parties in June 2015. Dr E’s psychiatric assessments are contained in his report dated 2 July 2015 and are annexed to his affidavit sworn 19 August 2015.
In relation to the Mother, Dr E under the heading “Summary” described the Mother as follows:
“Ms Fairs described a stable, loving and supporting relationship with Mr Fairs. After Mr Pettit’s withholding of the children in July 2014, she has been embroiled in Family Court litigation. She expressed concern, particularly for (X’s previous name omitted) who is a vulnerable child (ASD) and is susceptible to the conflict between her parents. Ms Fairs’ comments in regard to Mr and Ms Pettit, whilst critical, were measured. She has come to understand that her tendencies to avoid conflict have not been helpful in dealing with the intrusions of Mr and Ms Pettit. Her description of these difficulties and the stress involved would be consistent with an Adjustment Disorder with Depressed an Anxious Mood currently in remission with treatment.”
In respect to the Step-Father, Mr Fairs, Dr E in his report under the heading “Summary” states as follows:
“Mr Fairs grew up in a single parent family. He was loved by his aunt and grandmother who provided a supportive network. He enjoyed school and has worked hard to get ahead. He was a likeable man who spoke warmly of his love for Ms Fairs and the children. He spoke of his role as supporting her in order to ensure the children’s welfare and assist in the process of rebutting the allegations levelled against her and her role with (X’s previous name omitted) and Y.
Mr Fairs does not have a psychiatric history and impressed as a balanced and considered man who has done his best to play his part in the children’s lives.”
In relation to the Father, Dr E in his report under the heading “Summary” stated the following:
“Mr Pettit grew up in a “military” home. His father was strict and his mother soft and caring. As a child he was adventurous and academically above average. Following the family tradition, he joined the Air Force and left after four years. Since then he has not worked in any sustained sense. Mr Pettit has since engaged in a variety of study activities and courses, and at one point, worked as a hypnotherapist. He continues to study but largely sees himself as a career father and family man.
His account of his relationship with Ms Fairs contained elements of rejection, hurt and anger when she decided to end the relationship on the basis that she was no longer prepared to work and support him when Y was born. Mr Pettit impressed as an emotionally needy man who soon partnered to Ms Pettit, his future wife, when she was 16 and he was in his 20’s. He found Ms Pettit much more amenable than Ms Fairs and they have since had three children together.
Whist there appeared a long and stable status quo arrangement involving the children, Mr Pettit continues to harbour resentment and anger towards Ms Fairs which has since manifested in manipulation of the children through the prism of their alleged hearsay comments and negative assertions in regard to their mother.
Mr Pettit repeatedly asserted that he had not been properly acknowledged as father of the children, and sees himself as the victim of Ms Fairs’ hard-hearted approach to residency and contact, and complained bitterly that he’d had to do the driving to pick up and deliver the children, despite what appears to be his self-elected decision to move around the manner that he and
Ms Pettit did.
Mr Pettit sees himself as an advocate of his children’s wellbeing in respect to their ASD condition and protector of (X's previous name omitted) and Y in respect to the abuse he believes they experience at the hands of Ms Fairs. Whilst he continued to assert that he wishes the children’s best interests to be served, it is apparent that his underlying motive is to remove the children from their mother’s care and for them to take up residence with him. This is a matter in which there appears to be an unusually high degree of mental health and development issues involving Mr and Ms Pettit and their children, given that Mr and Ms Pettit have been diagnosed with ADHD, and Mr Pettit considers that Y may also suffer from the same condition. I was left with considerable doubt as to Mr Pettit’s diagnosis of ADHD, and Y’s concentration problems are not consistent with that diagnosis. Mr Pettit’s salient symptoms of depression and anxiety are explained by factors involving the high degree of conflict and recent Family Court proceedings.
At interview Mr Pettit impressed as a man prone to intellectualisation. His various emotive statements in regard to serving the best interest of the children were unconvincing, and in the end, I was left with the strong impression that he is a man of narcissistic bent and that a lot of what is being played out relates to his own psychopathology and narcissism. There were further elements of co-dependency evidence in his current relationship with Ms Pettit who he met when she was very young.”
In relation to the Step-Mother Ms Pettit, Dr E reports under the heading “Summary” as follows:
“Ms Pettit grew up in a close and loving family. As a child she was talkative, enthusiastic but low in self-esteem and anxious. There was a strong family history of anxiety involving her mother, sister, aunts and grandmother. She is by nature a helper and a rescuer. She met Mr Pettit and was drawn to his cheeky and happy demeanour. Soon they had three children. Ms Pettit’s life with Mr Pettit, particularly over recent years, has been dominated by his unrequited need to be more part of his children’s lives. She confirmed his sense of being sidelined from the lives of (X's previous name omitted) and Y. According to her, as the children grew older, they began to report concerning mistreatment and abuse at the hands of their mother. This served to heighten Mr Pettit’s concerns about them. Ms Pettit’s description of the family constellation was one of a repeat of her early experience as a child, that is, a close family. She saw (X's previous name omitted) and Y as being no different to her children, commensurate with Mr Pettit’s wish to have them inculcated into their family.
Ms Pettit spoke lovingly of her husband and seemed particularly sensitive to his sense of suffering and concern about (X's previous name omitted) and Y. She has tried to help him in that endeavour but in the end, in the context of the proceedings and Y being returned to his mother, has experienced herself as increasingly helpless. As a result her anxiety has escalated. She reported depressive symptoms and has attended a Psychiatrist who has prescribed psycho-tropic medication which has ameliorated her condition.
Whilst Ms Pettit impressed as quite genuine in her concerns, it was strongly evident that a psychodynamic of co-dependency was operating between herself and her husband, in keeping with her role as a helper and rescuer. To some degree, she impressed as being much younger than Mr Pettit, and that dynamic more than likely began many years ago and she now finds herself swept up in the litigation process, the outcome of which is now difficult for Mr and Ms Pettit to predict.”
Dr E summarised his position in relation to the parties and the circumstances of this matter in his report under the heading of “Opinion” as follows:
1. (X's previous name omitted) and Y find themselves embroiled in a struggle between their parents and respective partners.
2.For many years there appears to have been a status quo set of arrangements operating whereby the children lived with their mother and had contact with their father. More recently Mr and Ms Pettit’s previous concerns about Ms Fairs’ capacity to parent the children increased, culminating in Mr Pettit over-holding the children resulting in the current litigation process. Ms Fairs was measured in her account whilst Mr Pettit impressed as emotionally intelligent. Their accounts were believable and neither described current psychiatric symptoms. Mr and Ms Pettit impressed as vulnerable individuals. Mr Pettit is a needy man with narcissistic traits. Unresolved issues from his marriage to Ms Fairs despite his self-described loving relationship with his wife have not sufficed to quell his enmity towards Ms Fairs, which has been acted out through his role as father and “protector” of the children in respect to their various hearsay comments of criticism and abuse at the hands of their mother.
Ms Pettit who is much younger than him and a self-confessed rescuer and helper has become unwittingly caught up in Mr Pettit’s agenda to remove the children from their mother, all of which occurs in the context of significant mental health issues affecting each and every member of Mr Pettit’s household in addition to (X's previous name omitted) and more recently the contagion has threatened to infect even Y.
3. Whilst it is Mr and Ms Pettit’s assertion that Mr and Ms Fairs are blind to the emotional needs of (X's previous name omitted) and Y, it is likely that they have progressively found themselves being besieged by the intrusions of Mr and Ms Pettit and their complaints and concerns in regard to the mental health of (X’s previous name omitted) and Y.
4. Having assessed the parties, I do not consider that Mr and Ms Fairs represent a risk to the mental health and wellbeing of (X's previous name omitted) and Y. For reasons detailed, I do consider that Mr Pettit, with the unwitting involvement of Ms Pettit, poses a risk to (X's previous name omitted) and Y. Mr Pettit’s need to create a picture of abuse occurring in their mother’s home appears to involve pathologising of (X's previous name omitted)’s already established ASD and the attempted recruitment of Y to his and Ms Pettit’s recently defined and diagnosed ADHD conditions.
5. If so, this is a particularly deleterious development in the case of (X's previous name omitted) who I note has threatened self-harm, and Y, described by Mr Fairs as a previously normal, happy boy who enjoyed his (sport omitted), has become anxious and cannot sleep without the light on in his mother’s home.
6. One gets the impression that the ‘rolling maul’ of allegations from the Pettit household in respect to the children’s wellbeing is harming (X's previous name omitted) and Y and has overtaken whatever vulnerability they may have evidenced previously. Whilst Mr Pettit contends that he is wishing to protect his children, the opposite appears to be occurring.
7. Whilst ultimately the wellbeing of (X's previous name omitted) and Y is a matter for the Court, the inescapable impression obtained, having assessed the parents, is that the various allegations need to cease, that contact between (X's previous name omitted) and Y with professionals needs to be limited, and that more than likely, the children (who I have not seen but have been assessed by Dr N) need to be repatriated to their mother’s home.
Dr N
Dr N prepared two family reports in this matter in the lead up to the initial final hearing in this matter in October 2015.
The first of Dr N’s reports is dated 14 January 2015 and is annexed to her affidavit sworn 21 August 2015. Dr N’s second report is dated 16 September 2015 and is annexed to her affidavit sworn 21 September 2015.
In Dr N’s first report under the heading “Summary and Recommendations” on page 34 of her report she states as follows:
“Assessment of Mr and Ms Pettit was concerning and they showed some unusual enthusiasm for psychiatric diagnoses for themselves and their children. I noted that Mr and Ms Pettit appeared to rely heavily on (X's previous name omitted)’s account of what Ms Fairs has allegedly said to her and about them. Mr and Ms Pettit impressed as enthusiastic parents who labour under a degree of resentment about what they perceive as Ms Fairs excluding them from the children’s lives. They appear to have rather fragile self-esteem and eager to assert superiority. They hold very strong beliefs that the children have very negative experiences with their mother and stepfather, and do not appear to take any critical thinking approach to what the children might tell them. I was particularly concerned that they are keen to pathologise themselves with the children. Throughout my assessment with Mr and Ms Pettit much of the information they provided seemed designed to obscure and mislead.
Psychometric testing of Mr Pettit suggested that he may have some significant mood problems around disorganised thinking and behaviour, feelings of hopelessness and poor self-esteem.
Assessment of Ms Fairs found a woman who seemed modest and somewhat retiring. She impressed as stressed from her dealings with Mr Pettit and feeling at a disadvantage in her interactions with him and the children. I suspect it that her method of coping with these stressors has been to ignore and exclude Mr Pettit rather than face interacting with him. Psychometric testing was consistent with my clinical impressions of her and suggested that she has no significant psychopathology other than a mild tendency towards anxiety.
Additionally, there was nothing in my assessment of Ms Fairs to suggest that she has not had a very understandable reaction to (X's previous name omitted) raising problems about gender dysphoria. For most parents there is usually a trajectory of gentle discouragement and difficulty accepting the idea before a period of adjustment.
Assessment of Mr Fairs found a warm and reasonable man who showed a sensitive understanding of the children. I had no concerns about his insight, intentions, capacity for empathy and responsiveness to the children, or affection for them.
(X's previous name omitted) is a vulnerable young girl who appears have lived with a high degree of mistrust and conflict between her parents. Children in this situation can be included to tell one parent what they want to hear, and complaints about the other parent accepted uncritically and followed by a shower of sympathy often causes such complaints to escalate. I consider that it is likely that this is what has occurred with (X's previous name omitted) and her confusion and difficulties with social issues and potentially increasing problems with gender as she entered adolescence. Her autism features seem to make her particularly open to suggestibility and exploitation and as a consequence there are some risks in relying too heavily on what (X's previous name omitted) says and the preferences she expressed about the present dispute.”
Dr N made the following recommendations in her first report:
“While I consider that there are very powerful negative factors and influences on the children in their father and stepmother’s home, Orders that require (X's previous name omitted) to immediately return to live with her mother and stepfather also seem likely to be unsuccessful. It is my opinion that the best outcome for the present would be that (X's previous name omitted) is allowed to live with her father and stepmother, but that there are strict controls around them seeking allied health, therapeutic and professional services for (X's previous name omitted) and at the very least Ms Fairs needs to be involved in all referrals and contributing information about (X's previous name omitted) at any appointments
I continue to recommend that (X's previous name omitted) should maintain seeking her mother (and stepfather and half-brother) in supervised time for a period. This is to provide (X's previous name omitted) with a third party to assist her with transitions into her mother’s care and provide Ms Fairs with a witness to the observations. As I indicated on 9 December 2014, I do not consider that the children are at risk of any physical, psychological or emotional harm from their mother or stepfather.
…
In relation to Y, I was most concerned to read about (X's previous name omitted)’s urgings to her brother to make rejecting comments to their mother and stepfather in supervised time and his despondent reaction. I note how flat and depressed Y appeared at my assessment of him particularly when making criticisms of his mother and his animated engagement with her in observations.
This information suggests that Y’s rejecting comments and behaviour towards his mother is likely policed by (X's previous name omitted) and that he is provided with sympathy and attention for making them to his father and stepmother.
I consider that there are considerable psychological and emotional risks to Y in exposure to his sister’s position and thinking and it does not seem likely that he will be able to pursue his relationship with his mother and stepfather from his father’s home. It is my recommendation that Y immediately return to his mother’s care and spend regular time with his father, stepmother, sister and half siblings.”
In Dr N’s second report under the heading “Summary and Recommendations” she makes the following comments and observations:
“Assessment of Ms Fairs found a woman who does not easily demonstrate assertiveness. She expressed mild opinions about (X's previous name omitted)’s alleged gender dysphoria and demonstrates accepting attitudes for anything that (X's previous name omitted) identifies as important to her…Ms Fairs believes that Mr Pettit engineers some of (X's previous name omitted)’s alleged distress and promotes false beliefs in (X's previous name omitted), such as that her mother does not accept her and has made rejecting and cruel comments about her in the past. Ms Fairs considers that Mr Pettit also takes an inappropriately eager and evangelical approach to (X's previous name omitted)’s expressed gender dysphoria. She believes that Mr Pettit cannot support her relationship with (X's previous name omitted), and that (X's previous name omitted) would do better returning her care. Ms Fairs asserted that Y is doing well after being returned to her care, even though she believes that Mr and Ms Pettit subtly invoke loyalty conflicts in Y such that he believes he should return to live with them.
Assessment of Mr and Ms Pettit again suggested themes of their superiority over Mr and Ms Fairs but with an edge of fragility about their self-confidence. They showed little insight into how their behaviour has apparently contributed to the conflicts and difficulties with the children. They seemed naive or impervious to self-analytical thinking, and again I found their relationship to have some unhealthy dynamics, such that Dr E’s conceptualisation of a co-dependent relationship seemed most apt. They do not appear have questioned their beliefs that the children have a poor relationship with their mother in any significant way and appear to reject any information that does not fit with their beliefs. They do not seem to understand how such believes are likely to be a powerful influence on the children, particularly when combined with Mr and Ms Pettit’s style of oblique and indirect messages in their narrative that often cloaks their meaning.
Assessment of (X's previous name omitted) found a young person who has strong feelings about changing gender. She speaks assertively and has very strong ideas about what she believes is her mother’s position and her experience in her mother’s household. I found (X's previous name omitted) on these points to be unconvincing, and her account suggested the repetition of complaints until they become almost ‘real’. In some cases (X's previous name omitted)’s account showed signs of exaggeration, and this was particularly seen by comparing her account at my last assessment of the problems in her relationship with her mother and the apparently exaggerated recounting of the same issues at this assessment. (X's previous name omitted) appears to lack some capacity for critical thinking, and often there was superficiality about her complaints. I consider that the Court should be cautious in accept (X's previous name omitted)’s verbalised position and feelings as genuine.
Assessment of Y found a child who is prepared to verbally reject his mother and stepfather, but showed discomfort in doing so. He appears to be a troubled boy, particularly when he thinks about his family situation. It is my assessment that Y feels guilty when he expresses positive memories or feelings about his mother and has a strong loyalty and alignment to his father and stepmother. My assessment of Y indicated that he feels as if he should be supporting (X's previous name omitted) and believes that it is appropriate to compare his parents’ households as if he has to decide which one is better. His presentation suggested long exposure to the competitive nature of his parents’ relationship. His explanations of the problems in his relationship with his mother were trivial and did not support his alleged strong negative feelings towards her. In addition, observations of Y with his mother and stepfather were again inconsistent with his verbal representations of their relationship. I do not consider that Y’s expressed wishes and preferences represent his genuine feelings or that the Court should give much weight to them. My observations of Y with his mother and stepfather suggested that those relationships are very important to him. Furthermore, information from his school suggested that Y is doing very well and is happy and settled.
….
My assessment of Mr and Ms Pettit suggested that they have strong beliefs about the superiority of their household and share those beliefs with the children. They seemed to have no insight into how their beliefs might affect the children and it appeared there is no room in their beliefs for the children’s positive feelings for their mother. (X's previous name omitted) and Y’s developmental stage and vulnerabilities make them poor critical thinkers and they naturally expect their parental figures to be honest with them. Mr and Ms Pettit’s criticism of their mother and encouragement to find fault with her appears to be a powerful mechanism in this family, and the children’s verbal rejection of their mother seems directly contrary to their behaviour.”
Department of Health and Human Services
In response to the Notice of Risk filed by the Father in these proceedings, DHHS provided a lengthy response prepared by Mr G, Senior Child Protection Practitioner dated 15 June 2016.
Whilst lengthy, the entirety of the response to the current protective concerns and outcome will be set out in this judgment as it is both informative and indicative of the very extensive investigations conducted by DHHS in response to the various complaints that had been made to them about X and Y’s care by the Respondents in 2016.
Their response is as follows:
Summary of current protective concerns and outcome
11/04/2016 –
Concerns were reported to the Department that X and Y were at risk of verbal and emotional abuse whilst in the primary care of Ms Fairs and Mr Fairs. It was reported that the children were victim of Ms Fairs being rude, putting them down, and yelling and screaming that occurred. It was further reported that the children were not allowed to use their phones, or to go outside. The reporter also advised the Department that X was further demonstrating suicidal ideation and alleged homicidal ideation as a result of living with Ms Fairs, and wanted to reside with his father Mr Pettit.
The Department has interviewed the respective parents who have reaffirmed their positions as outlined in previous Family Law Court Documents.
Mr Pettit and Ms Pettit have detailed their significant concerns for the ongoing wellbeing of X and Y, and have provided Child Protection with material which they purport to support their assertions. This material is understood to have also been provided to the Family Court for its consideration.
Ms Fairs and Mr Fairs have presented to the Department as being caring parents who would endeavour to engage with relevant community supports to address issues within the home. Mrs and Mr Fairs have discussed that the issues relating to the children’s stress, anxiety and conflict are exacerbated by the presence of Mr Pettit and Ms Pettit. Mr and Ms Fairs have discussed that this is evidenced by the 6 month period whereby the children did not have contact with Mr and Ms Pettit. During this time, Mrs and Mr Fairs state that the mental health of the children showed improvement, and that no reports of alleged abuse were received by Child Protection, Victoria Police or the Family Court. Ms Fairs has been cooperative with the Department, whilst also stressing that she is hoping to maintain normalcy and routine for the children.
The Department also interviewed both X and Y in respect to the concerns.
X discussed strong feelings about wanting to reside in the primary care of his father, detailing incidents that he described as being emotional abuse. This was inclusive of a belief that Mrs and Mr Fairs are invading his personal privacy by monitoring his social media, and recording his conversations. X advised that he was sure that this occurred on a frequent basis, as he once observed a flashing light on his phone, which he has attributed to being a recording device. X advised that he is deeply upset at this invasion of privacy, and stated that his father would never do this to him. The department is aware that Ms Fairs denies having recorded X’s conversations. X also discussed ongoing parent adolescent conflict with Mrs and Mr Fairs, and likened this to living “in hell.”
Y also disclosed that his preference would be to live with his father, acknowledging ongoing conflict within the home. Y would appear to mirror the beliefs of X, stating that he was angry at his parents for an incident that X had told him about. Further to this, Y disclosed arguments relating to incidents which were assessed as likely to occur in a normal household, inclusive of feeding the family pets.
Both X and Y appeared to describe a more relaxed attitude to chores at the paternal home, with a rewards based chores system which they appeared to respond to.
During the current period of involvement, the Department has been made aware of three notifications made to Victoria Police alleging ongoing emotional abuse and harm. Two of these reports resulted in Welfare Checks to the family home in (town omitted) by (omitted) Family Violence Unit. The most recent report has resulted in (town omitted) Police interviewing X on 15th June 2016 at his school. Victoria Police have advised that the concerns identified by X are within the realm of normal parent adolescent conflict. The Department understands that Victoria Police do not intend to pursue further action in each matter, advising that they do not have any concerns for the children being in the mothers care.
Contact has been made with (hospital omitted) who have confirmed that they had seen a stabilisation in X’s suicidal ideation and mental health, and had assessed that his presentation no longer fit the criteria for their service. X had been referred to (mental health organisation organisation) for ongoing support. X attended an intake appointment on 4th June 2016 and is to attend follow-up appointments with Ms M beginning 2nd July 2016.
Contact was made with (medical organisation omitted) who confirmed that X is supported to attend the (medical organisation department omitted) by Mrs and Mr Fairs.
Contact was made with Y’s clinician Dr R who advised that she believes that Y has improved his sleeping habits, and his anxiety has lessened over the period in which he did not have contact with Mr and Ms Pettit. Dr R advised that she does not have concerns for Y whilst in the primary care of Mrs and Mr Fairs, describing concerns that due to the parental conflict, normal adolescent complaints (ie pocket money) get exacerbated unnecessarily.
Contact was made with the Acting Principal at (high school B)(secondary school omitted), Mr P (Substantive position omitted), who has advised that whilst acknowledging X has commented to him that he wants to live with his father, has no direct knowledge of concerns for his safety whilst in the mother’s care.
Under the heading “Assessment” Mr G in the DHHS Response set out the following:
Assessment
At this time it is assessed that the Department do not intend to intervene in the Family Law Court Proceedings. The information obtained during the current period investigation has supported the assessment that whilst X and Y continue to verbalise a desire to reside in the primary care of Mr and Ms Pettit, this is not evidenced as being motivated by harm perpetrated by Mrs and Mr Fairs. It is assessed that Mrs and Mr Fairs appear to be navigating a complex situation with the supports of mental health and educational services. It is further acknowledged that there is significant conflict between both the maternal and paternal parties, creating instability for the children, which appear to have escalated the children’s disclosures.
It is further assessed that the persistent reporting of unsubstantiated abuse to Victoria Police by Mr and Ms Pettit, which has led to multiple Police attendances, has likely increased the level of instability and confusion already held by the children. This action places the children at risk of being victims of emotional harm, as consistent engagement with services and stability has been discussed by the professionals involves as being beneficial to the children.
It is respectfully recommended that the Family Court review the assessment and recommendations of Dr E and Dr N, provided to the Family Court in 2015.
If the Family Court makes a decision that restricts the father and stepmothers contact in some way, as recommended by Dr N, then there is no role for Child Protection. By all accounts, there are protective parents in Mrs and Mr Fairs.
At the conclusion of their report the Department of Health and Human Services under the heading “Recordings and Provision of transcripts” most concerningly advised the Court as follows:
The Department has been made aware of audio recordings and subsequent transcripts provided to the Family Court, of conversations held between DHHS and Ms Pettit, as well as DHHS and X. The Department would seek to respectfully advise the Court that the conversations were recorded without the knowledge of the Department, and do not endorse its provision to third parties. The Department also understands that X is unaware of the recording, and he has stated to Child Protection that he would be deeply upset should he learn that he was recorded by any party without his knowledge. Mr and Ms Pettit have been notified of the Departments position.
Associate Professor T
Associate Professor T is a paediatrician and specialist adolescent physician at the Hospital B Associate Professor T is currently the acting Head of Hospital B (department omitted) and is also the Director of the Hospital B (service omitted).
Associate Professor T swore an affidavit on 18 July 2016 which attached her medical report in relation to X of 7 July 2016. Associate Professor T also gave brief viva voce evidence at the final hearing.
In her report of 7 July 2016, Associate Professor T confirms that she saw X for the first time on 25 June 2015 with the Mother and the Father. She has since seen X on two occasions on 22 September 2015 and 23 February 2016 when he was accompanied by his Mother only.
Associate Professor T advises that since attending the service X has been given a diagnosis of gender dysphoria and identifies as male.
Associate Professor T notes that X has previously been diagnosed with autism spectrum disorder and depressive symptoms which were consistent with his presentation at the gender service.
On the second page of her report Associate Professor T states as follows:
“X has repeatedly requested commencement of testosterone treatment to transition medically and becomes acutely distressed when discussions occur about the process required prior to commencement of hormone treatment (further medical and mental health assessments, fertility preservation counselling and Family Court Involvement for example). On his initial appointment in June 2015, X became so distressed when told that he couldn’t receive testosterone treatment on that day that, after a period of intense crying, he vomited in the consultation room. He has continued to request testosterone treatment at all medical reviews.
In terms of his diagnosis of gender dysphoria, the Hospital B (service omitted) team continue to assess X and to discuss treatment options with him and his parents. In Australia, the prescription of testosterone for medical transition in adolescents under the age of 18 years can only be done following approval by the Family Court of Australia. X and his parents have not approached the Family Court in this context at this stage. This is usually done at around the age of 16 years.
I expect to continue to see X in my Hospital B (service omitted) clinic over the next 3-4 years as it is extremely unlikely that his gender dysphoria will resolve. He will continue to require ongoing mental health support through community based services.”
When giving viva voce evidence Associate Professor T confirmed X’s diagnosis of gender dysphoria and also confirmed that X is being assessed in the context of his competence to make decisions around treatment for his gender dysphoria.
Associate Professor T indicated that the team who are involved in X’s care are as yet to come to a decision about what is in X’s best interest with regards to hormone treatment and when that should be started. It is Associate Professor T’s evidence that should they feel once he is at an age that it is usual to start medical gender hormone treatment, which in X’s case would be testosterone, they will consider their recommendations as to whether that treatment should proceed.
Dr R
Dr R is a clinical psychologist who has been treating Y throughout 2015 and 2016. Dr R prepared a report dated 4 July 2016 which is annexed to her affidavit sworn 18 July 2016. Dr R also gave viva voce evidence at the final hearing.
In her report, Dr R notes that on initial assessment Y presented with significant sleep difficulty, pre-occupation with worries and potential dangers, feeling irritable and being unable to calm himself.
Dr R states that it was evident that Y was experiencing generalised anxiety although this was in the context of difficult family circumstances. As his symptoms were interfering significantly with his functioning, he met the diagnostic criteria for Generalised Anxiety Disorder.
Dr R reports that Y has developed a good rapport with her and is able to articulate his worries and frustrations with her when he chooses.
Dr R states that Y has responded well to psycho-education about the nature of his anxiety and that both he and the Mother report a significant improvement in his anxiety symptoms and sleep difficulties.
Dr R reports that the Mother joined Y for a portion of most sessions for feedback and also to allow for opportunities to explore areas of conflict and to strengthen their relationship.
Dr R notes that Y and the Mother discuss with her disagreements about household expectations. Both the Mother and the Step-Father have seen Dr R and she has provided them with suggestions for parenting Y in an “emotion coaching style,” which involves validating his feelings and experiences while guiding him to express himself and empowering him to problem solve where possible.
Dr R sets out in her report that in recent sessions Y has presented as notably more relaxed and spontaneous in his interactions. She notes that Y no longer makes statements regarding disappointment about his circumstances and when directly questioned he responds that he either “does not know” (with regard to contact with his Father), or that he is “okay with the arrangement.”
Dr R states that Y’s mood is more consistent and that although he and the Mother acknowledge some points of conflict and occasional irritability, they agree that their household is calmer.
Under the heading “Summary and Recommendations” Dr R states the following:
“Summary/Recommendations
Y was referred for counselling and treatment of anxiety and sleep difficulties and presented with symptoms of generalized anxiety. It was evident that these symptoms were occurring in the context of significant family conflict, ongoing instability with regards to changes in caregiver/contact arrangements, court involvement, allegations of abuse and the complex mental health needs of his sibling.
The impact of these experiences upon Y should not be minimized and are significant in understanding his present difficulties. However, despite significant anxiety, Y has demonstrated resilience in the face of very difficult circumstances. I believe that this in part, is due to Y’s temperament and personal strengths, but can largely be attributed to the support and consistency of his mother and step father who have made conscious efforts to provide Y with the normalcy and routine of family life and to protect Y from the conflict and court process.
Y now presents as a well-adjusted, thoughtful and content adolescent. He no longer reports worries or preoccupation with fearful events and has regained a steady sleep pattern, therefore he no longer meets criteria for a diagnosis of an anxiety disorder.
While he may be prone to anxiety and insomnia in times of stress and instability, it is likely that with a stable family life and opportunities to have his feelings heard and validated, Y will continue to thrive.
I have discussed on going therapeutic goals with Y and his mother, who agree that Y makes use of sessions as an opportunity to express and explore his emotional experiences. Given the therapeutic relationship that has developed over time, Y is likely to benefit from occasional sessions to check in, explore his feelings and address any adjustment difficulties that may arise and therefore a follow up appointment has been scheduled for 6 weeks. This is of course open for review should his needs change.”
It was only the Applicants who sought to cross-examine Dr R.
Dr R’s file in relation to Y had been subpoenaed to the Court. It was apparent from the questions put by the Step-Mother when cross-examining Dr R that she and the Father had closely perused the subpoenaed documents produced by Dr R.
It is the evidence of both Applicants that they firmly believe that Y suffers from Attention Deficit Hyperactivity Disorder (“ADHD”).
This was an issue that was live between the parties prior to the commencement of the trial in October 2015. Accordingly orders were made for Y to be assessed by a Court appointed paediatrician
Dr M prior to the October 2015 hearing.
Dr M having assessed Y formed the view that Y does not meet the criteria for ADHD.
When the Father was being cross-examined by Counsel for the Independent Children’s Lawyer on 6 October 2015 during the first hearing of this matter, the Father indicated that he had no ongoing concerns in relation to Y having ADHD.
In cross-examination, the Step-Mother specifically asked Dr R about what she referred to as “the tests” that Y undertook on
5 August 2015 and in particular a figure that was in the “test results” that seemed to indicate that Y had scored higher than 97th in the percentile range for ADHD.
Dr R explained that Y had undertaken the Child Behaviour Checklist and the Youth Self Report on 5 August 2015. These are screening tools that are regularly used with children who are attending Dr R’s clinic for counselling.
Dr R explained that she does not place a lot of emphasis on the results of the screens per se as they are used to give children and young people an opportunity to disclose or identify things they are finding too hard to express or share in the clinical session. It is Dr R’s evidence that the screening is a useful tool they use to highlight areas of concern.
Dr R was very clear in explaining that the screens are not a diagnostic tool and are not designed to determine a particular diagnosis.
Dr R also indicated that the screen and their outcomes are not usually something that is shown or discussed with the children or shown or discussed with parents.
As part of the subpoenaed records read by the Applicants there was a narrative that formed part of the screen results. In relation to Y, the narrative reads as follows:
“These results suggest DSM should be consulted to determine whether Y meets diagnostic criteria for Attention Deficit Hyperactivity Disorder.”
Dr R explained that this narrative is not hers but rather an automatic print out that is generated by the questionnaire. It does not reflect any findings or diagnosis by her. Further it is Dr R’s very clear evidence that Y’s answers to the questionnaires completed by him do not raise any concerns with her that Y suffers from ADHD.
The Step Mother put to Dr R that the results from the assessment tests “identified a number of concerns in relation to Y.” Dr R’s emphatic response was “no, no. Actually, it didn’t.”
The Step-Mother asked Dr R whether she did any further investigation to ascertain whether Y was clinically ADHD.
Dr R indicated that she does not have any information which causes her to be concerned that Y has ADHD. It is Dr R’s evidence that she did not feel that needed to make enquiries as to whether Y has ADHD as her focus was on Y’s anxiety. It is Dr R’s further evidence that she did not feel she needed to make any further enquiries as to whether Y has ADHD as it is her understanding that there had been an assessment previously by a paediatrician who determined that Y did not meet the criteria for ADHD.
The Step-Mother questioned Dr R about the information contained in the subpoenaed material that seemed to indicate that from the information document completed by the Mother (referred to as the CBCL) Y was above the 98th percentile for internalising his problems.
Dr R explained the generalised anxiety which Y was diagnosed with is considered an internalising reaction and further that the matters described by the Mother in relation to Y’s behaviour were very common presentation as part of an overall diagnosis of generalised anxiety.
The Step-Mother then asked Dr R if Y is more likely to withdraw, internalise his own thoughts and feelings rather than act them out. Dr R stated:
“I think you are making a leap about what this means.”
Dr R explained that the CBCL is not designed to predict behaviour but rather is used by a clinician to differentiate whether a patient is more likely to internalise problems or externalise problems. On the information provided by the Mother and Y, Y has more internalising tendencies and is therefore more likely to internalise his problems than act out when troubled.
The Step-Mother asked Dr R the following:
“Can you say that your direct discussions with the Mother regarding any concerns Y has expressed to you did not condition the already internalising boy just to simply keep his mouth shut?”
Dr R was confused as to what the Step-Mother meant by this question and it was reframed in the following terms:
“Are you comfortable that over the now in excess of 12 months you have been treating Y that you have developed a relationship where he is being open with you?”
Dr R answered “Yes. I believe he is.”
Dr R was then asked:
“(Do you believe) he's saying things to you about things improving with the Mother because he thinks that's what his mum … wants him to say or he's going to be punished or she's threatened him with all sorts of dire things if he doesn’t say that?”
Dr R responded: “No. I don’t have that impression at all.”
Dr D
Dr D is a psychologist employed at the (hospital omitted)(hospital omitted). Dr D was treating X from mid-January 2016 until early-May 2016. Dr D gave viva voce evidence at the final hearing.
On 11 May 2016, Dr D wrote to Acting Professor Dr P and Associate Professor T of the (hospital omitted) in relation to X.
Dr D confirmed that the contents of his letter of 11 May 2016 summarises X’s initial presentation, how he progressed over the three months in the care of (hospital omitted) and his recommendations for X going forward.
In paragraph (2) of Dr D’s letter of 11 May 2016 he states as follows:
“X initially presented with depressive symptoms, suicidal ideation and thoughts about killing his mother. His presentation occurs in the context of a family history of mental health difficulties, previous diagnoses of ASD and gender dysphoria, social skills deficit, ongoing acrimonious parental separation and history of conflict with his mother. X most recent deterioration of mental health may have been triggered by complex court proceedings relating to custody of X and his brother. It is envisaged the ongoing conflict between biological parents, X’s suggestibility and a concrete thinking style may continue to complicate his familial relationships, manifesting in idealisation of his father and denigration of his mother. Protectively, X’s mental state and risk have stabilised and reduced significantly over the last three months. Despite historically viewing the relationship with his mother through a negative lens, he has been able to acknowledge the stability, sense of calm and improved relationship with his mother in the last few months.”
Dr D set out in his letter of 11 May 2016 that further assessment and diagnostic clarification had been undertaken by the Hospital A (department omitted) and the Hospital A (department omitted). Upon completion of those assessments X’s diagnosis of gender dysphoria and autism spectrum disorder remained unchanged but his diagnosis of major depressive disorder was removed as X’s depressive symptoms appeared to have alleviated.
The correspondence from Dr D of 11 May 2016 then stated as follows:
“X will now be discharged from (hospital omitted) following a reported three month period of stable mental health and low psychiatric risk. The following recommendations were made by (hospital omitted) and were agreed upon by both parents:
(1) That both biological parents seek mediation support through Relationships Australia. It is expected that a reduction in parental conflict and a focus on shared parenting would bring about the greatest gains for X’s mental health and wellbeing.
(2) X to link in with (mental health organisation omitted), should he require mental health support. Whilst X’s mental health is currently stable, he may struggle to negotiate future social and adolescent developmental milestones in light of his current resources and family circumstances.
(3) Should X’s mental health deteriorate significantly in the future and would like to make a referral to (hospital omitted), please contact our psychiatric triage service…
Dr D was asked whether X had discussed with him his relationship with his Mother. Dr D indicated that X had discussed the relationship with his mother and indicated there were some mixed feelings about that relationship. Dr D noted he would see that as something quite common in young people of X’s age.
Dr D was asked whether X had ever discussed his feelings or concerns relating to the court proceedings. Dr D indicated that X had. He was then asked whether X had ever mentioned feeling ignored by the Court or that the Court was not listening to him and his brother’s wishes.
Dr D responded that X had not indicated his concerns in those terms but rather that he felt he was unheard in general. Dr D noted that the Court proceedings were something that was very distressful for X but he did not think that X targeted not being heard to any particular person or any particular institution.
Dr D was asked whether X had ever disclosed to him or any other of the professionals in his office instances of abuse, stress, fears or concerns relating to the Mother or Step-Father. Dr D indicated that he didn’t think X mentioned any physical, sexual or such abuse in regards to the Mother or Step-Father.
It was then put to Dr D that in the subpoenaed documents from (hospital omitted), Ms E had made detailed notes of X reporting a verbal attack on him by the Step-Father.
Dr D indicated that he did not have the full details of that disclosure by X, but then noted “if you’re saying that he had a verbal conflict with his parents, then I would not be surprised by that report.”
The Step-Mother asked Dr D whether he thought it would be beneficial to X for orders to be made in the terms proposed by the Mother, that is X spend no time with the paternal family.
Counsel for the Independent Children’s Lawyer objected to that question being put. Counsel posited as follows:
“Your Honour is the person who needs to make that decision after having heard all of the evidence. This witness really has a very narrow ambit of expertise in relation to X, which he can comment on about. And he can't be asked that broad a question, because he just doesn’t know all the information.”
Dr D agreed with the statement made by Counsel for the Independent Children’s Lawyer.
Ms M
Ms M is a clinical psychologist working at (mental health organisation omitted). Ms M gave brief viva voce evidence at the final hearing.
Ms M explained that (mental health organisation omitted) is a government funded organisation that provides mental health services to young people between the age of 12 and 26 years. She explained that she is a private practitioner who is contracted to (mental health organisation omitted) to provide mental health services to their clients.
Ms M explained she had only seen X on two occasions, being 4 June 2016 and 2 July 2016. She explained that these sessions had been about gathering data and collecting information in order to develop a formulation and diagnosis of her own. At the time of giving her evidence she and X were still very much in the information gathering stage.
When cross-examined by the Step-Mother, Ms M confirmed that the Mother had told her that X did not know about the Court proceedings.
The Step-Mother put to Ms M that her notes, which had been the subject of subpoena, indicated that throughout her sessions with X he had discussed and seemed focussed entirely on the court proceedings. Ms M disagreed with this observation by the Step-Mother and noted that the court proceedings were not the focus of her sessions with X as they were not about the court proceedings but were about X’s mental health presentation.
Ms M noted that X raised some concerns about what he suspected might be going on at Court and told her that he would like to be involved so that his opinion could be taken into consideration.
The Applicants
The Applicants were self-represented in these proceedings. The
Step-Mother conducted the proceedings on behalf of the Applicants and it was she who cross-examined all witnesses and made all oral submissions on behalf of herself and the Father.
The Step-Mother was eloquent, forceful and well prepared. She conducted the litigation on behalf of herself and the Father most competently.
It is the proposal of the Applicants that orders be made for all parties to have shared parental responsibility for X and Y, for X and Y to live with the Applicants and spend alternate weekends, half holidays and special occasions with the Respondents.
The Applicants further propose that they and the Respondents attend mediation or therapeutic counselling in an effort to improve their communication and to assist them in being able to work cooperatively to better support X and Y going forward.
The Step-Mother
It is the Step-Mother’s evidence that she believes the Mother and
Step-Father physically, emotionally and verbally abuse X and Y. She believes that the myriad of allegations and complaints made by X and Y against the Mother and Step-Father are true and are in no way exaggerated or made up by either X and Y in an effort to bolster their wish to live with the Applicants. She does not believe X and Y speak negatively of the Respondents to her and the Father because they understand that it is what the Applicants wish to hear.
It is the Step-Mother’s evidence that in addition to abusing X and Y, the Mother does not properly attend to the physical and mental health needs of X and Y.
It is the Step-Mother’s evidence that all the Mother has done to attend to X and Y’s medical needs is the “bare minimum” and is limited to what the Court ordered her to do in the October 2015 orders.
In addition to failing to meet X and Y’s health needs, the
Step-Mother complains the Mother has not pursued family counselling and the other services that she promised she would attend to improve her parenting and relationship with X and Y.
The Step-Mother was dismissive of the Mother’s and Y’s attendance on Dr R as being nothing more than compliance with Court orders. She did not in any way recognise that part of the counselling with Dr R involved both the Mother and Step-Father at times having sessions with Dr R to discuss parenting approaches to assist in their parenting of Y.
The Step-Mother was particularly critical of the Mother for not apparently seeking education and counselling to support X’s autism.
The Step-Mother also criticises the Mother for not pursuing further assessments of Y in relation to the Step-Mother and the Father’s belief that Y suffers from ADHD.
The Step-Mother was at pains when giving her viva voce evidence to emphasise her interpretation of Dr R’s notes and the “97 percentile figure” that was reflected in the screening tools used by
Dr R as being proof that Y has ADHD.
It is the Step-Mother’s evidence that the Father, with her imprimatur, entered into the consent orders in October 2015 which provided for the six month period of no time between X, Y and the Father on the basis the orders would afford the Mother the opportunity to repair the rift in her relationship with X and Y and not because of the concerns raised in Dr N and Dr E’s reports or the tenor of the Father’s evidence.
In relation to her attendance with Z, V, W and her extended family at Y’s graduation on 15 December 2015, it is the Step-Mother’s evidence that prior to attending at the graduation she took the October 2015 orders to the police to seek their advice that if she were to attend the graduation she would not be in breach of the orders. It is her evidence that she was advised that the orders did not prevent she and her family from attending the graduation.
Counsel for the Independent Children’s Lawyer put the following question to the Step-Mother:
“…you turning up in the context of what would otherwise have been a celebratory event for Y, to be fair – and I ask you to be completely fair about this – you turning up with your extended family, even though you felt you had the legal right to be there – or at least there was no legal bar from you being there – just you turning up, in the context of this case and your history with this family, had the enormous potential to create some sort of incident, didn’t it?”
The Step-Mother responded as follows:
“I didn’t actually think it would … I was scared it would.”
In 2013, X’s difficulties in particular began to emerge and in 2014 the Father over-held both X and Y. He made serious allegations that X and Y were being exposed to physical, emotional and verbal violence in their Mother’s care and that their physical and mental health was not being properly treated or attended to by her.
Proceedings were commenced in this Court by the Father in August 2014 in relation to the question of X and Y’s ongoing living arrangements.
In January 2015 interim orders were made which provided for X to continue living with the Father and for him to spend supervised time with the Mother. Those orders provided for Y to live with the Mother and spend alternate weekend time with the Father.
The matter came on for final hearing on 5 October 2015. After two days of evidence during which only the Father was heard and cross examined the parties entered into final consent orders. Those orders provided for the Mother to have sole parental responsibility for X and Y, for X and Y to live with her and for there to be no time spent by X and Y with the Father and for there to be no electronic communication for a period of six months. The orders provided that at the expiration of six months, X and Y would commence spending alternate weekends with the Father as well as holiday time and special occasions.
The orders also provided that Y spend time with the Father and the Step-Mother’s children Z, V and W, once a month on dates and times as agreed between the parties.
By way of undertaking to the orders, the Step-Mother agreed to be bound by the orders that she not communicate with X and Y and both the Step-Mother and the Step-Father agreed to be bound by the orders that they not denigrate the other parent, their partner or members of the other parents family in the hearing or presence of X or Y.
Within two weeks of those orders being made the Father was responding to emails from the Mother that were trying to put in place arrangements for X and Y to spend time with their siblings by referring to the orders to which he had consented as “your ban”.
In December 2015, the Step-Mother, together with her extended family, attended Y’s graduation without either notifying the Mother of her intention to do so, or more relevantly, seeking her permission to do so.
Not surprisingly, there was a confrontation between the Step-Father and the Step-Mother, the full details of which have been set out in this judgment.
The evidence that was before the Court at the time the consent orders were made in October 2015 was that the litany of allegations that were made by X and Y about the abuse that they were allegedly subjected to in the care of the Mother and the Step-Father were exaggerated, unsubstantiated. X and Y’s complaints were made at the encouragement of and with the support of the Father and the Step-Mother and in X and Y’s misguided belief that such complaints would result in orders being made for them to live with the Father, something both wanted to do.
On 6 April 2016, X and Y recommenced spending time with the Father, the Step-Mother and their family.
Prior to X and Y even getting into the Step-Mother’s car to be driven back to the paternal family home, the Step-Mother activated the recording function on her mobile telephone. Without advising X and Y she recorded their conversations with her in the car.
It is the Step-Mother’s evidence that she recorded X and Y’s conversations in order to protect herself from unwarranted allegations from the Mother that she was grilling X and Y about what occurred in the Mother’s home.
It is the Step-Mother’s further evidence that whilst X and Y were complaining about what was occurring in the Mother and the Step-Father’s home, she was encouraging them not to discuss those matters but rather to focus on the wonderful weekend they were going to have together.
A transcript of that conversation was annexed to the Father’s affidavit. The transcript shows that rather than discouraging X and Y from making complaints about the Mother and the Step-Father, the Step-Mother actively encouraged them to do so. She asked them very specific and leading questions, and invited further criticism, particularly of the Step-Father.
On 8 April 2016 X had two blood noses. At the request of the Father, the Step-Mother took X to see her local practitioner. This was done in circumstances where the Mother has sole parental responsibility for X and Y’s medical care and where a blood nose does constitute a medical emergency.
The next day, the Father took both X and Y back to see their local doctor. X and Y made allegations about the Mother and the Step-Father’s care of them to the doctor. Understandably, the doctor complied with her obligations and reported the complaints made by X and Y to DHHS.
On 10 April 2016, after X and Y had returned to the Mother’s care, the Father sent an email to the Mother in which he set out his concerns about X and Y’s care, advised the Mother that X and Y had told him that they wished to live with him and requesting that she immediately agree to a change of residence.
To the Mother’s credit, on 11 April 2016 she responded to the Father’s email in a very measured and sensible way. She sensibly refuted his allegations of inappropriate care of X and Y. She begged the Father not to open the issue of X and Y’s residence all over again but rather that he agree to attend mediation or counselling with her in an endeavour to reach agreement on the best way forward to parent X and Y.
The Father either did not respond or completely rejected the Mother’s explanations of what the treatment for the previous six months had been for X and Y and her suggestion that they try and find a mediated outcome to matters concerning their children.
Two weeks later, X and Y again spent the weekend with the Father, the Step-Mother and their family. Again, the Step-Mother, unbeknown to X and Y recorded their conversations in the car. She also recorded their conversations over the entire weekend including a call that X made to Kids Helpline where again he repeated his complaints about his care by the Mother and the Step-Father.
Following the incident at Y’s graduation, the Step-Mother made application in the State Magistrates’ Court for intervention orders against the Step-Father and the maternal grandmother for the protection of Z. An interim intervention order was granted. The Step-Father and the maternal grandmother contested the applications made by the Step-Mother.
The Mother and the Step-Father made the deliberate decision to not tell X and Y of these proceedings.
On the second occasion that X and Y spent time with the Father and the Step-Mother they advised X and Y of the intervention order applications made by them on behalf of Z. X and Y immediately asked whether they too could have an intervention order for their protection against the Step-Father.
On 2 May 2016 the Mother sent the Father an email in which she wrote in part:
“I write to inform you that, after agonising over your and Ms Pettit’s renewed attempts to undermine the orders made last year about the parenting or X and Y I have decided that you will no longer be seeing the children.”
In her email the Mother set out the reasons for that decision and what she required the Father and the Step-Mother to do before time recommenced. The Mother then challenged the Father to make application to the Court if he was unhappy with the decision made by her.
The Father’s first response to the receipt of the email from the Mother was to make an application for an intervention order on behalf of X and Y against the Step-Father. The Magistrate before whom the Father and the Step-Mother’s applications were heard listed the applications for a defended hearing on 1 August 2016. Somewhat concernedly but with the consent of the Father and the Step-Mother, the Magistrate directed that at the defended hearing arrangements be made for X and Y to be represented so that they could give sworn evidence.
On 23 May 2016 the Father filed an Initiating Application seeking orders for X and Y to live with him. On 3 June 2016 the Father filed a Contravention Application and a Contempt Application against the Mother for not allowing X and Y to spend time with he and his family pursuant to the October 2015 orders from May 2016.
DHHS fully investigated the allegations of abuse made against the Mother and the Step-Father as reported by the Step-Mother’s doctor. DHHS interviewed all parties and spoke to both X and Y as well as Y’s treating psychologist.
At the behest of the Father and the Step-Mother, Victoria Police conducted three welfare checks on X and Y, two of them in the Mother’s home and one of them by interviewing X at his school.
Before the Court is the evidence of X and Y’s treating professional as well as a comprehensive report of DHHS following their investigation.
The details of those reports and the findings of DHHS have been set out in full detail in this judgment and won’t be repeated here. Suffice it to say, the conclusions of the Police and DHHS is that the allegations made by X and Y fall well within the range of normal adolescent/parent dispute and that X and Y are not at risk of harm in the care of the Mother or the Step-Father.
Further, X and Y’s treaters all record a measurable improvement in X and Y’s mental health and their relationship with the Mother and the Step-Father during the six month period where they were not spending time with the Father and the Step-Mother.
It is submitted on behalf of the Mother, the Step-Father and the Independent Children’s Lawyer that Y and X are at grave risk if they continue to have any contact with the Father and the Step-Mother. It is submitted the Father and the Step-Mother will continue to go to extraordinary lengths to gather evidence, make unfounded allegations, made reports to various authorities and intervene inappropriately with X and Y’s treaters in their distorted belief that X and Y are being subjected to physical, emotional and verbal abuse at the hands of the Mother and the Step-Father and that the Mother and the Step-Father will continue to not properly attend to X and Y’s medical and psychological needs.
X is fifteen and a half and Y is thirteen. Both express very strong wishes to live with the Father and the Step-Mother.
It is very apparent from the reports received from X’s treaters and from DHHS that X in particular is exaggerating and embellishing the allegations that he makes against the Mother and the Step-Father and the impact this has upon him in the hope that this will somehow result in him being able to live with the Father and the Step-Mother.
Despite the evidence from these independent experts, the Father and the Step-Mother cannot, and will not, accept or acknowledge that life for X and Y with the Mother and the Step-Father is nowhere near as dire or as violent as described by X and Y. Instead of reality testing X and Y’s allegations and supporting the Mother and the Step-Father in their parenting of X and Y and supporting their relationship with them, the Father and the Step-Mother actively encourage and empower X and Y to continue to make false and exaggerated allegations against the Mother and the Step-Father.
Further, the Father and the Step-Mother exhibit absolutely no insight into how their support and encouragement of X and Y’s exaggerated allegations have the end result of totally undermining X and Y’s relationship with the Mother and ultimately causing them long-term and lasting psychological and emotional harm.
In these circumstances and despite the clear wishes of X and Y it cannot be seen to be in X and Y’s best interests that there be a change of residence. The clear outcome of such an order would be that X and Y would not spend time with the Mother and Step-Father as the Father and the Step-Mother clearly do not support a relationship between X and Y and the Mother and Step-Father.
Further, it is very apparent that if X and Y were to spend any time with the Father and the Step-Mother, their behaviours that immediately commenced on the resumption of time in April 2016 would reoccur to the emotional and psychological detriment of X and Y.
Given the Father and Step-Mother’s unwavering belief that Y has ADHD, there is a real risk that if X and Y lived with the Father and Step-Mother, Y would be taken for yet further assessments by them until such time as they found someone to confirm “their” diagnosis that Y has ADHD.
In those circumstances, the only orders that can be seen to be in X and Y’s best interests is for the Mother to retain sole parental responsibility for X and Y, for X and Y to live with her and the Step-Father and for there to be no time or communication between X and Y and the Father and the Step-Mother.
Given the tenor of the communication from the Father to X and Y’s treating practitioners over the last 12 months, it is also apparent that orders that enable him to communicate with X and Y’s treaters would not be in X and Y’s best interests. The Father’s ongoing denigration of the Mother, provision of misleading and inaccurate information and his challenging of the Mother’s decisions could cause confusion to X and Y’s treaters and lead to inappropriate treatment.
This leaves the question of whether orders should be made that enable X and Y to spend time with Z, V and W.
The Independent Children’s Lawyer believes that the siblings should be able to continue their relationship.
The Mother and the Step-Father oppose such an order being made on the basis that, through no fault of their own, Z, V and W are in reality the agents for the Father and the Step-Mother and they will be used by their parents as a tool to continue to undermine the Mother and the Step-Father’s parenting of X and Y.
Whilst I have some sympathy for the submissions put on behalf of the Mother, it would not be fair to the five siblings that their relationship be torn asunder because of the adult issues in this matter.
In those circumstances I am satisfied that it is in X and Y’s best interests that they continue to be able to spend time with their siblings on a monthly basis.
However, I think it will be necessary to restrain electronic communication between the siblings as it is apparent that this has been used by the Father and the Step-Mother as a forum for X and Y to continue to denigrate the Mother and Step-Father.
I am aware that given the ages of X and Y and their strongly stated wishes, there is the potential at some stage in the future for X and Y to openly rebel against the orders being made by the Court this day. However, in light of the improvement in the mental health of both X and Y in the six months where they spent no time with the Father and Step-Mother it must be seen to be in their best interests that they again be afforded the opportunity to achieve stability and certainty in their mother and step-father’s home environment. This can only be achieved if orders are made in the terms as determined by this Court.
Contravention Application
The Father filed a Contravention Application on 3 June 2016 alleging that the Mother had breached Order (3) of the Orders made 6 October 2015 by failing to allow X and Y to spend time or communicate with him from 2 May 2016 onwards following the email sent by the Mother on that date advising him that she was suspending all time between X and Y and the Father.
Whilst the Father did not specifically seek to address the Court in relation to the Contravention Application it was not formally withdrawn. Accordingly I think it appropriate that I should rule in relation to that Application.
Division 13A of the Act deals with the consequences of failure to comply with Orders and their obligations that affect children.
Section 70NAE sets out the meaning of reasonable excuse for contravening an order. The sub-sections relevant to this matter are as follows:
(5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
There is no dispute that from 2 May 2016 the Mother failed to comply with Order (3) of the Orders made 6 October 2015 in that she did not permit X and Y to spend time with or communicate with the Father.
The Mother’s reasons for suspending time and communication between X, Y and the Father are set out in considerable detail in this judgment and will not be repeated here.
It is the finding of this Court that the actions of the Father and the Step-Mother upon the resumption of time with X and Y was such that it placed X and Y at serious risk of psychological and emotional harm.
When the impact of the Father and Step-Mother’s behaviour on the health and well-being of X and Y became apparent to the Mother and where she, properly formed the view the Father and the Step-Mother would continue such behaviour the Mother decided to stop X and Y spending time with and communicating with the Father.
In these circumstances I am satisfied that the Mother had a reasonable excuse for contravening Order (3) of the Orders made 6 October 2015 in relation to both time spent and communication on the basis that it was necessary to protect the health of X and Y.
In those circumstances the alleged contravention by the Mother of Order (3) of the Orders of 6 October 2015 is not found to be proved.
The Father also alleges that the Mother contravened Orders (4)(a) and (4)(b) of the Orders made 6 October 2015 on the basis that:
a)on 29 April 2016 the Mother advised X that there was a Court Order in place whereby he could not communicate with the Father and the Step-Mother and that if he did they would be “in deep shit”;
b)that X disclosed to Kids Helpline on 23 April 2016 “the problem with this is my Mum is constantly talking about how bad my Dad and my Step-Mum are and basically going on about how again there is nothing we can do to change this”;
c)X called Kids Helpline and made multiple disclosures to them about discussions the Mother has had with the children relating to Court Orders.
In support of the alleged contraventions the Father filed an Affidavit sworn 3 June 2016. Annexed to the Father’s Affidavit is what is purported to be the transcript of a recording taken without X’s knowledge or consent of a discussion he had with the Kids Helpline on 23 April 2016.
Given the recording by the Step-Mother of X’s conversation with the Helpline contravenes the Surveillance Devices Act 1999 (Vic) and that there is no proof before the Court of the authenticity of the recording or the transcript, there is a serious questions as to whether the transcript can be relied upon by the Father to support his allegation in a Contravention Application.
Further, where there has been a finding by the Court that X is exaggerating his allegations against the Mother and Step-Father, even if such evidence was per chance allowed under Section 138 of the Evidence Act 1995 (Cth) there must be considerable doubt as to the truth of the allegations made by X to Helpline.
In those circumstances there is no evidence supporting the alleged contravention by the Mother of Order 4(b) of the 6 October 2015 orders and as such they cannot be found proven.
In these circumstances the Contravention Application filed on behalf of the Father on 3 June 2016 is dismissed.
Contempt Application
The Father filed a Contempt Application on 3 June 2016 in which it was alleged that the Mother had wilfully disobeyed Order (3) of the Orders of 6 October 2015 and the Order of 30 May 2016 of Judge Jones by refusing to allow X and Y to spend time with the Father.
Section 112AP(1) of the Act provides as follows:
(1) Subject to subsection (1A), this section applies to a contempt of a court that:
(a) does not constitute a contravention of an order under this Act; or
(b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court.
In circumstances where there has been a finding pursuant to section 70NAE(5) and section 70NAE(6) of the Act, that the Mother had a reasonable excuse for contravening Order (3) of the Orders made
6 October 2015 and by implication the Orders made by Judge Jones on 30 May 2016, the Mother cannot be seen to have wilfully disobeyed the Court’s Orders or to have flagrantly challenged the authority of the Court.
Accordingly, the Contempt Application filed 3 June 2016 is dismissed.
Section 102QB Application
The Mother is seeking that an Order be made against the Father and the Step-Mother pursuant to section 102QB of the Act.
Vexatious proceedings are dealt with under Part XIB of the Family Law Act 1975. Section 102QB sets out the statutory provisions that underpin the making of a vexatious proceedings orders as follows:
(1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2) The court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:
(a) the Attorney‑General of the Commonwealth or of a State or Territory;
(b) the appropriate court official;
(c) a person against whom another person has instituted or conducted vexatious proceedings;
(d) a person who has a sufficient interest in the matter.
(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:
(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and
(b) orders made by any Australian court or tribunal; and
(c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person’s compliance with orders made by that court or tribunal);
including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.
The term “vexatious proceedings” is defined in s102Q(1) of the Act as follows:
vexatious proceedings includes:
(a) proceedings that are an abuse of the process of a court or tribunal; and
(b) proceedings instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and
(c) proceedings instituted or pursued in a court or tribunal without reasonable ground; and
(d) proceedings conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Section 102Q(1) is an inclusive definition and is therefore not an exhaustive list of those proceedings which could be considered to be vexatious proceedings.
The Full Court of Bryant CJ, Ainslie-Wallace and Ryan JJ discussed the test to be applied in determining whether proceedings are vexatious in the matter of Marsden & Winch [2013] FamCAFC 177. At paragraphs 150 to 153 their Honours held:-
150. In Attorney-General v Wentworth Roden J said at [487]:
Meaning of “vexatious”
This is obviously a critical term and can hardly be regarded as mere surplusage. If, as I believe must be the case, “habitually and persistently and without any reasonable ground institutes vexatious legal proceedings”, means something different from “habitually and persistently and without any reasonable ground institutes legal proceedings”, then relevant vexation cannot be found simply in the habitual or persistent manner in which legal proceedings are instituted, in a lack of reasonable ground for their institution, or in a combination of those factors. Something more is required. Similarly, the use of the words “without any reasonable ground”, implies that it would be possible to institute vexatious legal proceedings, and indeed to do so habitually and persistently, with reasonable ground.
151. His Honour continued:
A subjective element, such as malice, lack of bona fides, or ulterior motive, seems to be both appropriate and necessary to give significance to the term “vexatious” within the context of s 84(1). It provides the required “something more” than is conveyed by the other words in the section, and it is consistent with legal proceedings instituted either with or without reasonable ground. If I were unaided by judicial authority, I would opt for such a construction here. I appreciate that, isolated from its context, the expression “vexatious legal proceedings” could mean “legal proceedings which vex”, irrespective of the motives of the person instituting them. A construction requiring a purely objective test might also be applied to the word when used in the expression “vexatious litigant”, which also appears in the section, although it would sit less happily there. The construction required for present purposes, however, is a construction within the context of the section as a whole; and for the reasons stated, I would, on first impression, opt for the inclusion of a subjective element.
152. We observe that while Roden J was concerned with the meaning of these words within the context of a difference statute, that difference is not material to our consideration. We agree with his Honour’s construction of the word “vexatious” and, in particular his rejection of the meaning being “legal proceedings which vex”.
153. Roden J then concluded at [491] with the test which is set out at [81] of these reasons.
The test set out in paragraph 81 of the reasons in Marsden & Winch (supra) is:-
His Honour then referred to the Oxford Dictionary definition of the word “to vex” which he summarised as being “to cause distress, whilst in its more modern meaning is to make somebody feel annoyed, frustrated, worried, irritated or unhappy” [163]. Having determined that the father’s desire to spend time with his child was not frivolous, his Honour turned his attention to whether the proceedings initiated by the father were vexatious. His Honour cited Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481, at [491], where in the context of the then s84 of the Supreme Court Act1970 (NSW), Roden J set out a test for determining whether proceedings are vexatious. At [168], his Honour said:
I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
In Cannon & Acres [2014] FamCA 104 Justice Benjamin determined an application under s 102QB of the Act. After considering the legislative history of Part XIB, His Honour referred with approval to the paragraphs from Marsden & Winch (supra) set out above. His Honour then had regard to the approach of Davies J in the matter of Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 in which the earlier decision of Perram J in
Official Trustee in Bankruptcy v Gargan (No 2)[2009] FCA 398 was adopted. Davis J said:-
…his Honour eloquently expresses the principles relating to vexatious litigants at [2]–[12]. Whilst acknowledging that the test his Honour had to consider was the test under s 84 Supreme Court Act and is, as I have noted, a more demanding test than is required under the Vexatious Proceedings Act 2008, much of what his Honour sets out is relevant to the determination in the present case.
[2] A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
[3] Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
[4] Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
[5] Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
[6] Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
[7] Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
[8] Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
[9] Eighthly, each of these notions — the want of reasonable grounds, habitual institution and persistent institution — are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
[10] Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto — so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
…
[12] Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest — although not determine — a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
The analysis by Perram J of the principals relating to vexatious
litigants is in a slightly different legislative context to that in the Family Law Act 1975. However, I believe it to be of real assistance in determining whether proceedings are vexatious and am guided by and greatly assisted by His Honour’s analysis.
Has the Father and/or the Step-Mother frequently instituted proceedings in Australian Courts and Tribunals?
Proceedings first commenced in this Court by way of an Initiating Application filed by the Father on 16 April 2014 at a time when there was a clear dispute between the parties as to what were the appropriate living arrangements for X and Y.
Those proceedings were finalised by way of consent orders on
16 October 2015.
There was an incident at Y’s graduation in December 2015 as a result of which the Step-Mother made application for intervention orders against the Step-Father and the maternal grandmother at (omitted) Magistrates’ Court for the protection of her daughter Z.
The presiding Magistrate was satisfied on the first return date that there was sufficient information contained within that application for the granting of an interim intervention order against both the Step-Father and the maternal grandmother.
By way of email on 2 May 2016 the Mother advised the Father she was suspending all time between X, Y and the Father. In her email the Mother challenged the Father to return to Court in the event he was unhappy with the decision made by her.
Subsequent to receiving the Mother’s email the Father made application for an intervention order against the Step-Father for the protection of X and Y.
On 23 May 2016 the Father filed an Initiating Application seeking a variation to the parenting orders that had been made in October 2015 and on 3 June 2016 filed a Contravention Application and a Contempt Application.
When giving her viva voce evidence the Mother conceded that if she had been in the position of the Father and all time had been stopped between herself and X and Y she too would have immediately filed an application in this Court.
In response to the applications filed by the Father, the Mother filed a Response seeking that the Father’s applications be dismissed and that the Orders of 6 October 2015 be varied such that Orders be made that X and Y spend no time with the Father and the Step-Mother.
When the current applications first came before the Court, to their credit the Father and the Step-Mother agreed to withdraw all intervention order applications that were before the (omitted) Magistrates’ Court and for this Court to determine all issues relating to X and Y.
In these circumstances I am satisfied that the Father’s applications have been neither vexatious nor frequent and as such it is not appropriate that an order should be made pursuant to section 102QB of the Act.
Accordingly, the application by the Mother for such an Order is dismissed.
I certify that the preceding five hundred and one (501) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 20 October 2016
Key Legal Topics
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Family Law
Legal Concepts
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Breach
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Injunction
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