Pieper & Jesberg & Ors

FAMILY COURT OF AUSTRALIA

PIEPER & JESBERG AND ORS

[2020] FamCA 989

FAMILY LAW – CONTRAVENTION – consequences for less serious breach.

FAMILY LAW – PARENTING – variation of orders following a finding that a parenting order has been contravened without reasonable excuse – balancing flaws in parenting capacity of each parent.

FAMILY LAW – PARENTING – oral application by mother for sole parental responsibility for immunisation of the children.

FAMILY LAW – PARENTING – s 65L of Family Law Act 1975 (Cth) - supervision by a Family Consultant of implementation of parenting orders not available.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Pieper

RESPONDENT:

Ms Jesberg

2^ND RESPONDENT:

Mr Nader

3^RD RESPONDENT:

Ms E Jesberg

INDEPENDENT CHILDREN’S LAWYER:

Mr Finn

FILE NUMBER:

MLC

8376

2012

DATE DELIVERED:

2 October 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

2 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE 2^ND RESPONDENT:

Excused

SOLICITOR FOR THE 2^ND RESPONDENT:

COUNSEL FOR THE 3^RD RESPONDENT:

In person

SOLICITOR FOR THE 3^RD RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Mr Marchetti

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

VM Family Lawyers

Orders

Each of the Father and the Mother attend upon Ms FF, for the purpose of reportable supervision and counselling (“the reportable supervision”) in relation to the compliance with and carrying out of the parenting orders made with respect of the children B and C (twins), born … 2007, and D, born … 2010 (together “the children”).
For the purpose of the reportable supervision:
(a)       Each of the Father and the Mother be responsible and pay for one equal share of the costs of such reportable supervised sessions capped at $600.00 per parent;
(b)       Each of the father and the Mother comply with all lawful requests and directions of Ms FF;
(c)       Each of the Father and the Mother facilitate, as may be directed, the children (or any of them) to attend upon Ms FF and Ms FF to explain the operation of these orders;
(d)       At the conclusion of the reportable supervision sessions, Ms FF provide a short report with respect to the family’s progress in the reportable supervision and, thereafter and if directed to do so, the independent children’s lawyer cause such report to be attached to an affidavit by Ms FF and filed with the Court;
(e)       The independent children’s lawyer provide to Ms FF copies of her previous reports (and any transcript of Ms FF), the Reasons for Judgment of 17 March and 27 August 2020 together with the sec 11F report by Ms EE and any further material, including any affidavits filed within these proceedings, as may be deemed appropriate by the independent children’s lawyer .
For the purpose of paragraph 2(a) of this Order, the mother and the father each cause to be deposited with the Independent Children's Lawyer (VM Lawyers Commonwealth Bank BSB … Account No …19) the sum of $600 within 7 days, such monies to be paid out to Ms FF upon production of an invoice for same. IT IS NOTED THAT the estimated cost of Ms FF’s services is $1200.

PARENTING ARRANGEMENTS – UNTIL FURTHER ORDER IT IS ORDERED:

That paragraphs 5(c), 5(d), 5(e) and 5(f) of the Order made 17 March 2020 be suspended.
The children spend time with the Mother as follows:
(a)       Until the conclusion of Term 4 in 2020 (scheduled to be 18 December 2020), each week on Saturday between 10am until 6pm AND in the event the Mother is scheduled to work on such Saturday, upon 24 hours written (including sms text message) notice to the Father of her availability on the following day (Sunday) then time shall occur on that day between 10am and 6pm on such day;
(b)       Notwithstanding paragraph 5(a) time with the Mother will occur on Sunday 1 November 2020 in lieu of time on 31 October 2020.
(c)       Commencing on Tuesday, 22 December 2020, and each Tuesday thereafter, from 10am on Tuesday until 8pm on Wednesday, with such arrangement concluding on 10 January 2021;
(d)       On Friday 15 January 2021 and Friday 22 January 2021, from 10am until 8pm on the following Sunday;
(e)       Commencing on the first weekend of school term in 2021 (anticipated to be Friday 5 February 2021) from the conclusion of school on Friday until the commencement of school on Monday;
(f)        At such further or other times as may be agreed between the parents in writing.
For the purpose of changeover pursuant to these Orders, save where such time shall commence and conclude at the children’s school, the mother shall collect the children from the father’s residence at the commencement of time (and during such changeover shall not alight from her vehicle) and the father shall collect the children from the mother’s residence at the conclusion of time spent periods with the mother (and during such time he shall not alight from his vehicle).
The mother shall not permit the children to be left in the care of any other person save by written agreement between the parents.
Commencing from 2 April 2021, the children spend time with the mother as follows:
(a) For C and B:
(i)from 10.00am on 5 April 2021 to 6.00pm on 9 April 2021; and
(ii)from 10.00am on 15 April 2021 to the commencement of school on 19 April 2021 and each alternate weekend thereafter.
(b) For D:
(i)from 10.00am on 5 April 2020 to 6.00pm on 8 April 2021; and
(ii)from 10.00am on 16 April 2021 to the commencement of school on 19 April 2021 and each alternate weekend thereafter.
(c)For C, B and D from 1 July 2021 and each alternate week thereafter from the conclusion of school or 4.00pm on Friday until commencement of school or 9.00am on Monday.
The father’s oral application against Ms E Jesberg be and is hereby dismissed.
There be leave to the mother to make an oral application that she be solely responsible for the vaccination and immunisation of the children.
By not later than 20 November 2020, the father file and serve any application and all evidence including expert evidence upon which he seeks to rely in relation to the mother’s oral application.
By not later than 8 February 2021 the mother file and serve any response and all evidence including expert evidence in which she seeks to rely in relation to her oral application for responsibility to immunise and vaccinate the children.
By not later than 22 February 2021 the Independent Children's Lawyer file and serve any response and all evidence including expert evidence in which he seeks to rely in relation to the mother’s oral application for responsibility to immunise and vaccinate the children.
The hearing of the mother’s oral application be set down for a date to be fixed and on that date there be further consideration of an extension of time for D with the mother to coincide with the time between the mother and the girls.
Pursuant to s70NFB, in relation to the penalty for the father as a consequence of the finding as to the mother’s Contravention Application, the father do all acts and things necessary to obtain a mental health plan and to seek and obtain therapy for himself in relation to implementation of these orders and concerns reflected in the reasons for decision this day about conspiracies.
The father provide to his therapist copies of Ms FF’s reports including transcript where a report was given orally, the reports and transcripts of Dr DD, the Reasons for Judgment of 17 March and 27 August 2020 and this day together with the sec 11F report by Ms EE and any further material.
The father notify the independent children’s lawyer of the name and address of his therapist within 21 days.

IT IS ORDERED:

That my reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED:

That the minute of orders with tracked changes be marked Exhibit “A” and remain on the Court file.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pieper & Jesberg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8376 of 2012

MR PIEPER

Applicant

And

MS JESBERG

1^st Respondent

And

MR NADER
2^ndRespondent

And

MS E JESBERG
3^rd Respondent

And

INDEPENDENT CHILDREN'S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

This matter comes before me as the adjourned return date following the disposition of a contravention application and consequential applications for the variation of parenting orders concerning the children, C and B, who are 13 years old, and D, who will shortly turn 10 years of age. The mother and father both appear for themselves, making submissions and conducting their respective cases without the filter of legal representation. Mr Marchetti, of counsel, appears for the Independent Children's Lawyer, Mr Finn.
Mr Nader, the second respondent, was excused from this hearing and can henceforth be removed as a party. Ms E Jesberg (“Ms E”), the third respondent and a maternal aunt of the children, represented herself.
There are several matters which fall for determination today and I will deal with them under headings respectively.

Consequences of the Finding of Contravention against the Father from the Hearing on 24 August 2020

I indicated in reasons delivered on 24 August 2020, that I was contemplating making an order directed to the education of one or both of the parties. For reasons which will become obvious, I am going to require the father to obtain some therapy or psychological support in relation to certain conspiratorial beliefs that he holds and to which he has been exposing the children. I will require that his therapist receive a copy of my reasons for decision for the Order made on 17 March 2020, my reasons for decision for the contravention hearing on 24 August 2020 and these reasons.

Variation of Parenting Orders for Time Spent by Children with their Mother

The extant final Order was made on 17 March 2020. The Order changed the primary residence of the children from the mother to the father. It provided that the children would spend time with the mother from 8 May until 6 July each alternate weekend from Friday to Monday, from 16 July to 1 December each alternate weekend from Thursday after school until Monday before school; from 9 December 2020 each alternate week from Wednesday after school to Monday before school.
Holiday times during the long summer school vacation and thereafter were to be week about. In the 2021 school year, the children would revert to the alternate weekend Wednesday through to Monday with provision for school holidays.
On 24 August 2020, I heard the contravention application and the father’s application for a suspension of orders, which provided that the children not spend time with the mother. I suspended the face to face time with the mother and ordered a section 11F child and parents’ issues assessment.
Section 70NAB of the Family Law Act 1975 (“the Act”) provides that, by virtue of the mother’s contravention application and regardless of whether or not a finding is made that a parenting order has been contravened, I can make an order varying the final parenting orders providing that under s 60CA of the Act the best interest of each of the children is the paramount consideration.
Section 65D(3) of the Act provides, inter alia, that if an application for a parenting order is made as a result of proceedings under Subdivision E of Division 13A of Part VII of the Act (a less serious contravention without reasonable excuse) – as is the case here – the Court must hear and determine the application as soon as practicable
Now I have permitted the parents to make oral applications.
The father seeks that the mother’s face to face time be suspended and that any time be supervised.
The mother seeks that the final Order made on 17 March 2020 in terms of the time arrangement be reinstated and that she have sole responsibility for having the children vaccinated.
The s 11F child and parents’ issues assessment was subsequently undertaken by Family Consultant, Ms EE, and it was published on 18 September 2020. Ms EE included in her observations:
CO PARENTING RELATIONSHIP
44.      The entrenched conflict, animosity, hostility and lack of trust between the parents prevails. It is a sad indictment on the parents that exchange of their children can only take place at a police station. The message that this undoubtedly reinforces to the children, is, that not only are their parents unable to guarantee that the children will not be exposed to overt conflict, but also, that each parent poses a risk to the safety of the other parent.
45.      It was [Mr Pieper’s] stated view that it is likely that the children continue to be exposed to [Ms Jesberg’s] negative view of him, with ongoing denigration of him. This would be confusing for the children and would serve to undermine the relationships they have begun to establish with him.
46.      [Mr Pieper] advised that not only does he harbour no ill will towards [Ms Jesberg] he also recognises and supports the children’s rights to enjoy meaningful relationships with both their parents. However, he remains concerned about [Ms Jesberg] being able to prioritise their physical, psychological and emotional safety when they are in her care. His proposal, that time between the mother and the children be reserved, is an indication of the level of his concern.
EVALUATION
[…]
48.      The changes to their primary living arrangements as per Final Orders made by Consent 17/03/2020, have required the children to negotiate new relationships with their father, having to revise previously held negative perceptions of him and to manage the dissonance this may have created for them, as well having to adapt to changes in their relationships with their mother. From their narratives it would appear that the need to accommodate spending significant time with their mother when they have not had sufficient opportunity “to settle” in their father’s care and establish a primary home with its unique routines and expectations covering a range of domains has been difficult for all or some of the children.
49.      [Ms Jesberg] has failed to ensure that the children not have any contact with her former partner, [Mr Nader]. The information that both she and [Mr Nade]r provided to the Court at the hearing held on 27/08/2020 was contradictory and inconsistent regarding the nature of their relationship, whether they are/are not divorced, and the occasions he has attended her home when the children have been in her care. The children’s trust in their mother has likely been eroded.
50.      It would appear that [D] was expressly told not to report [Mr Nader’s] presence at the home and the possibility of [B] and [C] being subjected to this pressure to keep secrets also, must be considered, given their guarded responses. For example, when asked direct questions about the baby sitter it was evident that both the girls were anxious about having confirmed that their mother ‘worked sometimes” when they were in her care. They appeared to feel the need to minimise this occurring and to “protect” their mother. The report writer attempted to reassure the girls that their mother was not doing anything wrong if she was required to work; the Court required clarification about the children’s care when this happened.
51.      Continuing to be in the midst of the parental conflict and with the parents continuing to perceive that the children’s safety is compromised in the care of the other parent, places the children in an intolerable position emotionally and further interviews with the children in the context of the parental dispute are likely to cause significant distress. They do not have permission to freely express their views and opinions and now, any fears of possible repercussions of doing so, primarily the fear of ‘losing’ their mother, have now materialised.
52.      [B, C and D’s] lived experience over the last eight years has reinforced for them that it is not possible for them to enjoy meaningful relationships with both parents simultaneously. This continues to be an ongoing struggle.
Ms EE’s recommendations are found at page 10 and are:
I.Consideration be given to the children spending time with their mother each alternate Saturday from 10:00am to 5:00pm. If the mother is required to work during this time, she advise the father in writing with a minimum of forty eight hours’ notice that she will not be available to have the children in her care on that date.
II.Until the children progress to overnight time with their mother the children have dinner with her on alternate Wednesdays from after school or 4:00pm to 8:00pm.
III.Telephone/Skype contact continue on alternate Wednesdays and alternate Saturdays or Sundays as agreed between the parents
IV.When the current school year ends, [B, C and D] commence spending time with their mother each alternate weekend from Saturday 10:00am to Sunday at 12 noon.
V.From the commencement of the school year, in 2021, the children spend time with their mother each alternate weekend from Friday after school to Monday before school
VI.The children may benefit from their parents participating separately in a Parenting Orders Programme to assist them further develop an understanding of their children’s needs from a developmental perspective, as well as consider effective ways to communicate about their children and their needs.
VII.B and C continue to participate in counselling at [M Group] as directed by their treating practitioners.
Ms EE was cross-examined by all parties today and I also asked her questions. I found Ms EE to be a sound witness. I accept her evidence.
When determining the parents’ applications to vary the final parenting Order, I must regard the best interests of the individual children as the paramount consideration. First of all, and most importantly, in considering the children’s best interests, I must protect the children from physical or emotional harm. Then, I must consider subject to that protection how to obtain the benefit for the children of having a meaningful relationship with both parents. In this case, the parents each have harmful aspects to their parenting but the parents are the only eligible caregivers. I will discuss the deficits in parenting capacity below. The next step is to evaluate whether it is in the best interests of the children to have a meaningful relationship with both parents and what must be done to achieve or protect a meaningful relationship. At this juncture, I am satisfied that it is in the best interests of the children to have a meaningful relationship with both parents. However, given the entrenched parental conflict, I cannot exclude the possibility that, ultimately, if the hostility does not cease and some level of cooperation does not emerge, the children may fall into the unfortunate cohort of young people for whom having two parents in their lives is simply too hard.

Both parents have significant incapacities and indulge in behaviours from which the children must be protected. There is no protection for the children by leaving them solely in the care of one parent and excluding the other parent. They in fact need to be protected from both parents who in different ways place himself or herself in a position of moral and intellectual superiority and do so at the expense of the wellbeing of the children.
For the mother’s part, the risk of her program of deliberate diminishing of the father’s role, the exposure of the children to Mr Nader and her first Islamic husband, and the refusal to believe the children when they (the girls) reported conduct which is injurious to them.
As for the risks posed by the father, there have been a number of developments since the final parenting Order was made in March 2020 and since the family was seen by Ms EE on 9 September 2020. The mother has filed an affidavit sworn 28 September 2020 in which she, inter alia, sets out a transcript of various recordings taken by C of discussions within the father’s home. There is some uncertainty about when the discussions have actually taken place, the father believing them to be closer to March than to the current day. However, the father acknowledges that the transcripts appear to be more or less accurate, subject to a denial of any statement by him to the effect that the children are not permitted to form relationships or associate with black children or the children of Muslim families.
The father expresses embarrassment about the amount of swearing by him. However, he essentially stands by the beliefs that he expresses to the children. The father also makes derogatory and negative remarks about the mother, significantly in the face of the girls asking him not to do so. An example of the latter can be found at pages 3 and 4, and 19 and 20 of the mother’s affidavit:
Recording 2:
[Mr Pieper] is saying:
“You wasn’t to cry, cry your are [sic] off, your mother is sick, demented for going to this sick, disgusting, satanic cult, yeah, they’re disgusting, and that makes me sick, it makes me even sicker that your sad that I’m telling you the truth.”
([B] is crying and yells something about insulting my mother”)
[Mr Pieper] (yelling) “I’m not insulting your mother”
[B] “you are”
[Mr Pieper] “I’m insulting Islam, Islam is filthy”
[B] is yelling back at [Mr Pieper]
[Mr Pieper] “she’s sick in the head”
[B] “your [sic] insulting her”
[Mr Pieper] “coz [sic] she’s sick in the head. She’s just as disgusting as them. She wanted to have you married to old [Country CC} filthy fucking paedophiles, that’s what she wanted to do.”
[B] “no she didn’t, she (inaudible)”
[Mr Pieper] (yelling) “bullshit”
[B] (inaudible)
[Mr Pieper] (yelling) “bullshit”
At recording 3 set out in the mother’s affidavit:
[Mr Pieper (yelling) “allow that, she’s disgusting and she should be ashamed of herself and she should never be able to see you again and I made a mistake for allowing her to see you, and I feel every time I see this, and every time I see tears in your eyes I feel like going straight back to court, just like I told [C], I’ll show you now, I got an email from the judge, the judge emailed me a few weeks ago and said is everything alright, what is going on there, that never happens, right, the only reason why it happens is because the judge is so concerned about you guys and what your fucking delusional mother is doing she wants, her Honour did not wat your mother to see you, at all, ever and I said, your Honour, please don’t do that, please, it’s not good, right, the children have been through enough, they need to be able to see their mother, oh well they should be going to DHS and I go, please enough turn that shit down, pause it or turn it down, right and she said let them go to DHS and have supervised contact this is, after two years of psychological counselling for your mother, and I said, please don’t do that, that is, that is humiliating, it’s sole destroying, coz [sic] I know, I lived the fucking hell and I had to go visit my children who were brain washed and fucking bought and paid for and coached not to come and see me by your evil, twisted, sick fucking mother, right”
[B] (inaudible)
[Mr Pieper] “evil, sick, twisted mother, right, tell me that one more time, I bet you won’t see her again”
[B] “please don’t talk about my mother like that”
[Mr Pieper] (yelling) “go get in your room, get in your room, your [sic] not going to see her again, right, I’m going back to court and your [sic] not going to see her again, give me your telephone”
[…]
At recording 9 set out in the mother’s affidavit:
[C] (whispers) “he’s been yelling for 5 minutes”
[Mr Pieper] “what did I say to you, every fortnight, that’s what I agreed to”
[B], “to us, you said we see mum whenever we want, and text her whenever we want and on Easter you said we could call, but we chose not to”
[Mr Pieper] “yeah, and hang on and you choose not to answer the phones for me all those times”
[B] “we didn’t know and you told us last weekend and you didn’t call, but we would have answered the call”
[Mr Pieper] “no, coz [sic] there was no need to, there was no need to”
[B] “we, we, we didn’t know that we would”
[Mr Pieper] “listen, I don’t want to argue with anyone in this house, there’s no arguing in this house, we’re having a discussion, right, the agreement was every fortnight, now, if that doesn’t work for mum, that’s really not my problem…”
[…]
[Mr Pieper] “it’s not your fault ok, but everyone (inaudible) I would rather you never see them ever again, she doesn’t deserve to see you after what she has allowed to happen to you guys, she does not deserve it, but I’ll take you for your sake, coz [sic] you want me to take you”
[B] “thank you”
[Mr Pieper] “right, but I’m not happy, I’m not happy one bit, she disgusts me, so’s[sic] your nan, so’s[sic] your pop, so’s[sic] your Aunty [E], right who called me a paedophile and put me as a paedophile all over Facebook that I’m a paedophile, you know how disgusting that is, to be blamed as a paedophile as a father?”
[…]
I accept that the father has a negative impression of the mother which he expresses to the children and encourages the children to follow. I have already made findings against the mother for similar behaviour on her part. The issue is not which parent is more correct but that neither parent seems able to respect or, seemingly, can tolerate the children’s right to be able to have a meaningful relationship with the other parent. This deficiency bodes poorly for the children.
As to the father’s beliefs, in summary, I assess some of the beliefs as highly conspiratorial in nature and, in my description, whacky. Those beliefs include:
a)the earth is flat;
b)the government conceals that we live on a flat earth;
c)the 9/11 disaster in New York, USA was orchestrated by the United States government to excite anti-terrorist sentiment;
d)the 1969 Moon landing and all space exploration before and since did not take place and has been staged by governments for the purpose of deceiving the public.
The transcribed conversations include the following vis a vis the earth being flat:
Recording 4:
[Mr Pieper] “the way he left on a cloud, and this is what they say too, [C], and every eye shall see him, right, everyone on Earth will see Jesus return on a cloud, now how can they do that, if the Earth is round and America is on this side and all of this and Australia is here, right, and Jesus comes over America how are we supposed to see him.”
[C] “but then if the world is flat then what happens, if, if there’s no gravity, then what happens when you get to the edge”
[Mr Pieper] “do you know the only thing, the other thing I agree with Islam is that their scholars say that the world is flat”
[…]
[Mr Pieper] “well, they won’t, first of all there’s a treaty between all of the countries in the world, that no one can go to Antarctica”
[C] “people live in Antarctica”
[Mr Pieper] “na, na na, na, only certain people are allowed to Antarctica but certain places they can’t go any further”
[D] “but why?”
[Mr Pieper] “their [sic] not allowed because the government don’t want us to know that’s being the Arctic circle”
[…]
The transcribed conversations include the following:
Recording 5:
[C] (whispers) “here we go”
[Mr Pieper] “do you know what propaganda is, lies to manipulate you, that tick you and shit and this is nothing but a television program, they program your mind (inaudible) They live in Laila [sic] land that have never taken the red pill, to the, you sound crazy, I sound crazy, coz [sic] the shit that I know, they think, he’s like (inaudible), coz [sic] they’ve been programmed by the television program to believe all the shit that they get told, the news, the media, this and that, it’s all a lie, darling, I tell you from my heart, right, don’t believe ‘em [sic], don’t believe ‘em [sic], it’s bullshit, right, do not let them get the best of you, always doubt what they say and question everything, like I tell you guys, you’re not old enough now, question everything, ask, where’s the virus, where’s this, how come the Earth’s flat out round or who, how come they went to the moon, show me proof, not just a fucking picture, right, coz [sic] a picture, when you see a Hollywood movie and the man has gone to the moon, doesn’t it, coz [sic] but it’s a Hollywood movie, so, how do you know the news isn’t showing you a bit of a movie, you know what I mean, coz [sic] they say, look a man went on the moon, right, really? […] what else did they lie about, did they lie about AIDS, did they lie about 9/11, did they lie about the Earth being round or flat, right, trust me, it’s all a scam, yeah, and you need to know the only truth there is in life is that Jesus Christ died for our sins and God forgave everything, that the only truth, yeah, the rest (inaudible) a lie C.
[…]
Recording 6:
[Mr Pieper] “In every fricking [sic] corner, tracking you, listening to your phone and all that and people allowed all of that too because of 9/11 and it was all a big scam”
[C] “so it was the government that did it, framing the terrorists”
[Mr Pieper] “inside, yeah, framed the terrorists, right, … [sic] I’m against Islam, I would say it’s the Muslims but it wasn’t the Muslims, yeah, that’s a fricking [sic] lie, it was all the government cover up. And then your gunna [sic] go, well they would the government do that, trust me, it’s a massive scam. Everyone knows it too, but no one says anything but they all know it, and that’s what shows you that everyone else is corrupt, because all of the other countries know about it and there [sic] not saying anything, because they’re too scared of America.”
[…]
Recording 8:
[Mr Pieper] “it’s just what the media is, see what this is, it’s television, and you know what they show?”
[C] “yeah”
[Mr Pieper] “television programs”
[C] “mm”
[Mr Pieper] “to program your mind”
[C] “mm”
[Mr Pieper] “to think the way they want you to think, but it’s al a scam, [C], do not believe them, do not trust them and listen to me, with all my heart I tell you, do not trust [C], they’re lying”
[D] “dad”
[Mr Pieper] “right it’s not what you think it is and when you get older, you’ll understand, you’ll go, you know what, my dad was right, these people are evil, right, the run, we are run by demons in this world, Satan, there’s 2 Gods, the God of this Earth and the God of all, and the God of this Earth is Satan and he’s controlling everything that’s going on here and he’s lying and manipulating and and [sic] tricking people, that’s what he’s doing and the government leaders around the world are controlled by him”
[C] “mm”
[Mr Pieper] “it’s all a paedophile network, [C]”
[…]
The father alleges that the mother introduced him to some of the beliefs referred to above but she denies doing so.
Ms EE was cross-examined at some length. She had an opportunity to listen to the tapes, the sound quality of which was variable, and to read the mother’s affidavit material, some of which is extracted above. She carefully did not take issue with the correctness of the father’s views. She did on a few occasions adopt my description of the father’s theories as “whacky”.
Ms EE is justifiably concerned that the impact of the statements made by the father to the children would, if accepted by them or any of them, lead to the children feeling fearful generally, not knowing who to trust, in fact, probably not being able to trust anyone. She expressed concern that the impact on the children of telling friends or schoolmates or parents of their friends would be to isolate them from friends and have them regarded as somewhat weird (my words). She said that it would put the children into conflict with friends and teachers at school.

RECORDED : NOT TRANSCRIBED

If I could say something about the father’s conspiracy theories, which he has confirmed he holds today. I used the word whacky to denote that the beliefs were, in my view odd, not founded in fact, peculiar and ridiculous. My impression is that Ms EE adopted my description in the same way. I detected that the father took offence at my description of his beliefs and that Ms EE possibly regretted having adopted my description of the father’s beliefs as whacky. In speaking as I did, I wanted to make it unequivocally clear to the father that I regarded his conspiracy theories as irrational and not evidence based. To describe them more politely or neutrally may have obscured my rejection of them. A more respectful description may have encouraged the father to conclude that his views and theories had gained some modicum of credibility with me (which they had not).
The husband’s beliefs, as described above, are not harmless vis a vis his parenting of the children. My impression is that the father accepts the theory or conspiracy described as a fact and reality and, in doing so, believes himself to be the member of a select group of people who are necessarily more intelligent, discerning and informed than the rest of the community. Those who do not adhere to the father’s views have been duped. There are egotistical and self-indulgent aspects to his adoption of these beliefs, the flat earth philosophy, the 9/11 disaster being perpetrated by the United States government and the faking of the landing on the Moon in 1969 and prior and successive missions into outer space display a lack of discernment on the part of the father which is frankly disquieting to observe.
Insofar as the father exposes the children to these beliefs:
a)If the children accept them, the children are introduced into a world of fearfulness where they cannot trust anyone. It is isolating of them and ultimately likely to make them the subject of ridicule. Ms EE expressly agreed with this view.
b)If as the girls appear to do at this stage, they listen to the father’s views but do not accept his beliefs, the father drives a wedge between himself and the children and/or between the children who do believe and those who do not believe.
c)The dislocation between reality and the father’s beliefs means that the girls cannot rely on the father unreservedly or, perhaps, at all. If they rely on the father, they are required to discern between when the father is being rational and reasonable and protective as opposed to him indulging himself in tried and tired conspiracy theories.
Apart from the conspiracy theories, the father is derogatory in relation to the mother. Saying to the children that the mother does not care for them, likely alienates the children from him and is apt to force the children to choose between their mother and the father and/or to exclude one parent. When I say the children, I recognise that there is a difference between the girls and D. It seems that since D has gone to live with the father, D has become strongly aligned to the father and rejecting of the mother in that he does not want to attend to see her for time spent periods as provided in the final parenting Order.
The children were moved from the primary residence of the mother to reside primarily with the father because of deficiencies in her parenting capacity. My earlier reasons for decision at the time I made the final parenting orders discuss the mother’s limitations, the power and authority that she derives from the practice of her religion, her failure to protect the children form physical and emotional harm, her lack of honesty as a witness and her failure to abide orders precluding the children coming into direct or indirect contact with Mr Nader.
The children are between a rock and a hard place in that there are undesirable aspects to each parent’s attitudes to parenthood. The impact on the children of the father’s beliefs, including those beliefs which pertain to the mother, is deleterious to the children. On balance, however, I am satisfied that what the father says is likely to have less of a lasting hold over the children. The father’s conspiratorial beliefs are transparently open to question and the children, in particular the girls, will be exposed in the normal course of their education and social interaction to a preponderance of views which flatly contradict and disprove the father’s theories.
The father’s unusual beliefs are likely to diminish the standing of the father in the eyes of the children. However, the beliefs are unlikely to attach to the children on an emotional or visceral level. Whereas D is probably more at risk of being inculcated into the father’s conspiracies than are the girls, a saving grace for D will be that he has older sisters who will put his views right. Hopefully, the girls will dilute the attraction of those ideas for D. The fact that the girls do not accept the father’s views is demonstrated by the taping of the father, the passing of the recordings to the mother, and the girls saying, sotto voce, words to the effect of “I don’t think he’s all right” when referring to the father.
The mother’s behaviour and responsibilities to parenthood have been more subtly deleterious to the children. Her actions are more likely to have an impact on how the girls perceive themselves and their place in the world.
For the father’s part, the children need to be protected from his flights of self-indulgent fantasy and his world of fear and suspicion. What the parents have in common is a lack of intellectual access to discernment in relation to the wellbeing of their children and how to be effective role models. The recording and the transcripts which have now come to light are disappointing to me in relation to the father, but they have not altered the fundamental balance between the parents.
I am still of the view that the children should live predominately with the father and spend time with the mother. As to what time and whether to accede to the father’s application for a reduction of time, I have listened carefully to the evidence of the Family Consultant. My preliminary view was that, providing the children could be supported and the parents could be assisted to implement the Orders which were made in March 2020, those Orders could be reinstated. Reinstatement of that unsupervised time between the mother and the children has the advantage of those parenting orders having already been explained to the children and the children. I am attracted to the children being able to appreciate that misbehaviour or less than satisfactory behaviour by either or both of their parents did not derail arrangements which have been ordered by the Court. The concomitant of that is that poor behaviour by any of the children will, similarly, not be rewarded. I was also concerned that limiting the girl’s time with their mother now would make them resent the father and further disrupt the girls’ settling in the father’s primary care. However, the Family Consultant was of a contrary view as to outcome.
Ms EE was firmly of the view that the mother’s entitlement to time as set out in the final parenting Orders made on 17 March 2020 should not resume. I pressed her on this point but her opinion was that there should be time spent between the mother and the children only during the day (not overnight) for the rest of this school year. For example, one day each weekend. Ms EE maintained her view that the mother’s time should be more restrictive than the arrangement provided for in the final parenting order so that the children, but really the girls, can acclimatise and adjust to life in the father’s household.

The father opposes the frequency of weekly time and submitted that time between the mother and the children for the day once a month is adequate. I do not agree. In my view, monthly time with the mother, without sleeping over, is manifestly inadequate for the girls. The bond between the mother and the girls is strong. It is not necessarily in their best interests but absence from the mother is not going to diminish the bond. If the father thinks that not allowing the girls to see the mother is going to make them settle in his household, that view is too simplistic. Restricting time to once a month would result in the girls being resentful of the father
Having considered the evidence of the Family Consultant, Ms EE, I will defer to her view as to frequency of time. As different as it is from what I was thinking on a preliminary basis, I must acknowledge that it remains the case that neither parent is able to support the children to have a meaningful relationship with the other parent, and the preparedness of the parents to support the three children having a relationship with both parents would have to be a precondition to a reinstatement of the final parenting Orders of March 2020.
Ms EE was also firmly of the view that the children’s time should be uniform and that D’s time should be the same as time for his sisters. Ideally that is correct. However, the father’s complaints about D being excluded by his sisters has a ring of authenticity about it. I find that, if I make the children go for precisely the same time each, I may have to limit the girls’ time with the mother to accommodate D’s needs. I do, however, accept Ms EE’s opinion that D should not be permitted to set his own schedule. Spending time with the mother (and his sisters) is not a matter of choice for D. The father should compel D to attend in accordance with the Order I make.
In sum, the problematic aspects of this case are the conduct and attitudes of the parents. The problems do not lie primarily with the children although, undoubtedly, they have been harmed by the arbitrary actions of the parents. Section 65L of the Act provides that, when making a parenting order, the Court may make an order requiring that the parties’ compliance with the parenting order, as far as practicable, to be supervised by a Family Consultant and/or that a Family Consultant give any to party to the parenting order such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting order. That facility would be very well employed in this case. However, unfortunately, for a number of years now, Child Dispute Services has had insufficient resources to service orders under s 65L and my understanding is that any order made under s 65L will not be fulfilled or supported by the Court in any way. The dis-use of s 65L coincided with the shift of privileged counselling from the Court and into community based centres and our expert Family Consultants assuming an exclusively reportable forensic role. Now there are severe budgetary constraints on all services provided by the Court. The Court is not financially positioned to restore a category of service not currently delivered. Indeed the delay for services such as s 11F child and parent issues assessments, which is the routine work of the Court, is unacceptably long. I hold to the view that I expressed in [2020] FamCA 950, that post-order support should be available to families from within the Courts, at least initially, and as an extension of the judicial determination.
Litigation is exhausting and it is simply too much to expect that the two or three sides of litigation are going to be prepared to engage in a new process in another environment after the decision has been handed down. The Courts are the logical place for that support to commence. Making orders alone is unlikely to be enough, and rarely will it be enough for the families in the most complex cases with which we deal. Providing reasons which describe the findings of fact and what informed the exercise of the judicial discretion does not alter human behaviour. Reasons for decision should be one of a number of steps in a decision making process which is based on the best interests of the child being the paramount consideration.
There is a disconnect between the amount of resources devoted to deciding parenting arrangements (assessments, Family Reports, defended hearings, judgments etc) and what is done to assist the family, and significantly the children, to understand and implement the arrangements after the hearing. There should be a debriefing facility within Child Dispute Services which is available to parties, and to the children, similarly to that described in s 65L of the Act to which the parents can be directed to attend themselves, or in the same suite of sessions, with the children.
The Independent Children's Lawyer has suggested that Ms FF, previously a Family Consultant employed by the Court, see the family on a ‘supervisory basis’ as a private practitioner to give to the parents and the children such assistance as is reasonably requested in relation to compliance with, and the carrying out of, the parenting order. Ms FF left the employ of the Court some months ago to be a private practitioner but was previously involved with the case. The parents agreed to each pay $600 for Ms FF services. That is a considerable outlay for each parent in the scheme of things. Ms FF has seen the children both in the Melbourne Registry on 4 April 2019 and when she travelled to Sydney 22 January 2020 when they were in New South Wales for an extended period during the final hearing.

Location of Contact Changeovers

The mother wants to move the changeover point for time spent away from the police station. The father does not. The father has alleged that the mother acts in an aggressive ways such as slamming car doors or the boot of the car. In fact, video footage which I have seen and evidence I have heard indicate that the behaviour of each parent, in their own particular style, leaves much to be desired.
Removing changeover from the police station to the more normal location of each parent’s home will, hopefully, give the children some sense of compliance with orders and the realisation that each parent knows where the other parent resides. I am satisfied that it will be safer if neither parents approaches the other, the children can be sent out with their own luggage and the parent can wave good bye to the children from their front door. I will make orders accordingly.

Father’s Oral Application for an Injunction against Ms E Jesberg, the Maternal Aunt

The father sought an order restraining one of the maternal aunts, Ms E Jesberg, from contacting the children other than by post. This was in the context of the father’s belief that Ms E Jesberg was responsible for having Victoria Police attend the father’s home very shortly after the children commenced living with him to conduct a “welfare check”. The father was understandably discommoded and embarrassed by the welfare check which was disruptive of his household and his care of the children. At the last hearing the mother had gave unsatisfactory answers about her knowledge of the welfare check. The mother denied absolutely having anything whatsoever to do with the welfare check. The content of the mother’s evidence pointed to the maternal aunt, Ms E Jesberg, being the person most likely to have asked the Victoria Police to investigate the father’s home and the status of the children.
At today’s hearing, the wife admitted to having lied to the Court on the last occasion about the welfare check and that she had called the police and asked the police to attend at the father’s home. It was a blatant lie reminiscent of the evidence which the mother gave dishonestly at the final hearing which concluded in March 2020. The mother remains able to lie point-blank to the Court without any unconscious action on her part which betrays her deception.
Once the father was aware of Ms E Jesberg not being the person who initiated the police’s welfare check, he did not pursue any injunctive relief against her.
The police check was unwarranted and inappropriate and I am critical of the mother for organising it. It was also a waste of Victoria Police resources. She was fully aware that the Independent Children's Lawyer would issue a subpoena to require Victoria Police to attend Court to give evidence and to produce records separately. The mother showed no compunction at all at the effort and expense to which she put the Independent Children's Lawyer in needlessly preparing that part of the case. This lack of consideration for the consequences of her actions was also reminiscent of some of her conduct during the final hearing.

Mother’s Oral Application for an Order that she be Responsible for the Immunisation and Vaccination of the Children

The recordings by the girls captured the father’s conversation about vaccinations in response to which I permitted the mother to make an oral application that she be solely responsible for having the children vaccinated.
The mother’s affidavit includes a transcription of conversations between the father and the children about vaccinations as follows:
Recording 6:
[…]
[Mr Pieper] “Yeah, they don’t get their children immunised bullshit, if, if you know what they say they’re all, oh but your kids not immunised, right, so you go to um prep, every kids immunised”
[C] “you can’t go overseas without vaccines”
[Mr Pieper] “Can you listen to what I’m saying. Everyone in the class is immunised, except you two, and they say, but you can’t come in, you can’t send your girls in because they’re not immunised, I’m thinking, what are you worried about, if your kids can’t get sick, can they, coz [sic] they’ve already been immunised, right”
[B] “yep”
[Mr Pieper] “so why should they worry about if your getting immunised or not, they’re immunised so your protected, that means my kids can get sick and not protected right, but, it’s a scam, people are so fricking [sic] dumb”
[C] “but it does stop you from getting sick”
[Mr Pieper] “no it doesn’t [C], it doesn’t, it’s bullshit, it doesn’t”
[C] “then”
[Mr Pieper] “if it does, right, ok exactly, if it does stop you from getting sick and all the kids in the classroom are immunised except you two, why are they so scared to let you two in?”
[C] “oh I don’t know”
[Mr Pieper] “I’d be say [sic] well why you worried about, your kids are immunised, you gunna [sic] get protected…”
[…]
And a further recording, headed “Recording 7”:
[Mr Pieper] “6.5 billion people in the world to all get vaccinated and they want everyone to pay”
[C] “mm, I thought vaccines are free”
[Mr Pieper] “na, na, na, na, na, right, it might be for us, but the governments, the countries have to pay for it”
[C] “oh their money”
[Mr Pieper] “right, which comes out of our tax dollars and all of that, which they increase which end up coming out of our pockets anyway, right”
[C] “mm fair enough”
[Mr Pieper] “so now, it’s in their benefit for them to say oh look we’ve got a bad virus you all need a vaccination, yeah, I’d say you know what I’ll take the vaccination, let me see you have it first, to those rich families, those families that they don’t, they say, ah, no we don’t want to take it, but you want me to take it, year, it’s poison for your body, do not let them give it to you”
[C] “isn’t it just a little bit of the virus, so your T cells fight it off”
[Mr Pieper] “na, na, na that’s what they tell you, yeah”
[C] “I did research on it though”
[Mr Pieper] “yeah, but you did research on the research the want you to”
[C] “oh”
[Mr Pieper] “right, now when they do that whatever you google, google controls everything they own google”
[C] “it wasn’t Google, it wasn’t Google”
[Mr Pieper] “they own the internet darling, right, they own the information, so the they type it in, when you type in any information”
[C] “but my teacher that did science and got a degree in science”
[Mr Pieper] “yeah, and your teacher got a degree in science and the sciences of the, all the universities are owned by the Rothscilds and the Rockefeller’s, so if you don’t give us the answers that we want, your [sic] not gunna [sic] get millions and millions of dollars worth of funding anymore, so that means you all won’t get paid to drive around in Mercs and Porsches and Lamborghinis and shit, right, so they all go, oh, they get, when they get funding, they give ‘em [sic] the answer that they want, that suits them, because their [sic] the ones making the profit, yeah, don’t believe them, [C]. Trust your dad on these things, trust me honey”
[C] “yep”
Before me at this hearing, the father denied being opposed to all vaccinations and said that his comments related only to the vaccine for the COVID-19 virus. I am unable to accept that is necessarily the case. Earlier evidence in this case included the father criticising the mother, to the children, for causing or permitting the children to receive usual childhood immunisations without the father’s consent.
I will order that the parents each file and serve evidence in support of their respective positions on immunisation. The experts will be cross examined. The father voiced his dismay at my Order that he source evidence from an appropriately qualified person, an expert, to give evidence to support his position. He clearly anticipates that no medical expert will do so. I do not believe that is the case but, even if it was the case, the father should use that eventuality to consider the merits of his position.
The issue of parental responsibility for vaccinations will be determined by me in 2021.

Is the Order proper?

The Court may, subject to s 61DA of the Act, make such parenting order as it thinks proper within the meaning of s 65D(1) of the Act.
Section 61DA provides a presumption in favour of equal shared parental responsibility when making a parenting order. This dispute is narrower than a reconsideration of parental responsibility in its totality. I will confine myself to the ambit of the dispute. Otherwise, there is a wealth of evidence before me on which I am comfortably satisfied that the parents cannot and will not cooperate in decision making for the children (or any of them). Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly.[1] The concept of shared parental responsibility carries with it the requirements to ‘consult the other parent in relation to the decision to be made about that issue’[2] and to ‘make a genuine effort to come to a joint decision about that issue’.[3] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared. Given the antipathy between the parents, an order for joint parental responsibility would result in non-compliance with requirements for consultation or paralysis in decision making about the children, neither of which is in the best interests of any of the children.
[1] Family Law Act 1975 (Cth) s 65DAC(2).
[2] Ibid s 65DAC(3)(a).
[3] Ibid s 65DAC(3)(b).
In relation to day to day care, I do have regard to such of the additional considerations, set out in s 60CC(3) of the Act, as are relevant. This decision is supplementary to extensive proceedings, lasting 25 days, which resulted in a resolution which was largely by consent and very detailed.
The children’s views is a vexed issue, which is not unusual in cases of high parental conflict. As indicated above, I accept the evidence of the Family Consultant Ms EE that the children should not be required or encouraged to choose between parents, or be allowed to decide whether or not they will obey orders and that some emphasis should be placed on keeping all three children together.
The children’s primary bond is likely to still be with the mother but I have already determined that they should be given every opportunity to forge a strong bond with the father. That might be easier for D than for the girls. It will obviously benefit the children if they can establish and maintain meaningful relationships with both parents.
In formulating the parenting arrangements, I have borne in mind the deficits in each parent’s capacity to parent effectively and I have endeavoured to insulate the children as much as possible from the risks associated with those deficits. Allocation of time for the children is not a means by which to punish the parents for wrong doing whether that be breaching Orders of the Court or giving evidence dishonestly. It would be unfortunate if the children feel penalised by this decision. That is, if any of the three children feel that he/she is punished because their parents (or either of them) have acted poorly. This is why I have ordered the involvement of Ms FF. I do not exclude alterations to this Order to bring it more into line with what the children need if a due consideration of any recommendations made by Ms FF indicate that further alteration should take place.
I am satisfied that, for the time being, the arrangements are proper and consistent with the children’s best interests.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Justice Bennett delivered on 2 October 2020.

Associate:

Date: 24 November 2020

[2020] FamCA 989

2 October 2020

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