Pike and Skilton
[2017] FCCA 2466
•13 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PIKE & SKILTON | [2017] FCCA 2466 |
| Catchwords: FAMILY LAW – Parenting – where the mother alleges both domestic violence and sexual abuse of the three children of the relationship by the father – where the father denies all such allegations and contends that it is not a case of a mistaken belief held by the mother but rather fabrication of false allegations – where it is necessary to make specific findings as to the allegations – where significant expert evidence was available of a medical, psychiatric and social science nature – where the identified concerns give rise to incongruities in the allegations by the mother and subsequent behaviours – where the identified behaviours of the children when in contact with the father are entirely different to the suggested indications to the mother – where a finding is made that the allegations relating to the father’s behaviours are false and that the mother has knowingly fabricated such allegations – where orders in relation to parenting to provide for the “best interests” of the children require a radical change in care arrangements – where such orders and changes are supported by the Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1), (2) & (3), 60CA, 60CC(2), (2A) & (3), 61C, 61D(1) & (2), 61DA, 65DAA, 65DAC, 65DAE |
| Cases cited: Lansa & Clovelly [2010] FamCA 80 Heath & Hemming (No 2) [2011] FamCA 749 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Chappell & Chappell (2008) FLC 93-382 Collu & Rinaldo [2010] Fam CAFC 53 (25 March 2010) Sigley & Evor (2011) 44 Fam LR 439 MRR v GR (2010) 240 CLR 461 |
| Applicant: | MR PIKE |
| Respondent: | MS SKILTON |
| File Number: | BRC 5173 of 2016 |
| Judgment of: | Judge Coker |
| Hearing dates: | 22, 23, 24 February and 27, 28 April 2017 |
| Date of Last Submission: | 28 April 2017 |
| Delivered at: | Townsville |
| Delivered on: | 13 October 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Linklater-Steele |
| Solicitors for the Applicant: | Carroll Fairon Solicitors |
| Counsel for the Respondent: | Ms Dart |
| Solicitors for the Respondent: | Legal Aid Queensland | |
| Counsel for the Independent Children’s Lawyer: | Mr George | |
| Independent Children’s Lawyer: | Jenny Boulton Solicitor |
ORDERS
Parental Responsibility
That the Father shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) ("the Act")) in respect of the children, X born (omitted) 2008 (“X”) and Y born (omitted) 2011 (“Y”) and Z born (omitted) 2011 (“Z”) (collectively “the children”) save that the Father shall, prior to making the sole ultimate decision about any such issue:
(a) Advise the Mother in writing of the decision intended to be made;
(b) Seek the written response of the mother in relation thereto;
(c) Consider, by reference to the best interests of the children, any such written response prior to making any such decision; and
(d) Advise the Mother in writing as soon as reasonably practicable of his ultimate decision.
Live with
That the children live with the Father.
Spending time
That the children spend time with the Mother for three (3) hours each alternate weekend on a Saturday, unless otherwise agreed, with such time to be supervised at (omitted) or by any other such professional supervision provider as may be nominated by the Father.
That upon the Mother providing to the Father documentation confirming that she has engaged with a mental health expert, such supervision may also be provided by the Maternal Uncle, Mr P, provided that Mr P confirms in writing that he fully understands and will properly attend to the supervisory role that he is undertaking.
That upon the Mother providing to the Father a report from a mental health expert, which confirms that the children are not at risk of any harm with the Mother, then such time as may be spent by the Mother with the children shall increase up to seven (7) hours in total as agreed between the Mother and the Father and failing agreement, between the hours of 9.00am and 4.00pm each alternate Saturday, with such time to be supervised by the Maternal Uncle or such other person as may be agreed between the Father and the Mother.
That during such periods that the Mother is spending supervised time with the children, the Mother is at liberty to attend at the children’s schools for the purpose of attending activities at which parents ordinarily attend, provided that the Mother is:
(a)Accompanied by the Maternal Uncle or such other person as may be agreed between the Father and the Mother; and
(b)That such attendances shall not be more regular than on one occasion per calendar month.
That the children shall spend time with the Mother on special days as agreed between the Mother and Father in writing and failing agreement as follows:
(a)On Mother’s Day at times to be agreed and failing agreement from 9.00am until 4.00pm with such time to be supervised by the Maternal Uncle or other person as agreed between the Mother and the Father;
(b)On the Mother’s birthday at times to be agreed and failing agreement from after school until 6.00pm should the birthday fall on a school day and from 9.00am until 4.00pm should the birthday fall on a weekend with such time to be supervised by the Maternal Uncle or other person as agreed between the Mother and the Father;
(c)On the children’s birthdays at times to be agreed and failing agreement from after school until 6.00pm should the birthday fall on a school day and from 9.00am until 4.00pm should the birthday fall on a weekend with such time to be supervised by the Maternal Uncle or other person as agreed between the Mother and the Father;
(d)On Christmas Day in even numbered years at times to be agreed and failing agreement from 9.00am until 4.00pm with such time to be supervised by the Maternal Uncle or other person as agreed between the Mother and the Father; and
(e)On Christmas Day in odd numbered years the Mother’s time with the children shall be suspended on Christmas Day and in substitution thereof the Mother may spend time with the children at times to be agreed and failing agreement from 9.00am until 4.00pm on 27 December with such time to be supervised by the Maternal Uncle or other person as agreed between the Mother and the Father.
That on or after the first day of January 2019, the parties are to jointly arrange to attend upon Mr S or such other psychologist/social worker as agreed in writing between the parties so as to obtain a report addressing the changes in the children’s living arrangements and the Mother’s progress with any counselling and/or therapy engaged in by the Mother and to provide recommendations as to further developments with the Mother’s opportunity to spend time with the children.
That the parties are to share equally the costs associated with the preparation of any such report.
Family and Personal Counselling and Therapy
That the Father facilitate the children’s continued attendance upon Ms P or other counsellor as may be recommended by Ms P and that the Father be responsible for the costs associated with such counselling and that unless otherwise recommended by the counsellor, that such counselling continue during all periods that the children are spending supervised time with the Mother.
That Ms P or such other counsellor as may be recommended by Ms P is hereby authorised to communicate with any professional supervisor for the purposes of providing any and all information relevant to the Mother’s time to be spent with the children.
That both the Mother and the Father attend for psychological counselling and continue such counselling to coincide with any period that the children are spending supervised time with the Mother and thereafter to continue such treatment as may be recommended by their treating psychologist or mental health practitioner.
That the Father is authorised by these orders to consult with any psychologist or mental health expert consulted by the Mother for the purposes of satisfying himself that the Mother continues to properly engage in any counselling and/or therapy as may be recommended.
That both parents have leave to make available to their respective treating psychologist or mental health practitioner copies of the reports of Dr D and Mr S, as well as copies of the reasons for judgment and the orders of the Court.
Injunctions
That the Mother or any person on behalf of the Mother be restrained from:
(a)Contacting the children other than pursuant to the terms of these orders;
(b)Attending at or near the children’s schools or the children’s home other than pursuant to the terms of these orders;
(c)Bringing the children into contact with the Maternal Grandmother, Ms A, other than in the presence of the Maternal Uncle and with the knowledge and consent of the Father in writing.
That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of and to the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and
(d)Not discuss the proceedings, the allegations raised in the proceedings or how the children came to be living with the father.
General
The Father is authorised pursuant to the terms of these orders to provide copies of the orders to the principal of any school attended by any of the children.
That the Mother and the Father shall:
(a)Keep the other parent informed at all times of their residential address, email address and contact telephone number;
(b)Keep the other parent informed of the names and business addresses of any treating medical or other health practitioner who provides treatment for the children and authorises such practitioner to provide that parent with all information that they are lawfully able to provide about the children.
That these orders provide an authority to any school or extra-curricular provider of services to the children to give each parent information about the children’s progress and to enable each parent to obtain copies of reports, photographs, certificates and/or awards as may be received by the children with the costs of providing such documentation to be at the expense of the party requesting such information.
That other than in circumstances of emergency the parents are to communicate with each other by text message or email and such communication is to relate only to issues regarding the children.
Overseas Travel
That the Father shall be at liberty to travel overseas with the children to countries who are signatories to the Hague Convention on the Civil Aspects of International Child Abduction and for that purpose the following orders shall apply:
(a)The travelling parent shall provide at least three (3) months notice to the non-travelling parent with such notice containing details of proposed itinerary, countries of travel and timing of travel;
(b)Such travel shall occur during the travelling parents nominated school holiday period, unless agreement between the parents otherwise;
(c)At least twenty-eight (28) days prior to travel the travelling parent shall provide to the non-travelling parent:
(i)A copy of the final itinerary including departure and return dates and times;
(ii)A copy of the return ticket if available;
(iii)A contact telephone number for the travelling parent and the children; and
(iv)The addresses at which the children will be predominantly based.
(d)In the event either parent is to travel outside their allotted school holiday time with the children the following provisions shall apply:
(i)Either parent is at liberty to take up to fourteen (14) days travel with the children;
(ii)Such travel shall not occur more than once a year; and
(iii)Such travel shall not occur during school time unless agreed by both parents in writing and for the purpose of the same either parent will not unreasonably decline such travel.
(e)During the trip the travelling parent shall arrange a telephone call between the children and the non-travelling parent on at least one occasion per week.
That the passports for the children are to be held by the Father and only to be released and/or used in accordance with these orders unless otherwise agreed in writing between the parents.
That the Mother is restrained from travelling overseas with the child during the period where the children are spending supervised time with the Mother.
Family Dispute Resolution
That in the circumstances where either parent seeks to make significant changes to their living arrangements such that these orders are no longer practical, the parties shall first attend family dispute resolution.
That the process to be used for resolving disputes about the term or operation of these orders shall be as follows:
(a)They shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)They shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that they cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(d)The father shall choose one of the listed practitioners within seven (7) days of receipt of the list; and
(e)If the Father fails to choose then the Mother may choose.
Independent Children’s Lawyer
That the Independent Children’s Lawyer is to advise the children or make appropriate arrangements for the children to be advised of the terms of these orders and thereafter, the Independent Children’s Lawyer is discharged.
That each party be granted liberty to apply within 28 days of the date of this order in relation to any point of clarification of the orders and in respect of costs.
IT IS NOTED that publication of this judgment under the pseudonym Pike & Skilton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT TOWNSVILLE |
BRC 5173 of 2016
| MR PIKE |
Applicant
And
| MS SKILTON |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 1 June 2016, Mr Pike, whom I shall for convenience refer to as the father, filed an application in this court seeking orders with regard to the future parenting arrangements in relation to three young children. Those children are the children of the relationship between the father and Ms Skilton whom I shall refer to for convenience as the mother.
The father’s initial proposals on both an interim and final basis were that the parents should have equal shared parental responsibility for decisions in relation to X, born (omitted) 2008, Y, born (omitted) 2011, and Z, born (omitted) 2011. The father then went on to propose, again on both an interim and final basis that the children should reside, though the appropriate terminology would clearly have been live with, the mother, and spend time with the father.
The father’s proposals in that respect were for there to be what was clearly acknowledged at the time, to be some re-establishment of his relationship with the children, such that he spend time each Sunday from 9 am to 5 pm for a period of six weeks, and thereafter have the opportunity to spend time with the children in each alternate weekend from Saturdays at 8 am to Sundays at 5 pm for a further period of six weeks. Then the father proposed on both an interim and final basis that arrangements should be in place on a two-week rotation for the father to spend time with the children in week 1 from after school on Thursday until before school Friday, and in week 2, from after school on Friday until the commencement of school on Monday.
The orders then went on to make provision for arrangements proposed by the father with regard to telephone communication between the children and the father, and similar arrangements with regard to the mother’s communication with the children, when in the care of the father. Proposals were put with regard to special days including Mother’s Day, Father’s Day, the children’s birthdays, Christmas, Easter and other significant occasions or events in the lives of one or other of the parents or, of course, in the lives of the children.
Additionally, the father proposed that there should be the opportunity for the children to spend time with their parents during the gazetted school holiday periods suggesting that there should be a sharing of the end of terms 1, 2, 3 and 4, though the proposals in relation to the shorter holidays at the end of terms 1, 2 and 3 were for there to be the first half or second half, and in relation to the longer school holiday period, initially for there to be two week or one week blocks spent with each parent until the children get older, and then from 2018 onwards, the end of term 4 long Christmas holiday break be divided equally between each parent.
The father’s orders then comprehensively dealt with arrangements in relation to overseas travel, various authorities and injunctions in respect of the behaviours of each parent, and provided finally for the opportunity for there to be family dispute resolution as between the parties in the event of there being any dispute.
The mother responded in relation to the application of the father only a matter of some six weeks or so later. Certainly the response was prior to the return date of 21 July 2016, though only a matter of a few days beforehand. The mother’s proposals in relation to final parenting were short and to the point. The could be summarises as follows:
· that the children live with the mother,
· that the children spend time with the father each alternate Saturday from 2 pm until 5 pm, and each alternate Sunday from 9 am to 3 pm. With such time supervised by either the paternal uncles, Mr T, Mr I or Mr M, or the paternal aunt, Ms C, and
· the changeovers occur at the residence of the paternal grandparents, and that there be specific arrangements with regard to the nominated supervisor greeting the mother at the commencement of the children’s time, and that there would be respectful exchanges between all involved.
The mother also proposed that she be at liberty to file an amended response regarding parenting orders. More particularly, however, on an interim basis the mother sought more detailed orders with regard to the parenting of the children, and outlined in particular requirements with regard to supervision by those persons previously named, including the filing by them of undertakings that they would not permit the father to be alone in the presence of the children, and that they would “directly observe Mr Pike and the children at all times”.
There were then other specific arrangements with regard to communication and how that should occur. Interestingly, there were orders sought with regard to the Director-General of the Department of Communities, Child Safety and Disability Services being given the opportunity to intervene in the proceedings. It should be noted that no such intervention was ordered in relation to the proceedings.
It should also be noted that the final order sought by the mother in the interim response related to the transfer of the proceedings to the Family Court of Australia in Brisbane and a request that consideration be given to the listing of the matter on the Magellan list. As is obvious from the fact that the matter proceeded over seven days hearing before me in the Federal Circuit Court, the transfer did not occur and consequently the matter was never listed in the Magellan list.
The father amended his initiating application by way of the filing of an amended initiating application on 5 January 2017. There the father sought orders which were radically different from those which had been detailed in the original application filed in June 2016. The father specifically sought orders with regard to the children living with him, and interestingly, sought an order that he be granted further leave to amend the application with respect to proposals in relation to the mother’s opportunity to spend time with the children following the receipt of an updated Family Report. The father also sought orders with regard to him having sole parental responsibility for major long-term issues in respect of the parenting of the children.
As is perhaps obvious from that brief introduction in relation to the matter, the circumstances with regard to the parenting arrangements for the children changed radically during the time between the filing of the initiating application and early January 2017. Six months is certainly a long time when one considers the issues that became apparent during the preparation for trial, and, of course, during the conduct of the hearing.
Noting, as was obvious, the very serious issues in respect of the parenting of the children, the serious matters raised by each parent subsequent to the filing of the original application in respect of their capacity to provide for and to meet the needs of the children, to foster a relationship with the other parent, or to even recognise the importance of some safe and secure meaningful relationship with the other parent, an appointment was made for the involvement of an independent children's lawyer. That order was made on 21 July 2016.
As a result of that order, Jennifer Bolton was appointed the independent children's lawyer. The independent children's lawyer took a very significant role in relation to these proceedings facilitating arrangements with regard to psychiatric assessment of the parties, as well as conducting significant other inquiries to assist, in relation to the determination of what arrangements would be appropriate in respect of the parenting of these children.
Unusually, but not unsurprisingly in light of what fell over seven days of evidence in relation to the matter, an oral application was made on the part of the independent children's lawyer at the conclusion of evidence in the proceedings, but also following the oral submissions that were made in relation to the matter for orders which radically changed those which had previously been in place with regard to the parenting of the children.
As a result of the concerns that I also held in relation to the parenting of the children, reasons were given at the end of the evidence being presented, and interim orders were made which significantly changed the position in relation to the children’s parenting. The terms of those orders made on 28 April 2017 were as follows:
1.That all previous Orders be discharged.
2.That by no later than 4.00pm on 5 May 2017 the Independent Children’s Lawyer provide to the legal representatives for both parties specific terms as to the orders they propose on a final basis.
3.That the Respondent Mother file and serve written submissions by 4.00pm on 19 May 2017.
4.That the Applicant Father file and serve written submissions by 4.00pm on 9 June 2017.
5.That the Independent Children’s Lawyer file any submissions in reply by 4.00pm on 19 June 2017.
6.That the Father have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2009, Y born (omitted) 2011 and Z born (omitted) 2011 (“the children”), subject to the communication and notification of such decisions to the Mother, including but not limited to:
a.a child’s education (both current and future);
b.child’s religious and cultural upbringing;
c.a child’s health; and
d.a child’s name.
7.That notwithstanding order 6 herein:
a.The Father be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with him; and
b.The Mother be responsible for the day-to-day care, welfare and development of the children when they are living with or spending time with her.
8.That the children live with the Father.
9.That there be a moratorium until 3 June 2017 on the mother’s opportunity to spend time and to communicate with the children.
10.That for the first six (6) weeks after 3 June 2017, the children have the opportunity to spend supervised time with the Mother for three (3) hours each Saturday or a Sunday with the Father to be responsible for the costs associated with supervision and the supervisor be request to provide a report to the Independent Children’s Lawyer as to the conduct of the supervision.
11.That on completion of the six (6) week period outlined in Order 10, the children have a further opportunity to spend time with the Mother for three (3) hours each Saturday or Sunday alternating between professional supervision and supervision by the maternal uncle Mr P, provided that Mr P satisfies the Independent Children’s Lawyer that he fully appreciates the supervisory role he is undertaking.
12.That the Father will arrange for the children to attend upon Ms P and be responsible for the costs associated with such appointments.
13.That both parents forthwith undertake psychological counselling and the Independent Children’s Lawyer be authorised to provide copies of the reports of Dr D and Mr S including Mr S’s addendum report, the reasons provided today and the final reasons once given.
14.That until such time as a final determination is made the maternal grandmother be restrained from spending time with the children during periods of time that the Mother spends with the children.
15.That neither party is to denigrate or insult the other party or their family in the presence or hearing of the children and is to use their best endeavours to ensure that others do not denigrate or insult the other party or their family in the hearing or presence of the children.
16.That until 3 June 2017, the Mother be restrained from attending any school attended by the children.
17.That after 3 June 2017, the Mother can attend the children’s school for the purposes of attending any arranged activities which parents would normally attend.
18.That leave is granted to provide a copy of these Orders to any school attended by the children.
19.That these Orders are to continue until such time that final orders are made in these proceedings.
20.That the children be released from childcare into the care of the Paternal Aunt forthwith.
THE APPLICATIONS:
Subsequent to the making of those orders, further consideration was given by the independent children's lawyer to the specific orders that would be sought by them in relation to the future parenting of the children. In the outline of orders proposed by the independent children's lawyer forwarded to the court on 9 June 2017, the orders in these terms were detailed and were as follows:
Parental Responsibility
1. That the father shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended) ("the Act")) in respect of the children X born (omitted) 2008 (“X”) and Y born (omitted) 2011 (“Y”) and Z born (omitted) 2011 (“Z”) (collectively “the children”) save that the father shall, prior to making the sole ultimate decision about any such issue:
(a) Advise the mother in writing of the decision intended to be made;
(b) Seek the written response of the mother in relation thereto;
(c) Consider, by reference to the best interests of the children, any such written response prior to making any such decision;
(d) Advise the mother in writing (in the one letter) as soon as reasonably practicable of his ultimate decision.
Live with
2. That the children live with the Father.
Injunctions
3. An injunction be granted and the Mother (and anyone on her behalf) be restrained from
(a) contacting or trying to contact the children
(b) attending at or near the children’s schools
(c) attending at or near the Father’s home
(d) leaving the children in the care of the maternal grandmother
and that injunctions issue against both parents in the usual terms to ensure non-denigration and to prohibit either party discussing these proceedings with the children or in their hearing.
Mother’s mental Health
4. That the Mother forthwith engage with, and continue with therapy advised by, a mental health expert to assist with the significant change in her circumstances and her erroneous belief that the Father is a paedophile.
Spending time
5. The Mother’s time with the children to commence no earlier than one month from the date of these Orders and subsequent to the Mother providing to the Father documentary evidence of having engaged the mental health expert.
6. The time with the children shall, at the outset, commence on a supervised basis (by the Mother’s brother Mr P or at a Contact Centre) for a period of up to 7 hours (9am to 4pm) each alternate Saturday or Sunday.
7. The supervised time shall continue until such time as the Father receives a Report from the mental health expert which informs the Father that the children are not at risk of any harm whilst in the unsupervised care of the Mother.
8. The Father has liberty, and is hereby authorised, to consult with the said mental health expert in this regard and the Mother hereby waives her right to patient confidentially.
9. Thereafter, the Mother shall spend time with the children on alternate weekends from Saturday 9am until Sunday 5pm, excepting during school holiday periods.
10. During school holiday periods commencing at Easter 2018 the children will spend time with the Mother for one half of such holiday periods.
General
11. The Father is to forthwith arrange for confidential non-reportable counselling for X.
12. The Father is to engage with a Counsellor and to continue with counselling to assist with the significant change in his life circumstances.
13. The Father is to provide copies of the Orders made to the Principals of the children’s schools.
14. The parents have leave to publish the Report of Dr D, the Reports of Mr S, the final Orders and the Reasons for Judgment when available to the Mother’s General Practitioner – Dr M – and to the mental health experts engaged by the parties for their own assistance or the expert engaged for X.
15. The children are to continue their education at their current schools.
Both the mother and the father were asked to provide written submissions in relation to the final orders that should be made with regard to the parenting of the children. The mother’s submissions were filed electronically on 23 May 2017. They were 44 pages in length and comprised 218 paragraphs. More specifically, they detailed the final orders that would be sought by the mother. Those orders were couched in different terms, depending upon whether it was found that there was:
·an unacceptable risk to the children spending time with the father;
·no unacceptable risk to the children spending time with the father;
·no unacceptable risk to the children in the father’s care and a change of residence is considered to be warranted.
The mother’s orders, then, were extremely long. They, in fact, commenced at page 45 of the submissions, attached to and concluded at page 61. They were 17 pages in length. They are attached to these reasons and marked with the letter “A”.
The father also filed written submissions in relation to the matter. They were extensive in the extreme, comprising more than 800 paragraphs and more than one hundred pages and also detailed the orders that were proposed by the father, in relation to the future parenting of the children. On 3 July 2017, the father’s legal representatives filed electronically an amended draft of the orders that the father sought. The orders that were sought by him were seven pages in length and, again, for convenience and so as to avoid a significant expansion in the size of the judgment itself, are annexed hereto and marked with the letter “B”.
The orders proposed finally by the father were, to some degree, a continuation of the orders in place on an interim basis with regard to the parenting of the children but also provided significantly greater particularity in relation to the supervisory arrangements that the father suggested would be required, in relation to the parenting of the children, including specific reference to special days which would also still require supervision of the mother’s time with the children.
The father, in his final orders, did not envisage at least in the short term, any time spent by the mother with the children other than of a supervised nature. The orders did, however, propose that on or after 15 July 2020, in other words, some three years or so from now that the parties attend upon Mr S, the report writer commissioned in these proceedings, for the purposes of obtaining a report as to the significant change in the children’s living arrangements since April 2017 and to address other issues relating to the mother’s beliefs, with regard to the father.
Thereafter, it appears clear that recommendations would be sought from Mr S as to what might be appropriate ongoing arrangements, in relation to the children’s opportunity to spend time with their mother. It should be noted that if July 2020 is suggested as the appropriate date for further consultation with Mr S, then by that time, X will be 12 years of age and the twins will have recently turned nine years of age.
EVIDENCE:
As is perhaps obvious from what has already been indicated in these reasons, the conduct of the hearing and the evidence that fell in relation to the hearing had a significant impact on the issues which were most influential in relation to the determination of the proceedings.
There was a very considerable amount of evidence called from the mother’s perspective that related to her concerns that the father would act in a manner which would lead to physical, sexual and emotional abuse of the children.
The mother described the father as a monster unable to contain or control his sexual urges, and a man who would determinedly set out to groom and thereafter abuse the children. The father’s position was to counter that that was entirely contrary to any evidence that could properly be called or relied upon in relation to the proceedings and, if anything, it gave rise to serious concerns with regard to the mother’s stability and her capacity to recognise the harm that such dreadful allegations, if not properly justified, did to the relationship between the children and the father.
As is obvious from the interim orders that were made by me in relation to this matter following the final evidence in April 2017, the issue of the psychological wellbeing of the children and the harm caused to them as a result of the mother’s attitudes and behaviours took great significance and certainly outweighed any suggestion, though it remained made by the mother, in relation to the physical or sexual abuse of the children by the father.
Not only was evidence called from the parents and various family members, but there was also evidence obtained from Mr S included in reports, prepared by him, as well as significant oral evidence and also psychiatric assessments in relation to the parties themselves under the hand of Dr D. I, obviously, will need to address at length the evidence of the parents and, in particular, the opinions, recommendations and concerns indicated by Mr S.
Also, it is necessary to address the evidence of those others called in support of either the mother or the father as well as, of course, to note the evidence of Dr D. In my assessment, the appropriate course is to address the evidence of Dr D and then the evidence of those called in support of the mother and the father, followed by the extensive evidence relating to the parents and, finally tie that in with the evidence, opinions and concerns identified by Mr S.
THE PSYCHIATRIC EVIDENCE:
Accordingly, I turn first to the evidence of Dr D. Dr D is a psychiatrist in practice in Brisbane. Dr D has extensive experience in relation to psychiatric assessment of parties generally and, in particular, is used regularly by the profession in Brisbane and, more generally, Queensland with respect to the psychiatric assessment of both parents and children involved in proceedings before the family law courts. The independent children’s lawyer commissioned Dr D to prepare a report addressing issues in relation to both the father and the mother. Her letter of instruction of 10 October 2016 noted the operative orders that were in place with regard to the parenting of the children and, more particularly, provided to Dr D at least what material was available at the time of commissioning his report, as well as providing him with the opportunity to consider the significant amounts of subpoenaed material that had been made available.
Neither the father or the mother or, in fact, the independent children’s lawyer required Dr D for cross-examination, though his reports of 18 November 2016 were annexed to his affidavit filed on 6 January 2017. Dr D provided, in respect of each of the parents, details of the interviews that were conducted with them as well as mental state examinations and what are referred to as “diagnostics provisional”.
At the end of the report, after noting consideration of the documentation that was provided by the independent children's lawyer, are conclusions in relation to the proceedings. With regard to the father’s mental state examination, Dr D noted:
On mental state examination, Mr Pike was a male of stated age. He was dressed smartly and was pleasant and cooperative throughout the interview process. He displayed good eye contact. There was no psychomotor retardation or agitation. He did have a minor vocal tick, but his speech was of normal rate and volume, although mildly stilted in quality. His mood was euthymic, and his affect was reactive. There was no evidence of any formal thought disorder or psychotic symptoms, and there was no suicidal or homicidal ideations, and he denied any perceptual abnormalities. He was alert and orientated to time and place, and his insight and judgment appeared reasonable.
Dr D then went on under the heading Diagnostics (provisional) to note that he could find no evidence of any major mental illness, and in particular, no evidence of psychosis or major mood disorder. He indicated that the father presented in a:
…mildly schizoid manner and there are obsessional personality traits evident, although he himself denied being perfectionistic or being a workaholic, although he works six days a week, 10 hours a day.
With regard to the mother, after detailing the interview particulars, Dr D under the heading Mental State Examination noted the following:
On mental state examination Ms A was a woman of stated age. She was dressed casually but smartly, and was pleasant and cooperative throughout the interview process, and displayed good eye contact. She was tearful at times. There was no psychomotor retardation or agitation, and her speech was of normal rate and volume. There was no formal thought disorder or psychotic symptoms, and no suicidal or homicidal ideation or perceptual abnormalities. She was alert and orientated to time and place, and her insight and judgment appeared reasonable.
Similarly to the findings in relation to the father, under the heading Diagnostics (provisional), Dr D noted that he could:
…find no evidence of any major mental illness, in particular, there was no evidence of any psychosis.
It goes on, however, to note specifically under the heading Diagnostics (provisional) the following:
Her beliefs about the sexual abuse of the child appear to be due to the alleged disclosures of the child which is therefore difficult to characterise as psychotically based. She did describe developing significant anxiety and mood symptoms in the context of the relationship and the separation. This would be best characterised as an adjustment disorder, although an anxiety disorder may also have been present.
His assessment of her personality does go on to note that there do appear to be obsessional features to her personality as well as dependant traits, but:
There is no evidence of a personality disorder per se.
He notes her dependant traits appear to have developed in the context of the burden of parenting young children, though he went on to indicate that there were suggestions of, “personality vulnerabilities”. He then notes finally under the heading Diagnostics (provisional) the following:
She remains convinced about sexual abuse based on the disclosures of the child and her own observations and remains anxious about the children’s safety in the care of the father and the consequences of the children based on her experience directly of the father during and subsequent to the relationship.
Dr D then under the heading Conclusions notes the consideration of the evidence provided by each of the parties, the opportunity to consider the documentation provided, and noted particularly the, “considerable conflict between the parties during and subsequent to the relationship”. He concludes at paragraph 3 of the conclusion with the notation:
There is some indication in particular that the children have been exposed to the mother’s negative views with respect to the father.
That particular issue took significance in relation to the evidence that fell in respect of this matter. Dr D then commented upon each of the parties. He said with respect to the father that there was:
…nothing in the documentation that would change my view the father does not appear to suffer from a major mental illness.
He notes the situation some time ago of the father being in a manic state after taking Codral Cold and Flu tablets and opines that this may be more a “function of heightened anxiety (in an individual who is probably temperamentally anxious and somewhat obsessional) rather than evidence of any underlying major mood disorder such as bipolar affective disorder.”
He then notes that there do not appear to be other instances of manic or hypermanic symptoms. He notes that whilst there are some anxiety symptoms, perhaps best described as an adjustment disorder or anxiety disorder in respect of the father, they do not appear to be adversely affecting his functioning, as well as noting that whilst there do appear to be some indicators of obsessional features in the father’s personality as well as potentially schizoid features, they would not be seen as uncommon within the community.
Subject therefore to the obvious concern with respect to whether the father had sexually abused the child or in fact the children and determinations in relation to that, the findings and opinions with regard to the father were generally of a stable and secure nature.
With respect to the mother, Dr D again noted, similar to the father, that there was nothing in the documentation that would change his view that the mother did not appear to suffer from a psychotic illness. More particularly, it appeared clear from the conclusions in the report, that Dr D did not assess her views about the possible or real sexual abuse of the child not arising as a consequence of a psychotic process. However, Dr D interestingly noted as follows:
I must admit that the mother’s actions appear somewhat incongruent in reporting to the family report writer that she became hypervigilant around issues of sexual abuse after incidents when the children were younger and yet later appears to have allowed the child to spend unsupervised time with the father to facilitate going to school and also remaining in a relationship with the father despite her suspicions, but these should be seen more as a function of the mother’s underlying personality rather than evidence of a mental illness.
Dr D also notes that the mother appeared to demonstrate significant obsessional features in her personality including particular note as to the fact that the mother remained in a relationship with the father, suggesting that that gave rise to a concern with regard to significant dependant traits. Additionally, Dr D noted in his final paragraph under the heading Conclusions the following:
Nevertheless, her decision to remain in the relationship and in fact to seek to cement the relationship with marriage appears somewhat incongruent given her intense fears about the father’s propensity to violence and sexual abuse, and does suggest difficulties in prioritising the needs of the children ahead of her own if that was in fact her beliefs about the father at that time.
There are clearly identifiable issues in relation to each of the parties, though, of course, Dr D particularly notes that some of the assessments that had been made would not be uncommon within the bulk of the community generally. His reference on at least two occasions, however, to the incongruencies that arose with regard to the mother’s behaviours is of significance.
Dr D then goes on in the final two pages of his report to make certain recommendations. He notes, for example, that neither of the parties appear to be deprived of the appropriate capacity to make long-term decisions with respect to the children as a consequence of any psychiatric condition. He notes the differing concerns that each parent expresses with regard to the other, and makes suggestions in respect of therapeutic intervention or treatment that might be appropriate.
He refers to emotional or anger management programs if findings were made in relation to the father of that nature, and other possibilities subject to findings that might be made. In particular, on page 23 under the heading Recommendations at (iv) Dr D notes:
If the father was able to protect the children from any negative views with respect to the mother and was developing appropriate strategies to reengage with the older child, and further that the court found that there was no evidence of any sexual abuse having occurred, I would have no concerns that the children would be at risk of significant harm in the care of the father on either a supervised or unsupervised basis.
Dr D then did note that if there were a finding of sexual abuse as described in the evidence of the mother, then he would defer to others with expertise in relation to whatever form of contact arrangements might be put in place.
In respect of the mother, he recommended that she seek the assistance of a suitably qualified medical health practitioner to manage her underlying propensity for anxiety and perfectionism as well as receiving assistance in respect of managing the high degree of “emotional valence” that has transpired thus far. Dr D recommended the involvement of the mother with her general practitioner about possible pharmacological treatment in relation to her anxieties, the mother’s engagement in a parenting program to develop strategies for managing difficult behaviours with the children, and in particular, on the final page at (viii), noted:
If the mother was accessing appropriate supports and was able to protect the children from her own fears and emotions with respect to the children’s time with the father, I would have no concerns that the children would be at risk of significant harm in the care of the mother.
Similar to such a statement in relation to the father, however, Dr D noted further:
If however the court were to find that the mother had coached the child to make false allegations with respect to the father, this in my view would demonstrate a profound inability to prioritise the needs of the children ahead of her own and the court should act accordingly.
Dr D did not have all of the information that was available to Mr S or, of course, to the court at the conclusion of the seven days of hearing. It is clear, however, that Dr D had identified issues in respect of both of the parents, their personality, and psychological wellbeing generally, and had noted rather astutely the two competing concerns that the court would need to address, firstly, if in fact it were found that there had been sexual abuse by the father of the children, and secondly, and perhaps in the alternate, if it were found that the mother had been unable to protect the children from her own fears and emotions, or had in fact even more seriously involved the children in coaching about the making of false allegations with respect to the father. I was particularly assisted by the evidence of Dr D in that respect.
THE FATHER’S WITNESSES:
A number of witnesses were called on behalf of the father. They include Ms H, his former partner, as well as Ms J, Mr M and Ms A. The Pikes are all members of the father’s family. Insofar as their evidence was concerned, I was generally most impressed by each of those witnesses. The father’s former partner, Ms H, filed an affidavit on 6 January 2017. She dealt comprehensively with issues relating to her observations of the father, particularly in relation to their initial relationship, noting at paragraph 5 of her affidavit, that she and the father had always had a:
Trusting, loving and fun-natured relationship. I have found Mr Pike to be a very patient, altruistic and funny person. He was always very calm and caring with me throughout our relationship.
She also noted, I thought quite truthfully, that she had never observed anything of concern throughout her relationship with the father in respect with the father in respect of his interaction with any of the three children and was able, with considerable particularity, to comment upon her relationship with each of the children and to comment very specifically about the different nature of the interaction and relationship that she had with each of the children.
Ms H commented, in cross-examination, that she had not met the mother and acknowledged that any views that she might have expressed in her affidavit regarding the mother, were drawn from what others had told her, or from matters and observations relating to her interaction with the children and comments made by them.
In cross-examination, Ms H was asked about her statement indicating to the children at the commencement of first meeting them, that she was a friend of the father’s sister, Ms C, rather than to suggest that she was in a relationship with the father. She was asked why she did that and whether there was any reason for the children to be “intimidated” by the relationship between she and the father. She answered, I thought, quite thoughtfully, that there was no reason for the children to be intimidated by her, but she did not want the children upset by information as to their father a relationship with her. She was asked whether that was, in some way, misleading and I thought, quite sensibly, noting the strained nature of the father’s relationship with the children and the difficulties that were being experienced in respect of any time being spent with the children, that her response of such an indication being less threatening was a sensible one.
Ms H was asked about her comments in paragraphs 19 and 20 regarding her enjoyment at spending time with the children and looking forward to spending time with them, and was asked whether she would like to continue a relationship with the children. She indicated that she would, but as she stated in paragraph 20, she was aware of the fact that the father wanted to prioritise his relationship and responsibilities in respect of the care and provision for the children and that, at the time of the affidavit and at the time of giving her evidence, she did not feel that she could “commit to a relationship”.
Ms H was also asked by counsel for the independent children’s lawyer to speak more specifically than she had done in her affidavit about her assessment of each of the children’s personalities. She indicated that, in her assessment, X was a lovely, polite little boy, but she was experiencing difficulties in communicating verbally with the child. Though, as she indicated in her affidavit and was not challenged, it appears that X still sought to interact with her, such as making the statements, “Oh no, Ms H is here” and then running away with the hope or expectation that he would be chased.
She noted that Y was a confident and sweet child and that Z was also sweet, though she would describe her as, “a little shy”.
Ms H was specifically asked about her comments in relation to the unusual behaviours of X, particularly in interactions with his father and other family members. At paragraph 16 she noted that the girls were very comfortable around their father and extended family, but that X appears to:
Hold back at times; not only from his father, but all family members, including myself.
She further noted that he looks like he is “bursting” to get involved, but will not allow himself. She was not challenged in that regard. When questioned by counsel for the independent children’s lawyer, however, she noted that his body language would at least appear to indicate that he wants more involvement in the family activities, but that he holds himself back.
At paragraph 17, Ms H notes that, on occasions, and there were 10 or thereabouts, that she was present during the father and the children spending time together, X appeared to communicate with his father as a child normally would, and would then suddenly come to an abrupt halt with what she described as, “a look of realisation” coming over him. She said that he then reverts back to his previous methods of non-verbal communication and, when asked about that, specifically commented that it was as if he had realised that he was doing something that was not approved and he stops himself.
Ms H was an impressive young woman. I found her honest and accept her evidence in relation to this matter, particularly with regard to her observations.
Also called was the father’s sister, Ms J. Ms J provided an affidavit of a quite comprehensive nature in relation to her past, as well as her more recent observations in relation to the interaction between the mother and the father, as well as observations in respect of the father’s relationship with the children.
Ms J commented about concerns that arose in her interactions with the mother. She spoke of the mother at family parties shrieking at and berating the father for small things. She spoke of uncontrolled outbursts by the mother, including where she had screamed at Ms J’s husband, Mr B, noting that, on one occasion, he had had X on his - no, an earlier occasion when X was about 14 months old - months of age, Mr B had had X on his lap and had let him taste a small piece of cake and the mother had become very upset at that. She also commented upon what were concerning interactions involving suggestions of the mother being absolutely opposed to Ms J and her sister in law, Ms K, changing the children’s nappies and that she felt that the mother was suggesting that she could not be trusted.
Ms Pike indicated in paragraph 11, that after that occasion, which coincided with Z and Y’s christening, that she had withdraw from attending at organised events involving the mother and noted, that the mother was, as she observed it:
Verbally abusive towards my brother and I felt that if we stood up to her abuse that he would cop an earful later.
Ms J commented, upon the allegations raised in relation to her brother and noted that she did not believe them and found them to be both heinous and disgusting.
She spoke of her concerns with the way the mother treated her brother and note that, in her assessment, “it would have been impossible for Mr Pike to stand up for himself in his relationship with Ms Skilton.” She noted that her experience with the mother was to the effect that the only way to deal with her was to retreat, as the mother would not compromise or listen to alternate argument.
Ms J then provided a significant commentary of a positive nature in relation to her supervision of occasions when the father spent time with the children, including at a swimming carnival, an indoor trampolining centre, at a dam nearby to their residence, as well as spending time at her parents’ residence when the children were in attendance.
Ms J was cross-examined by counsel for the mother in relation to a number of the issues addressed in her affidavit, as well as in respect of other matters. She acknowledged that the Pike family was close and further acknowledged that she had been invited to events at the father’s residence when he and the mother were still together. She was shown various photographs of family occasions and acknowledged that whilst she had decided not to participate in activities with regard to the mother, that other members of her family, including one or more of her children, had continued to spend time at family occasions.
She acknowledged that since the mother and the father had separated, she had not had contact with the mother, other than to see her at some of the drop-off or collections, but had not spoken with the mother. Ms Pike was challenged by counsel for the mother in relation to a number of small and, in my assessment, inconsequential matters. For example, they related to whether the mother had asked the father to wash the dummy at the time of the dropped dummy incident or whether the mother had specifically asked her to assist with the change of nappies.
Ms J acknowledged appropriately that there may have been other conversations that she had not heard, but that her observations, as recounted in the material, were an accurate reflection of what had occurred. She became animated, however, when it was put to her that she had never heard the mother be verbally abusive of the father. Ms J indicated that that was simply incorrect and that it had been something that she had observed on a number of occasions.
I accept that to be an accurate recounting of what had occurred in her presence. Ms Pike was clearly an honest witness seeking to as accurately as possible, reflect upon matters that had arisen in the past as relating to the relationship between the father and the mother.
She acknowledged, for example, that the father had been critical of the mother in her presence. She, however, said that she was not aware of occasions where the father had been critical of the mother when the mother was present. She also acknowledged that she had been critical of the mother, particularly in exchanges between she, her brother and other family members, but had not been critical of the mother to her face.
Ms J was asked about statements within her affidavit relating to comments by Z, to the effect that she and her siblings and the mother had changed address and that the other two children had said that that was not the case. She noted that she had indicated to the children that it was important to be truthful and she reiterated that that was the case, noting that one or other of the siblings was not being truthful in relation to the statements that had been made.
When asked particularly about her comments in paragraph 19, relating to the children becoming anxious prior to collection by their mother, she indicated that it was appropriate that the children be proactive in respect of the collection of their goods and chattels. However, when asked whether she was implying that the mother’s behaviours and requirements of the children was what made them anxious, she responded quite determinedly that, yes, that was the case and then went on to indicate that from about half an hour out from when the children were to return to their mother, they were looking for various items and saying that their mother would be angry if they weren’t all be home.
She noted occasions where the children were anxious to find togs and towels, and whilst acknowledging that it was appropriate that the children be responsible for their property, also was concerned that it was something that dominated the children’s behaviour and, obviously, therefore affected the quality of their opportunity for time with their father.
When pressed in relation to whether she saw the mother as being responsible for these behaviours on the part of the children and whether she was just looking to find fault, she answered I thought quite honestly and openly that she did not talk to the children about the mother, but that she saw the children becoming anxious and concerned to make sure that they had all of their goods and chattels together. She went on to indicate that the children had told her that the mother gets angry with them, and she was not challenged in relation to that particular statement.
When asked specifically whether it was the case that she did not like the mother, Ms J could have avoided answering the question appropriately, but immediately stated that that was correct. She was asked whether she would struggle to say something nice about the mother and she indicated also that that was correct, but then when asked whether the children knew this to be the case, she indicated that it was not true and that, as she put it, “we are very careful”.
I was again impressed with the evidence of Ms J. She was, I thought, a meticulously honest and open witness, indicating where appropriate that comments or views were held by her which may be adverse to the mother, but there was nothing in her evidence, and certainly nothing that arose as a result of cross-examination which gave rise to any concern for me that she was not an accurate recorder of the events and comments that were made in her presence.
Also called was the father’s brother Mr M. Mr M indicated that he had assisted his brother in supervising time with the children and that he, like Ms H, had been involved in perhaps 10 interactions with the father and the children, though it should be noted that Mr M was one of the approved supervisors, whilst Ms H was simply participating in the time spent with the children.
Mr M indicated in paragraph 6 that he found the mother to be a difficult person. He said that he had observed her to go into a rage about seemingly inconsequential events, such as X being offered a piece of cake or the dummy being dropped on the ground. Mr M commented upon his observations of the mother’s attitude and behaviours at the time of collection or delivery of the children and also provided some detail of the behaviours of the children, including the anxious behaviour, seeking to find various items prior to the mother’s collection of the children.
At paragraph 13, he noted that the children are often quite concerned about the time that they are to be picked up and would become anxious, ensuring that they did not keep their mother waiting. Mr M also noted that in his times when supervising the father’s interaction with the children, that the girls had seemed quite happy and engaging with their father and had remained that way. He described it as what he would suggest was, “normal behaviour’ in that they seemed comfortable around their father. But the situation with X was quite different, and he indicated that his behaviour in his assessment at least was “not normal”.
In cross-examination, Mr M acknowledged that he had said that he didn’t know the mother very well and that his interactions with her, as with other members of Mr M’s family, had occurred but it had not developed into a close relationship.
Mr M was asked specifically to confirm that he didn’t believe the allegations made with regard to the father’s abuse of the children and he acknowledged that that was correct, and when asked whether he thought that the mother might be behind them, he said that that was correct and also acknowledged, as did his older sister, that he didn’t like the mother, indicating specifically that that was a fair thing to say, particularly since the allegations had been made.
It was then suggested to Mr M that the children were aware of his distaste for their mother and he became perhaps the most animated he did at any stage during the cross-examination, declaring that they absolutely did not know of his feelings towards their mother. He was challenged about his statements in his affidavit with regard to the mother driving off at high speed and not belting the children into their appropriate travel seats and, whilst challenged as to what he might or might not have observed, remained adamant that his statements were true and an accurate reflection of what had occurred.
Mr M was asked further about his comment in relation to X’s behaviours not being normal and he indicated that they were different to the other interactions that he had observed, particularly with other nieces and nephews with whom he had come into contact through family occasions. He indicated that he had engaged with X, though it had been, as he described it, “on and off success”.
When cross-examined by counsel for the independent children’s lawyer, Mr M confirmed, as he had detailed in his affidavit at paragraph 11, that X had become more relaxed over the occasions that Mr M had been supervising his brother’s time with the children, and confirmed, as was noted by other witnesses, that there were occasions where X engaged with his father and then suddenly just stopped engaging and reverted to his non-communicative exchanges. He noted in particular that from his observation, this occurred and that there was something that may have been, “a trigger”.
Mr M was also asked about the children’s knowledge of his views of their mother and he indicated that he had been very careful in ensuring that the children were shielded from any indication of what his views might be and, more particularly, noted that he had not heard any other family members speaking adversely of the mother in the presence of the children. Like Ms H and Ms J, I was impressed with the evidence of Mr M and found him to be both an honest and forthright witness.
Finally, the father’s mother, the paternal grandmother, Ms A, was called. Ms E had sworn an affidavit on 5 January 2017, which affidavit was also filed on that day. She detailed her circumstances and the care that she provides for her husband, it being the case that he suffers from dementia. She then went on to note the allegations made by the mother against her son and indicated that she was sickened, appalled and very saddened by the allegations.
She then went on to detail issues with regard to her relationship with the mother and how it had changed, and unfortunately deteriorated after the birth of the children. She says that she became increasingly concerned about the mother’s emotional stability and her behaviours and noted what she says was a marked deterioration in those indicators of emotional stability and behaviours after the birth of the twins in 2011. She indicated that her interactions with the mother became strained and that there were, from her perspective at least, strange behaviours and reactions on the part of the mother.
She spoke about an occasion in June of 2011, when caring for the girls, the mother indicated that she was running late in returning home and Mrs Pike suggested that she would bath the girls. She said that the mother went, “absolutely crazy” and said words to the effect, “leave them alone, don’t touch them”. She also indicated that the mother screamed and screamed down the phone at her and that she was alarmed and concerned at the mother’s behaviours, not being able to understand what the worry was, and more particularly, what had caused the mother to lose control of herself.
She noted other occasions in August and September of 2011, when still involved in the care of the children, where the mother’s behaviours were troubling, suggesting that the mother, in September of 2011, when Z had been crying for a lengthy period of time, had started to shake the baby and that she, Mrs Pike, was forced to intervene, noting then that the mother sought comfort from Mrs Pike.
At paragraph 11 of her affidavit, she indicates that, at Christmas time 2011, when the girls were a little more than six months of age, she had contacted Ms Skilton to inquire whether the father and X could come up to their home at the (omitted) to spend Christmas lunch with them. She indicated that the mother did not react well and that she was screaming and yelling and swearing at the paternal grandmother. She noted that the mother had suggested that “no-one was taking her children anywhere without her” and that she, Mrs Pike, did not then see the children that Christmas.
Mrs Pike commented, like the other witnesses that had been involved, about the time spent by the father with the children with various family members as supervisors. She noted particularly the withdrawn nature of X, particularly when he arrived, and the strange behaviour of failing to communicate, but when she spoke to him upon arrival of X usually giving her a “thumbs-up”, but then not speaking and he would disappear into a bedroom.
More specifically, Mrs Pike responded to various allegations that were made in relation to her and her interaction particularly with the maternal grandmother Ms A. Specifically, she categorically denied the various allegations, relating to the father suggesting that he had had no relationship with X until he was 14 years of age, but she had advocated the father go for a run, “instead of bashing Ms Skilton” and that she and other members of the paternal family were not interested in participating in activities and events involving the children.
Mrs Pike also responded to suggestions that she had not been engaged appropriately in providing assistance with regard to the care of the children when spending time with them, and that various statements or explanations had been given in respect of that non-engagement, including suggestions that they would interfere with her Foxtel viewing, as well as suggestions of unpleasant statements, including a suggestion that Y was referred to by the paternal grandmother as a sloth.
Mrs Pike denied those various allegations, in relation to her interactions with Ms A and my impression, without hesitation, is that Mrs Pike is both an honest and accurate recorder of exactly what might or might not have been exchanged between she and the mother or between she and the maternal grandmother.
In cross-examination, Mrs Pike was questioned about her responsibilities with regard to the care of her husband, and acknowledged that it was a burden and could become greater. She was also asked about her statement with regard to providing assistance in the care of the children every Monday, and it was suggested that it was not every Monday, but rather only when the mother would call. Mrs Pike denied that categorically and indicated that it was a regular interaction.
Mrs Pike was then challenged in relation to her recollection of the exchange, when she said the mother was running late and she offered to bathe the children, denying any suggestion that there was no mention of bathing the children or that the mother did not scream at her. Mrs Pike indicated that that was the case and was then questioned about various other statements that were made, for example, those relating to Z suffering from a urinary tract infection, crying for a long period and the mother shaking the child.
She indicated that her recollection of those events was clear and that, whilst it was only the one time that she had seen the mother shake the child, it had occurred and then that the mother, in a very upset state, had flung herself at Mrs Pike, seeking some form of consolation.
Mrs Pike was asked whether she acknowledged that the mother was under stress with the care of a toddler and baby twins, and quite properly acknowledged that that would no doubt be the case and further acknowledged that the father was working long hours and that placed further burdens upon the mother.
Mrs Pike was challenged as to whether she had attempted to try to make contact with the mother about time to be spent with the girls and indicated that she hadn’t done so, noting the difficulties in the relationships. Further, in cross-examination, Mrs Pike was asked about various of the statements made in respect of attendances at Christmas lunch and her knowledge of what might or might not have otherwise been arranged in relation to Christmas time. It is perhaps of little consequence now, but, I accept categorically that the evidence of Mrs Pike is a far more accurate and informed recitation of what did and did not occur in any exchanges between she and the mother, as well as in respect of other issues with regard to the interaction between them.
Mrs Pike was asked whether she had had any dealings with the mother since the time of separation and she indicated that she had not. It was further noted that there was a concern that she didn’t like the mother, even prior to separation. Mrs Pike indicated that it was certainly the case that she didn’t like her now, but that that had arisen subsequent to separation as a result of issues in respect of what she was concerned about with regard to the treatment of her son. She acknowledged that she had spent more time with the girls, particularly on occasions when the children were at her home than had been spent with X, and she noted that that was correct, particularly acknowledging that X would quite often isolate himself by going to a room.
THE MOTHER’S WITNESSES:
Called for the mother were her mother, the maternal grandmother, Ms A, and her brother, Mr P. Mr P filed two affidavits in these proceedings, one on 6 January 2017 and a further affidavit of 24 April 2017. The second Affidavit was specifically required, because of issues relating to an occasion in the latter part of 2015 when he provided assistance to the mother in relation to mechanical repairs to her motor vehicle. That assistance, however, was provided at a time the mother was supervising the father’s opportunity to spend time with the children.
Mr P was, I thought, generally a reliable and honest witness. His affidavit of January 2017 noted that he had known the father for about 35 years, having attended (omitted) School together whilst the father attended the (omitted) State School. He noted also that he had lived nearby to the father between 2003 and 2008 and that he knew the father to be a quiet person, in fact, describing him as a bit of a loner.
Mr Skilton then went on in his first affidavit, to talk about his relationship with his sister, the mother in these proceedings, which appears to be a close, loving and supportive sibling relationship, as well as of the positive nature of his relationship with the children. He notes that the children are well behaved and outgoing, well-spoken and, in particular, from the perspective of X, very intelligent.
Mr Skilton indicated, however, that in more recent times, in conversations with X, he had asked him about his weekend or what he had been up to and the child had responded with words to the effect, “I had to go to my father’s,” and he noted that X’s mood at that time was sullen. He did, I think, quite poignantly, however, note that the child did not make reference to any particular aspect of dismay at the time spent with his father but was, rather, more sullen generally in relation to his behaviour than would normally be the case.
In his second affidavit filed on 24 April 2017, Mr Skilton provided a more specific statement about his assistance provided to his sister in the latter part of 2015, with regard to difficulties with her motor vehicle and provided an overhead shot of the place where her motor vehicles were parked and other geographic points in respect of the father spending time with the children apparently supervised by the mother.
Mr Skilton was cross-examined in relation to this matter. He confirmed that he was aware of the allegations that were made in relation to the matter and specifically acknowledged that he was aware of the suggested behaviours of the father directed towards the mother, the child X and to the twins. He was asked about the first affidavit that he prepared in relation to these proceedings, sworn on 18 August 2016. That affidavit is, to all intents and purposes, a recitation of those matters which were detailed with a little more particularity in the affidavit sworn on 4 January 2017.
Mr Skilton was asked about the fact that in that first affidavit there was no mention of issues of physical violence allegedly perpetrated by the father toward the mother. Mr Skilton acknowledged that that was correct and was then asked about the nature of his relationship with his sister. He acknowledged that there was strong support provided by him for the mother, that they had always been in the same town and he had always been supportive of her and that they had spoken regularly about issues that might have been important, one to the other.
Mr Skilton then acknowledged that the reason that there was no mention of physical violence in his affidavit was because it had not been raised with him and that it was specifically the case that there had been no mention in the regular exchanges between he and his sister of such physical violence, including pushing, choking and abusing, or of the mother being scared of the father. Mr Skilton acknowledged that that was the case and similarly noted that the mother had not raised issues of child abuse with him, otherwise, he would have included them in his affidavit.
Mr Skilton was asked about the circumstances which led to him attending at the (omitted) to assist with repairs to the mother’s motor vehicle. He indicated that he was contacted, it being the case that his phone records showed a call from his sister at 11.13 am on that day and she indicated to her brother that she was at the (omitted) as she was facilitating time for the father to spend with the children.
Mr Skilton indicated that he was aware by that time of the allegations of sexual abuse directed at the father and noted that the mother was supervising the time spent by the father with the children because of the need to comply with Court orders in relation to that supervision. When asked what he understood was the obligation of a supervisor, he noted that it was someone who would oversee time to be spent by a parent with a child and noted, in answer to a question by counsel for the father, that it was specifically there to ensure that the children were not interfered with by their father.
Mr Skilton was cross-examined about the circumstances of the repairs to be effected to the mother’s car and exactly how that might have been able to be done, particularly when it was clear that the mother had come to the car park area to provide to her brother the keys for the vehicle. Mr Skilton acknowledged that the mother came by herself and that when asked where the children were, had indicated that X was running around the park and that the girls were at the swings.
He was then asked specifically to acknowledge that the girls were with their father as he said that that was the case. When asked why the mother brought the keys to him, Mr Skilton indicated that he did not want to meet with the father as it would be awkward. He indicated more particularly, that the mother had not suggested to him that she needed to be present at all times to supervise time because, he said, he was not asked to come and collect the keys from the mother. He acknowledged that the mother had said that she would bring the keys to him and he waited for her nearby to his or the mother’s car. He indicated that the mother explained the problem with the motor vehicle but then returned to the (omitted) to, as was required, supervise the time spent by the father with the children.
Obviously the issue of parental responsibility is one of great significance. Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
In Heath & Hemming (No 2) [2011] FamCA 749, decision of Justice Kent, his Honour when discussing a parenting case, went on to comment about the decided law in respect of parenting decisions. His Honour said, at paragraph 87, the following:
87.Upon my review of the authorities it seems to me that the following is a logical and practical approach by the Court, and one which meets the statutory imperatives in a parenting case, including such cases involving a proposed relocation: -
(a)Identify the respective proposals of each of the parties and any proposals of the Court substantially different to those of either party that were identified to the parties in the course of the proceedings as being proposals the Court might consider and about which the parties were given an opportunity to be heard. (AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238)
(b)Informed by the objects expressed in s 60B(1) and the principles underlying those objects in s 60B(2) (and where relevant s 60B(3)) undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC having regard to the respective proposals. It may be preferable to look at the additional considerations in s 60CC(3) (incorporating subsections (4), (4A) and (6) (where relevant)) before consideration of and findings about the primary considerations in s 60CC(2). (Collu & Rinaldo (supra))
(c)Consideration of and findings about the s 60CC considerations will result in findings one way or the other about “abuse” and “family violence” within the meaning of those terms as they are defined in s 4 of the Act (s 60CC(3)(g),(k) and s 60CC(2)(b)).
(d)In determining best interests the obligation upon the Court is to consider, weigh and assess the evidence adduced on behalf of the parties touching upon each of the relevant matters. After consideration of all those matters the Court should indicate to which of those matters greater significance is attached and how all of those matters balance out. (Collu & Rinaldo (supra) at [355] cited with approval in Sigley & Evor (2011) 44 Fam LR 439 at [142]).
(e)Next, determine in accordance with s 61DA whether or not the presumption of equal shared parental responsibility applies having regard to any findings as to “abuse” or “family violence” (s 61DA(2)) and the findings on “best interests” considerations (s 61DA(4)).
(f)If, as a result, the s 61DA presumption is found not to apply, or is rebutted, and it is determined that the parenting order will not provide for the parents to have equal shared parental responsibility, s 65DAA is not triggered and the Court may make parenting orders, consistent with the s 60CC findings, having regard to ss 60CA, 60CC and 60B.
(g)If the presumption applies, or if it is determined that the parenting order should make provision for the parents to have equal shared parental responsibility, then s 65DAA is triggered and the Court must consider:
(a)Whether an order for equal time is in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, equal time; and if not,
(b)Whether an order for substantial and significant time would be in the child’s best interests and is reasonably practicable and, if it is, consider making an order for, or containing provision for, substantial and significant time.
(h)The questions about “best interests” posed by s 65DAA will be answered by reference to the s 60CC findings undertaken in steps (b),(c) and (d) above.
(i)To answer the question of “reasonably practicable” regard must be had to the factors identified in (a) to (e) of s 65DAA(5) some of which will have also been considered in addressing the s 60CC considerations (as but one example, parental capacity to implement arrangements and to communicate and resolve difficulties). As the High Court highlights in paragraph 15 of its judgment in MRR v GR (supra) s 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there will be equal time (and the same can be said of s 65DAA(2) and substantial and significant time) and s 65DAA(1)(b) (and s 65DAA(2)(d)) requires a practical assessment to be made of the feasibility of equal time or substantial and significant time respectively.
In paragraph 87, his Honour detailed a checklist of those matters that need to be considered and, of course, they are reflective of the guidance also provided in Lansa & Clovelly (supra).
DISCUSSION:
Accordingly, the logical and practical approach as detailed in Heath & Hemming (No 2) (supra) requires the consideration of each of those individual points. The first is the identification of the proposals of the parties and those proposals, including specifically the alternatives suggested on the part of the mother depending upon any findings that are made are contained within or annexed to these reasons. No other alternative proposals have been suggested by the Court and it is clear that one or other of the orders proposed by the parties or Independent Children’s Lawyer, or a meld of all three proposals are what will be considered here.
Thereafter, there is the need to, as Justice Kent said, “undertake consideration of and make findings about each of the “best interests” considerations set out in s 60CC”. Notwithstanding, that there has been some hundreds of paragraphs already written by me it is clear that some matters will take predominance in the determination of this matter. In particular, there is the need to consider the benefits to the children of having a meaningful relationship with both of their parents. Unfortunately, both the mother and the father as well as the Independent Children’s Lawyer suggests that if findings are made in accordance with their position then any opportunity for time by the other parent should be significantly curtailed, if not suspended.
What this means is that these children will find themselves in a situation where any benefits of a meaningful relationship with both of their parents will need to be balanced against the need to protect the children from physical or psychological harm. The positions of both parents are diametrically opposed and any prospect of a meaningful relationship with the other parent is from their perspective untenable.
A call must be made by the Court as the parents cannot possibly be seen to be able to reach accord. The evidence has been detailed at enormous length and it would be hoped that it is clear from the comments already made by me that I am not satisfied that there is any risk to these children in their relationship with their father, either physical, psychological or sexually. The great tragedy is that the children and more particularly, X, hold or held at least to some degree a belief that they were at direct risk from any association with their father. That belief however, is entirely the result of the actions of the mother.
She was determined to convey to the Court but unfortunately I think more damagingly to the children that their father was a monster, that he could not be trusted in their presence and that they were at risk at all times that they were in the same proximity as him. More significantly they were developing the knowledge that the mother required them to reinforce those views with her, such that they could not speak of a pleasant or meaningful time with their father without direct fear that they would be turned on by the mother.
These children have been for years and will be until such time as the mother deals with her own issues, at risk of serious psychological and emotional harm as a result of the mother’s unfounded and untrue allegations in relation to the father. I have in that regard considered long and hard whether the mother had a mistaken belief in relation to the behaviours of the father or whether they were fabrications by the mother designed to achieve her own goals in the total exclusion of the father from the life of these children.
Ultimately, I have come to the view that the mother’s actions over years in continuing interaction with the father and facilitating his time with the children has occurred because there were no legitimate fears held in respect of the wellbeing and safety of the children. Rather, the final separation between the parties has led to a determination of the part of the mother to make the most horrendous and unfounded allegations in relation to the father and his behaviours. I am satisfied that the mother knows that her allegations are false and that they are made with the direct intent of misleading the Court and others in authority into the belief that the father is the monster that she seeks to suggest.
What that means however, is that the mother in making such allegations without a shred of truth has no insight whatsoever into the hurt that she causes to the children now and unfortunately, into the future. Mr S’s comments about the long-term consequences for these children were frightening and as noted, it was concerning that all in the Court, except the mother and perhaps the maternal grandmother, were chilled at what this meant for these children.
There is no way that one could envisage that the mother could at this time have any relationship with the children other than in the most controlled and supervised of ways. The mother’s determination to portray the father as she has repeatedly done and to lash out at the children should they in any way stray from her worldview, mean that there must be serious constraints placed upon the opportunities for a relationship between the mother and the children.
There is also the need to consider many of the additional considerations as detailed in s 60CC(3), but they must all in my assessment be considered from the perspective of those findings that have been made with regard to the need to protect these children from the harm perpetrated by the mother and with the support of the maternal grandmother. As such, some of the additional considerations will fall away in significance. That would particularly be the case with regard to a consideration of any views expressed by the children as to their relationship with each of the parents.
Quite frankly, the views of the children in this matter would need to be wholly disregarded in light of the influence that has been brought to bear by the mother upon the children and the wholly inappropriate actions of the mother in causing the children to have the beliefs that they have about the father. It was disturbing in the extreme to read and to hear about the children’s enjoyment of interaction with their father, particularly by the girls, and then to learn of their abrupt change in demeanour and to assure the mother, even when she knew it not to be true, that they did not enjoy their time with the father. It should also be noted that the mother initially did not even seem to appreciate that change on the part of the girls and when brought to her attention dismissed it or explained it to fit in with her stance on the relationship that they had with their father.
Suffice it to say, little if any weight could be given to the views of the children with respect to their relationship with each of their parents or their future hopes and expectations.
Similarly, the nature of the relationship that the children have with their parents and others certainly of the paternal side of the family can be given little weight in light of the adverse influence that has been brought to bear upon the children by the mother and the maternal grandmother. If anything, the observations of even some small positive relationship between each of these children and the father is a reflection not of any positive influence by the mother but rather its existence despite the influence of the mother.
In so far as s 60CC(3)(c) is concerned, there is again little that can be drawn about the final arrangements to be made. The father has sought to participate in all aspects of the children’s lives, including decisions to be made and time to be spent with the children. He has been hindered at every attempt by the demands, impositions and false allegations of the mother and it does him enormous credit that he did not, as the mother suspected might have been the case, walk away when the first of the allegations were raised. Rather, he continued to seek opportunities for a relationship with these children despite the most difficult of circumstances.
Unfortunately, the fact that the mother has participated in the life of the children is not a positive reflection upon her because it has been clearly from the perspective of demanding that she have all of the say and control over the circumstances that relate to the parenting of the children and her decision making and time with the children were as a direct consequence of her attempts to exclude the father from any relationship with the children.
A factor which loomed large in relation to the determination of this matter was the consideration of the likely effect of any change in the children’s circumstances upon separation from one or other of the parents or others significant in the children’s lives. Such factors do not however loom as of such great significance now as a result of the orders that were made in April 2017 which removed the children from the care of the mother and placed them with their father. If anything now, the consideration that arises of greatest significance is the re-establishment or introduction of opportunities for the children to spend time with their mother. That is a matter which will depend to a significant degree on the mother’s attention to counselling and therapeutic intervention, as has been suggested in previous reports and assessments.
In a similar vein, considerable weight attaches to those matters that arise pursuant to the provisions of s 60CC(3)(f) and (i). The parents can both meet the basic physical needs of the children but in light of the findings that I have made, there is an enormous gulf between the capacity of the father to provide for and to meet the children’s needs, including their emotional and intellectual needs and the mother’s incapacity to appreciate the children’s emotional needs and her determination to if possible mould them to reflect her views of the father. Likewise, the attitude of the parents to the responsibilities and obligations of parenthood can only be seen in the light of the mother’s determination to achieve her own goals and to exclude the father from the life of these children.
Whilst the father has been hurt and is defensive in what he suggests might be opportunities for the mother to continue her involvement in the life of the children, there is at least some recognition on his part of the importance of the mother to the children, whilst no such assessment could be made of the mother recognising or appreciating the children’s need for a relationship with their father. In the circumstances, the capacity of the father to meet the emotional and psychological needs of the children far outweighs any capacity on the part of the mother to foster a relationship with the father or to even appreciate the possible harm to the children of failing to foster that relationship.
Consideration also needs to be given to issues of family violence and of the allegations that have been raised, particularly by the mother. In light of the findings that I have made, however, it is clear that such issues, at least from the perspective of the father, are not of serious concern. However, the harm that has been caused to these children as a result of the abusive behaviours of the mother cannot be underestimated. She has sought to influence them, covertly and overtly, with direct threats to the children if they were to show any loyalty or attachment to their father. The children have been the subject of horrendous abuse at the hands of the mother.
Finally, when turning my mind to the best interests considerations I am mindful of the need to attempt to construct orders which are least likely to lead to the institution of further proceedings. It is a factor which gives rise to real concern because it is hard to envisage any order that is less likely than any other to bring to a halt further litigation. I say that in the sense that if the children remained primarily or even significantly in the care of the mother then one can only imagine that they would be influenced by the mother and the father would be forced into a situation of bringing further proceedings to continue or foster his relationship with the children.
Just as clearly, if orders are made which place the children primarily, if not exclusively, in the care of the father then the mother would be expected to push for further opportunity for time which would again lead to further litigation. However, I am more inclined to the view that when one considers that the paramount consideration is the best interests of the children orders must be made now which reflect those best interests, rather than to try and assess what might be the future consequences of such orders.
Having detailed the considerations with regard to the best interests of the children, it is necessary to specifically indicate those matters which have the greatest significance in respect of any determination of the best interests of the children. I would hope that it would be unnecessary to say more than that the children’s need to be protected from psychological and emotional harm arising as a result of the actions of the mother are of such overwhelming importance that they lead to only one possible determination, though of course many of the other considerations that I have commented upon also weigh heavily in a finding that orders must be made which provide for the children to live with their father.
It is necessary, of course, to consider the presumption that arises pursuant to the provisions of s 61DA of the Family Law Act and again, in light of all that I have found already I am absolutely satisfied that the presumption of equal shared parental responsibility is rebutted in circumstances where I would, without hesitation, find that such a presumption would not be in the best interests of the children. These parents, but particularly the mother, have no respect for the other parent and are fundamentally unable to communicate with each other or to reach decisions in relation to the best interests of the children based upon consultation and consideration of the other parents’ attitudes or views.
The issue of parental responsibility accordingly will vest solely in the parent with whom the children are primarily to live.
Accordingly, having found that the presumption does not apply the final step is to make orders consistent with the findings that have been made as a result of the application of the evidence to the law. In that respect there is in my assessment only one possible outcome which provides an opportunity, not necessarily now but perhaps in the future, for these children to have a relationship with both of their parents and that is to make orders generally reflective of the father having sole parental responsibility for decisions to be made in relation to the welfare of the children and for the children to live with the father. The orders which are detailed at the commencement of these reasons reflect that determination.
I certify that the preceding five hundred and fifteen (515) paragraphs are a true copy of the reasons for judgment of Judge Coker
Date: 13 October 2017
Key Legal Topics
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Family Law
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Injunction
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