Ribisi & Frankel
[2024] FedCFamC1F 703
•21 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ribisi & Frankel [2024] FedCFamC1F 703
File number: MLC 11863 of 2022 Judgment of: HARTNETT J Date of judgment: 21 October 2024 Catchwords: FAMILY LAW – PARENTING – Where both the mother and father seek sole parental responsibility and that the children live with them – Where there is high conflict between the parties – Where there is family violence perpetrated upon the mother and children by the father- Where there is an unacceptable risk to the children in remaining in the care of the father- Where the children’s safety cannot be assured in the care of the father – Where the Court finds the father incapable of supporting the children’s relationship with the mother – Where there is parental alienation of the mother by the father and his partner – Where the father and his partner have engaged in criminal activity and fraud in pursuit of that alienation – Where the Court has made interim orders for the children to spend time with the mother and the children have absconded – Where the younger of the two children is to have no contact or communication with the father and live with the mother – Where the older child is to live with the mother subject to his wishes – The mother to have sole parental responsibility of both children – Changeover of the children to be enacted at the Melbourne Registry with attendance by the ICL and a Family Consultant. Legislation: Australian Passports Act 2005 (Cth) ss 6, 11
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CG, 61CA, 61D, 62B, 65DA, 65Y, 68P, 68Q
Family Law Amendment (Information Sharing) Act 2023 (Cth)
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024 (Cth)
Vexatious Proceedings Act 2014 (Vic) ss 18, 19, 27, 46
Magistrates’ Court (Family Violence Protection) Rules 2011 (Vic) r 6.02
Magistrates’ Court (Personal Safety Intervention Orders) Rules 2011 (Vic)
Cases cited: Blinko & Blinko [2015] FamCAFC 146
Isles & Nelissen (2022) 65 Fam LR 288
Rigby & Olsen [2021] FedCFamC1A 46
Russell & Close [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 255 Date of last submissions: 3 October 2024 Date of hearing: 6-9 May 2024, 24-27 June 2024, 15 July 2024, 12-14 August 2024 and 22 August 2024 Place: Melbourne Counsel for the Applicant: Mr Cash Solicitor for the Applicant: James Brown & Associates Counsel for the Respondent (from 6 May – 1 July 2024): Mr Kovacic Counsel for the Respondent (for 15 July 2024): Mr Metaxas Counsel for the Respondent (from 12 August 2024 – 22 August 2024): Ms Teicher Solicitor for the Respondent: Pentana Stanton Lawyers Counsel for the Independent Children’s Lawyer: Mr James Solicitor for the Independent Children’s Lawyer: Victoria Legal Aid ORDERS
MLC 11863 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS RIBISI
Applicant
AND: MR FRANKEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
21 OCTOBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility and sole decision making of long term decisions for the children X born 2010 and Y born 2013 (“the children”).
3.The mother inform the father in writing of any decision she has made regarding the long term care, welfare and development of the children as soon as practicable after making such decision.
4.The child Y (“Y”) live with the mother from 11.00 am this day.
5.The child Y have no contact or communication with the father or his partner Ms C.
6.The child X (“X”) live with the mother from 11.00 am this day for a period of 48 hours and thereafter live with the mother or spend time and communicate with the mother subject to his wishes.
7.The mother have sole discretion in respect of the child Y to:
(a)restrict the child’s access to telephones and electronic devices;
(b)determine the child’s attendance at school and extra-curricular activities;
(c)enlist the assistance of any person she chooses, including her partner Mr D, with her care of the child and operation of these orders; and
(d)travel interstate on a holiday with the child at any time, including school terms.
8.For the purposes of giving effect to Orders 4 and 6 herein:
(a)After delivery of judgment in this matter the father, his servants and agents forthwith leave the Court building and not return within 500 metres of the Court building for a period of 24 hours.
(b)After delivery of judgment a Court Child Expert, with the Independent Children’s Lawyer in attendance, shall explain to X and Y the Orders made this day prior to releasing the children into the care of the mother.
(c)The mother along with any elected support person/s shall attend upon Court Child Services as directed by a Court Child Expert and follow the instructions of Court staff.
(d)The mother shall collect the children from Court Child Services and for the purposes of changeover a Court Child Expert shall be in attendance.
9.There is liberty to a Court Child Expert to obtain the services of MSS Security to assist in the handover of each of the children from the father to the mother.
10.The father, his servants and/or agents (including but not limited to his partner Ms C and the children’s maternal grandparents) be and are hereby restrained from spending time and/or communicating with Y by any means, including mail, telephone, email, text message and/or social media.
11.In the event Y contacts or communicates with the father, his servants and/or agents, the father, his servants and/or agents shall not respond to such contact or communication and shall report such contact or communication to the mother via email within 24 hours of the father, his servants and/or agents receiving it.
12.In the event Y attends upon the father at his home, or any other location save as explicitly outlined in these orders, the father shall report same to the mother and shall do all things necessary to facilitate Y’s return to the mother.
13.The father himself, his servants and/or agents (including but not limited to his partner Ms C and the children’s maternal grandparents) be and are hereby restrained by injunction from:
(a)contacting or personally attending upon Y’s school;
(b)attending at, or being within, 200 metres of the residential address of the mother; and
(c)attending at, or being within, 200 metres of any venue where the children are undertaking any extracurricular activities whilst living with and/or spending time with the mother.
14.Within forty-eight (48) hours of the date of these orders the mother is to notify the Independent Children’s Lawyer in writing of the sole psychologist or counsellor she has engaged to provide therapeutic support to herself and to each of the children, to assist with:
(a)the transition of Y into the mother’s care and the transition of X into the mother’s care and/or the spending of time with the mother by X; and
(b)supporting each of the children with respect to compliance with these orders.
Such therapeutic support shall be non-reportable and shall continue for a period not exceeding twelve (12) months with the costs of same to be met by the mother
15.In default of the mother’s timely notification to the Independent Children’s Lawyer, the mother is to forthwith engage Ms E, Psychologist, or such other psychologist as recommended by the Independent Children’s Lawyer, under the terms and for the purposes outlined in Order 14 above.
16.The mother forthwith do all acts and things necessary to facilitate the attendance by the children upon the psychologist or counsellor appointed by her or the ICL and the father, his servants and/or agents are restrained from impeding the children’s attendance upon such psychologist or counsellor. For the purposes of this order the mother or her agent is permitted to collect the child X from school for such attendances upon the psychologist or counsellor including during or after school hours.
17.The mother ensure that the children attend for counselling with the psychologist or counsellor appointed on an ongoing basis at such frequency and at such intervals as may be recommended by the psychologist or counsellor and further abide by any directions as he/she considers necessary to facilitate the counselling provided for the children.
18.The mother have leave to provide copies of the filed affidavits of Dr B, Ms F and Mr G and the Court’s orders and reasons for judgment to the children’s psychologist or counsellor and/or any other medical professional engaged by the mother for counselling or therapy.
19.The father provide to the mother the personal effects of the child Y and, if applicable, the personal effects of the child X within 7 days hereof by arranging for a commercial courier to deliver such effects to the mother’s residence with the father to provide to the mother by text 24 hour notification of the delivery and the mother is permitted to seek the assistance of the Police otherwise in order to retrieve such personal effects.
20.The children, X born 2010 and Y born 2013:
(a)be permitted to have a passport or an Australian travel document (as defined by section 6 of the Australian Passports Act 2005 (Cth)) and be permitted to travel internationally pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth); and
(b)may travel with the mother overseas without the father’s consent pursuant to section 65Y(2) of the Family Law Act 1975 (Cth).
21.The mother be permitted:
(a)to unilaterally do all such acts and sign all such documents as may be required to apply for or renew a passport (or Australian travel document) for the children (or any one of them) or any other documents deemed necessary for the purpose of overseas travel;
(b)to unilaterally complete, sign and lodge any application for the issue and/or renewal of visas or any other requirement of the authorities of the destination country or countries for the children’s travel outside the Commonwealth of Australia without the father’s consent; and
(c)to hold the passports and travel documents for each of the children.
22.The parties keep each other informed in writing of their current residential addresses and contact telephone numbers, including mobile phone numbers at least seven (7) days prior to the change where practicable and otherwise, as soon as possible after the change.
23.In the event of an emergency, the parties may communicate by text message or telephone.
24.The parties keep each other informed in writing of all serious illnesses and/or injuries sustained by the children or either of them and the father shall forthwith notify the mother of the name and contact details of any medical practitioner whom the child X has been required to attend upon if X has been in his care so that the mother can exercise her sole parental responsibility in respect of the child.
25.Pursuant to sections 68P and 68Q of the Family Law Act 1975 (Cth), THE COURT DECLARES THAT, to the extent that any of these orders conflict with any current Intervention Orders against the mother and/or her partner, Mr D, then any such Intervention Order is invalid to the extent of the conflict.
26.There is leave to the mother to explain these orders and reasons for judgment to the children and for these orders and reasons for judgment to be discussed between the mother and children, and to be discussed between the children and the children’s appointed psychologist or counsellor.
27.There is leave to the mother and the Independent Children’s Lawyer to provide a sealed copy of these orders to:
(a)the Commissioner of Victoria Police who may also be provided with a copy of the reasons for judgment should a request for same be made;
(b)the Department of Families, Fairness and Housing Child Protection Service;
(c)the Principals of the children’s schools;
(d)any medical or allied health practitioner upon whom the children or either of them attend (including but not limited to any sole psychologist or counsellor appointed under Order 14); and
(e)the Registrar of any Magistrates’ Court of Victoria wherein any extant Intervention Order, extension of any Intervention Order or application for any Intervention Order against the mother and/or her partner Mr D has been made (notwithstanding that the application has been brought by a member of Victoria Police), AND THE COURT REQUESTS THAT such applications against the mother and/or her partner Mr D be struck out pursuant to regulations 6.02(a) or 6.02(c) of the Magistrates’ Court (Family Violence Protection) Rules 2011 (Vic), or the Magistrates’ Court (Personal Safety Intervention Orders) Rules 2011 (Vic).
28.There is leave to the mother to produce a copy of these orders (and, if requested, the Court’s reasons for judgment) to any Registry of the Magistrates’ Court of Victoria AND THE COURT REQUESTS THAT pursuant to sections 19(1)(a) and 19(3)(a) of the Vexatious Proceedings Act 2014 (Vic) the Magistrates’ Court of Victoria on its own motion make an extended litigation restraint order that relates to intervention order legislation against:
(a)Mr Frankel born 1970 of H Street, Suburb J, Victoria; and
(b)Ms C born 1995 of H Street, Suburb J, Victoria,
of indefinite duration pursuant to section 27(2) of the Vexatious Proceedings Act 2014 (Vic) and in the alternative, to grant the mother leave to apply for an extended litigation restraint order that relates to intervention order legislation pursuant to sections 18(1)(c) and 18(3) of the Vexatious Proceedings Act 2014 (Vic).
29.There is leave to the Magistrates’ Court of Victoria to reproduce any part of these orders and/or the Court’s reasons for judgment in providing any necessary statement of reasons pursuant to section 46 of the Vexatious Proceedings Act 2014 (Vic).
30.THE COURT REQUESTS THAT the father and Ms C be referred to the Commonwealth Director of Public Prosecutions (“Commonwealth DPP”) for investigation as to perjury, and any other offence that may have been committed by the father and Ms C, and a copy of these orders and the Court’s reasons for judgment be provided to the Commonwealth DPP.
31.The Independent Children’s Lawyer be discharged within seven (7) days from the date of these orders.
32.All extant applications be otherwise dismissed and the matter be removed from the list.
33.Pursuant to sections 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
AND THE COURT NOTES THAT:
A.The Court shall provide a copy of the final orders and reasons for judgment in this matter to the Department of Families, Fairness and Housing (DFFH).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ribisi & Frankel has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
PRELIMINARY
This proceeding involved competing applications for final parenting orders. The earlier property applications of the parties were adjusted consensually in 2018.
There are two children of the parties’ marriage, X born 2010 (“X”) and Y born 2013 (“Y”) (collectively referred to as “the children”). The children have lived with the respondent father (“the father”) since 7 October 2022, when he unilaterally withheld the children from the applicant mother (“the mother”). X was 14 years of age and Y was 10 years of age at the commencement of the final hearing.
The children have a strong attachment to their father. For the reasons set out below, they have no prospect of having any meaningful relationship with the mother, much less any prospect of renewing their earlier and longstanding strong attachment to the mother, whilst they continue to reside with the father. Additionally, the father has re-partnered. He has resided with his partner for over four years. His partner has acted in concert with him and against the mother. The actions of the father and his partner have included conduct with malevolent intent and dishonest conduct. Some of that conduct has been the creation and distribution of vulgar and vicious emails, as part of a systematic campaign of alienation to undermine the mother’s relationship with the children and to obtain interim and final intervention orders against the mother. It is in this context, that the Court considers the risks posed to the children in each of their parents’ households and concludes that the father poses an unacceptable risk to the children, and that such risk cannot be ameliorated. Their safety cannot be accommodated.
Orders sought
At the beginning of the final hearing, the mother sought final parenting orders including that: the mother have sole parental responsibility for the children; the children live with the mother; the children spend supervised time with the father for a maximum of four hours on one occasion each fortnight and on special occasions; the father be at liberty to contact the children via telephone or video call each Sunday between 7.00pm and 7.30pm; the father engage with a clinical psychologist for not less than one hour each fortnight on an ongoing basis; the children continue to engage with Ms F for therapeutic counselling; and the father be restrained from contacting the children at any time except as provided for by the orders. The mother also sought to apply for Australian Passports for the children and that they be permitted to travel internationally without the permission of the father.
At the beginning of the final hearing, the father sought final parenting orders including that: the father have sole parental responsibility for the children; the children live with the father and spend unsupervised time with the mother for not more than two hours each Saturday between 11.00am and 1.00pm; the mother be restrained from allowing the child Y to come into contact with her partner, Mr D, at any time; the children continue to attend upon Ms K of L Psychology for therapy; communication between the parties relating to the children occur via the ‘Our Family Wizard’ parenting application; and the parties not denigrate each other when the children are in their respective care.
At the beginning of the final hearing, the Independent Children’s Lawyer (“the ICL”) sought final parenting orders including that: the father have sole parental responsibility for the children and the children live with him; the father notify the mother before making any major long term decision in relation to the children so that she may have the opportunity to comment on the decision; the children spend time with the mother for five hours each Saturday and such other times as agreed between the parties; and the children continue to engage with Ms K of L Psychology and Ms F.
The ICL’s position changed markedly as the final hearing progressed for reasons which are set out later in this judgment. In particular, the ICL sought that the father have sole parental responsibility for X and that the mother have sole parental responsibility for Y; that X live with the father and Y with the mother; and that a moratorium be placed on Y’s time with the father for a period of six months, followed by a period of supervised time for a period of eight weeks, before moving to unsupervised time.
The mother’s position changed such that she sought the children spend no time with the father. The father altered his position such that any time spent between the mother and the children be subject to the views of the children.
MATERIAL RELIED UPON
The mother relied upon:
(1)Minute of Final Orders filed 3 October2024;
(2)her Amended Application for Final Orders filed 30 June 2024;
(3)her affidavits filed 14 April 2024, 3 June 2024, 30 June 2024, 2 July 2024, 8 July 2024 and 11 August 2024;
(4)affidavit of Mr D filed 14 April 2024;
(5)affidavit of Ms M filed 10 April 2024;
(6)affidavit of Ms N filed 3 May 2024;
(7)Outline of Case filed 5 May 2024; and
(8)written submissions filed 10 September 2024 and 3 October 2024.
The father relied upon:
(1)Amended Response to Final Orders filed 4 May 2024;
(2)his affidavits filed 12 March 2024, 31 May 2024, 14 July 2024, 12 August 2024 and 29 August 2024;
(3)affidavits of Ms O filed 1 February 2023 and 12 April 2023;
(4)affidavits of Ms C filed 31 May 2024 and 14 July 2024;
(5)Notice of Child Abuse Family Violence or Risk filed 31 October 2022;
(6)Outline of Case filed 30 April 2024; and
(7)written submissions filed 24 September 2024.
The ICL relied upon:
(1)Outline of Case filed 3 May 2024;
(2)affidavit of Ms K filed 2 May 2024;
(3)affidavit of Ms F filed 3 May 2024; and
(4)written submissions filed 13 September 2024.
All parties relied upon the Family Report prepared by Mr G dated 27 February 2024 and the affidavit of Dr B filed 11 April 2024 which annexed her reports of 7 July 2024 and 18 July 2024. The evidence of Dr B was unchallenged.
The mother also relied upon a draft affidavit of Ms C, together with its annexures, which had been not sworn or filed in the proceeding but the contents of which were adopted by Ms C as truthful evidence when cross-examined by counsel for the mother. That document was tendered in evidence by the mother and marked Exhibit ‘AM-7’.
The proceeding was re-opened by Order made on 3 October 2024 for the purpose of the parties adducing further evidence as referred to in that order.
RELEVANT FACTUAL FINDINGS
In 1970, the father was born. The father was 53 years of age at the commencement of the final hearing.
In 1973, the mother’s partner, Mr D, was born. Mr D was 50 years of age at the commencement of the final hearing.
In 1974, the mother was born. The mother was 49 years of age at the commencement of the final hearing.
The father’s partner Ms C had a variable date of birth depending on her audience, though it is not clear why. In her affidavit material before the Court, her date of birth was 1985, making her 39 years of age at the commencement of the final hearing. In medical records held by P Medical Centre and Q Health Service, her date of birth was 1995, making her 29 years of age at the commencement of the final hearing. In a letter purported to have been from R Medical Centre dated 19 March 2024, her date of birth was recorded as 1984, making her 40 years of age at the commencement of the final hearing. I find Ms C’s date of birth to be that as stated in her affidavit material before the Court, being 1985, making her 39 years of age at the commencement of the final hearing.
In 1993, the father married Ms M. There were three children of that marriage, all of whom are now adults. Each of them ceased contact with the father many years ago and wish for no contact with their father.
In 2005, the father and Ms M separated on a final basis.
In 2006, the father was admitted as a psychiatric patient at a hospital after he deliberately overdosed on medication. The father had previously attended the hospital in or around 2004 with acute anxiety.
Two weeks later, the father was discharged from the hospital with his overall risk of suicide being categorised as ‘high’. The father then moved to Melbourne.
In late 2006, the parties commenced cohabitation.
In 2008, the parties married.
In late 2009, the father suffered a mental health breakdown which continued for a period of approximately nine to ten months. The mother continued to be employed full time as a professional with S Company in Suburb T. She was, at this time, pregnant with the parties first child, but continued to work full time in circumstances where the father could not. The father was unable to make any real contribution to the household. The mother described him as often drunk.
In 2010, X was born. The mother remained at home caring for X for six months before returning to full time work. X at the time of trial was a student at U School.
In 2013, Y was born. The mother remained at home caring for Y for 12 months before returning to work for three days a week. Y at the time of trial was a student at V School.
The children lived with the parties in the former matrimonial home at W Street, Suburb Z from the time of their respective births until the home was sold in or around mid-2018. This included the separation under the one roof of the parties in 2016. The mother agreed that both parties contributed to the care of the children, she in a more primary role. Her evidence was that until 2015, the father and children had an affectionate relationship.
The parties’ cohabitation became marred by the father’s aggressive and angry outbursts toward the mother, and by his denigration of her. This often occurred in front of the children who were made anxious by their father’s behaviours.
Throughout 2015, the father was particularly verbally abusive toward the mother and on her evidence, all such abuse occurred in front of the children. The father would engage in other intimidatory behaviours including standing over her, placing his fingers in her face, and cornering her in a room with the children. Additionally, he berated her for not cleaning the home or washing his clothes, both tasks that she attended to. The father also continued to drink to excess consuming large amounts of alcohol of any type, which resulted in aggressive behaviours directed toward the mother often in the presence of the children, and on occasion driving a car with the children as passengers whilst heavily intoxicated. The mother rang the father’s parents to obtain help and support in respect of the father’s drinking.
On 23 October 2016, with the father’s behaviours continuing, the parties finally separated under the one roof. The mother remained primarily caring for the children, with the father assisting. The mother wished for some early resolution to the parties’ financial matters to alleviate residing in the same home, but the father prevaricated and extended that period beyond what was reasonable.
On 10 December 2017, the father, in a heavily intoxicated state, shouted obscenities at the mother, stood over her, and slammed a door in her face. He told the mother, within earshot of the children, that “the kids know [the father] loves them more than [the mother]” and “you think you are a good mother; you are not”.[1] After this incident, the father drove himself to purchase more alcohol, after having already consumed between eight and ten cans of beer.
[1] Mother’s affidavit filed 14 April 2024, paragraphs 63-65.
In or around June 2018, when the physical separation of the parties was imminent, the mother overheard a conversation between the father and the children in which he entreated them to tell anyone who asked them who they wanted to live with that “[their] Mum does not love [them]” and that the father can “look after [them] better than [their] Mum”.[2]
[2] Mother’s affidavit filed 14 April 2024, paragraph 68.
Following the settlement of the sale of the former matrimonial home in 2018, the children continued to live with the mother and commenced to spend fortnightly time with the father from the conclusion of school on Friday to 4.00pm on Sunday, with changeover taking place at a shopping centre. This arrangement of every second weekend time continued throughout the school holidays. The period between Christmas Eve and Boxing Day was spent by the children equally between their parents. Time was spent on Father’s Day and birthdays. This arrangement was agreed between the parties and continued for a period of over four years save in about early 2021, the father and/or Ms C commenced to spend some holiday time with the children. The mother was actively supportive of the children spending time with the father, and of their developing and maintaining a meaningful relationship with him. The children were also afforded daily communication with the father as insisted upon by him, and at a time of day of his choosing. Whilst the mother also supported some level of telephone communication, she found the father was controlling of the children through that medium, and that it was increasingly an intrusion on her time with the children and a source of anxiety to them.
In or around late 2018, the mother commenced a relationship with Mr D. Mr D had been previously married and has two adult daughters from his previous marriage. Mr D has a happy and meaningful relationship with his two daughters whom he sees regularly. He has a good relationship with his ex-wife.
In or around late 2018, the father commenced a relationship with Ms C. Ms C has no biological children.
On or around 25 February 2019, the mother received a text message from the father which instructed her to tell the children to stop mentioning Mr D’s name, as the father claimed that he felt the mother was trying to replace him. The mother was not acting with any intent to replace the father in the lives of the children. The children were developing a friendly relationship with Mr D, who did not, and does not, live with the mother. Mr D was at that time involved in the children’s lives to the extent of joining the mother on a week-long holiday with the children, as well as numerous long weekends away camping, and otherwise engaging with the children in their activities and assisting in their care during those periods when he spent time with the mother and the children. There was an affectionate relationship between the mother and the children, and Mr D when he was with them.
From the commencement of the father’s cohabitation with Ms C
In early 2020, but subsequently at trial according to Ms C’s evidence, in early 2019, the father commenced cohabitation with Ms C. Ms C gave evidence that her relationship with the children is very close, and that she is especially close to Y.
Between 2020 and 2021, the father made various demands of the mother, including that she not cut the children’s hair; that she not wash the clothes the children brought from the father’s home; that she return all toys and electronics purchased by the father to his home; and that she not be privy to the password on the children’s iPads as provided to the children by him. This was not withstanding that the children lived with the mother as their primary caregiver.
In mid-2021 at 3.02pm, an email was sent to the father’s email address, with Ms C’s email address copied in, from an email address purportedly belonging to the mother. That email, addressed to the father and claimed by him to be from the mother, said:[3]
How dare you tell [X] and [Y] that I’m psychopath . [X] and [Y] hate you, want nothing I. I wish you both would die.
You are both controlling, selfish, alcoholics who cause trouble for myself and my children. You continually threaten and abuse me daily and I’ve had enough.
You want to be better than me, but you are both uneducated people with nothing better to do.
You are visiting [X] illegally, breaching Ivos and threatening him when in your care. You approached my house without permission. Why speak to [X] and [Y] on FT…
(As per the original)
[3] Father’s affidavit filed 12 March 2024, Annexure MF-6.
In mid-2021, a message was sent to the father’s Facebook account via Messenger from a Facebook account purportedly belonging to Mr D, which read:[4]
You think you are so much better than me? you are a slimy creep and wannabe tough guy. How are you talk down to [X] and [Y] about me. you are nothing but a grub. [X] and [Y] are better off WITHOUT you in their life. we are all near the … you speak to them. You put them down...
(As per the original)
[4] Father’s affidavit filed 12 March 2024, Annexure MF-7.
At 6.09pm in mid-2021, a message was sent to the father’s Facebook account via Messenger from a Facebook account purportedly belonging to the mother, which read:[5]
8 years old, some parent u are. [X] up even later than that. He is 11. Absolutely disgusting, r u too busy getting drunk to care
U are scum, I want nothing to do with you but I am brought up constantly. I heard your snide remarks on the ph and you told [Y] not to do her mathematics when she wanted to and accused her of lying. U are an abusive, threatening and disgusting person and I am sick of having to pick up the pieces when [X] a dn [Y] return upset. [X] does NOT WANT his hair cut by u. Stop forcing him […] when he isn’t comfortable doing so. U put…
(As per the original)
[5] Father’s affidavit filed 12 March 2024, Annexure MF-7.
The mother and her partner denied sending any emails or messages to the father or his partner. In fact, I find each of the above emails were authored by the father and sent by the father to himself using fake accounts which he constructed.
On the following day, the father obtained an interim intervention order (“IVO”) against the mother.
The following month, Ms C obtained an interim IVO against the mother.
On the same date, the father obtained an interim IVO against the mother’s partner, Mr D, with himself and the children listed as affected family members. That order had the effect of precluding Mr D from being in the presence of the children.
The IVOs obtained by the father and Ms C were obtained based on the allegations made by them that the mother and/or her partner had sent abusive and threatening emails and messages to them.
Having falsely obtained the interim IVOs, the father then attended upon the police on 30 or more occasions, on his evidence at trial ‘sometimes twice a day’, to report his allegations that the mother had committed breaches of the orders by the sending of further emails and Facebook messages, and that Mr D (in breach of IVOs against him) and Mr D’s daughter had also sent abusive messages. The father claimed that his partner, Ms C was copied into many of these communications. Ms C confirmed that to be the case in the giving of her evidence. The father further reported to Police that between August 2021 and 27 July 2022, he and Ms C had received voluminous abusive emails and messages from the mother. The father described the emails as “vile” and “disgusting”.[6]
[6] Transcript 24 June 2024, p.32 lines 32-33.
In late 2021, a police officer attended the mother’s home and told her that he ‘had a hunch’ that Mr D was at the mother’s home in the presence of the children, and in contravention of an IVO. Mr D was not present. It is probable that the father or his agent Ms C made such an allegation to the police officer and requested his intervention.
In late 2021, the mother obtained an interim IVO against the father. The grounds for the application were (inter alia):[7]
…[In late] 2021 the Respondent sent an email to my work through the [S Company] enquiry line. [It read:] “I am disgusted at what you have done to my children, [X] and [Y]. Tell me they wish to live with me and that you are a horrible mother. Put them down. Refuse all care. I have contacted DHHS and the Police on you numerous times because of the abuse they suffer due to you. You continue to breach IVO put in place to protect me. When are you going to grow up and be the parent that you so wished to be! You don’t deserve kids. I wish to God I never met you. You are a psychopathic, twisted individual who needs help. You are an unfit mother totally! You torment me, torment my partner who has [an illness] consistently. Seek help for your mental health. I am reporting you to [your professional regulatory body] and have made contact with [X’s] high school stating you and your boyfriend are not to go there”.
[7] Exhibit ICL-1.
The above email was authored and sent by the father to the mother to her workplace address. He sought to humiliate her, and in a perverse way, thought he might garner some support for his position, including by his reference to Ms C “who has [an illness]”.[8] That support was not forthcoming. The mother did not lose her employment, nor the respect of her colleagues.
[8] Exhibit ICL-1
In early 2022, Y allegedly disclosed to Ms C only, that Mr D had inappropriately touched Y whilst he was tickling her in the living room of the mother’s residence, and that the mother had left the children in a hot, locked car which resulted in both children getting dehydration and heatstroke. Ms C told the father about Y’s alleged disclosures.
Two days later, the father reported the above allegations to Suburb AA Police Sexual Offences and Child Abuse Investigation Team (“SOCIT”); and the Department of Families, Fairness and Housing (“DFFH”).
A few days later, the mother became aware of the father historically being diagnosed with, among other things, major depressive disorder and severe anxiety disorder.
Over one month later, the mother took Y to a SOCIT Unit as requested by SOCIT. The mother only became aware of the allegations as said to be made by Y to Ms C around this time. During the child’s interview with a police officer, the mother heard Y say “I don’t like [Mr D] …he was tickling me under the arms”.[9] Y’s account as to being tickled accorded with the evidence of Mr D. He would at times tickle her, under her arms and under her neck. When he would walk into the mother’s home, Y would run up to him and say tickle me.
[9] Mother’s affidavit filed 14 April 2024, paragraph 202.
The mother, after the SOCIT interview, and as requested by SOCIT, took Y to counselling sessions which the child attended on her own. The mother did not speak with Y about her alleged disclosures.
In early 2022, the mother received a letter from Child Protection confirming that their investigation was closed and that they had discontinued their involvement with the family.
At 8.06pm on 22 May 2022, an email was sent to the father’s email address from an address purportedly belonging to the mother, which the father claimed was an email to him from the mother, which read:[10]
[X] and [Y]
You have once again had [X] and [Y] in tears over this weekend. Refusing for them to call me as well as have them In tears saying they are going to die of the flu.
You are both not doctors, put down [X] and [Y] constantly to the point they don’t wish to come back. I let them go because I don’t want any further threats or abuse from the two of you.
Food sent home was inedible due to termoerstire changes as wel as Tim tams which are full of sugar. My house my rules and I control the food that comes into my house
You both don’t know any better as you are uneducated and irrational people. Maybe have a look at yourselves.
Moving forward- you will no longer be allowed to text [X] after 7.30 as per the orders. I have instructed him to block your number and limit texting and calling. My phone plan, my orders or you can pay for PM access to the phone and link your card. You are both pathetic, controlling and abusive.
(As per the original)
[10] Father’s affidavit filed 12 March 2024, Annexure MF-8.
At 9.22pm on 5 June 2022, an email was sent to the father’s email address, from an address purportedly belonging to the mother, which the father claimed was an email to him from the mother, which read:[11]
[X] and [Y]
[X] has been feeling sick all night due to food consumed at your house as well as his organ damage. Under no circumstances was panadol or any other medication to be consumed.
Due to no labelling on [Y’s] cream nor any medical justification, the cream is to be thrown out. You are NOT doctors, you have no education or expertise. You are harming her mentally and physically.
Moving forward, I will be buying [X] a new tie for him to wear. You are NOT to see him nor contact him outside of the allotted time, any such contact will be reported to the police. [X] told me that you told [X] to strangle
Me with the toe. The only people you are hurting is [X] and [Y]
(As per the original)
[11] Father’s affidavit filed 12 March 2024, Annexure EG-8.
At 8.30pm on 7 June 2022, an email was sent to the father’s email address, from an address purportedly belonging to the mother, which the father claimed was an email to him from the mother, which read:[12]
Due to your abuse and control yet again on the phone tonight. [X] and [Y] will not be calling unless FT is recorded. The call is to go for no longer than 5 minutes.
I have reported [the cat] to the council due to her being unsafe and violent towards [Y]. [Y] told me she doesn’t wish for [the cat] to be present on the FT. she has a bacterial infection due to your cat’s faeces. She also terrified [Y] and caused her to have a panic attack during the night which she was too scared to tell [you] due to your anger issues.
You are not to talk to [X] on the phone, delete his number. I have instructed [X] to block. If you wish to communicate with [X], it is to be through me. This is cor his safety.
(As per the original)
[12] Father’s affidavit filed 12 March 2024, Annexure EG-10.
At 6.16pm on 8 June 2022, a text message exchange occurred between the father and, purportedly Y, which read as follows:[13]
[13] Father’s affidavit filed 12 March 2024, Annexure MF-11.
[Y:] Sorry we had to hang up on FT
Xoxoxoxo
Are you ok xoxox
[Father:] Sorry […] I felt very uncomfortable and shaken from what I heard and saw. I am deeply worried for you and [Y]. You can call me at any time and I will pick you up. I will go to the police tomorrow xoxoxooxoxoxoxo
[Y:] She still has the nife and is pacing up and down the hallway outside ms room
Thank you xoxoxox you’re the best dad in the world
Is [the cat] ok?
[Father:] She will be ok […] she is under the bed I will give her some treats
(As per the original)
Each of the above email messages were again constructed by, and sent by the father, with no input from the mother. The children were told by the father that the mother had gone to the council to make a complaint about their pet cat in the father’s household. This greatly upset the children. The authorship of the text message is unable to be determined by me, but if the father and Y did communicate in such a way, that is concerning. It is evidence of the father further alienating the mother, and suggesting to the children that the Police could be involved in the determination of where the children should live.
Beginning in or around June 2022, the children, on occasion, refused to eat dinner at the mother’s home where they lived. According to the mother’s evidence, the children told her that they only liked the way the father cooked their dinners, despite the mother preparing different meals for the children, and asking the children for their input or suggestions as to what they would like to eat.
In mid-2022, X observed undesired comments allegedly from his mother on his publicly available YouTube videos. Some of these included:[14]
u should not be playing this. This is violent and not for kids. Ur dad is influencing u with guns. He should know he has plenty and will lead u astray. I am trying to protect u and [Y].
U r supposed to be at ur dads for a holiday. U r spending too much time on this. Delete this. It’s not healthy for u. U have gone against my permission time and time. This is…
Nice video [X], but the guns are inappropriate and violent. U need to remove this video. Ur dad is a bad influence on u
(As per the original)
[14] Father’s affidavit filed 12 March 2024, Annexure MF-15.
X texted his mother to stop commenting on his YouTube. X was angered and embarrassed by his mother. He remains so in respect of this incident. In fact, such messages were authored and placed on his YouTube video by his father, not his mother, as part of the father’s ongoing campaign to alienate the children from their mother.
In mid-2022, the father reported to Police the mother had sent a further three abusive and harassing emails and/or messages to him and Ms C. This was the last occasion the father reported the alleged receipt by him of messages and emails from the mother, described variously by him as persistent, degrading, and numerous per day, and from up to 18 different email accounts. The mother had been interviewed on three occasions.
Extraordinarily, but not so in the context of his plans to remove the children from the mother’s care, in late 2023, the father obtained a referral to counselling for Y based upon ‘alleged abusive behaviour perpetrated by the mother’ as claimed by him. The counsellor was Ms BB. The purpose was to get a report from Ms BB to provide to the Victims of Crime Assistance Tribunal (“VOCAT”). The mother was not told of the father’s actions although the children were residing with her and the parents shared parental responsibility.
On 7 October 2022, the father withheld the children and did not return them to the mother’s care. He did not inform the mother of his prepared plan. He allowed the mother to wait in the carpark to pick up the children as per the usual arrangement. He claimed the children suffered from neglect, malnutrition, and child abuse. The father admitted it had taken him 11-12 months of planning the taking of the children from the mother into his care. He was assisted in this campaign by Ms C who had commenced to live with him in 2019 or 2020 and who was intent on replacing the mother in the lives of the children.
Around this time the father sought Centrelink payments in respect of his care of the children. He sought and obtained a waiver from the receipt of child support payments from the mother based on his family violence allegations against her. The mother had always financially supported the children. She had not committed family violence against him. The father obtained an increased sum from Centrelink to compensate him for his loss of child support and probably presented to the children a narrative that the mother did not financially support them.
In or around late 2022, two weeks after the children had come into his care and that of Ms C, the father made allegations to Victoria Police that Mr D had indecently or sexually assaulted Y by touching her bottom over her clothes. He had, earlier that month, obtained an interim IVO against the mother, with the children and he as protected persons.
Around this time, the father made an application to VOCAT for the children to undergo counselling and for special financial assistance for each child (being lump sum payments made for the benefit of the children as paid into the father’s account). In his application he referred to the allegations of sexual abuse of Y by Mr D. The father also applied for such assistance for himself and Ms C relying upon the IVOs made consequent to his and Ms C’s allegations as to the mother’s sending of abusive emails and messages. The father did not receive this lump sum assistance but did receive paid counselling sessions for the children to address the trauma allegedly suffered by them in their mother’s home due to her and Mr D’s behaviours. This form of counselling was intended by the father to falsely reinforce to the children that Y had been sexually abused.
On 24 October 2022, the mother filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) commencing this proceeding. The mother sought the immediate return of the children to her primary care.
In late 2022, the father obtained an interim IVO against the mother with himself, and the children, listed as protected persons. This order varied the interim IVO made earlier that month.
On 31 October 2022, the father filed a Response to Final Orders. The father sought the children live with him and spend supervised time with the mother for two hours each fortnight.
On 2 November 2022, orders were made for the children to be independently represented.
On 2 November 2022, orders were made suspending the mother’s time with the children after the father deposed inter alia that the mother was inadequately caring for the children, including abusing and threatening them. Sexual abuse allegations against Mr D were also before the Court. These were further disclosures, allegedly made by Y to Ms C. Ms C conceded at trial that she had told Y that she would need to confirm the new allegations when being interviewed by SOCIT in the following week. No doubt this was because Y had earlier failed to disclose to SOCIT any sexual abuse, let alone the disclosures as alleged by the father and Ms C.
In November 2022, Y was interviewed for a second time by SOCIT. She alleged that Mr D had touched her on the bottom and on the vagina outside her clothes.
In December 2022, Police Officer DD executed a warrant and seized several computers, iPads and iPhones from the father’s residence. The father was then arrested. Officer DD accompanied by another police officer, interviewed the father at Suburb Z Police Station. The recorded interview lasted for approximately 1 hour and 24 minutes in duration and concerned matters which the Police wished to put to the father, namely that the father had created and operated email and Facebook accounts in the names of the mother and others from IP addresses originating at the father’s home. Among those emails, was a message from an email address appearing to be from the mother to X which warned the children to call 000 and notify the Police if the father attempted to contact them or come near them. The father denied the allegations as put to him. When Officer DD put to the father his denial would mean his partner, Ms C, would have to be interviewed, the father responded, “If I find out it’s [Ms C], then that’s the end of that”.[15] He also stated that at the time, the relationship of he and Ms C was not great, but that she had, two and a half years earlier, had a medical condition, and that several medical incidents later, by inference, things were difficult. She was 27 years of age. When the prospect of Ms C being interviewed was raised again, the father said he was willing for this to happen. However, he said that he could not understand if Ms C would do something as was alleged, and that he goes to bed before her, as she is up till 4.00am. If the messages were sent late at night, then “maybe [Ms C]”.[16] However, the father then changed the subject to the ‘rough times’ experienced by Ms C because of a ‘[medical symptom]’ which was diagnosed and treated as a serious illness. The father indicated that Ms C had contacted ‘a professor, [Ms CC] I think’ at R Medical Centre, to refer Ms C to a medical expert whom the father said was treating Ms C at the time.
[15] Mother’s written submissions filed 10 September 2024, paragraph 6.
[16] Exhibit ‘AM-10’.
In December 2022, Mr D was arrested and interviewed by SOCIT regarding allegations of his perpetration of sexual assault upon Y. His evidence was that Victoria Police advised him of the allegation that he had touched Y’s bottom through her clothes. In the weeks following this interview, a police officer provided Mr D with a letter advising that Victoria Police were discontinuing the investigation.
On 9 December 2022, orders were made by consent for the children to begin spending supervised time with the mother for three hours each week. Supervised time commenced on 18 December 2022 and by the commencement of the final hearing a total of approximately 50 supervised sessions had occurred between the children and the mother. They are considered hereafter.
On 30 January 2023, Officer DD sent the mother an email notifying her that the father had been interviewed for multiple offences. The email also indicated that charges had not been laid but were highly likely to be laid against the father. Contrary to the father’s evidence, there is no ongoing investigation into the mother in respect of the father’s allegations against her. The Police are investigating the father for the sending to himself of each of the abusive emails and Facebook messages he claimed were created and sent by the mother to he and Ms C along with other messages, emails and posts. That investigation has been delayed by the matter being taken over by a series of investigating police officers.
The father and Ms C had also claimed that Mr D’s daughter sent abusive emails to them from an email address. Mr D’s daughter denied sending any such emails. I find that the father also created this email address and sent he and his partner abusive emails.
On 31 January 2023, a police officer provided a ‘Statement of No Further Police Action’ regarding the further sexual assault allegations against Mr D.
On 25 April 2023, Officer DD notified the mother that the father was being investigated for making false reports to Police, and “possibly even attempt[ing] to pervert the course of justice”.[17]
[17] Mother’s affidavit filed 14 April 2024, Annexure MR-18.
On 27 April 2023, Court Child Expert Mr G reported that the children had expressed concerns about ‘not feeling safe’ around the mother, about her ‘loudly banging a knife against a chopping board’ while they FaceTime the father, about her failing to stop alleged sexual abuse, and about her ‘interfering’ with the SOCIT process.
On 15 August 2023, the Court made orders, relevantly, that the father attend upon a Men’s Behaviour Change course of not less than 20 weeks and provide to the ICL evidence of his completion; and that the father attend upon a clinical psychologist for therapeutic treatment relating to the matters raised in the reports of Dr B dated 7 and 18 July 2023. The father did not comply with either order.
In late 2023, the mother successfully completed the ‘Tuning into Teens’ online program which she had been ordered to attend by the orders made 15 August 2023.
On 4 February 2024, Officer DD emailed the mother that the devices obtained from the father’s home by warrant had been analysed and that the IP address of the father had been matched with that of the abusive emails sent to the father and Ms C. There was no evidence that the mother was the creator of any abusive emails. The father admitted in evidence that the numerous email addresses were identified by Police investigation as coming from his home router, but he claimed to not be able to explain that fact and maintained his denials as to having been the author and/or sender of those emails.
In early 2024, the mother successfully completed the ‘Parenting After Separation’ course pursuant to the Orders made 15 August 2023. The father also did not comply with this order, which likewise applied to him. He remains in blatant breach of the Orders of 15 August 2023.
Supervised time
Before proceeding to the interim orders made during the trial, it is instructive to set out some of what occurred during those times spent between the mother and the children as supervised.
From 18 December 2022 to 22 January 2023, the children and the mother spent six sessions together supervised by Ms N from EE Contact Service. Each session was three hours in duration.
On 18 December 2022, supervised time occurred at a park. The father arrived with the children. In discussion with Ms N, the father said that the children did not wish to see the mother at all and that the mother had scared the children by tapping a knife on the kitchen bench. The father continued on, telling Ms N that Mr D had touched Y inappropriately, that Y had nightmares because she was afraid of the mother, and that Y was concerned that Mr D “will come get her”.[18] The father then told Ms N that the mother had been called a pathological liar by the Court, and that Mr D helped the mother hack the father’s personal devices, and sent threatening emails to the father.
[18] Affidavit of Ms N filed 3 May 2024, p.8.
During that first visit, after a period of not seeing her children for approximately two and a half months, Y allowed the mother to hug her, though Y appeared anxious, and X did not allow the mother to hug him. The children would not play with the mother, nor could she get them to eat any of the numerous snacks she brought with her. Eventually, the children engaged in a game of ‘Jenga’ with the mother and Y settled into the visit and began conversing with the mother. Y started showing the mother some dance moves until X whispered into Y’s ear which caused Y to say that her leg hurt, after which she stopped dancing. The mother offered the children more snacks, to which X responded no. Y hesitated, and after making eye contact with X, X said that Y wasn’t hungry. The mother then initiated a ball game with Y who played with the mother happily until X made eye contact with Y, at which point Y stopped playing the game. The visit concluded shortly afterwards. Y allowed the mother to hug her despite appearing uncomfortable, whereas X didn’t allow the mother to hug him. Both children hugged the father upon seeing him. Those initial time spent periods continued to be difficult and distant.
From 29 January to 26 March 2023 and then 16 April to 30 July 2023, the children and the mother spent weekly supervised sessions together, alternating weekly between time spent one on one with each child and time spent with both children together. Each session was three hours in duration. Those sessions were more positive. As one example, on 16 April 2023, the children spent time with the mother at a roller-skating rink. The mother provided the children with lunch which they ate happily. X conversed with the mother while they watched Y skating. Y asked if they could visit the on-site café to which the mother agreed. The mother gave X a $20 note with which he purchased himself and Y a drink from the café. The children then roller-skated with the mother, with both children visibly enjoying themselves. The children finished roller‑skating and played with the arcade machines in the venue. X was chuckling with the mother while bantering with her. In the periods of time spent thereafter between the mother and the children until the beginning of August 2023, the children’s relationship with the mother continued to develop positively.
From 6 August 2023 to 6 April 2024, the children and the mother continued to spend weekly supervised sessions together. From 27 August 2023, the children commenced to spend time with the mother each alternate Sunday for six hours, with only the first two hours of the visits being supervised by Ms N, after which the mother had four further unsupervised hours with the children. During this time, spent generally in the mother’s home, the children ate food as prepared for them by the mother, and played games happily with the mother. It was noted by the supervisor on 6 August 2023, as one example, that the children were chuckling while playing the game with the mother and all three were engaging in banter. The children also spent supervised time with the mother each alternate Saturday for three hours.
On 1 October 2023, the children spent time with the mother at her residence in Suburb T. Before the time commenced, Ms N advised the father in the presence of the children that she had been advised by her supervisor, following a telephone conversation with the mother, to “step away and not be involved during unsupervised time”.[19] The father informed Ms N, in what she reported as an unhappy tone, that he would contact his lawyer as to the duration of the visits. Ms N then accompanied the children into the mother’s residence. The children did not respond, and refused to make eye contact, when the mother asked how they were. The mother made the children lunch which they ate while the mother continued to try to get the children to converse with her. The children prepared to go to the park with the mother, and Y asked Ms N if she could join them in the car with the mother as she didn’t feel safe. Ms N explained that it wasn’t possible, and Y reluctantly agreed to go in the mother’s car. At the park, Y complained to Ms N that she didn’t want to be left alone with the mother and that she didn’t believe the mother wanted to spend time with her, with which Ms N disagreed. Eventually, the children relaxed and played on some of the play equipment with the mother, with Ms N noting that the mother and the children were laughing and enjoying themselves. The mother took the children for a walk to get an ice cream, during which the children attempted to keep their distance from the mother. Upon returning to the park with ice cream, Ms N informed the children she needed to leave. Y held onto her and asked her to stay, but eventually agreed to let Ms N leave. X was visibly unhappy as Ms N said goodbye.
[19] Affidavit of Ms N filed 3 May 2024, Annexure MN-04.
During the next three to four months of supervised visits, the children relaxed and generally enjoyed their time with the mother although the children, and particularly Y, often requested that Ms N stay when she indicated at the conclusion of the supervised portion of the spend time that she had to leave.
On 24 February 2024, the children spent time with the mother at her residence in Suburb T. The children engaged in conversation with the mother before the mother let Y know that there was cookie dough in the fridge that she could bake. Y baked the cookies while the mother continued conversing with X. The mother then drove the children to go window shopping, which the children engaged in for about half an hour. The mother purchased the children lunch, which they enjoyed eating. The mother then drove the children back to her residence where she assisted Y in baking cupcakes while X played video games.
On 6 April 2024, the children spent time with the mother at her residence in Suburb T. The children accepted snacks and drinks from the mother while engaging in general conversation with her. X was in a good mood and highly conversational with the mother. The mother and Y then made cupcakes together, during which Y was laughing and bantering with X while he played video games. The mother then provided lunch for the children. The children were happy and grateful. It was noted by the supervisor that the children were relaxed and comfortable.
Despite the mostly positive nature of the children’s time spent with the mother in late 2023 and 2024 leading up to the trial, the children constantly reported to the father that their time with the mother was bad. According to the father, they suffered from, amongst other things, nightmares and diarrhoea due to being forced to see the mother.
The making by the Court of interim orders in May 2024 caused the father and his partner to extend and make more frantic their systems abuse coercive and controlling behaviours. They did not accept the orders of the Court and acted to defy them.
Matters during and following the trial
On 9 May 2024, with a sufficient evidentiary basis and for the purposes of progressing the matter in the best interests of the children, the Court made interim orders that the children spend time and communicate with the mother on an unsupervised basis for approximately six hours each week, alternating between a Saturday and a Sunday.
The orders as made by the Court were not complied with by the father who, together with his partner, set about undermining their operation. Essentially, the father, a perpetrator of family violence, engaged in further systems abuse, which had been a successful mode of operation for him in the past. The father used every means at his disposal to thwart the mother; to have she and her partner found guilty of the commission of criminal acts not committed by either of them; to harass and vilify them both; and to indoctrinate the children, causing them serious psychological and emotional harm. In this he was assisted by his partner.
On 9 May 2024, whilst driving home from Court, the father telephoned Ms C and advised her that the children would be seeing their mother, unsupervised (they had been doing so for a period prior to this time) and that Mr D was able to be present. Mr D had in fact been able to be in the presence of the children for the preceding 15 months. Despite this, and to make it easier for the children, Mr D had not seen the children since September 2021. The mother gave no indication that there would be any change to this arrangement. Ms C’s response to the father’s news, however, was to express dismay. She said, “Oh no”.[20] Ms C proceeded to herself tell the children of the orders made, despite the Court indicating that to be the province of the ICL.
[20] Transcript 15 July 2024, p.417 line 34.
Ms C described the children’s reaction to her rendition of the orders made as being one of opposition to the orders, with, she claimed, Y declaring that she would self-harm. Subsequently, Ms C contacted the Crisis Assessment and Treatment Team (“CATT”) and was supported in that approach by the father. Around this time, the father and Ms C also contacted SOCIT.
On 10 May 2024, the CATT notified the parties and the Independent Children’s Lawyer that Y’s “immediate safety and well-being…required the attention of a CATT…[and] intake ELMS Assessment Team”.[21] At 4.30pm on the same day, the DFFH allegedly advised the father that the children should not spend time with the mother on that weekend. The father proceeded to ignore the Orders made on 9 May 2024, and by a few days later, he had deposited Y at GG Hospital to further bolster his defiance of the orders.
[21] Father’s affidavit filed 14 July 2024, paragraph 5.
From 10 May 2024, Y missed almost every one of the next 17 days of school, with X also missing many days of school in that same period. The children were made to feel that a hugely anxiety producing event was about to unfold, indeed, probably even terrifying.
In mid-May 2024, the father and Ms C took Y to GG Hospital following what the father claimed were further disclosures by Y to his partner (as told to him by Ms C). The father, in contradictory evidence, also claimed that such disclosures were made to he and his partner, and again, to him solely. Under cross-examination, Ms C was adamant that the first time she was aware of any further disclosure by Y in May 2024, was following disclosure by Y to the staff at GG Hospital – as then told to her. She stated in evidence that she was not aware of any prior disclosure as alleged by the father, and that if Y had in fact made such a disclosure to the father in her absence, he would have told her about it. Her evidence was further that if the father had given evidence about a disclosure by Y prior to her attending GG Hospital in May 2024, he must be wrong about that. It is curious, if the evidence of Ms C is to be believed, as to on what basis she and the father took Y to the hospital that day. The father’s evidence of a disclosure by Y to either the father and/or his partner prior to her being admitted to GG Hospital was a fabrication by the father although it is probable that he and Ms C had a conversation with her about her alleged sexual abuse by Mr D, and coached her, with the intent of preparing her to make a disclosure to a professional at the hospital. Y was thereafter taken to the hospital to make her disclosure. Ms FF, senior social worker at GG Hospital, deposed that Y disclosed to her that Mr D had “touched [her] inappropriately up until two years ago”.[22] That would have been May 2022, in a context of Mr D having not seen Y since September 2021.
[22] Affidavit of Ms FF filed 31 May 2024, Annexure FF-1.
A few days later, Ms C initiated contact with a sexual assault and family violence centre.
The next day, Ms C contacted Ms K to have her provide counselling to the child Y. In Ms C’s mind, Ms K was an aligned professional who supported the children’s alienation from the mother, and who did not question their version of events nor any alleged disclosures of Y.
In late May 2024, Y attended upon Ms K for some 45 minutes in the home of the father and his partner. Both were present in the home, though both claimed not to be privy to that consultation. Ms K subsequently told the father and his partner that Y would not go and spend time with the mother.
In late May 2024, the CATT were again contacted by the father and his partner. Based on a history of events as provided by them, a referral to a psychiatric service was made for the child Y.
On 5 June 2024, the Court made further interim orders providing for the mother to spend unsupervised daily time with the children each week. Thereafter, the father again failed to comply with the orders of the Court and again engaged in systems abuse, involving the child Y with the CATT, the DFFH and ELMS. The mother thereafter did not spend any time with the children until 30 June 2024.
In June 2024, Y underwent a third VARE. She was taken to that interview by Ms C. A new disclosure was made by Y, namely that Mr D had digitally penetrated her. According to the father’s evidence at trial, the child ‘wants justice to be done’ That allegation commenced a further investigation into Mr D.
On 27 June 2024, the Court made orders and notations relevantly, that the parties have equal shared care of the children; that the Independent Children’s Lawyer explain the orders to the children in the absence of the father, his servants and/ or agents and further, relevantly, that:
…
6.The father be restrained by himself, his servants and/or agents including his partner, [Ms C], from explaining these orders to the children and/or discussing these proceedings with the children.
7. The children spend time with the mother as follows:
a.each alternate Sunday commencing Sunday 30 June 2024 from 10.00am until 7.00pm; and
b.each alternate Saturday commencing Saturday 6 July 2024 from 10.00am until 7.00pm.
…
10.The mother and the children, and the father only if requested to attend by [Ms F], psychologist, attend upon [Ms F] at such times and places as reasonably directed by [Ms F], to not include those times when the children are spending time with the mother pursuant to Order 7 herein, for reunification counselling subject to the availability of [Ms F].
…
15.The children are not to attend upon [Ms K], mental health social worker, and the father is restrained by himself, his servants and/or agents from taking the children to attend upon her.
16.The father himself and/or his servants and/or agents are restrained from taking the children or either of them to attend upon [the sexual assault and family violence centre] or any form of counselling other than as provided for in these Orders.
…
AND THE COURT NOTES THAT:
…
B.As at the date of these orders the Court, the mother and Independent Children’s Lawyer considers that [Mr D] does not pose an unacceptable risk to be in the presence or communicate with the children or either of them but the mother has indicated to the Court that in order to assist in the implementation of the interim orders and pending the adjourned hearing date that [Mr D] will not be brought into contact with or have communication with the children.
C.The Independent Children’s Lawyer will speak with the children regarding [Mr D] and will tell the children that he is not considered to pose a risk to the children but the mother and [Mr D] have agreed to him not being brought into contact with or have communication with the children pending further order of the Court.
…
E.The Independent Children’s Lawyer is concerned with the children’s refusal to see their mother and is of the view that there should be time occurring between the children and the mother.
It was the father’s evidence that after the Independent Children’s Lawyer explained the orders of 27 June 2024 to the children, both children were visibly distressed and that he observed Y to have a panic attack. The father claimed to not be able to calm her, with Y becoming “more and more distressed”.[23] The father subsequently contacted Ms FF, Senior Social Worker at GG Hospital who spoke to Y for approximately 45 minutes, though she also was unable to calm Y, according to the father’s evidence. Ms FF advised the father to contact the Nurse-On-Call if Y’s state persisted.
[23] Father’s affidavit filed 14 July 2024, paragraph 10.
In the early morning of 28 June 2024, and with Y sleeping with Ms C, the father alleged that Y’s “physical and emotional state worsened” and she began having “convulsions” which lasted “three (3) or (4) minutes, and [Y] was unresponsive”.[24] The father asked Ms C to contact the Nurse-On-Call service, who transferred the call to triple zero, after which an ambulance attended the father’s residence to attend to Y. Y was subsequently taken to GG Hospital, as accompanied by Ms C, and assessed by the paediatric consultant before being spoken to alone by a psychiatric nurse for approximately 45 minutes. The psychiatric nurse explained to the father and Ms C as alleged by the father that her concerns included Y “experiencing hallucinations of the Mother and…[Mr D] climbing through her bedroom window”, “having thoughts of suicide”, “was exhibiting flashbacks with respect to the sexual assault disclosures” and “was experiencing a sustained level of panic”.[25] The nurse recommended that Y be admitted to the Child Neuropsychiatry Inpatient Ward at HH Hospital. Y was then admitted to the short stay unit within GG Hospital Emergency Department. That evening, Ms C, who remained with Y throughout this ordeal, informed the father that Y was being transferred to HH Hospital via ambulance and that Ms C was accompanying her. Y remained at HH Hospital for several nights, some of which Ms C stayed with her. The father stayed one night.
[24] Father’s affidavit filed 14 July 2024, paragraph 16.
[25] Father’s affidavit filed 14 July 2024, paragraph 20.
On 29 June 2024, the father attended the HH Hospital ward where he was advised by Dr JJ that Y required mental health support and a clinical diagnosis, but that this was to be arranged through an Intake, Assessment, Consultation and Treatment unit (“IACT”) referral. Dr JJ advised that the father contact Ms KK, Y’s allocated Child Protection worker, regarding Y’s admission to IACT.
On 30 June 2024, the father delivered X to the mother’s residence at 9.55am for the commencement of his spend time with the mother. X walked into the house and sat at the dining table with his head down. He made no eye contact with the mother and did not reply to her. He told the mother “I do not want to be here”.[26] The mother attempted to ask X some questions to which he provided one word answers and remained looking downwards. At around 10.15am X said “I do not want to answer any of your questions. I don’t feel safe”.[27] X then put his shoes on, walked into the garage, pressed the remote-control button to open the garage door and left. The mother ran outside to find X but could not locate him. At 10.22am, the father emailed the mother “Hi, I’ve just received a call from [X]. He is crying and he wants me to pick him up! What has happened??”. The mother responded at 10.40am “hi Bring him back to spend time the court has ordered. Try and reassure [X] that everything will be fine”. The father responded at 10.43am “Hi, [X] is very upset, I asked you what happed? [sic] You have not told me yet.”[28] The father subsequently drove to a supermarket near the mother’s residence where [X] was waiting for his father to collect him. Despite the mother’s messages and requests to the father for him to return [X] to her care, he did not. The mother attended upon Suburb Z Police Station and presented a copy of the Orders made 27 June 2024 to Police who contacted the father at around 11.23am to conduct a welfare check on X. The officer told the mother that the father had picked up X and he was safe at the father’s home. At 11.36am the mother contacted the father stating ‘[Mr Frankel], [X] was not here long enough for anything to ‘happen’’. Unless you act in a genuinely child focused way and support [X’s] return to me as soon as possible today I will apply to the court for orders to correct this situation. I will await your reply no later than 11.50am today. Thank you [Ms Ribisi]”.[29] The father did not return X to the mother’s care and she heard nothing further from him. At approximately 4.14pm the mother called HH Hospital for information as to Y’s state of health. She was told Y was “very happy, playing a craft activity” and that the father was present. X had also been at the hospital that afternoon after which he left with Ms C.[30]
[26] Mother’s affidavit filed 30 June 2024, paragraph 41.
[27] Mother’s affidavit filed 30 June 2024, paragraph 49.
[28] Mother’s affidavit filed 30 June 2024, paragraphs 53-55.
[29] Mother’s affidavit filed 30 June 2022, paragraph 57.
[30] Mother’s affidavit filed 30 June 2022, paragraph 59.
In July 2024, the father was informed by Ms FF that an IACT referral had been authorised and actioned for Y, and accordingly she was to be discharged from the ward at HH Hospital. On the same day, at the father’s home, the father and Ms C allegedly observed Y having “convulsions” in which she was “jerking uncontrollably for approximately three minutes, was not able to be roused and was extremely pale”.[31] The father alleged that the convulsions “continued intermittently for a number of hours”.[32]
[31] Father’s affidavit filed 14 July 2024, paragraph 50.
[32] Father’s affidavit filed 14 July 2024, paragraph 50.
On 1 July 2024, the Court made orders until further order which included that the mother was to have sole parental responsibility for the children to stay the father and his partner’s systems abuse. The children were again ordered to spend unsupervised limited time with the mother and orders were made that, in respect of that time:
…
5.If during those periods of time when the children are ordered to be in the mother's care pursuant to orders made 27 June 2024, the children or either of them communicate with the father by himself and/or his servants and/or agents, including [Ms C], the father is to immediately notify the mother by use of the Our Family Wizard App and if the children have left the mother’s care the father is to collect them and return them forthwith to the mother’s care with such time as they have been absent from the mother’s care to be made up on the following day at such times as determined by the mother.
6.The father by himself, his servants and/or agents, including [Ms C], is not to communicate with the children in any way during time spent with the mother pursuant to orders of the Court.
…
On 2 July 2024, the father sent the mother a message in which he told her that Y was “unwell with rapid breathing, sick, trembling” and asked for the mother’s consent to call the Nurse-On-Call at GG Hospital and, if necessary, an ambulance.[33] The mother responded that she did not consent to the father further involving any medical professionals. The mother’s response was appropriate.
[33] Father’s affidavit filed 14 July 2024, paragraph 51a.
On 3 July 2024, the father again messaged the mother and asked for her consent to organise medical intervention for Y. After the mother did not immediately respond, the father took Y to P Medical Centre for a consultation with Dr LL who told the father that she would follow up with Y’s general practitioner, and that in the meantime the father should keep doing what he was doing regarding caring for Y.
On 6 July 2024, the children attended upon the mother’s home. They were holding hands and at first, did not enter the home or make eye contact with the mother. The children told the mother that they did not want to be there, and X said he was scared. At around 10.05am both children entered the house and sat down in front of the door. X said to the mother “Why are you forcing us to come here? Do you think that we are lying? We do not want to be here. [Y] was in a mental health ward [recently]”.[34] Y began to make moaning noises. At around 10.45am, both children suddenly departed the home. The mother ran after the children but lost sight of them as they crossed the road. At 11.06am the mother emailed the father “[X] and [Y] have left my house. As per court order 1st July, please return [X] and [Y]”. The father responded at 11.08am, “Hi, I do not know where the children have gone nor what has happened. I am visiting someone at hospital. I am at least 40 minutes away”.[35] At 11.17am the mother emailed the father “Have you heard from [X] and [Y]? Please encourage to come back to my home”. At 11.29am the mother sent the father another email stating “The orders require you to support [X’s] [sic] and [Y’s] [sic] time with me. Do everything possible and see to it yourself that [X] and [Y] are found and returned to me urgently”.[36] At 11.44am the father provided X’s mobile phone number to her at her request and replied “I am currently on my way. Thanks”.[37] At 11.49am the mother called X, X answered and then hung up. At 12.34pm the mother spoke to police from Suburb Z Police Station. The mother was informed that X had called triple zero and that a car from Suburb AA Police Station would pick up the children to bring them back to Suburb Z Police Station to be collected by the father.
[34] Mother’s affidavit filed 8 July 2024, paragraph 66.
[35] Mother’s affidavit filed 8 July 2024, paragraphs 77-78.
[36] Mother’s affidavit filed 8 July 2024, paragraphs 79-80.
[37] Mother’s affidavit filed 8 July 2024, paragraph 81.
Dr B prepared a Psychological Evaluation Report for the father dated 18 July 2023. The father attended upon Dr B for assessment for approximately two hours on 13 July 2023. The father presented as polite, cooperative, verbose and responded to questions in a circumstantial manner, contradicting himself at times. The father presented with tendencies toward impression management and was eager to present himself in a favourable light.
The psychological evaluation indicated the father has narcissistic traits including inflated self‑esteem, difficulty with accountability, and lack of insight. The evaluation stated:[54]
There are risks related to his mental health (e.g., narcissistic traits) and the acrimonious co-parenting relationship.… Collateral material was reviewed and summarised in this report. The documents, in addition to [Mr Frankel’s] strong views and tendency to see himself as a victim, raise the possibility of [Mr Frankel] engendering an exclusion process and systems abuse, which should be explored in further assessment. There was insufficient evidence to corroborate all the allegations against [Mr Frankel]. If found to be true, this would point to a pattern of systems abuse, deceit, and denigration and exclusion of the mother for [Mr Frankel]. While there was no evidence of direct physical harm of the children, this would have a notable effect on the children’s psychological functioning and well-being.
[54] Affidavit of Dr B filed 11 April 2024, Annexure SS-02.
The father reported a strong social support network including his partner, with whom he claimed to not live with, to Dr B, albeit on his own evidence he had been cohabitating with her for approximately three years by the time of his interview with Dr B; a childhood friend; and two work friends. The father also reported that his partner had a serious illness and that he needed to assist in her care.
The father was evasive when discussing the IVO obtained by the mother against him. He did not identify clear reasons for this and stated the magistrate was obligated to “put the IVO on him”.
The father withheld the children in October 2022 based on alleged neglect and abuse from the mother. He reported the children were fearful of the mother and being neglected including being left home alone and not being fed. The father reported both children were self-harming by scratching themselves until they were bleeding and pulling at their cuticles. His account was that both children would cry and beg to live with him.
The father had difficulty expressing his view on ideal time arrangements moving forward. The father stated the mother needed to prove that the children would be safe with her. The father contradicted himself regarding his support for the children having a relationship with the mother. The father reported to Dr B “Every child needs to see their mother and I don’t wish to deny that”,[55] but later indicated both children do not want to see the mother and that professionals must listen to their wishes.
[55] Affidavit of Dr B filed 11 April 2024, p.36.
The father reported he was diagnosed with PTSD by a psychologist in 2006 due to physical abuse from his first wife. I note he also provided a history to Dr B of his first wife being the cause of the end of his first marriage because of her infidelity, alcoholism and physical violence toward him and the children. He claimed that she made false allegations about his mental health. Dr B’s evaluation of the father did not align with a diagnosis of PTSD. The father reported he was diagnosed with anxiety and depression in 2018 by his general practitioner, Dr RR.
The father noted he was prescribed antidepressant medication. Dr B considered it possible that the father’s medication regimen was obfuscating the diagnostic picture, in that the medication was helping the father not to present with anxiety and/or depressive symptoms.
The father stated that he drank regularly but moderately, and that his alcohol use had never been problematic. He did not identify a history of illicit substance use.
The father was estimated to function in the average range of intellectual abilities.
The assessment indicated the father’s parenting risk was moderate and there were risks related to his mental health, such as his narcissistic traits, and the acrimonious co-parenting relationship. Dr B assessed there were some protective factors which balanced the risk, such as social support and willingness to engage in treatment.
Collateral material, which was reviewed and summarised by Dr B, confirmed for her that in addition to the father’s strong views and tendency to see himself as a victim, there existed the possibility of the father engendering an exclusion process and systems abuse. Dr B believed should be explored in further assessment.
Dr B reported there was insufficient evidence to corroborate all allegations by the mother against the father. She noted if found to be true, the father would be engaging in a pattern of systems abuse, deceit and denigration and exclusion of the mother. While there was no evidence of direct physical harm of the children, this would have a notable effect on the children’s psychological functioning and wellbeing.
It was recommended by Dr B the father encourage the children to repair their relationship with the mother and complete a Parenting After Separation program. I observe the father did neither.
Ms FF, senior social worker
Ms FF is a senior social worker at GG and QQ Hospitals. Ms FF met with Y in mid-2024 when Y was admitted to GG Hospital Emergency Department following Y’s disclosures of ‘thoughts of suicide’ and a plan to run into open traffic. Ms FF prepared a two-page report regarding Y’s admission to GG Hospital.
In Ms FF’s report, she noted that Y advised her that Mr D had ‘touched her inappropriately’ up until two years ago. Y’s presentation was assessed as not being due to mental disorder, but that she was reacting to the psychosocial circumstances of this proceeding. When the father and Ms C told Y that she would not be forced to see the mother, Y reported to Ms FF “that she felt better”.[56]
[56] Affidavit of Ms FF filed 31 May 2024, Annexure FF-1.
Ms FF was not cross-examined in the proceedings and her evidence is unchallenged. I accept her evidence.
Ms M, the father’s former partner
Ms M was cross-examined in the proceedings. She presented as a frank and credible witness, and I accept her evidence, preferring it to that given by the father.
There is a history of domestic abuse in the father’s previous relationships: first with Ms M and then with the mother.
The father was verbally and physically abusive toward Ms M during their marriage. He grabbed her; kicked her in the stomach on one occasion; and dragged her out of a car. He referred to her as a useless mother and engaged in other forms of derogatory name calling. She made two complaints to the Police about his abusive behaviours and provided Police statements in respect of those complaints. Ms M declined to proceed further however, as she did not want the father charged. After separation, when the father had moved away from Ms M and children, and interstate, he attempted to obtain an IVO against Ms M. He alleged she had sent him numerous abusive messages – over twenty. Ms M denied that she had done so. One message was “When are you going to give my [vehicle] back you mental case psycho. You will get what’s coming to you.”
I accept that Ms M did not send messages to the father as described by him. It is probable the father was the author and sender of such emails to himself.
Ms M was happy to keep a distance between herself and the father. She feared him. The three children of that relationship remained residing with Ms M. In Ms M’s opinion the father lost interest in them. They have no relationship with him.
Ms M responded to the allegations made (by the father) about her to Dr B and to the Family Consultant Mr G. The allegations that she was unfaithful and an alcoholic, were met with incredulity and almost amusement. She denied them. The allegation that she was physically violent was admitted by Ms M as to one occasion only, and in the context of protecting herself and the children from the father’s physical aggression.
Ms K, counsellor
The parties attended upon psychotherapist and clinical counsellor Ms K for several sessions in 2023 and 2024. She provided a report dated 27 April 2024 annexed to her affidavit dated 2 May 2024.
Ms K gave oral evidence and was cross-examined at the final hearing. She recommended that the time between the children and the mother be reduced. She conceded that she had not challenged the children in their sessions as to the accuracy of the allegations and complaints the children were making against their mother.
Ms K said she simply listened to what the children said they were feeling. Essentially, the sessions between the children and Ms K provided an ‘echo chamber’ for the children’s complaints against the mother. In her evidence at trial, Ms K proposed a theory that the children’s poor relationship with their mother arose from them having, as younger children, an insecure relationship with their mother and a secure relationship with the father. Ms K was unable to properly articulate and support that view by reference to the facts of this case. The counselling of the children by Ms K was unhelpful in resolving any of the intrafamilial issues, a view with which the ICL agreed and I determined that the children’s further attendance upon her was in fact, harmful, and worked against a reunification with their mother.
Ms F, family therapist
The family therapist, Ms F, conducted reunification family therapy with the children (conducting an intake session with the parents) and occasionally with the mother joining in that therapy, from April 2023 up until 25 May 2024 at varying intervals.
From the outset Ms F was aware of the enormity of her task, with the children exhibiting an ongoing pattern of disengagement and hostility toward the mother, which was more intense prior to or post Court periods. She recalled at trial that at the intake session with the father, he had referred to the mother as a pathological and narcissistic liar. She described him as having a heinous hatred and view of her [the mother] as a person. She noted the child X adopting some of his father’s attitudes to the mother, being rude to her; flicking cards at her; refusing to call the mother by her name but only as ‘she’ or ‘her’ and in a quite derogatory tone, as part of his expression of his anger.
Ms F’s therapeutic reports are attached to her affidavit filed 3 May 2024. In August 2023, Ms F stated:[57]
[X] and [Y] are spending time with their mother every week and more recently at family therapy sessions each fortnight. The relationship rebuilding with their mother would benefit from continuing. Graduated increases in the time spent with their mother would likely assist in the process of re-establishing trust and balance in the parent‑children relationship.
[57] Affidavit of Ms F filed 3 May 2024, Annexure B.
By October 2023, Ms F reported:[58]
It is my assessment/view that [X] and [Y’s] interaction and engagement with their mother may have deteriorated since the Orders of 14 August which was for an increase in time spent with their mother and a decrease in the time that was supervised … I am concerned about the impact on [X] and [Y] and [Ms Ribisi] with the current behaviour of sitting on the floor in their mother's home for four hours with no communication or engagement between the children and their mother. It seems both parent's behaviours are impacting on [X] and [Y’s] emotional wellbeing, and the achievement of their developmental tasks in a normal framework, by what seems to be an enduring parental conflict. [X] is in early adolescence, a period of significant physical and psychological change, that is underpinned by establishing his own identity and navigating these changes. This important developmental task for [X] may be difficult as he is consumed and burdened with parental disharmony. [X] needs to be supported and guided by both his parents through this period and provided with solid role models. [Y] is ten years of age, a period developmentally where she should be well settled in her school community, achieving in her learning and delighting in friendships and family. [Y] instead is locked in the parental conflict, tearful most of the time, emotionally drained and uncertain of what to do.
[58] Affidavit of Ms F filed 3 May 2024, Annexure C.
Ms F concluded around that time that the children should spend up to six hours with the mother each week and otherwise live with the father. She notes the children were continually being placed in the “intolerable and untenable position of having to reject one parent as all bad and embrace the other parent as all good”. At trial, and familiar with the further material before the Court, Ms F’s recommendation changed such that she concluded that the children should live with the mother; that the mother should have sole parental responsibility for them; and that a no contact moratorium should exist for them with their father and Ms C for an extended period. That period should give the children an opportunity to adjust. She conceded this course had attendant risks of the children running away and placing themselves in situations of danger, as had been demonstrated by the conclusion of the trial.
Ms F gave evidence that the children had existed in a sustained situation with their father, in which the children were influenced by him, and that the children were “exposed to…a concentrated situation with their father…of abuse…since they were very young”.[59] The children had to side with their father and had no choice. Ms F considered their childhood had gone, and if they stayed with the father, the mother ‘should forget she ever had children’.
[59] Transcript 13 August 2024, p.550 lines 13-14.
It was Ms F’s evidence that, “if the mother’s affidavit material is…to be believed, the father has been controlling her and the children, you know, both prior to separation and post‑separation, and engaging in, you know, fairly controlling and probably coercive forms of family violence”.[60] Ms F was unconvinced that the father had “the capacity to support the children having a relationship with their mother in any meaningful way”.[61] She noted the assessment of Dr B that the father presented a moderate risk to the children and was abusive and narcissistic, whereas the mother presented no risk.
[60] Transcript 13 August 2024, p.550 lines 23-27.
[61] Transcript 13 August 2024, p.551 lines 1-2.
When it was put to Ms F under cross-examination what the consequences would be for the children to not have a parent involved in their life, Ms F responded:[62]
It’s always problematic for children not to have a parent involved in their life. In their lives. They have two parents. They were born of two parents. They have – you know, are loved by both parents. But if parents, you know, want to continue their fight and their bitterness at the expense of the children’s well-being and emotional well-being into their nether years, then that’s what has to happen. Because what has been – what’s happening for [X] and [Y] is they are constantly exposed, and have been, I think, since a very young age to their parents, you know, conflict.
[62] Transcript 13 August 2024, p.551 lines 21-28.
Ms F gave evidence that it was “common” for children who are “squashed between two parents who are bitter and argue and are conflictual…to say one parent is all good and the other parent is all bad because that’s how developmentally they manage their situation”.[63] Ms F went on to infer that little to no weight should be given to the children’s views in light of the pressures placed on them by the parents’ conflict, a conflict pursued by the father. She considered the children’s resistance and antipathy toward the mother to be out of proportion to their complaints about the mother. She observed that the sexual abuse allegations were not issues for the children after the closure of the first complaint by Y, and simply not raised with her as a problematic issue.
[63] Transcript 13 August 2024, p.552 lines 25-30.
Mr G, Family Consultant
On 27 February 2024, Mr G the Court Child Expert, completed a Family Report.
Mr G recommended in that Family Report that the children remain in the father’s primary care and that the mother spend unsupervised weekly time during the day whilst continuing ongoing therapeutic work with Ms F and Ms K. At that time (with a degree of prescience given subsequent events) he commented in relation to the mother’s proposal that the children move to her primary care immediately as follows:[64]
…there is a risk that the children … will strongly resist this and further damage the already tenuous relationship between [Ms Ribisi] and the children. Though well intentioned, the risks associated with such a course of action should be tempered against the benefits for the children and their ability to acclimatise to such a decision. It is likely that both children would be placed in a situation of extreme pressure and run the risk of potential psychological harm which could result in more extreme results such as absconding or self-harm.
[64] Family Report of Mr G dated 27 February 2024, paragraph 101.
Regardless of the above, by the time of his giving evidence at trial, Mr G, who was also provided with updated filed affidavit material and other relevant evidence, altered his recommendation such that he opined that X should continue to live with the father and spend time with the mother in accordance with his wishes. This was based upon X’s age and maturity, his strong need to express his individuality and the vehemence with which he had expressed his wishes. He recommended that Y, being at a younger age, may benefit from living with the mother without contact with the father for a moratorium period with a reintroduction of the father via supervised time supported by therapeutic counselling. His evidence was that Y’s resist/reject response to the mother was influenced by X’s attitude along with alignment with the father.
Mr G, under cross-examination, gave evidence that “it seemed unlikely that…[the mother] [had] brandished a knife and yelled at the children” and that, at any rate, “the children’s responses [were] disproportionate” to the mother’s treatment of the children, as alleged by the father and both X and Y.[65] Mr G also noted that the father had previously made allegations of Ms M brandishing a knife in the same way, and that the common denominator between allegations against both the mother and Ms M was the father; this established a pattern of the father’s behaviour which may be an indicator of his family violence as perpetrated against both Ms M and the mother, as “Family violence is often a predicator of understanding what could happen in the future”.[66]
[65] Transcript 13 August 2024, p.581 lines 11-15.
[66] Transcript 13 August 2024, p.580 lines 44-45.
Mr G gave evidence that “[X] is…soon to be turning 15…his behaviour is very well and truly entrenched” but “For [Y]…she’s a bit younger…I feel [her behaviour is]…less so entrenched”.[67] Mr G was of the view that X had interjected in Y’s relationship with the mother and, without X’s interference, their relationship “could potentially be salvaged”.[68]
[67] Transcript 13 August 2024, p.583 lines 30-35.
[68] Transcript 13 August 2024, p.585 lines 6-7.
It was Mr G’s evidence that the father was in receipt of a carers pension “for the father’s partner”, being Ms C.[69]
[69] Transcript 13 August 2024, p.593 line 5.
Mr G agreed that “the children’s relationship with their mother [continued] to deteriorate in the care of the father”.[70]
[70] Transcript 13 August 2024, p.595 lines 26-27.
It was Mr G’s evidence that the mother has demonstrated “capacity to make decisions at the forefront of her mind in the best interests…of the children” and that, when reflecting on “the entirety of the assessment of the [mother]…she has [always] followed the recommendations” made throughout the matter’s history.[71]
[71] Transcript 13 August 2024, p.599 lines 37-43.
CONSIDERATION
The evidence overwhelmingly supports the conclusion that the children’s best interests are promoted by engagement with their mother, and a cessation of their time spent, or communication had, with their father, and with his partner Ms C and that cessation be for an indeterminate period of time.
The parties are unable to reach any consensus on any matter. It is not probable that such situation will alter given the father’s ongoing failure to facilitate the children having any sort of relationship with the mother; his colluding with the children in undermining the operation of the orders of the Court; and his abject hatred of the mother.
The evidence establishes that it would not be in the children’s best interests for the father to have sole decision-making responsibility for the children even if the children were to live with him. His family violence toward the mother and children, including serious systems abuse, coupled with that of Ms C, is so extensive, and its consequences so catastrophic for the children, that such an order would cause significant and ongoing emotional and psychological damage and distress to the children. The developmental needs of the child Y will not be advanced in that arrangement, because it nullifies the prospect of halting the father’s negative impact upon the promotion of those needs and continues the propagation of her false beliefs as to sexual abuse. Further, the father’s actions in alienating both children from the mother have involved criminal activity. As have the actions of his partner acting in concert with him, and on her own.
The mother’s approach to decision making for the children has been reliable and appropriate since their respective births, as opined by Mr G, and inclusive of the father to the extent that he permitted that. In her care, the children had a proven ability to have a meaningful relationship with each of their parents.
I have concluded that the mother should have sole parental responsibility and sole decision‑making responsibility for the children regardless of where they live, and that she should not be required to consult with the father about any aspect of that decision making. Consultation with the father is only a domination and denigration of the mother by the father, or it is a game played by the father with a cover of politeness hiding a malicious intent.
I find there is a need to protect the children and the mother from family violence and harm as caused to them by the father, and by his partner, as detailed in the factual findings on the evidence which include the unfortunate history and manner of obtaining IVOs, the parties against each other, Ms C against the mother, the father against Mr D, the mother’s partner, and the more recently police intervention orders obtained against the mother and Mr D. I reject, on the findings set out above, the allegations as made by the father, Ms C, and the children for the making of those orders. The mother’s allegations against the father were proven. There have also been the sexual abuse allegations, and the context in which they were made. I have found that Mr D did not perpetrate any form of sexual abuse on the child Y. Rather, such allegations were a false reality as constructed by Ms C and the father and imposed upon the child by them. The facts as found by me establish that which Dr B opined, namely that the father has engaged in a “systems of abuse, deceit, and denigration and exclusion of the mother…which would have a notable effect on the children’s psychological functioning and well-being.” Arrangements which would promote the safety of the children, and the mother, would be for the children to live with the mother and spend no time nor have any communication with the father and be restrained from being in the presence of, or communicating with, the father and Ms C. The Court has extensive powers to make orders which will have the effect of protecting the children in circumstances such as these, and those powers include the injunctive powers as set out in the Act. The children are at an unacceptable risk of harm, unable to be ameliorated in the care of the father and/or in the care of Ms C. As against these findings, is the practical reality of the children having absconded from the mother’s home on numerous occasions post May 2024, itself a risk to their safety, with such action instigated and controlled by the child X. The evidence of Mr G is instructive in that regard. X’s developmental age, his now deeply entrenched views of the mother, and collusion with the father, have resulted in unworkable orders that have not been able to be enforced by the mother, the police or the DFFH, the latter two of whom have returned the children to the father. The only option available to the DFFH would have been the taking of the children into care.
The views of the children I give little weight to where there is a context of indoctrination by the father and Ms C; coaching by the father and Ms C as to the sexual abuse allegations made by Y; and alienation of the children’s mother and her partner by the father and Ms C. As referred to above, the children’s rejection of their mother is disproportionately unjustified. Its explanation lies in the reality constructed for them by the father and by his partner Ms C. Whilst the children have, to the experts, Police and the DFFH, described their experiences as real, they could not substantiate that reality because much of the trauma was not their own direct experience but rather that which had been projected onto them by the father and Ms C. As described by Mr G, and accepting their own account as real, the children have engaged in ‘splitting’ - a defence mechanism involving ‘the division of external objects into ‘all good’ or ‘all bad’. Rejecting any other narrative other than their father’s, the children have concluded that their father is ‘all good’ and their mother is ‘all bad’ in the context of the parental discord.
A continuing therapeutic approach to reunification of the mother and children is essential to the promotion of the children’s best interests. This needs to be coupled with an absence of the influence of the father and his partner, though that requires some level of cooperation from the child X who to the present time has defied Court orders, and the authority of the Court, the Police, the DFFH and authorities at his school. In this path of defiance, he has instructed his sister to follow.
In these circumstances, the children, and the child X in particular, may be assisted by an understanding of the reasons for the Court making the orders which it does. The Court shall accordingly make provision for an explanation, founded in the reasons of the Court, to be given to the children by the mother and by the expert that shall be engaged by her to assist the children. The children, given their developmental age, and given X’s maturity, need some exposure to the reality of what it is the father has done; what it is Ms C has done; to assist them in the context of therapeutic counselling directed to a shift in the children’s perception of reality. That includes an understanding by the children of at least the following matters:
(a)The father has engaged in criminal activity by asserting to Victoria Police the mother was the author and sender of various offensive, stalking, and abusive texts, messages and Facebook posts to himself, Ms C, the children and others as described elsewhere in these reasons, when he knew such assertions were false and that he was the author and sender of all such communications. It is probable that the father earlier engaged in such a pattern of behaviour following his separation from his first wife.
(b)Having engaged in the above criminal behaviour, the father, knowing his supporting evidence to be false, sought and obtained against the mother and her partner various intervention orders. Ms C, also based on this false evidence, obtained an intervention order against the mother. I observe this same course of conduct was engaged in by the father after separation from his first wife.
(c)The father used the intervention orders obtained by him to seek out financial assistance and counselling for the children, all on a false premise.
(d)The father made a false assertion to police as to inappropriate conduct directed by the mother’s partner toward the child Y and thereafter commenced to coach the child, in conjunction with Ms C, to make unfounded sexual assault allegations against the mother’s partner to remove him from the children’s lives, and from an ability to support the mother in her care of the children.
(e)The Court finds that Mr D did not, and has not, inappropriately touched, sexually abused, or in any other manner harmed the child Y.
(f)The father and Ms C have engaged in family violence, including systems abuse against the mother and the children and the father has encouraged the children to engage in systems abuse against the mother such that any time spent between the mother and children, or either of them exposes the mother to further false allegations being made by the children and further engagement with the police and the DFFH.
(g)Ms C has not had a serious illness and has not been a patient at R Medical Centre. She is a fraudster. She and the father have forged documents which they falsely claimed to be from Ms CC who has never had Ms C as a patient. This is further criminal activity.
(h)It is probable that the father has committed Centrelink fraud in respect of his receipt of monies as a Carer of Y, and/or as a Carer of Ms C.
The ICL joined with the mother in recommending that the Court refer Ms C and the father to the Commonwealth Director of Public Prosecutions for investigation as to perjury, and a copy of these orders and the Court’s reasons for judgment shall be provided to the Commonwealth Director of Public Prosecutions for investigation of that matter and any other matters as arise from the reasons for judgment.
While the Court makes all the findings that it does, the Court is left with the consideration of how it is the children will transition into the mother’s care. In that regard, the evidence of Mr G is significant. Prior to his giving evidence at trial, neither he, the parties nor any other expert proposed a separation of the siblings. It was simply not canvassed. It was acknowledged and/or inferred that the children have a close and loving relationship with each other, and that such relationship gave them comfort amid the parents’ conflict. The children’s developmentally differing ages had however, been canvassed by Ms Chapman as they had by Mr G. Ms F referred to X as being in early adolescence, a period of significant physical and psychological change which included establishing his own identity ( as referred to above ) and Mr G’s cocurring evidence as to X is set out above.
The course of the trial included the Court making several interim orders to progress the mother’s time with the children. The workability of those orders is set out in the relevant facts in some detail and is further evidence of the father’s inability to support, in any way, the children’s relationship with the mother. The mother, unable to have the assistance of her family or her partner or friends consequent upon the actions of the father over time, was unable to assert parental authority sufficient to ensure that the risk of the children absconding was low, and the children absconded, repeatedly. There followed further associated legal proceedings. The mother, in her closing submissions, sought to be further reliant upon having Court orders implemented and enforced on her behalf by lawyers, therapists, Child Protection and Police to effect reunification of the children with her. Such a proposal, totally reliant upon outside agencies supporting the proposed Court orders is, as suggested by the ICL, doomed to fail. It may end up with the children placed in care, and the mother and/or her partner facing further spurious charges which the Court has not the power to restrain.
Yet leaving the children in the care of the father and/or Ms C is an unacceptable risk to them and will lead to the severance of the children’s relationship with the mother. Ms F opined that the children should live with the mother in these circumstances and have a moratorium period of no time spent with the father and Ms C. She conceded however that adopting such a course had attendant risks of the children running away and placing themselves in situations of danger. That has occurred. Mr G’s expert evidence also canvassed the prospect of the children absconding or engaging in self-harm as potential risks in placing them in the mother’s care in paragraph 101 of his Family Report of 27 February 2024. In his evidence at trial though, Mr G supported a separation of the siblings such that Y live with the mother. That evidence is detailed above, and Y’s residence with the mother is also supported by the evidence of Ms F. Relying on that evidence, and the totality of the evidence, the Court shall order that Y live with the mother and spend no time with the father.
The proposal that the Court make a ‘moratorium order’, is rejected. In the circumstances of this case, it is not possible to put a time limit after which the father should have contact with Y. That period would exceed 12 months but equally may be an indefinite period. It should not be an automatic move to supervised time in 12 months or some other period given the facts of this case. The mother and child need a situation where there is no opportunity for the father to commit family violence against them.
A parenting order as proposed by Mr G that X live with the father is not supported by the evidence though an order that X live with the mother subject to his wishes can be made on the evidence and represents a more workable solution given X’s age and earlier absconding. If he is given that degree of autonomy there is no need for a parenting order to be made otherwise in respect of him. He can of his own volition live with the father. Further, he shall now be provided with information suitable for his age to make a more informed choice as to his behaviours. It will be important that X does not interfere adversely with the relationship between the mother and Y by encouraging Y to leave the mother’s home. If those circumstances arise, it is a matter for the mother to act upon.
I certify that the preceding two hundred and fifty-five (255) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 21 October 2024
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