Pullman and Pullman (No 2)
[2012] FamCA 980
FAMILY COURT OF AUSTRALIA
| PULLMAN & PULLMAN (NO. 2) | [2012] FamCA 980 |
| FAMILY LAW – CHILDREN – Family violence and abuse – where finding the father had not committed family violence – where finding no sexual assault of the mother by the father – where there was no unacceptable risk of harm to the children in the care of their father FAMILY LAW – CHILDREN – With whom the children live – where the children live with the father – where the children have meaningful relationships with both parents – where the mother was unable to encourage positive relationships between the children and father – where the father could promote positive relationships between the children and the mother – where the children had already benefited from an interim change of residence to live with the father – where there is no risk of harm to the children in the father’s care – where orders are inconsistent with an existing family violence order FAMILY LAW – CHILDREN – With whom the children spend time – where the children spend supervised time with the mother once each month – where the mother posed a risk of psychological harm to the children whilst they were in her care – where the mother was unable to provide for the children’s emotional needs – where the mother was diagnosed with borderline personality disorder FAMILY LAW – CHILDREN – Parental responsibility – where the father has sole parental responsibility for the children – where it is not in the children’s best interests to apply the presumption of equal shared parental responsibility – where the parties are unable to effectively communicate in relation to the children – where conditions were consensually imposed on the father’s exercise of parental responsibility FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother sought that orders be made on only an interim basis to enable her submission to psychotherapy – where there was no evidence the psychotherapy would achieve improvement in the mother’s psychological condition, either in the short, mid, or long term – where the mother expressed an intention to make a fresh parenting application if there was a material change in the circumstances of her psychological condition – where orders made on a final basis |
| Family Law Act (Cth) ss 4,60B, 60CA, 60CC, 60CG, 61B, 62B, 61DA, 64B, 65D, 65DA, 65AA, 65DAA, 65DAC, 65DAE, 68B, 68P Mental Health Act (NSW) |
| Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Re C & J (1996) 20 Fam LR 930 W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 |
| APPLICANT: | Mr Pullman |
| RESPONDENT: | Ms Pullman |
| INDEPENDENT CHILDREN’S LAWYER: | Coast Law |
| FILE NUMBER: | NCC | 1740 | of | 2011 |
| DATE DELIVERED: | 26 November 2012 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 26, 27, 28 June 2012 & 8, 9 November 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr C. Boyd |
| SOLICITOR FOR THE APPLICANT: | Aubrey Brown Partners |
| COUNSEL FOR THE RESPONDENT: | Mr B. Kelly in June 2012; Ms D. Bampton in November 2012 |
| SOLICITOR FOR THE RESPONDENT: | Nash Allen Williams & Wotton in June 2012; Monardo Solicitors in November 2012 |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr D. Barry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Coast Law |
Orders
The parties’ respective applications for property adjustment orders are listed before Justice Austin at 11.00 am on Friday 30 November 2012 for further procedural directions.
All former parenting orders and injunctions relating to the children M, born … June 2001, and S, born … August 2002, (“the children”) are discharged.
Subject to Order 4 hereof, the father shall have sole parental responsibility for the children.
The father is restrained from:
(a)Changing the children’s residence to a place outside the geographical area known as the Central Coast of NSW;
(b)Changing the names of the children; and
(c)Changing either child’s school enrolment without giving the mother 7 days written notice of such change.
The children shall live with the father.
Unless otherwise agreed in writing, each of the parties shall take all reasonable steps to ensure that the children spend supervised time with the mother for four consecutive hours once each calendar month.
For the purpose of implementation of Order 6 hereof:
(a)The supervision shall be provided by one of the following persons or organisations in descending order of priority (“the supervisors”):
(i)Ms L;
(ii)Ms D;
(iii)Ms P;
(iv)Ms U;
(v)Any independent adult supervisor agreed between the parties in writing;
(vi)The …Contact Service.
(b)The parties have leave to provide a sealed copy of these orders to the supervisors.
(c)The mother shall notify the father of the date and time at which she proposes the children are to commence spending time with her each month, no less than 14 days in advance of each visit, but such times shall exclude:
(i)From 5.00 pm on the Saturday before Father’s Day and the whole of Father’s Day each year;
(ii)From 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in 2012 and every alternate year thereafter;
(iii)From 2.00 pm on Christmas Day until 2.00 pm on Boxing Day in 2013 and every alternate year thereafter; and
(iv)One of the children’s birthdays in each calendar year.
(d)The father shall arrange and notify the mother of the identity of the supervisor no less than 7 days in advance of each visit.
(e)The father shall cause the delivery and collection of the children to and from the supervisor.
(f)The father shall pay the costs of the supervisor.
(g)The parties shall comply with all directions of the supervisor.
(h)The parties shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the … Contact Service.
Unless otherwise agreed in writing, each of the parties shall take all reasonable steps to ensure that the children communicate with the mother by telephone each Wednesday, between 6.00 pm and 6.30 pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure that the children are able to receive the mother’s calls on that number at that time.
Unless otherwise agreed in writing, pursuant to s 68B of the Family Law Act the mother is restrained from:
(a)Approaching or contacting the children otherwise in accordance with Orders 6-8 inclusive hereof; and
(b)Entering upon or approaching within 100 metres of the father’s residence and any school attended by the children.
Leave is granted to the father to provide a sealed copy of these orders to the principal of any school attended by the children.
The father shall authorise and request the principal of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Leave is granted to the mother to provide to any counsellor, psychologist, or psychiatrist from whom she seeks treatment copies of:
(a) These orders;
(b) The reasons given by the Court for these orders;
(c) The Family Reports dated 18 June 2012 and 8 October 2012; and
(d)The single expert report of Dr H dated 17 September 2012.
By reason of an inconsistency between some of these Orders and an existing interim Apprehended Violence Order, pursuant to s 68P(3) of the Family Law Act, the Registrar of the registry of the Family Court of Australia at Newcastle shall send a sealed copy of these Orders to:
(a) The Registrar of the Local Court of NSW…;
(b) The Commissioner of the NSW Police Service; and
(c) The Director General of the NSW Department of Human Services.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.
Notations
(A)Orders 3, 4, 5, 6, 7, 8, 9, 14, and 15 hereof are inconsistent or potentially inconsistent with paragraph 5 of the interim Apprehended Violence Order made against the father in favour of the mother and children by the Local Court of NSW …, in which case Division 11 of Part VII of the Family Law Act applies and those parenting orders prevail to the extent of any inconsistency.
(B)It is the mother’s stated intention to seek out and accept psychotherapy for treatment of her Borderline Personality Disorder, consistently with the advice of the single expert psychiatrist, Dr H.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pullman & Pullman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 1740 of 2011
| Mr Pullman |
Applicant
And
| Ms Pullman |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
Although the trial of these parenting proceedings was due to be commenced and concluded within three days in June 2012, it was necessary for the trial to be adjourned part-heard and for a series of interim parenting orders to be made. The trial was resumed and finally concluded in November 2012.
The trial began with the principal focus of attention upon allegations of the father’s past commission of family violence and abuse of the children, but the focus soon shifted to the emotional stability of the mother and her capacity to properly care for the children and promote their relationships with the father.
Ultimately, the evidence dictated that the children must live with the father and spend only supervised time with the mother.
Background
The parties have two children together. M was born in June 2001 and S was born in August 2002. When the trial concluded the eldest child was aged 11 years and the youngest child 10 years.
The parties lived in a de facto relationship for most of the period of their cohabitation, but eventually married in May 2009.
The mother alleged that for the entirety of their relationship the father was verbally and physically abusive of both her and the children, which abuse was exacerbated by his excessive consumption of alcohol and use of cannabis. The father denied that was so.
The mother also alleged the father sexually assaulted her on numerous occasions in the concluding stages of their relationship, which relationship ended when the mother and children vacated the jointly owned former matrimonial home on the Central Coast of NSW and went to live in another home at Town A owned solely by the mother. That occurred on or about 21 April 2011.[1]
[1] Mother’s first affidavit, para 163
Despite the mother’s serious allegations of abuse and violence, the children consensually spent time with the father for several weeks following the parties’ separation.[2] That situation changed in May 2011 when the father revealed, firstly to the children and then later to the mother, that he was keeping company with another woman.
[2] Father’s first affidavit, paras 28.18, 29, 30
That revelation caused the mother to remove the children from their school, keep them at home with her for home-schooling, and prevent them from spending time with the father. The mother also then reported her allegations of the father’s past sexual abuse of her to the police,[3] which resulted in the father being charged and prosecuted with a series of serious criminal offences.[4] He is yet to be tried on those charges.
[3] Mother’s first affidavit, para 156
[4] Mother’s first affidavit, para 161
The father was dissatisfied with the mother’s refusal to permit the children to spend time or communicate with him and therefore commenced these proceedings on 2 June 2011. Although his criminal prosecution was still pending the father did not seek refuge in his privilege against self-incrimination to delay these parenting proceedings. Rather, he desired swift determination of the litigation and was willing to submit to cross-examination about the alleged offences.
A series of interim parenting orders were made between the parties.
On 10 June 2011, the Local Court of NSW made interim orders with the consent of the parties, providing essentially for:
a)The children to spend time with the father the following day (Order 1);
b)The mother to return the children to school the following week (Order 2); and
c)Adjournment of the proceedings for one week (Order 8).
The following week, on 17 June 2011, those orders were amended with the consent of the parties to provide for:
a)The children to live primarily with the mother (Order 1.3);
b)The children to live with the father each alternate weekend (Order 1.1);
c)The children to communicate with the father by telephone two nights each week (Order 8);
d)The children’s uninterrupted involvement in school, sport, and extra-curricular activities (Order 5); and
e)Transfer of the proceedings to the Federal Magistrate’s Court (Order 7).
The proceedings were ultimately transferred to this Court and on 30 August 2011 further interim orders were made with the parties’ consent, pending the Court’s adjudication of their competing interim applications in November 2011 (Order 13). The interim orders refined the time spent by the children with the father, restrained the mother from attending the children’s school at times when they would be collected by the father, and compelled the parties to undertake a post-separation parenting program.
The Court determined the parties’ interim applications for parenting orders on 4 November 2011, ordering that after a short introductory period the children would live with the father each alternate weekend (Order 2). Changeovers of the children were ordered to occur at the home of the father’s sister (Order 3), that venue having been suggested by the mother.
Regrettably, the interim parenting orders were not the subject of regular compliance. On the mother’s own version of events, despite her best efforts, she was unable to convince the children to spend time with the father on any more than a handful of occasions after November 2011.[5] The mother asserted her best efforts to have the children spend time with the father pursuant to the earlier orders made in August 2011 were also thwarted by the children.[6] Consequently, with few exceptions, the children spent no time with the father in 2012 before the commencement of the trial in June.[7]
[5] Mother’s first affidavit, pars 227-230, 233-257; Father’s first affidavit, para 60
[6] Mother’s first affidavit, pars 176-179, 181-215, 224-226; Father’s first affidavit, para 60
[7] First Family Report, paras 13-15
The trial was to commence on Tuesday 26 June 2012 with an estimated duration of three days. The mother made an adjournment application before the trial was commenced. It was contended that the level of the mother’s distress precluded her from providing proper instructions to her lawyers. The adjournment application was conditional upon the Court also making a number of interim and procedural orders proposed by the mother, comprised within a tendered minute of orders,[8] about which the mother obviously was capable of giving instructions. The orders entailed slight expansion of the time spent by the children with the father on alternate weekends, variation of the changeover venue, and referral of the mother for mental health assessment.
[8] Exhibit M1
The father and Independent Children’s Lawyer both opposed the interlocutory orders proposed by the mother. The Court was unwilling to be bound by the mother’s tactical decision to make the adjournment application conditional upon ratification of the controversial orders, and additionally, was reticent to grant the adjournment application in the absence of evidence about the nature and likely duration of the mother’s condition. The mother was not prepared to make an unconditional adjournment application and, as there was said to be some improvement in her condition, the adjournment application was abandoned and the trial proceeded.
At the mother’s request, she participated in the trial from an adjacent courtroom either by audio/visual or audio link, but progress of the trial was frequently punctuated by short adjournments due to the mother’s acute distress.
The evidence of the Family Consultant was later interposed because of the mother’s asserted inability to continue with her cross-examination, which it should be observed was conducted with impeccable courtesy and without undue pressure by counsel for both the father and Independent Children’s Lawyer.
During the course of the Family Consultant’s evidence the mother decamped from the adjacent courtroom without giving notice to even her own lawyers. When her departure was drawn to the Court’s attention the trial was interrupted and a search conducted for her. The Court was then informed the mother’s car had disappeared from the precincts. The father and Independent Children’s Lawyer feared the mother had fled the trial because of her dissatisfaction with the course taken by the evidence and intended abducting the children. Of course, those fears were merely conjectural but the mother’s conduct was sufficiently unpredictable to raise alarm.
Interim parenting orders were then hastily made by the Court, late on the third day of trial, providing for the children to live with the father and restraining the mother from attending any place where the children would likely be. The Court was not required by either party or the Independent Children’s Lawyer to publish reasons for those interim orders,[9] which were designed to hold until resumption of the trial the following day.
[9] Notation B made on 28 June 2012
At the commencement of the fourth day of trial the mother was not present. The mother’s counsel then made another application for adjournment of the trial on the basis she was unfit to attend and afford her lawyers proper instructions. The mother’s adjournment application was granted at that point with the consent of the father, but over the objection of the Independent Children’s Lawyer. The trial therefore became part-heard with the evidence of both the mother and Family Consultant incomplete.
Since the trial could not then be resumed until November 2012, the question arose as to what parenting orders should be made to apply in the interim period of approximately four months. The mother’s counsel informed the Court he did not have instructions, and could not procure them, to address the Court about appropriate interim orders. He simply had instructions to seek an adjournment and petition the Court to make interim orders broadly consistent with those made in November 2011. That was not an attractive proposition because, on the mother’s admission, she had repeatedly been unable to make the children comply with those orders.
Submissions were then made by counsel for the Independent Children’s Lawyer and the father about appropriate interim orders on the state of the evidence as it then existed. Reasons were delivered on an ex tempore basis and interim orders made to the following effect:
a)The parties have equal shared parental responsibility for the children (Order 2);
b)The children live with the father (order 3); and
c)The mother was restrained from approaching or contacting the children for a period of approximately two months (Order 4), but thereafter the children should begin spending time with the mother each alternate weekend (Order 5(c)), subject to two shorter introductory visits with the mother under the supervision of her friend (Orders 5(a), 5(b), 6), and begin regular telephone communication with her (Order 5(d)).
Those orders were consistent with, but not identical to, the orders proposed by the Independent Children’s Lawyer. The orders were not as restrictive as those proposed by the father, who contended the children’s time with the mother upon its resumption should always be supervised.
An order was made for the Independent Children’s Lawyer to forthwith attend upon the children and explain the orders to the children, since the orders entailed a reversal of their residential arrangements.
Supplementary orders were also made for the mother’s psychological and psychiatric evaluation by a single expert psychiatrist (Orders 21-28). The interim orders proposed by the mother on the first day of trial in June demonstrated her acknowledgment that assessment of her mental health was warranted.[10] Preparation of an updated Family Report by the Family Consultant was also ordered (Orders 29-30).
[10] Exhibit M1
The trial was resumed and completed in November 2012. The mother’s application at that time for a further adjournment was dismissed, for which ex tempore reasons were given. The mother completed her evidence and was able to participate in the remainder of the trial by remaining in the Court.
Proposal and primary evidence of father
The father began the trial pressing for the orders set out within his Amended Initiating Application filed on 5 August 2011. His proposal generally entailed the parties having equal shared parental responsibility for the children, the children living with him, and the children spending time with the mother each alternate weekend for four consecutive nights, for half of school holiday periods, and on other special days.
However, by the conclusion of the trial the father’s proposal was quite different,[11] particularly in respect of the interaction between the children and the mother. He proposed that the children only see the mother under supervised circumstances once per month for four hours, at least until the successful completion by the mother of psychotherapy.[12]
[11] Exhibit F5
[12] Exhibit F5, Orders 4-10
In support of that proposal the father relied upon the affidavits sworn by him and his sister, Ms N Pullman, both of which were filed on 11 May 2012. Upon resumption of the trial in November 2012 the father was consensually granted leave to rely upon his further affidavit filed on 6 November 2012.
The father also sought to rely upon the affidavit of Ms L, filed on 11 May 2012, but was not permitted to do so over the objection of the mother.
Proposal and primary evidence of mother
The mother began the trial pressing for the orders set out within her Response filed on 17 June 2011, which proposed:
a)The allocation to her of sole parental responsibility for the children (Order 2);
b)The children live with her (Order 1); and
c)The children spend time with the father “at such times and on such terms and conditions as the Court deems is appropriate” (Order 3).
By the time the trial was complete the mother acknowledged such orders were inapposite. Although she did not tender any revised minute of orders, her position was that orders much like those proposed by the father and Independent Children’s Lawyer should continue to prevail, but only on an interim and not final basis. She intended undertaking psychotherapy over an ensuing period of not less than six months, then the accumulation of further expert evidence, and then her re-contest of final parenting orders.
In support of her proposal the mother relied upon her affidavit filed on 12 June 2012, although she was consensually granted leave to rely upon her two further affidavits filed on 27 October 2012 and 7 November 2012 when the trial was resumed in November 2012.
Proposal of the independent children’s lawyer
At the commencement of the trial the Independent Children’s Lawyer expressly reserved her position about proposed orders, but reviewed that position when the trial was adjourned part-heard. At that point the Independent Children’s Lawyer tendered the minute of orders she proposed, preferably on a final basis, but alternatively on an interim basis.[13]
[13] Exhibit ICL11
The Independent Children’s Lawyer was supportive of the father’s proposal, contending the residence of the children should be moved from the mother to the father and that the parties should be allocated equal shared parental responsibility for the children.
When the trial was finally concluded the Independent Children’s Lawyer tendered another minute of orders,[14] which was similar to the suite of final orders proposed by the father.
[14] Exhibit ICL14
Other than the tender of various exhibits, the Independent Children’s Lawyer did not adduce any evidence independently.
Additional evidence
The primary evidence of the Family Consultant was comprised within three documents – her affidavit affirmed on 25 October 2011,[15] her first Family Report prepared on 18 June 2012,[16] and her second Family Report dated 8 October 2012,[17] prepared during the adjournment of the trial.
[15] Exhibit ICL10
[16] Exhibit ICL9
[17] Exhibit ICL12
The report dated 17 September 2012 prepared by the single expert psychiatrist, Dr H, was adduced in evidence upon resumption of the trial.[18]
[18] Exhibit ICL13
Both the Family Consultant and single expert were cross-examined. They adhered to their evidence, which they elaborated when required. I generally accept their evidence, which was logical, reasoned, and consistent.
Applicable legal principles
Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.
Best interests of the children – primary considerations
Section 60CC(2)(a)
The nature of the relationships between the children and the parties was a vexed issue, at least before the children’s residence was reversed under the interim orders made in June 2012.
The mother described the children’s relationships with the father prior to separation as “not good” and asserted the children were “still scared of him”.[19]
[19] First Family Report, para 58
Conversely, the father gave unchallenged evidence of the children enjoying the time they spend with him,[20] just as he asserted earlier to the Family Consultant.[21]
[20] Father’s first affidavit, para 80
[21] First Family Report, para 37
Plainly, the parties had polarised perceptions about the true desires of the children concerning their relationships with the father. There was, however, no doubt about the past reluctance of the children to be exchanged between the parties. While living with the mother, the children were apprehensive in advance of changeovers and often refused to alight from the mother’s car.[22] They were uniformly scared, withdrawn and avoided eye contact.[23]
[22] First Family Report, paras 59, 61
[23] First Family Report, paras 64, 67
The mother contended she had been unable to cajole the children’s seamless movement into the care of the father, whereas the father believed the mother was really unwilling to facilitate the changeovers. The father’s explanation for the reticence expressed or displayed by the children about spending time with him was their divided loyalty and the pressure they therefore felt to act consistently with the mother’s hostility towards him.[24]
[24] Father’s first affidavit, para 79; First Family Report, paras 36, 67
There can be no doubt about the children’s past alignment with the mother because even she was aware of it. The mother told the Family Consultant the children “readily pick up on times when [she is] feeling worried or upset and always try to make [her] feel better”.[25] The mother also admitted the children were aware of her apprehension at changeovers and that even though she was conscious of the potentially adverse effect upon the children she was unable to do anything about it.[26] The eldest child reported the mother began to shake and cry prior to changeovers[27] and the youngest child reported the mother felt “most scared” about the father during changeovers.[28] The Family Consultant noted that the children reported to her the mother’s fears rather than their own.
[25] First Family Report, para 57
[26] First Family Report, para 59
[27] First Family Report, para 73
[28] First Family Report, para 84
In observation sessions the children were witnessed to consistently seek the mother’s approval before engaging with or responding to the Family Consultant. The children became vigilant when notified of their impending session with the father, but the mother offered them no reassurance.[29]
[29] First Family Report, para 88
Upon introduction of the father to the children they were withdrawn and unreceptive to him. However, the mood soon lifted for at least the youngest child, who played jovially, warmly and comfortably with the father. The eldest child continued to exaggerate her rejection of the father. The youngest child reverted to his withdrawn demeanour at the conclusion of the session before the children’s return to the mother.[30]
[30] First Family Report, paras 89-95
In her second Family Report and during cross-examination the Family Consultant remarked upon the positive change in the children’s demeanour since moving to live with the father over the past few months.
The father told the Family Consultant the children settled quickly with him following the reversal of their residence in June 2012 and their behaviour at school has been consistent. They did not pine for the mother and did not seek extra time with her.[31]
[31] Second Family Report, paras 17-18, 20
The father’s reports were consistent with the Family Consultant’s observations. The eldest child presented to the Family Consultant as “vastly different”, being “happy, confident and talkative”.[32] The youngest child appeared to be “more relaxed”.[33] The Family Consultant said she found the children “very well adjusted” at the most recent interviews, which was clearly a significant improvement upon their “vigilance…confusion, uncertainty and insecurity” during the prior interviews.[34]
[32] Second Family Report, para 44
[33] Second Family Report, para 54
[34] First Family Report, para 101
The children were seen to be “happy, confident and at ease” with the father. They were affectionate with him and identified the father’s residence as “home”.[35] With the mother, however, the children appeared “vigilant and somewhat robotic at times”.[36] Overall, the Family Consultant described the change in demeanour of the children as “remarkable” and considered the reversal of residence had improved the children’s emotional security.[37]
[35] Second Family Report, paras 62-63
[36] Second Family Report, para 69
[37] Second Family Report, paras 74-75
There is no doubt the children love both parents. The relationships they have with each parent are meaningful and will continue to be so. However, the children’s relationships with the father are now qualitatively at least as important, significant and valuable to them as those they have with the mother, perhaps even more so. It is imperative that the children’s relationships with the father be preserved and enhanced, which can only be accomplished by them remaining resident with him. Their relationships with him deteriorate when they live with the mother.
Section 60CC(2)(b)
The mother made serious allegations of the father’s physical abuse of the children and his physical and sexual assault of her. As a consequence of those allegations, the central plank of the mother’s case was that the children would be deleteriously exposed or subjected to abuse or family violence if they were to spend time with the father.[38]
[38] Mother’s first affidavit, paras 166, 168
Family violence
Despite their quite different versions of the event, it is common ground the parties had a physical altercation in March 2006 in the presence of the children which entailed police intervention and the commencement of apprehended violence proceedings against the father in the Local Court of NSW.[39] It is also common ground that no apprehended violence order was eventually made against the father, consequent upon his undertaking to the Court to attend Alcoholics Anonymous and the mother informing the police she was not fearful of the father.[40]
[39] Father’s first affidavit, par 15; Mother’s first affidavit, pars 93-107, Annexure B (pars 6-11)
[40] Mother’s first affidavit, para 111-113
The father had been drinking prior to the altercation in March 2006, but there was no evidence to prove he was intoxicated or that he acted as he did because of his consumption of alcohol. The father only attended Alcoholics Anonymous for a few weeks because, he explained, he only agreed to attend at the mother’s request and his few attendances made it plain his continued attendance was unwarranted.
The mother’s dissatisfaction with the father’s consumption of alcohol, which she considered excessive, was a persistent feature of the parties’ relationship. The father conceded his regular consumption of alcohol, but denied it was excessive.[41] Determination of the factual controversy is impossible because there is no evidence at all by which to measure the mother’s concept of excess or the father’s concept of normality. For example, the mother may think consumption of a single alcoholic beverage every day is excessive, whereas the father may think it is unexceptional to confine his consumption of many alcoholic beverages and his consequent intoxication to only weekends.
[41] Father’s first affidavit, para 58; First Family Report, para 41
There is no evidence to corroborate the mother’s allegations and only little evidence to corroborate the father’s denials. The father has no criminal convictions[42] and his work as a self-employed tradesman relies upon him holding a drivers licence, which he has never lost by disqualification or suspension. All that can safely be said is that the father drank more alcohol than the mother would have liked.
[42] First Family Report, para 26
The father said in cross-examination that the incident in March 2006 was the only “heated” incident between the parties, although there were other arguments from time to time.[43]
[43] Father’s first affidavit, para 17
Apart from the incident in March 2006, there is no evidence of any police involvement in an incident of domestic violence between the parties during their relationship.[44] That does not of course mean that no other incident of domestic violence could have occurred, but it does mean there was no other incident serious enough to warrant summons of the police by either party or some other person.
[44] First Family Report, para 52
The father did however confirm his allegation to the Family Consultant that the mother had kicked him, spat at him, and hit him over the head with a bottle on other occasions years before,[45] though those incidents did not occur in the presence of the children. The father’s allegations about the mother were consistent with historical records produced on subpoena by the NSW Department of Family and Community Services (“the Department”).[46]
[45] First Family Report, para 31; Father’s first affidavit, para 19
[46] First Family Report, para 98
But for the incident in March 2006, the father denied his commission of any violent conduct directed towards the mother.[47]
[47] Father’s first affidavit, para 16
The mother’s evidence was quite different.[48] She alleged the father was repeatedly violent towards her throughout their relationship. She alleged his intimidation began very early in their relationship[49] and his aggression escalated just prior to the birth of the youngest child in 2002.[50] The mother’s allegations included the father overpowering her and repeatedly slamming her head against a wall,[51] pushing, shoving and slapping her,[52] kicking her,[53] punching her in the face,[54] forcibly preventing her flight from the home,[55] and humiliating her.[56]
[48] First Family Report, para 51
[49] Mother’s first affidavit, paras 70-71
[50] Mother’s first affidavit, paras 75-77
[51] Mother’s first affidavit, paras 87-89
[52] Mother’s first affidavit, paras 90-91, 117, 134
[53] Mother’s first affidavit, paras 221, 223
[54] Mother’s first affidavit, para 100
[55] Mother’s first affidavit, paras 101-102
[56] Mother’s first affidavit, paras 104, 121-123, 141-142
The mother alleged in evidence the children were witness to a “considerable amount of [the] violence”,[57] but contradictorily, she previously told her treating psychologist that the father’s violence was “not seen by the kids”.[58]
[57] Mother’s first affidavit, paras 222-223, 258
[58] First Family Report, para 51
In the face of such evidence one could hardly doubt the mother’s belief in the virulence of the father’s violent behaviour. However, the mother’s conduct was curiously inconsistent with her alleged pervasive victimisation.
The parties lived together at least from about the time at which the eldest child was born in 2001. They initially lived in the Town A home, which was owned solely by the mother, then later moved into the jointly owned former matrimonial home in about 2004. It was always open to the mother to separate from the father and live independently. She could have ejected the father from her own home whilst they lived at Town A, either with police assistance or Court order if necessary. Alternatively, after moving to the former matrimonial home she could always have moved back into her home at Town A, leaving the father at the former matrimonial home. In fact, that is what she finally did in April 2011. It was not a situation where the mother must have felt trapped with the children in a violent household without alternate accommodation available for use by her and the children.
Rather than retreat from such an allegedly violent relationship, the mother actually committed to it by deciding by marry the father in 2009 whilst away on their family holiday to visit her family in Southern Europe. The marriage was planned well in advance of their departure from Australia because the mother purchased her wedding dress in Australia, she procured the necessary documents for the wedding from the Consulate in Sydney, and arrangements were made for the children to take six months leave of absence from school. Such concessions are completely at odds with the mother’s evidence in her affidavit that she only decided to marry the father once in Southern Europe because of the positive change she perceived in his behaviour.[59]
[59] Mother’s first affidavit, paras 130-131
Other aspects of the evidence also mandate the exercise of caution before acceptance of the mother’s evidence.
Shortly following the parties’ separation the mother reported to police that she had been repeatedly sexually assaulted by the father in the last 12 months of their relationship. In reliance upon that complaint the father was charged with numerous counts of “sexual assault” upon which he is still awaiting trial.
The allegations made by the mother about her sexual assaults by the father are inconsistent. She alleged to police in her formal statement, which statement forms the basis of the father’s criminal prosecution, that the first episode of sexual assault occurred on 22 May 2010,[60] however, she told officers of the Department that the sexual assaults did not begin until around November 2010.[61]
[60] Mother’s first affidavit, Annexure A, para 8
[61] Exhibit F2
The mother made her contradictory statements to the police and the Department contemporaneously. Her police statement was made on 26 May 2011 and her comments to the Department were made only days before on 22 May 2011. It is difficult to conceive how the mother could have innocently made such a profound error in her historical account of such important events when reporting them to two different authorities only days apart.
Although it is possible the mother was sexually assaulted by the father on the morning of 22 May 2010, as the mother alleged in her police statement, the father gave evidence it was unlikely. Quite apart from the father’s explicit denial of any sexual assault, he gave evidence that he was at work all day on 22 May 2010. The father’s evidence was vindicated by consultation of his work diary, which was produced in Court for the mother’s inspection pursuant to her counsel’s call for it. The father was not then challenged any further.
The mother explained how she had surgery to remove and replace faulty breast implants on 10 November 2010.[62] In her affidavit filed in these proceedings she alleged the father sexually assaulted her some time at the beginning of November 2010 prior to that operation.[63] However, in her police statement the mother alleged the next incident of sexual assault after 22 May 2010 did not occur until after her arrival home following such surgery.[64] The versions of events in her police statement and affidavit were therefore incompatible.
[62] Mother’s first affidavit, para 148
[63] Mother’s first affidavit, paras 139-148
[64] Mother’s first affidavit, Annexure A, paras 8-11
The mother alleged the father insisted she have larger breast implants inserted during her cosmetic surgery,[65] which is what eventuated.[66] During cross-examination the father asserted the larger implants were used for genuine cosmetic reasons rather than because of any sexualised demand or insistence by him. He explained how the surgeon told the mother bigger breast implants were preferable so that her nipple on the breast containing the faulty implant would be raised in line with the other, thereby avoiding the need for surgical removal and re-alignment of that nipple. The mother did not try to contradict the father by seeking leave to give further evidence-in-chief or by calling the surgeon.
[65] Mother’s first affidavit, paras 140, 143
[66] Mother’s first affidavit, paras 148-149
The mother also alleged the father sexually assaulted her at their home following their return from her post-surgery consultation with her surgeon on 25 November 2010.[67] The mother’s police statement contained typographical errors, contending events occurred in “2011” rather than “2010”,[68] but there was no misunderstanding between the parties that the year references were intended to be “2010”. The father was able to prove the mother’s evidence was incorrect, at least as to the date of that alleged event. The father confirmed from his work diary that the parties’ attendance upon the mother’s surgeon occurred on Tuesday 30 November 2010, not on 25 November 2010 as the mother alleged. The father’s diary disclosed that he worked on numerous jobs during the day of 25 November 2010.
[67] Mother’s first affidavit, Annexure A, paras 12-13
[68] Mother’s first affidavit, Annexure A, paras 11-12
The mother alleged she was sexually assaulted by the father in March 2011 by him forcing his penis into her mouth, but she was able to escape by biting him on the penis.[69] The father denied the mother had ever bitten him on the penis and he asserted he had never consulted any doctor about injury to his genitals. It is possible the mother did as she said but, in the traumatic and repulsive circumstances she described of having the father’s penis thrust into her mouth against her will while she was sitting on the toilet, it is unlikely she could have calmly judged the intensity of her nip so the pressure was just enough to cause the father to withdraw in pain but not enough to cause injury to his erect and engorged phallus. It could hardly be doubted, on the mother’s version, that the father’s anatomy was in a delicately precarious position, exposed to the prospect of grievous injury at her whim.
[69] Mother’s first affidavit, Annexure A, para 16
The parties separated on 21 April 2011. The mother admitted that merely days later, on 26 April 2011, she invited the father to accompany her on a return journey by car to a furniture store in Sydney to acquire some new furniture. The mother alleged in her police statement that the father sexually assaulted her that day.[70] The parties were alone in one another’s company that day for many hours, including at the mother’s home where the father assembled the new furniture, which the mother must have anticipated when she invited the father to accompany and help her. It beggars belief that, in the face of the mother’s allegations of her prior sexual assaults by the father and her consequent fear of him, she would have voluntarily placed herself in such a vulnerable situation so soon after their separation. The mother’s glib and unpersuasive explanation was that she could not find anyone else to help her with the new furniture.
[70] Mother’s first affidavit, Annexure A, paras 17-19
In the weeks following separation, after the mother and children had moved to live at the Town A home, the mother said she spent most days at the former matrimonial home doing washing and cooking meals, even though she was aware the father might be living at that home. Even if the mother thought it unlikely the father would be at the home during the day, she was prepared to take the risk that he would return unexpectedly, in which event she would be alone and presumably susceptible to further sexual attack. The mother’s perplexing response to that proposition in cross-examination was simply “I did not expect him to force himself on me once we split up”. Self-evidently, such evidence was false because the mother alleged the father had sexually assaulted her within preceding weeks, five days after separation, when she invited him to accompany her on the return journey to Sydney to acquire furniture.
The evidence given by the mother about her sexual assault in her affidavit and orally during cross-examination was both unsatisfactorily vague and inconsistent with prior statements.
She deposed in her affidavit:[71]
In late November 2010 the Applicant Father became more and more violent and he began to sexually assault me more frequently and I refer to my said statements to the Police.
[71] Mother’s first affidavit, para 158
The mother also puzzlingly said in cross-examination that the sexual assaults were “very gradual but it was more so in the last six months we were together”.
The clear implication of such evidence is that she was repeatedly sexually assaulted by the father well before November 2010, but the sexual assaults became more frequent after November 2010. Such implication is inconsistent with both the mother’s police statement, in which she alleged only one sexual assault prior to November 2010, and her oral statements to the Department, in which she alleged the sexual assaults did not even begin until November 2010.
There was a particularly suspicious coincidence of events in mid May 2011 which permits rational inference that the mother’s allegations against the father were malicious.
The mother was admittedly angry about the father’s revelation of his new romantic relationship with another woman. The father told the children about it on 18 May 2011[72] and confirmed it with the mother on 19 May 2011.[73]
[72] Father’s first affidavit, para 32
[73] Father’s first affidavit, para 33
By then the parties had been separated for a month, but their relationship had been nonetheless harmonious. However, from 19 May 2011 the mother treated their relationship as poisonous, as demonstrated by her subsequent behaviour. The text messages she sent to the father after 19 May 2011 show a distinct hostile change in her attitude towards the father,[74] she withdrew the children from school for weeks[75] until she was ordered to return them to school,[76] and she removed the children from their sport and extra-curricular activities.[77] The father was not challenged about the truth of the mother’s alleged vindictive admission some weeks later that she had terminated the children’s interaction with him because of his new romantic relationship.[78]
[74] Father’s first affidavit, para 44, Annexure A
[75] Father’s first affidavit, paras 33, 40; Exhibit F4; First Family Report, para 10
[76] Order 2 made on 10 June 2011
[77] Father’s first affidavit, para 40
[78] Father’s first affidavit, para 31
The mother also moved with the children from the Town A home back to the former matrimonial home and told the father he was not welcome to use either home for his own accommodation.[79] The mother admitted the father offered to live in whichever of the two houses the mother did not wish to live, but she refused to allow him to live in either. He could not live at the Town A home without her permission because she was the sole owner of it. He could not live at the former matrimonial home because the mother and children had moved back in and the father was bound by the terms of a provisional apprehended violence which impeded his common residence or interaction with the mother.[80] The mother admitted she sent a text message to the father telling him to go and live with his girlfriend.
[79] Father’s first affidavit, paras 34, 37, 38
[80] Mother’s first affidavit, Annexure C
Within only two days of the father’s revelation of his new romantic relationship the mother attended on police to make her statement about her historical sexual assaults by the father.[81] She had not sought to do so in the prior month that had already elapsed since separation.
[81] First Family Report, para 8
Although the mother purported to be distraught by her sexual assault by the father, interestingly, she declined the offer made by her psychologist for referral to a sexual assault service for specialist counselling, contending she would contact that service herself.[82] But there is no evidence the mother ever did so. In fact, she told her counsellor at another session some months later that she did not wish to.[83] One might have reasonably thought the mother would embrace specialist sexual assault counselling if she was violated by the father in the manner she alleged and was as traumatised as she contended.
[82] Exhibit ICL7
[83] Exhibit ICL7
It subsequently transpired the mother is a person who is prepared to give false evidence when it suits her. Such a conclusion necessarily arises from former litigation in which the mother was involved. Some years ago the mother’s child from a former relationship went to stay with his father for a short time but did not then return. The mother commenced proceedings to recover that child[84] and in those proceedings the mother filed various documents, including two affidavits. She conceded in cross-examination in these proceedings that some of the contents of one of those affidavits were false at the time she attested to the truth of the affidavit.[85] She could not explain the falsehood other than to say “I just wanted my son home”, which I impute to mean she was prepared to say in evidence whatever she deemed necessary to achieve her objective, irrespective of the truth and accuracy of that evidence. The mother’s willingness to indulge in such deception necessarily weakens the veracity of her evidence.
[84] Exhibit ICL1
[85] Exhibit ICL3, para 17
The father alleged that during the course of those former proceedings the mother informed the Court he was a good father to the mother’s older child.[86] Significantly, the father was not challenged about the truth of that evidence. Such evidence was consistent with the positive comments made in the past about the father by the mother to her medical practitioner.[87] Such past positive endorsements of the father are plainly inconsistent with the mother’s evidence in these proceedings.
[86] Father’s first affidavit, para 10
[87] First Family Report, para 42
When the mother’s cross-examination was resumed in November 2012, she adhered to the allegations of her sexual assault by the father, but said she had since voluntarily approached the office of the Director of Public Prosecutions to express her desire for the pending prosecution against the father to be terminated. Notwithstanding, there is no evidence of any nolle prosequi in those proceedings.
For his part, the father flatly denied the mother’s allegations of sexual assault.[88] He waived his privilege against self-incrimination and was thoroughly tested in cross-examination. His evidence was convincing. He was calm, measured, resolute, and credible. I repose considerable weight in his evidence.
[88] Father’s first affidavit, para 18; First Family Report, para 27
The father’s sister also gave evidence the father had asserted to her his innocence of the sexual assault allegations. She was convinced of the truth of his denials. Although that aspect of the evidence was not itself compelling because of the father’s sister’s probable partiality, it still adds to the overall weight of evidence in favour of the father. It demonstrated the father’s willingness to openly discuss and refute the allegations against him, suggesting he has no consciousness of guilt.
I am not satisfied on the balance of probabilities that the father sexually assaulted the mother as she alleged.
In all likelihood the parties had a volatile relationship which entailed sporadic vociferous arguments, but I am not satisfied on the balance of probabilities that the father engaged in behaviour which could properly be defined as “family violence” within the meaning of the Act.
I am not satisfied there is any existent need to protect the children from harm through exposure to family violence.
Abuse of the children
The mother alleged the father began to hit the children in about late 2007 by hitting them with an open hand on the head or kicking them in the bottom.[89] She also said the father smacked the children as a disciplinary measure.[90] The mother alleged he occasionally used a wooden spoon for that purpose.[91] The mother also alleged that just prior to separation the father threw the youngest child forcibly onto a bed causing him injury.[92]
[89] Mother’s first affidavit, paras 125-127, 219
[90] Mother’s first affidavit, paras 130, 134
[91] Mother’s first affidavit, paras 216, 220
[92] Mother’s first affidavit, para 223
The father acknowledged he had the primary disciplinary role within the family, which occasionally entailed smacking the children with an open hand, but he denied use of any implement.[93] The father denied that his punishment had been abusive or that his behaviour towards the children was abusive.
[93] First Family Report, para 40
The evidence of the parties on the issue was irreconcilable. I am more inclined to accept the father’s evidence in preference to the mother’s as he proved to be a more reliable witness.
Although the children made statements to the Family Consultant which corroborated the mother’s version of past abuse,[94] I attribute little weight to the children’s statements because they were clearly aligned with the mother at the time they made those statements. As the Family Consultant more recently opined, it is difficult to conceive that the father abused the children when one considers the positive nature of their interaction.[95]
[94] First Family Report, paras 71, 80, 83
[95] Second Family Report, para 74
I am not satisfied there is any existent need to protect the children from harm through subjection or exposure to abuse. An injunction against corporal punishment is made, but only because it is consensual.
Best interests of the children -additional considerations
Section 60CC(3)(a)
The mother said the children previously expressed to her their strong wishes not to spend any time with the father.[96]
[96] First Family Report, para 58
At the interviews in June 2012 the Family Consultant found the eldest child overwhelmed and the youngest child difficult to engage when discussing family matters.[97] Nevertheless, the children both expressed reluctance to spend time with the father.[98]
[97] First Family Report, paras 69, 77
[98] First Family Report, paras 72, 74, 84
At the subsequent interviews in September 2012 the Family Consultant sought from both children their current views about the parenting arrangements. The Family Consultant expressly omitted any description of those views in her updated report, because of the “unpredictable emotional state and behaviour of the mother” and the risks that may pose to both the children and the mother.[99] She did, however, discuss the children’s expressed views during cross-examination. The eldest child wanted to live with the father but see some more of the mother. The youngest child wanted everything to stay the same as it then was, with them living with the father and spending time with the mother each alternate weekend from Saturday morning until Sunday afternoon.
[99] Second Family Report, paras 53, 61, 87
The children are both at an age now where some, but not much, weight may be reposed in their views. The fundamental change in the expressed views of the children over a period of only three months is astounding and demonstrates that their views are liable to be fluid. Moreover, the Family Consultant agreed that views stated by children of their age are often motivated by feelings of the need for fairness to both parents.
The children’s views are factors of little moment overall.
Section 60CC(3)(b)
The nature of the children’s relationships with the parties has already been addressed.
Very little evidence was addressed to the issue of the children’s relationships with others, including members of their extended maternal and paternal families. Nor was that issue the subject of any submission. I therefore disregard it as a consideration.
Sections 60CC(3)(c), (4)
The father is willing and able to promote the children’s relationships with the mother. That was the opinion of the Family Consultant,[100] and her opinion is consistent with the father’s behaviour.
[100] Second Family Report, para 64
Following separation the father willingly assisted the mother, both personally and with the children, in many practical ways,[101] which the mother conceded in cross-examination. More recently, since the children have been in his residential care, the father has striven to sustain the children’s relationships with the mother despite her occasional contravention of the interim orders made in June 2012, albeit on conditions designed to achieve their safety. The father said in cross-examination that he was sure he could encourage the children’s relationships and speak favourably of the mother to the children. I believe his evidence.
[101] Father’s first affidavit, paras 27-32
Conversely, the mother is generally unwilling or unable to promote the children’s relationships with the father.
As previously noted, the mother failed to ensure the children spent time and communicated with the father pursuant to a series of interim orders made in June, August and November 2011.[102] The mother actually told her counsellor at an appointment in October 2011 that she was angry with the teachers at the children’s school because they were “assisting [the] children to go with the father on Friday afternoons”,[103] even though there was then a consensual interim order then in force requiring the father to collect the children from school each Friday afternoon.[104]
[102] Mother’s first affidavit, paras 176-179,181-215, 224-230, 233-257;
[103] Exhibit F3
[104] Order 1.2.3 made on 30 August 2011
It is difficult, if not impossible, to accept the mother’s evidence that she genuinely tried to implement the interim orders.[105] It is particularly noteworthy that the mother simply said “I don’t know” when asked by the Family Consultant about the effects upon the children if they are deprived of relationships with the father.[106] She has no concept of how the children would be deleteriously affected by such an outcome, or if she does, she is not prepared to acknowledge it.
[105] Mother’s first affidavit, para 175
[106] First Family Report, para 61
The opinion of the Family Consultant, which I accept, was that the mother actively enmeshes the children in her own distress.[107] The children are aware the mother does not like the father and is scared of him.[108] When they were living with the mother their avoidant behaviour towards the father modelled the mother’s. Were the children to live with the mother the Family Consultant believes the psychological pressure exerted by the mother upon the children would cause their relationships with the father to continue deteriorating.[109]
[107] Second Family Report, para 82
[108] First Family Report, paras 73, 81
[109] First Family Report, para 108
Even now, months after the children began living happily with the father, the mother asserted to the Family Consultant that the children remain “highly fearful” of the father and at “extreme risk of harm” in his care.[110] She cannot recognise that the children feel safe and secure in his care.
[110] Second Family Report, paras 11, 35
The inability of the children to enjoy beneficial relationships with the father if they live with the mother is a factor of considerable weight.
Section 60CC(3)(d)
The eldest child expressed the desire to spend more time with the mother than is currently occurring and the youngest child expressed the desire to spend time with the mother each alternate weekend.
The orders conflict with the children’s stated desires because of the overwhelming evidence that dictates the need to protect them against the mother’s hysteria.
The children will undoubtedly be disappointed by the curtailment of their interaction with the mother, but I am satisfied they will adjust adequately. Their sense of security and stability living with the father will assuage the disappointment of seeing too little of the mother.
Section 60CC(3)(e)
There will be little appreciable practical difficulty or expense in implementing the orders. There may be some inconvenience in arranging the supervision of the children’s time with the mother, but the orders are expressed widely enough to embrace various supervisory alternatives.
The orders broadly implement the proposals of the father and Independent Children’s Lawyer, which proposals the mother generally adopted, albeit only on a temporary basis. The mother must therefore accept at least the interim practicability of the orders.
Section 60CC(3)(f)
One of the most influential features of these proceedings was the mother’s inability to provide for the children’s emotional needs.
The cause of the mother’s incapacity is her impaired mental health, which was apparently of concern to the Department as long ago as 2002.[111] It is unnecessary to consider the origins of the mother’s psychological impairment, although her abuse and exposure to family violence during childhood could not have been beneficial.[112]
[111] First Family Report, para 98
[112] First Family Report, para 45; Second Family Report, para 81
In March 2012, only a few months before commencement of the trial, the mother was the subject of an order under the Mental Health Act (NSW) rendering her an involuntary psychiatric patient, albeit for a period of only six hours, at the Hospital. Her condition was so acute it was necessary for her to be conveyed to the hospital by ambulance. The children were in the ambulance with her. Contemporaneous records of the Department describe the mother’s behaviour at the time as “bizarre” and the children were then assessed to be at “significant risk of psychological harm and neglect due to the mother’s emotional state”.[113] The mother admitted she was “crying loudly and yelling” and said “I just want to die”. She conceded the children were distressed by what was happening around them. It is trite but important to observe that the children would likely have been terrified by watching their primary carer lose complete control in that way and openly express a desire to die.
[113] Exhibit F1
The trauma experienced by the children witnessing that event would only have been exacerbated by their observation of a similar event which occurred only a week or two before, when the mother again felt compelled to call an ambulance for assistance. The mother feared she was going to hyperventilate and not be able to care for the children.
For the sake of clarity it should be noted that the father was not present at either of those events and the mother did not attribute her behaviour to anything said or done by him. The unpredictability of the mother’s behaviour is not therefore directly related to her interaction with the father.
The mother’s histrionic demeanour during the first three days of trial in June 2012 only served to heighten concerns about her emotional stability. It became evident that expert evidence about the mother’s psychological and psychiatric condition was necessary.
Following adjournment of the trial part-heard, the single expert conferred with the mother in late August 2012. Unfortunately, some collateral information relating to the mother’s mental health was not made available to the single expert prior to the mother’s interview, so the single expert was not able to interrogate the mother about it.[114] The single expert found the mother guarded, evasive, and lacking candour, so it was impossible to clarify some issues related to her health and treatment history.[115]
[114] Single expert report, page 4
[115] Single expert report, pages 5, 6, 11
Notwithstanding, the single expert concluded the mother met diagnostic criteria for Borderline Personality Disorder, prominently characterised by “mood instability and unstable and intense interpersonal relationships”.[116] The only method of treatment for such condition is psychotherapy, of which there are numerous types, but Dialectical Behavioural Therapy is the best. Such therapy involves an “intensive program” over “a minimum of 12 months” and even then the therapy is not successful with all patients.[117]
[116] Single expert report, pages 11-12
[117] Single expert report, page 13
The Family Consultant explained how that diagnosed condition impairs the mother’s performance as a parent. Her inability to regulate her behaviour causes unpredictability and worry for the children, which renders them vigilant, uncertain and anxious to appease the mother to help keep her emotions in check.[118] That explanation dovetails with the Family Consultant’s initial explanation about how the mother’s conduct with the children caused them to become “protectors” of her, reversing the parenting dynamic between them and causing the children substantial psychological harm.[119]
[118] Second Family Report, paras 78-79
[119] First Family Report, para 102
It could not be reasonably contended that the expert evidence from the single expert and Family Consultant about the mother’s psychological condition is unbalanced. Indeed, no such contention was made.
The mother’s own psychologist noted following their consultation on 30 November 2011 that the mother “continues to present with borderline traits”.[120] The mother was referred to that psychologist because of her elevated stress, but she only attended irregularly and ultimately terminated the counselling because “she was too stressed”.[121] Ironically, the mother ceased the counselling for the very reason she was referred.
[120] Exhibit ICL7
[121] Exhibit ICL8
The mother’s brother corroborated the expert evidence with his observations of the mother being needy of the children. He told the Family Consultant the mother was “clingy…physically and emotionally” with the children, which causes the children to want to “please her”. He described the emotional lability of the mother and also explained how she acts conspiratorially with the children.[122] The Family Consultant made the same observation of the mother when with the children.[123]
[122] Second Family Report, para 43
[123] Second Family Report, para 70
The mother’s impulsivity and unpredictability was demonstrated as recently as late September 2012 and early October 2012, while the trial was adjourned part-heard, when she failed to comply with orders and agreed restrictions. It was no deterrent that her behaviour remained the subject of intense scrutiny in these proceedings.
On the first occasion, the mother collected the eldest child from where she was staying with a friend and absconded with her overnight on a weekend when the children were not due to spend any time with her.[124]
[124] Father’s second affidavit, paras 2-18; Order 5(c) made on 29 June 2012
On the second occasion only a week later the mother took both children away without supervision, contrary to the agreement brokered between the parties as a consequence of the events the weekend before.[125]
[125] Father’s second affidavit, paras 18-24
Unfortunately, the mother displays no insight into the severity of her condition. The mother disavowed her psychological impairment to both the single expert and Family Consultant. In fact, she told the single expert she would be procuring evidence from an adversarial psychiatrist to prove “there is nothing wrong with me”,[126] but no such evidence eventuated. The Family Consultant noticed no discernable improvement in the mother’s presentation or level of insight over the period of her engagement with her.[127]
[126] Single expert report, page 5
[127] Second Family Report, para 82
When recently interviewed by the Family Consultant the mother appeared to suggest that the interruption of the trial and the reversal of the children’s residence in June 2012 occurred merely because she cried during the proceedings.[128] She repeated that sentiment during cross-examination in November 2012 to explain her demeanour at the beginning of the trial in June 2012, saying “I was emotional and I cried and I cried because I was missing my children”. Apart from the mother’s superficial and unenlightened appraisal of the situation, her explanation was false because the children were still living with her during the first few days of the trial in June 2012.
[128] Second Family Report, para 33
Obviously the mother’s problems and the reasons for the reversal of the children’s residence run much deeper than the mother perceives or admits.
The mother eventually conceded the validity of the single expert’s diagnosis of personality disorder and her willingness to submit to whatever therapy was recommended, but both of those concessions were made without any real sense of conviction. When pressed, the mother conceded she did not believe the personality disorder affected her parenting capacity in any way at all, and further, she did not know the reason why supervision was imposed upon the time spent by the children with her. The mother said words to the effect:
I think I’m more than capable of looking after my children. I was just emotional last time
The mother adduced fresh evidence that she had recently engaged another psychologist to afford her some therapy,[129] but the evidence did not advance the mother’s cause. The psychologist’s engagement was arranged by her solicitor, there was no evidence the psychologist was fully informed of the background, and there was no evidence as to the nature of the therapy so far afforded to the mother. In fact, the mother asserted the psychologist had already told her that she was well enough for the children to be at home with her. One can only wonder at the value of such therapy if after only two sessions the psychologist truly advises that the mother is fine.
[129] Mother’s third affidavit, paras 2-4
I am not satisfied the mother is fine. She remains emotionally unstable and it will take genuine commitment and effort on her part to become stable through submission to the intensive psychotherapy recommended by the single expert.
By comparison, the father is apparently performing his new role as primary carer for the children with considerable aplomb. They are thriving in his care. I am satisfied the father has the capacity to provide for all of the children’s physical, emotional and intellectual needs.
Section 60CC(3)(g)
No aspect of the maturity, sex, lifestyle or background of the children or the parties was contended to be relevant to the outcome of the proceedings.
Section 60CC(3)(h)
Neither the parties nor the children identify as Indigenous Australians.
Sections 60CC(3)(i), (4)
The parties’ attitudes to the children and the responsibilities of parenthood have already been adequately discussed as issues under ss 60CC(3)(c) and 60CC(3)(f). There is nothing useful to add.
Section 60CC(3)(j)
Family violence has not been an issue within the family for numerous years, as explained under the rubric of s 60CC(2)(b).
The orders do not expose any person to the risk of family violence (s 60CG).
Section 60CC(3)(k)
An interim family violence order was made against the father in favour of both the mother and children when charges were pressed against the father following the mother’s complaint to police about his sexual assault of her.[130]
[130] Mother’s first affidavit, Annexures C, E
The family violence proceedings remain unresolved and are next back before the Local Court of NSW for consideration on 22 March 2013. A copy of the interim order made on 6 December 2011 was tendered[131] and it was common ground the existing interim order is in identical terms.
[131] Exhibit ICL15
The terms of the interim family violence order are inherently contradictory. Paragraph 5 of the order precludes the father from interacting with either the mother or the children except, inter alia, as permitted by any order under the Act “as to counselling, conciliation, or mediation”, whereas paragraph 6 of the order permits such interaction without restriction if it is “authorised by a parenting order under” the Act.
Although paragraph 6 of the interim order is therefore consistent with the orders made in these proceedings, paragraphs 5 is clearly not. That is because the parenting orders dictate such interaction on a much broader basis than simply for “counselling, conciliation, or mediation”.
The literal terms of paragraph 5 of the interim family violence order are untenable in the face of the proper parenting orders that this Court is enjoined to make. The orders made by the Court specify the inconsistency with the interim family violence order and explain how the parenting orders will operate, as required by s 68P(2)(a),(b) of the Act.
The following explanation is given to the parties pursuant to the Court’s obligations under s 68P(2)(c),(d) of the Act:
a)The parenting orders are inconsistent with paragraph 5 of the interim family violence order because they require the father to contact the mother and for the father to provide a residence for the children.
b)It is necessary to make parenting orders which are inconsistent with paragraph 5 of the interim family violence order in order to promote the children’s best interests (s 60CG(1)(a)), which is achieved by them living with the father.
c)The children’s best interests are also promoted by them spending time with the mother. That will be aided by the mother and father being able to contact one another, in person, by telephone, and in writing.
d)The parenting orders do not require breach of paragraphs 1(a), 1(b), 1(c), 6, 13 or 14 of the interim family violence order, which paragraphs are consistent with the parenting orders. The parenting orders and those paragraphs of the interim family violence order may be consistently obeyed.
e)Contravention, variation, or revocation of the family violence order will be dealt with by prosecution or application in the Local Court of NSW.
f)Contravention or variation of the parenting orders will be dealt with under the terms of the Act.
Section 60CC(3)(l)
The parties and Independent Children’s Lawyer concluded the trial in broad agreement about the nature of the parenting orders that should apply in the immediate future. Their disagreement was over whether the orders should be final, as the father and Independent Children’s Lawyer wanted, or whether they should only bind the parties for a period of months, as the mother wanted.
If the orders were made only on an interim basis then, necessarily, further litigation over the children would be assured.
If the orders are made on a final basis, while not assured, further litigation is still likely because the mother has foreshadowed her intention to institute fresh proceedings once she can demonstrate changed circumstances (see Rice v Asplund (1979) FLC 90-725) by any significant improvement of her mental health attained through her submission to psychotherapy.
Section 60CC(3)(m)
No other facts or circumstances were contended to be influential in the outcome of the proceedings.
Parenting orders
The presumption of equal shared parental responsibility is successfully rebutted (s 61DA(4)). The evidence proves that the parties are incapable of any rational discussion with one another over issues related to the children. The mother does not resile from her allegations of sexual abuse against the father and she asserted remaining fearful of him.
Inevitably, one parent must have sole parental responsibility for the children and obviously that should be the same parent with whom the children live.
The order for sole parental responsibility is couched in conditional terms, with orders specifically regulating the geographical area of the children’s residence, restraint of any change of names for the children, and restraint of any change in school enrolments without notice. That is only because the father and Independent Children’s Lawyer both sought parental responsibility orders in those conditional terms,[132] and the mother agreed.
[132] Exhibit F5, Order 2; Exhibit ICL14, Order 2
The evidence capably demonstrates that the children should live with the father, as the mother eventually conceded, albeit that her concession was only made on an interim basis. The children find security and contentment with the father, of which they were deprived when living with the mother. They are now free to enjoy relationships with both parents. When living with the mother the children were prevented from displaying any enjoyment of their relationships with the father and were conscripted in the mother’s campaign of antipathy towards him.
The conditions under which the children should spend time and communicate with the mother were also ultimately the subject of broad agreement, at least on an interim basis.
The mother conceded that the orders should provide for the telephone communication between her and the children to be limited to weekly occurrences, consistently with the Family Consultant’s recommendation.[133] The orders so provide.
[133] Second Family Report, paras 84, 91
The need for the imposition of supervision upon the time spent by the children with the mother was not controversial. I accept the opinion of the Family Consultant that the risk of psychological harm the mother poses to the children by her unrestrained labile behaviour, prioritising her own needs above theirs, necessitates supervision as a buffer to attenuate the risk. As the Family Consultant observed, the mother’s recent abduction of the eldest child is a striking example of her “extreme lack of containment and unpredictability”.[134]
[134] Second Family Report, paras 83, 90
The mother conceded the children should spend supervised time with her for discrete periods of four hours at a time, but whereas the father and Independent Children’s Lawyer contended that should occur monthly, the mother contended for fortnightly frequency.
The Family Consultant supported the position of the father and Independent Children’s Lawyer and I accept the veracity of their unified position on the issue.
The mother’s proposal for fortnightly visits was not based on any evidence other than, apparently, the mother’s desire to see the children more often and the children’s stated wishes. As understandable as the mother’s feelings are, the children’s interests are superior to hers, and the children’s expressed views carry far less weight than objective considerations about the preservation of their emotional wellbeing.
Given the parties’ agreement that the dispensation of the requirement for supervision of the time spent by the children with the mother could only ever occur if the mother’s psychological condition is improved by psychotherapy, the principal dispute between the father and Independent Children’s Lawyer on the one hand, and the mother on the other, eventually distilled to whether orders regulating the children’s interaction with the mother should be made on a final basis, or alternatively, only on an interim basis pending further evidence about the success of the mother’s intended therapy.
There are several factors which influence that decision, including the potential delay in the mother’s psychological improvement, complications with the manner in which such improvement may be demonstrated, and the necessary continuation of the litigation to finalise the parties’ adjustment of property interests.
The single expert explained in his report that psychotherapy is an intensive process with a minimum duration of 12 months, which even then may not prove successful with the mother. The opinions he variously expressed during cross-examination about the time within which improvement may be realised were much more elastic, but it is an inescapable inference that any improvement demonstrated by the mother is likely to be realised over a period which is measured by many months rather than by many weeks.
That seems realistic in light of recent events in September and October 2012, when the mother absconded with the children without supervision, either in breach of the Court’s order or an agreement struck between the parties, requiring intervention of the police and the Department to rectify the situation.[135] That demonstrates the currency and seriousness of the mother’s continuing lack of insight and the magnitude of the therapeutic task ahead.
[135] Second Family Report, paras 9, 79
The final opinion expressed on the matter by the single expert was that psychotherapy would only ameliorate, not cure, the mother’s condition and symptoms. It is of course entirely moot whether any such amelioration will be sufficiently pronounced to warrant any change to the orders demanded by the current state of the evidence.
Any improvement in the mother’s psychological condition could only be proven by updated expert evidence. Feasibly, that could only be provided by either the single expert who has already assessed her, because he will be able to compare her presentation and symptoms both before and after a given period of psychotherapy, or by the clinician providing the psychotherapy to her.
The father and Independent Children’s Lawyer, with the implicit support of the mother, advocated for future provision of a report by the mother’s appointed clinician.[136] I am not attracted to that idea, for reasons discussed with counsel, who were unable to persuade me to abandon my misgivings. Such misgivings spring from numerous considerations.
[136] Exhibit F5, Orders 6-10; Exhibit ICL14, Order 11
Any clinician retained by the mother will need to forge a supportive, therapeutic relationship with her, for otherwise she is unlikely to attain any benefit from the therapy. As the single expert sensibly said, if the mother is worried about oversight of her progress and knows her clinician will subsequently write a report about her progress, it may actually impede the therapeutic process.
The clinician performs a therapeutic role, but if asked to report upon the mother’s progress the clinician will be expected to abandon the therapeutic role and adopt a forensic one, which immediately introduces a conflict. If the mother fails to make discernable improvement, does the clinician report so honestly and thereby compromise the therapeutic relationship with the mother, who would be disheartened by the clinician’s candour, or does the clinician abandon impartiality and falsely report satisfactory progress to ensure retention of the therapeutic relationship with the mother? Even if the clinician remains impartial and reports honestly upon the mother’s satisfactory progress, are the father and Independent Children’s Lawyer likely to accept at face value the opinion of the mother’s own clinician?
No satisfactory answers were proffered to those inquiries.
Any material change in the mother’s psychological condition, necessary to change the existing parenting orders, whether they be final or interim, would logically need to be demonstrated by some evidence from the mother’s clinician. But it is improbable the opinion of the mother’s clinician alone would suffice. Most likely, the clinician’s opinion would then need verification by the appointment and investigation by a single expert.
It was contended for the mother that such a process would be easier for her if the litigation was kept alive until such evidence was available, as that would avoid the procedural impediment presented by the principles initially developed in Rice v Asplund. It may be easier for the mother, but that is not the test by which the decision is made. Final parenting orders are meant to be final, but never immutable. Material changes in circumstances will always permit review of final parenting orders.
Any change to the parenting regime justified by such changed circumstances is, in the absence of agreement between the parties, a matter for the Court’s discretion. I agree with the mother’s counsel that it is not appropriate to vest the exercise of that discretion unilaterally in the mother’s clinician, one party, or the Independent Children’s Lawyer, as was conversely submitted should occur.[137] The Court should not abdicate its exclusive responsibility to ensure the suitability of parenting orders in that way.
[137] Exhibit F5, Orders 8, 9; Exhibit ICL14, Order 4(d), 11(c)
The mother said in evidence she would not submit to orders imposing supervision for a period of 12 months, but her counsel still contended that the period of the adjournment with interim orders in place should be for a period of “not less than six months”. Thereafter, the acquisition of further expert evidence and the preparation of updated evidence by the parties for a new trial would add substantially to the period over which the litigation would stretch.
The Family Consultant said that one of the mother’s principal stressors was the pendency of this litigation. So much was obvious from the inability of the mother to contain her emotions even within the formality and solemnity of the hearing before the Court. Her behaviour was much better when the trial resumed in November 2012, but she was still noticeably anxious and her evidence disclosed very little improved insight into the problems that confront her. If continuation of the litigation has such an adverse effect upon the mother it seems counter-intuitive to keep the litigation alive. Improvement in her condition may be both facilitated and hastened by conclusion of the litigation.
As the mother’s counsel correctly submitted, the litigation must remain alive in any event because the parties’ respective applications for property adjustment orders were previously severed from their parenting applications and are yet to be heard and determined. However, a trial date should be set for the property adjustment applications within the next few months and that aspect of their dispute will likely be finalised well before any useful progress could be made in stalled parenting proceedings.
There is another important pragmatic consideration that the mother’s submissions overlook. As was observed when the mother’s adjournment application was dismissed just prior to the resumption of the trial in November 2012, the Court is a forum in which disputes are determined according to law on the evidence adduced. It is not, nor should it be, the role of the Court to cosset litigants by supervising the manner in which they live their lives, manage their parenting capacity, marshal their evidence, or conduct their cases. Adjournment of the proceedings and the imposition of further interim orders would essentially be for no reason other than reprieve of the mother, to afford her the chance to improve the quality of evidence she can present to the Court.
As the High Court recognised (see Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175), proceedings involving the interests of children generally warrant speedy resolution (at 223) and the avoidance of undue delay and the efficient use of public resources are considerations which may transcend the interests of parties in litigation (at 189-190, 211-215).
I am satisfied that more disadvantages than advantages accrue in allowing the proceedings to drift on by permitting a further lengthy adjournment. For that reason the parenting proceedings will be concluded with final orders.
The corollary of making final orders is the supervision of the time spent by the children with the mother will apply indefinitely – at least until the mother manages to prove material improvement in her psychological condition through submission to psychotherapy so as to warrant dispensation of the supervision, either with the father’s consent or by varied Court order.
The imposition of long-term or indefinite supervision of time spent by children with a parent is generally regarded as undesirable (see Moose v Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]-[41]; Marriage of Bieganski (1993) 16 Fam LR 353 at 368), but it still remains an option (see Re C & J (1996) 20 Fam LR 930 at 948-949, 959-960). Although indefinite supervision is undesirable, it is still a better outcome than the option of last resort, which is no interaction between the children and parent at all (see W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at [112]-[115]; Re C & J at 960).
The orders envisage numerous alternative options for the provision of supervision. Preferentially, it may be provided by family members or other adults known to the parties and the children. The father nominated the identities of persons he was satisfied could fulfil the role,[138] and they included persons whom the mother has previously acknowledged as acceptable.[139] That helps overcome any concern about family members not generally being ideal supervisors (see Marriage of B & B (1993) FLC 92-357 at 79,780 – 79,781). Alternatively, the parties could resort to use of independent paid supervisors or a local contact centre.
[138] Exhibit F5, Order 4
[139] Order 1.1 made on 30 August 2012
The Family Consultant agreed generally with the proposition in cross-examination that supervision can impede relationships between the children and the supervised adult, but in the circumstances of this case she said the supervision will help preserve the children’s relationships with the mother.
The imposition of supervision means it is necessary to restrain the mother from attending the children’s school, sporting and extra-curricular activities, consonantly with the evidence of the Family Consultant.
The mother expressed her intention to undertake therapy to overcome the symptoms of her personality disorder. I accept that her intention is genuine. However, the Court has no power to make an unconditional order that she undertake the therapy (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]) and there is no utility in making it a pre-condition of the children spending supervised time with her that she undertake the therapy because the children’s best interests require that they maintain regular interaction with her irrespective.
The Independent Children’s Lawyer proposed an order that the father be restrained from “consuming alcohol to excess”,[140] to which order the father was willing to consent. I decline to make such an order because it is impossible to enforce. Who is to judge what is “excess” and how is it to be judged? The Court should not make a futile order, laudable though was its intent.
[140] Exhibit ICL14, Order 6
The order restraining corporal punishment is made at the request of the Independent Children’s Lawyer[141] with the consent of the father.
[141] Exhibit ICL14, Order 9
The remaining orders are either reflective of the parties’ mutual proposals or are unarguably apposite.
Some other miscellaneous orders were proposed,[142] but they are not made because no evidence or submission was directed to them, implying they are either abandoned or unnecessary.
[142] Exhibit F5, Order 13; Exhibit ICL14, Orders 10, 12
I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 26 November 2012.
Associate:
Date: 26 November 2012
First Family Report, paras 29-30, 50
Father’s first affidavit, paras 60, 79; First Family Report, paras 13-15
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