Richards and Morris (No 3)
[2015] FamCA 901
•21 October 2015
FAMILY COURT OF AUSTRALIA
| RICHARDS & MORRIS (NO 3) | [2015] FamCA 901 |
| FAMILY LAW – CHILDREN – sole parental responsibility – children to live with the father – mother to have no contact whatsoever – mother permitted to send gifts – father to provide report on children to the mother – where the mother continually harassed the father – where the mother made numerous unsubstantiated complaints about the father – where the need to protect the children from the adverse consequences of interaction between the parties is in the children’s best interests – consideration of whether intermittent time with the mother is of benefit to the children – where the children presently have no relationship with the mother - consideration as to whether some form of regime of orders, short of a total prohibition on time and communication could be fashioned – consideration of whether the mother be permitted to bring a future application to be re-introduced into the children’s lives. |
| LEGISLATION Evidence Act 1999 (Cth) s 140 |
| CASES B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569 |
| APPLICANT: | Mr Richards |
| RESPONDENT: | Ms Morris |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Meehan |
| FILE NUMBER: | TVC | 829 | of | 2013 |
| DATE DELIVERED: | 21 October 2015 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 4, 5, 6 and 7 November 2014; 2 and 3 March 2015; 1, 2, 3 and 4 June 2015 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: THE RESPONDENT: | Mr Byrne (direct brief) 4, 5, 6 and 7 November 2014. |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Mr Victoire |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER | M M Meehan |
Orders
All previous parenting orders be discharged.
The children G and S born on … 2012 (“the children”) live with Mr Richards (“the father”).
The father have sole parental responsibility for the children and in exercising it, is not required to consult Ms Morris (“the mother”).
Save as provided in order 5, the mother is not to have any direct or indirect contact with the children or the father by any means whatsoever.
On each of the children’s birthdays and at Christmas, the mother is permitted to send gifts, photos and greeting cards to the children at a postal address provided by the father, save that the father is permitted to exercise his discretion as to whether and if so when those items are passed onto the children if he is of the view that the contents are not reasonable or appropriate.
The father is to email a report to the mother once every six (6) months, advising in relation to the health, wellbeing and progress of each of the children, which report is to contain at least one photograph of each child.
The Independent Children's Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
Other than any undetermined Contravention Applications, all extant applications are dismissed and the matter is removed from the list of active pending cases.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Richards & Morris (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVC 829/2013
| Mr Richards |
Applicant
And
| Ms Morris |
Respondent
REASONS FOR JUDGMENT
INDEX
INTRODUCTION 3
BACKGROUND FACTS 3
The father 3
The mother 3
The relationship 4
Post-separation 4
Proceedings 5
THE ISSUES 6
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES 7
The statutory regime 7
Abuse, neglect and family violence 9
The standard of satisfaction required 10
The notion of unacceptable risk 11
“No contact” orders 11
THE ALLEGATIONS OF FABRICATED MATERIAL 12
Exhibit 95 12
Mother’s credibility 14
Conclusion23
CHILDREN’S RELATIONSHIP WITH FATHER 24
CHILDREN’S RELATIONSHIP WITH MOTHER 25
BENEFITS OF MEANINGFUL RELATIONSHIP WITH FATHER 25
BENEFITS OF MEANINGFUL RELATIONSHIP WITH MOTHER 26
RISK OF HARM BY FATHER 28
RISK OF HARM POSED BY MOTHER 32
Overview 32
Mother’s personality issues 33
Neglect of children 34
Inducing or asserting medical conditions 35
Mr N 37
Evaluation 37
WOULD FATHER FACILITATE MEANINGFUL RELATIONSHIP WITH MOTHER 38
WOULD MOTHER FACILITATE MEANINGFUL RELATIONSHIP WITH FATHER 38
COULD EQUAL SHARED PARENTAL RESPONSIBILITY WORK 39
COULD ANY FORM OF JOINT PARENTING PRACTICALLY WORK 39
Overview 39
The mother’s previous conduct 40
Text and iMessages 40
Stalking 42
Involvement of father’s employer and others 43
Exaggerated or dramatic medical claims 44
False allegations against father and Ms O 44
Text harassment of Ms O 47
The father’s and Ms O’s belief 49
Evaluation and conclusion 51
SECTION 60 CC CONSIDERATIONS 52
PARENTAL RESPONSIBILITY 56
WITH WHOM SHOULD THE CHILDREN LIVE 56
TIME AND COMMUNICATION WITH MOTHER 58
OTHER ORDERS 62
CONCLUSION 62
INTRODUCTION
This judgment arises out of proceedings concerning to the parties’ non-identical twin children, being S and G, born in 2012 and hence presently three years of age (“the children). By his Amended Initiating Application filed 23 September 2014, Mr Richards (“the father”) seeks orders that he have sole parental responsibility for the children, who would live with him and have no contact whatsoever with Ms Morris (“the mother”). He justified those orders on the ground that the need for peace and tranquillity in the children’s lives and home can only be achieved by a regime of orders wholly removing the mother from their lives.
Although by her Response to Initiating Application filed 7 October 2014 the mother sought orders for equal shared parental responsibility and equal time, by the conclusion of the proceedings before me her position had changed markedly, although the specific orders which she sought lacked detail and clarity. In substance however, she sought orders that the children live with her and spend all of school holidays with the father except for the Christmas holidays, when she proposed that the children spend half of those holidays with each parent.
The Independent Children's Lawyer supported the orders sought by the father.
BACKGROUND FACTS
The father
The father was born on in 1980 in Victoria and hence is presently 35 years of age. He grew up in the P Region until, at the age of 13, his family moved to the south coast of New South Wales. He left school in year 11 and commenced an apprenticeship which he completed after four years. He then started his own carpentry business and worked in that for four years. Next, he worked as a foreman on a large construction job, before commencing employment with Q Pty Ltd, where he worked as a site and project engineer on the E Town Hospital project. It was whilst working in E Town that he met the mother in August 2011 when he was 30 years of age.
The mother
The mother was born in 1983 and is therefore presently 32 years of age. Her father’s employment saw the family move regularly around Australia and she attended ten primary and high schools in various States. It appears she moved out of home (in Canberra) at the end of year 11 and travelled with her then boyfriend, Mr N, to E Town where she completed her HSC. She fell pregnant shortly after moving to E Town and in 2001 gave birth to her first child, H. (He is therefore now 14 years old.) At that time the mother had only recently turned 18 years of age. In 2003 she fell pregnant with her second child to Mr N. However whilst she was pregnant, that relationship terminated and she formed a new relationship with Mr R. Mr R worked in the defence force. Ultimately her second child, J, was born in 2004. (She is therefore now 11 years old.)
During the mother’s relationship with Mr R, she and he took in a number of foster children. I will consider some of the particular circumstances surrounding that in due course.
The mother and Mr R married in 2006. In 2006, the mother gave birth to her third child, K (who is thus presently nine years of age). However the relationship between Mr R and the mother deteriorated, in part because of a particularly difficult foster child and because Mr R’s work often took him away. There was also ongoing conflict with her first partner, Mr N. Mr R and the mother eventually separated in 2010.
Sometime in 2010 the mother met her next partner, Mr S, and after a brief time, moved with her three children to Perth in WA, to be with him. She quickly fell pregnant, but the relationship soon deteriorated and failed, after which she terminated the pregnancy and returned to E Town.
In August 2011 she met the father in E Town when she was 27 years of age and already the mother of three young children.
The relationship
Within a month or two of the parties meeting in August 2011, the mother and her children had moved in to live with the father. She soon became pregnant with the twins the subject of these proceedings. They were born prematurely at about 32 weeks gestation in 2012. By then the parties’ relationship had been in existence for less than a year. Inevitably there were considerable pressures on the household with five children, two of whom were born premature. On 24 April 2013 the parties permanently separated. By then the twins were just a little over one year of age. They remained living with the mother.
Post-separation
I will need to consider the post-separation circumstances in greater detail later in these reasons, however for present purposes it is sufficient to say that the parties differ considerably about relevant events. Particularly the father claims that almost immediately the mother engaged in an extraordinary campaign of incessant attempts to telephone him, and bombarded him with a mountainous output of email, text and other electronic communications. The mother denies that she so acted, or at least denies that she acted to the extent claimed by the father.
For her part, the mother claims that post-separation, the father joined forces with Mr N, and that they both have conspired to harass her by a variety of means which I will discuss in greater detail later in these reasons. Particularly she says that she has been the victim of a large number of malicious notifications to the police and the Department of Communities, Child Safety and Disability Services (“DoCS”) either made by the father and Mr N, or others acting at their behest, and that Mr N and the father have regularly hacked into her various electronic accounts and falsified material stored there. She also alleges that the father and Mr N have been involved in a very unpleasant campaign to smear her reputation amongst her friends and family. Now is probably an appropriate point to record that, as well as these proceedings being on foot (together with related domestic violence litigation) the mother is also presently engaged in very hostile Federal Circuit Court litigation with Mr N in relation to their two children.
In October 2013 the father commenced a new relationship with a work colleague, Ms O. They had known each other since the middle of 2011. The mother is suspicious that the relationship in fact pre-dated separation, but it is unnecessary for me to determine that.
There is no evidence to suggest that the mother is presently re-partnered.
Proceedings
In October 2013 the parties agreed to consent interim orders in the Federal Circuit Court which provided for the children to live with the mother, but spend increasing amounts of time during the day with the father. That time did not in fact immediately commence, and it was not until March 2014 when some limited contact commenced. By then it had been some nine months since the father had seen the twins.
In March 2014 the father and Ms O moved to Brisbane, and in consequence his time with the children again ceased.
In May 2014 the interviews for what proved to be the first Family Report were undertaken. For reasons which I will detail in due course, that report recommended that the care of the children immediately change to the father. The report is dated 27 June 2014, and was released to the parties (it seems) on 11 July 2014 by Judge Coker, when the matter was then in Court before his Honour. Also on that day (and hence presumably shortly after the release of the Family Report) Judge Coker ordered that the children immediately go into the father’s care and that he be permitted to relocate them to Brisbane. His Honour’s orders provided a limited opportunity for the mother to spend supervised time with the children once each six months for two hours at the E Town Contact Centre. Since then the children have remained living with the father (and Ms O) in Brisbane.
Also on 11 July 2014 Judge Coker transferred these proceedings to the Family Court of Australia for hearing on a date after 1 September 2014. The matter first came before me on 9 September 2014, on which occasion the mother initially pressed an application filed 1 August 2014 seeking the restoration of the prior arrangements which saw the children live with her. However the parties agreed that, rather than determining that application, the matter should be prepared for an urgent trial.
That trial commenced on 4 November 2014. It was estimated to require four days of hearing. The matter did not prove able to conclude within that time, however at that point all parties identified the need to obtain an updated Family Report, given the dramatic change in the children’s circumstances which had arisen since the release of the first Family Report on 11 July 2014. Ultimately a second Family Report was prepared dated 4 February 2015. By then, the mother had moved to C Town in New South Wales. The trial was due to resume before me on 2 March 2015, however on that occasion the mother pressed an application for an adjournment based upon her alleged ill health. The material in support of the application was inadequate, and on that ground I adjourned the trial to commence at 9:00am the following morning, with the expectation that in the intervening period, the mother would likely augment the material in support of her application for an adjournment. As it transpired, she did so, and on 3 March I adjourned the resumption of the trial until the sittings in E Town in June 2015. It had an estimated further hearing time of 4 days.
At the re-commencement of the trial, the mother sought to remove the Independent Children's Lawyer, which application I dismissed for reasons which I shall deliver contemporaneously with this judgment. The trial then resumed, however from an early stage, it became clear that there was a real prospect that the matter would take longer than the time allocated for it. On 3 June 2015 I was provided with a draft trial plan by the Independent Children's Lawyer which asserted that in fact a further eight sitting days were likely required. That would have meant that the matter could not conclude in those sittings, and would have needed to go over to later in the year. In part because of those concerns, and also my concerns that the amount of time which this matter was taking represented a disproportionate investment of the court’s resources to the disadvantage of other litigants, pursuant to ss 69ZN and 69ZQ of the Family Law Act I restricted the times available for cross-examination of further witnesses and otherwise attempted to ensure that the matter concluded within the then allocated time. As it eventuated, the matter finished on Thursday 4 June 2015.
THE ISSUES
With the assistance of the parties, during the course of the trial I identified the following as the principal issues in this case. That is to say they are the matters the determination of which are likely to substantially determine the ultimate outcome of the proceedings. They are as follows:
1.Has any material been fabricated, and if so by whom, and what impact does that have on the proceedings.
2. What is the nature of the children’s relationship with the father.
3. What is the nature of the children’s relationship with the mother.
4.What benefits would/do the children obtain from a meaningful relationship with the father, and how may such benefits best be facilitated.
5.What benefits would/do the children obtain from a meaningful relationship with the mother, and how may such benefits best be facilitated.
6. What, if any, risk of harm does the mother pose to the children.
7. What, if any, risk of harm does the father pose to the children.
8.Would the father facilitate a meaningful relationship between the children and the mother.
9.Would the mother facilitate a meaningful relationship between the children and the father.
10.Is the parties’ relationship and communication such as could practically support equal shared parental responsibility.
11.Is the parties’ relationship and communication such as could practically support each parent spending time with the children (whether under an equal time, substantial and significant time, or other, arrangement).
I will consider those issues after I have discussed relevant statutory provisions and legal principles, but before turning to a general traverse of the s 60CC factors, and a determination of what orders I adjudge to be in the best interests of the children.
RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
In the event that equal shared parental responsibility is ordered, then if it is both in the child’s best interests and reasonably practicable, the court is obliged pursuant to s 65DAA(1) to then consider whether the child should spend equal time with each of the parents. If it does not so order, then it is obliged pursuant to s 65DAA(2) to then consider, if it is both in the child’s best interests and reasonably practicable, whether the child should spend substantial and significant time with each of the parents. In either case, the matters which the court must have regard to in assessing reasonable practicability are enumerated in s 65DAA(5).
Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must consider in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]
[1]Albeit decided in the context of interim parenting orders, there seems no reason in principle why any different conclusion would apply in final orders.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
“Abuse” is defined in s 4 of the Family Law Act in the following terms:
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
“Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
Section 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2]
[2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].
The notion of unacceptable risk
It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?[3]
[3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
Obviously it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
Moreover, it is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko [2015] FamCAFC 146 at [30].
Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed. The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s best interests. Thus in Russell v Close (Unreported, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account. A recent re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].
That approach was taken one step further by the Full Court in Sedgley & Sedgley (1995) FLC 92-623, in the context of the husband who had for many years intimidated the wife, failed to return the child at end of access periods and otherwise behaved in an intimidating and bullying way with no regard to compliance with Court orders. At 82,259 the Court said:
Whilst the welfare of the child might require some continuity of contact with a non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.
Plainly however, as adverted to by the Court in Sedgley itself, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.
THE ALLEGATIONS OF FABRICATED MATERIAL
Exhibit 95
The father’s trial affidavit filed 20 October 2014 annexed a large number of alleged communications between the parties. It also annexed a number of documents said to have been otherwise authored by the mother. The mother denied the authenticity of much of this material and claimed that the father and/or Mr N had either caused it to come into existence or altered the contents by hacking into her email and other electronic accounts from time to time. The father denied any such activity by himself.
Exhibit 95 to the father’s affidavit comprised 582 pages of what the father said was every iMessage and SMS conversation between the mother’s mobile phone and the father’s mobile phone over an eight month period between 4 September 2013 and 2 May 2014. (It is plain however, that there were also messages that both pre and post-dated that period.) If authentic, far and away most of those messages were sent by the mother. Often many were sent in quick succession, with only a minute or less between them. If authentic, exhibit 95 therefore contains several thousand communications initiated by the mother.
In her reports, the Family Report writer, Ms L, expressed concern about the mother’s communications with the father, which she opined comprised a serious form of harassment. This therefore apparently led the mother to believe that the authenticity of these communications was a critical aspect of the proceedings. Indeed it is fair to say that that has been, at least since the conclusion of the first four days of hearing, the principal preoccupation of the mother in this case. This led her to retain and obtain a report from a relevant expert witness, Mr U. That report was only made available to the parties on the second last day of trial. Nonetheless, neither the father nor the Independent Children's Lawyer objected to the admission of that report into evidence, or required Mr U for cross-examination. No doubt that was in large part because his report did not achieve that which the mother apparently thought it might, at least as regards the iMessage and SMS communications in exhibit 95 to the father’s trial affidavit. What Mr U appears to have done is to compare a small sample of those records on relevant days with other records produced pursuant to subpoena by Telstra. Relevantly he said “there is an inconsistency identified on 31 December 2013. On 31 December the affidavit states that Mr Richards received an SMS from Ms Morris but there is no Call Detail Record showing such an SMS in the Call Record Detail file provided by Telstra.”
Mr U went on to conclude that “it can be assumed with a very high degree of confidence that no SMS was sent” on 31 December as exhibit 95 would otherwise suggest.
It is instructive to consider the relevant SMS purportedly sent on 31 December 2013. According to the exhibit, that message was sent by the mother to the father at 9:16pm on that day. The message commences “happy New Years. May 2014 bring you all as much happiness and joy with love and hope as 2013.” It concludes with “happy new year from all of us xxxxx.” It is in the nature of a non-personalised general greeting which someone might send out to more than one person simultaneously on an event such as New Years Eve. It is a most unlikely to be manufactured by a malevolent hacker, or a message of a kind that would motivate someone to falsely pretend that they received it when they had not. It does not paint the mother in an untoward light. It is quite neutral.
The same may be said for some hundreds of messages purportedly sent by the mother to the father contained within exhibit 95. Some in fact paint her in a good light. It is difficult to discern why either the father and/or Mr N would go to the trouble of falsely creating such purported communications given that they do the mother no harm.
Mr U also reported in relation to the accuracy of the various iMessages, however he said “there is no easy way to verify these records because they are presented as a print of a text file of unknown type.” He said that an examination of the “log file or graphical representation of downloaded messages before the PDF file was generated .. would give a higher degree of confidence in the validity of the messages.” That falls a long way short of being any reason for doubting their authenticity.
There are two other relevant observations pertaining to this matter. The first is that during the course of her initial Family Report interviews with Ms L, the mother discussed the relevant communications with her. She did not at that time deny their accuracy or authenticity except insofar as they allegedly showed her claiming that the children had been diagnosed with serious illnesses. She did not then claim that the other messages were falsified. She only started to do so later in the litigation history, perhaps because she perceived that they were assuming a significance which she hitherto had not identified or anticipated.
The second matter is that in the course of the trial, I inquired of the mother which of those messages she disputed the authenticity of. She was remarkably general, and very reluctant to descend to any specificity. She would not be drawn in relation to the authenticity of individual entries.
The only evidence suggesting these communications are falsified or otherwise not authentic is the mother’s testimony. That therefore squarely raises the issue as to her credibility.
Mother’s credibility
The father’s evidence was that the mother had created fanciful and elaborate untruthful stories since the commencement of their relationship. Some of the first were stories about her family. They included the mother telling the father that she had two (or perhaps three) brothers who had, according to the father’s account of the mother’s story, served in the Australian military, including one being killed in Afghanistan. It was common ground at trial that the mother does not have, and has never had, any brothers. However the father’s evidence was that during the relationship he received an email from someone purporting to be the mother’s brother “Mr V” on 12 November 2012. The email was in evidence. It was plainly authored by someone with relatively current knowledge of the parties’ lives. Also in evidence were a number of subsequent text messages apparently from the same person.
It transpired that the “brother” came to visit the parties on New Year’s Eve in 2012. There were some oddish text communications between “Mr V” and the father leading up to that visit, which in any event proved to be very short. Although it had been arranged that the parties and “Mr V” would meet for a meal the next day, that in fact did not transpire.
Prior to separation the parties had been planning their wedding. Bookings had been made with financial consequences. Also separation necessitated discussion about other household finances.
On 8 May 2013 the father sent the mother an email dealing with those matters. In relation to “wedding accounts” the father’s email referred to the final payments due for the wedding and reception venues, with the note in relation to both that “(you advised this was made by your brother)”. Later that day the mother responded. She did not deny or contradict the father’s reference to her brother, but rather said “wedding never said it was paid in full…”
In the affidavit material the mother relied upon before me, this allegation was not specifically traversed, but in cross-examination she denied ever pretending to the father that she had a brother, and said that she did not know who the “Mr V” was who had been emailing the father.
However it is not just the father who alleges that the mother informed him that she had a brother. Most interestingly, one of the mother’s own witnesses, Ms W, was asked in cross-examination what she knew of the mother’s family. She said that the mother had two sisters and one brother. She said that the brother was in the military and named Mr X, although she had never met him. Later the mother said in her evidence that her explanation for this evidence was that Ms W must have been “mistaken”.
There is also reference to the mother having a brother in an email from a police officer to the mother’s then counsel (mother’s tender bundle page 165) but this was not explored during the trial in cross-examination of the mother.
There were several other untruths allegedly told by the mother to the father early in the relationship, including that her father was dead (he is still alive) and that her biological mother was a paediatrician in E Town (her mother and biological mother are the one person, who is not a doctor, and lives in C Town). She also allegedly told the father untruths about the parentage of her earlier children, including that H was in fact her sister’s child. The father annexed to his affidavit an email sent to him by the mother on 11 December 2012 with the subject of “Birth Certificate” which had attached a photograph of part of a birth certificate which purportedly showed H’s mother as “Ms AA” who is the mother’s sister. He says she also falsely claimed to have an investment property, and further says that the mother falsely told him that she was a beneficiary of a trust associated with the Johnson & Johnson pharmaceutical company. The mother denied telling the father any of this.
To my mind, the email of the father of 8 May 2013 stands out as a critical piece of evidence as to the mother’s propensity to tell stories. It clearly demonstrates that the father then believed that, not only did the mother have a brother, but that he was a current part of her life to the point of paying for parts of the parties’ wedding expenses. The mother did not suggest that the father’s email to her had been falsified, and it was not part of annexure 95 to the father’s affidavit (which the mother did challenge).
The mother’s credibility was also seriously challenged by the evidence of one of the father’s witnesses, Mr BB. His evidence was rather peripheral, in that he was a former neighbour of the parties who gave some evidence about his observations of the mother’s behaviour before and after separation. He had never socialised with either of the parties, and save for an episode when one of the parties’ dogs attacked one of his dogs, had no axe to grind against either the mother or father.
In cross-examining him, the mother challenged Mr BB on his evidence that he would often hear her yelling and swearing at the children when the father was not home, and yelling at the father when he was. The mother suggested to him that the configuration of the two properties made his alleged observations impossible. He denied this convincingly. The detail, both of that refutation, and on other points in his evidence, was impressive. I accept his evidence in its totality, and reject the mother’s challenge to it. His evidence tells against the mother’s accuracy, recollection and truthfulness.
There were several other poor indicators of the mother’s truthfulness, or at least the reliability of her evidence. As I have earlier indicated, whilst in a relationship with Mr R, he and the mother took in foster children. At paragraph 139 of her affidavit filed 19 May 2015 the mother said this:
139. I have found it exhausting to gather the plethora of external evidence required to defend myself against all the various and extraordinary allegations which [Mr Richards], [Ms O] and the [Ns] have contrived. For example, I was wrongly accused and the Family Report writer recorded [Mr Richards’] story that I was disqualified as a foster mum with Child Safety. This is simply untrue. I was a former foster carer and was from 2002 until 2009. During those 7 years I fostered 8 children. During that time there was only one notification against me, which was unsubstantiated – and that was because there was an old sandwich found in one of my foster children’s bag (a 6 year old girls bag) and a question as to how long it was in there. It was unsubstantiated as it was determined that it was simply an old sandwich which the foster child had not removed. I had given the child a fresh sandwich which was there as well. It was not presented by the Independent Children's Lawyer or the Family Report writer. Had they examined the entire history contained in the file, it shows that a number of the allegations were about incidents that occurred when the child was not in my care but rather when the child was in respite care. Further, the allegations were addressed and dismissed by child safety officers who came to my home and specifically noted the child clean, house clean, hair plated and washed. The only reason I stopped doing foster care for a period in order to focus more time on my own growing family and to allow time to work and study.
It is not controversial that the last foster child placed with the mother and Mr R was challenging, as she suffered from foetal alcohol syndrome. However the mother’s evidence was that she voluntarily relinquished the child, and not that she was removed from her care.
The contemporaneous Department of Community Services, Child Safety and Disabilities (“DoCS”) records do not support that version. Particularly in the Independent Children's Lawyer’s tender bundle at pages 82 to 97 there are contemporaneous DoCS’ records relating to that episode. The assessment contains a very different version to the mother’s, including the following:
[The mother] was the primary carer, as such, it was her responsibility to attend all required appointments and meet all the subject child’s daily care needs. When issues have arisen particularly around being able contact the foster carer, it appears she attempts to deflect blame / responsibility from herself but to other stakeholders, being [Z School], Life Without Barriers, Child Safety, and Act for Kids. However, several different people within each of the stakeholders reporting difficulties in contacting [the mother].
Throughout the investigation, several sources provided information regarding [the mother’] lack of willingness or ability to attend to the needs of the subject child whether she was sick and required to be picked up from school, or needing to attend various medical or therapeutic support meetings. It was reported that [the mother] has previously stated that she was unable to attend as she was waiting for a Veterinarian for her horse.
While [the mother’s] intentions with regard to attempting to provide the subject child with some independence in making her own lunch, it is evident that this activity may not be monitored or supervised as required for an unknown reason. This is evident as the subject child has gone to school with a very mouldy sandwich, and bruised fruit.
The outcome of this assessment in relation to [the child] is Substantiated – breach of standards. Persons named as responsible for harm and unacceptable risk of harm are [redacted, but clearly including the mother];
Throughout the assessment, there was information to suggest the children have been harmed and that they are at unacceptable risk of harm due to the carers denial, minimisation and inconsistent explanations in relation to the notified concerns.
On 29 July 2010, DoCS wrote to the mother advising of the substantiated outcome of its investigation, and particularly “the Departmental Assessment is that the child has experienced harm and is likely to experience future harm and your actions have contributed to the harm or risk.”
The mother’s evidence that the incident was triggered only by a mouldy sandwich found in the child’s school bag is patently incorrect and untruthful, as is her assertion that she (seemingly) unilaterally determined to stop fostering children, which decision was quite unconnected with the DoCS’ investigation.
Another cause for serious concerns about the mother’s candour, and hence the reliability of her evidence more generally, arose from her failure to properly disclose the very troubling behaviours of H, and her downplaying the significance of such material relating to H that she did disclose.
In paragraphs 198-200 of the mother’s affidavit filed 16 October 2014, she said as follows:
198. It should also be noted that the children who have always been with me primarily have never had any behaviour issues, school issues or mental health issues. It was not until 2011 when [Mr N] started emotional abuse towards [H] did [H’s] behaviour change dramatically.
199. Whilst faced with the hardest decision as a parent, as a family upon a number of further allegations and harassment H could no longer cope in the family home, it was decided after [Mr N] provided Mental health with a portion of the Family Report stating “the mother has Munchausen by proxy and psychiatric disorders” that the best way to prevent [H] from further harassment was to move him to this grandparents who are able to isolate him from the constant emotional abuse as shown in mental health records before the court.
200. [H] has an exceptionally close relationship with his Grandparents and since his re-location his father has no longer been able to stop psychological assistance.
However the facts behind H’s move to his grandparents were far more alarming than that somewhat benign explanation, which really blames Mr N.
From Queensland Police records (Independent Children's Lawyer tender bundle page 147) it seems plain that H had been demonstrating highly concerning behaviours in the mother’s care from at least 23 March 2014, when, whilst at her home, after the mother asked him to sit down, his behaviour escalated to the point where he threw four knives at family members, fortunately without injury (Independent Children's Lawyer tender bundle p 5). Police attended. By then H had retreated to his bedroom with some kitchen knives and locked the door. Apparently police had to threaten to taser him before he dropped the knives and came out.
H was referred for psychiatric assessment. In that assessment the mother reported that she felt that the trigger for H’s behaviour was her saying “no” to him (Independent Children's Lawyer tender bundle page 207).
H was then referred to a counselling organisation. However before he attended his first appointment, news of the 23 March episode had reached his school. On 26 March 2014 the school wrote to the mother expressing concern not only about that event, but also another situation which “involved drugs”. The school noted both events, but advised that they proposed to take no further action at this because H’s attendance at the school has remained satisfactory (mother’s tender bundle page 132).
However it appears as though the school continued to have concerns in relation to H’s behaviour surrounding drugs, and particularly it seems, approaching other students “regarding his involvement with drugs”. For that reason, by email of 22 May 2014, the school advised the mother that H was suspended from school “pending an Enrolment Committee Meeting which may result in his expulsion from the college” (mother’s tender bundle page 131). It is unclear whether ultimately he was expelled from the school, but certainly he thereafter he attended another school.
H’s first counselling appointment was on 20 June 2014. H told the therapist that he gets angry “when his mother says things that doesn’t (sic) makes sense to him like when she threatens to send him to CC Boarding School when he was expelled from school.” The report continued: “He reports him impulsively kicking holes in the wall amongst arguments with mum.”
By the time of H’s third therapy session on 31 July 2014, the children the subject of these proceedings had been removed from the mother’s care by order of Judge Coker. That had both angered and upset H. He reported that the only thing that helped him deal with those feelings was “riding on his scooter.” H then told the therapist he no longer wanted to attend for counselling. Later that day the therapist telephoned the mother (at H’s request) and told her H no longer wanted counselling.
This is, of course, very different to the mother’s assertion that H’s father stopped him from accessing psychological assistance.
However H’s problematic behaviours continued. On 23 August 2014 he was left at home by the mother. He told police when later interviewed by them that the mother had told him that she had paid off a scooter that had been on layby. It had not been paid off. H became angry upon learning this, and once he returned home, started throwing chairs around the house and emptying boxes within the house. The mother arrived home and H argued with her and chased her around the house. The mother called a friend for help. When she arrived H had a knife in his hands but dropped it. Between the pair of them the mother and her friend managed to get H outside the house and lock the doors. H tried to get back inside, however the mother resisted by leaning against the door. Somehow H got his arm between the door and the frame. No serious injury was sustained. The friend called police. The police report records “[the mother] continually asked for advise (sic) and assistance as to how to deal with [H].” No charges were laid.
Then only four days later on 27 August 2014, when driving with the mother in her car, H became upset and starting punching the back of the car seat. The mother called into a friend’s home, and she left H in the car, but he chased after her. She then ran into the friend’s house and closed the security door, but H initially kicked at it, and damaged it, before going to obtain a shovel. In the meantime the mother and her friend had closed the front door, but H attacked both the security door and the front door. Unable to gain entry, he then tried to do so by banging on a window. After trying to gain entry via the door again, he relented and retreated to the car. The police were called. Eventually H was released into his mother’s care.
Some four days later on 31 August 2014, another incident occurred. The detail of the facts are unclear, but even on the mother’s version, she and H argued over the scooter, and H started yelling, emptying boxes and threw a vacuum cleaner. The mother called a friend for help, who attended, but this didn’t calm H down and he became even more aggressive. The child kicked the mother and hit her on her back. The friend intervened, seeming physically “scruffing” (or on H’s version choking) him. Police were called, seemingly by H. No charges were laid. It seems that shortly thereafter, H went to live with his paternal grandparents in Canberra. Plainly that was in response to him being completely beyond the mother’s ability to control. Insofar as the mother asserted in October 2014 that it was to ensure that H’s father could no longer stop H obtaining psychological assistance, or some other reason, that is simply untrue. I wholly reject the mother’s evidence to that effect.
However that is not the end of the matters relating to H and the mother’s credit. On 22 December 2014, after the first four days of trial, the mother attended the interviews for the second Family Report. She then sent emails to the Family Report writer on 14, 16, 20 and 21 January 2015. Her counsel also sent emails to the Family Report writer on 16 and 23 January 2015. In the second Family Report at paragraph 28 the writer said:
28. [The mother] explained that [H] had relocated to live with his maternal grandparents in [C Town] in late 2014. She said his mental health and school attendance had improved immediately since the relocation because he was no longer exposed to conflict between herself and [H’s] father, [Mr N]. She said [Mr N] was able to be polite when communicating with the maternal grandparents in order to see [H] but he was not polite to her. [The mother] said the children [H], [J] and [K] were not able to attend the Brisbane Registry as they were spending time with their respective father and maternal grandparents.
On 19 May 2015 the mother filed an updating affidavit. At paragraphs 62 to 71 she said this:
62. [H] was labelled a criminal, and his behaviour was a direct result of the mother, according to the Family Report in May 2014, this was again based on ascertain (sic) from [Mr Richard’s] and false allegations.
63. It was stated that the mother was not addressing the needs of [H], that if the twins remained in the care of their mother they would live a life of crime.
64. In April 2015, Exhibit 71 “pychiartric (sic) Report” [H] has continued with his treatment finally a diagnosis was made of POST Traumatic Stress Disorder.
65. The Psychiatrist confirmed significant abuse from [H’s] father, further confirmed flashbacks, nightmares, cue avoidance, which is why when [Mr N] contacts [H] or calls the police multiple times for welfare checks [H] escalates.
66. [H] is now achieving at school again, he is on a mix of anti-psychotic, sleep medication and mood stabiliser.
67. [H] is with his grandparents and receives regular therapy, counselling and has access to the gp weekly.
68. The recommendations from the social worker, psychiatrist, Doctor as shown in reports are that [H] does not have any future contact with his father, while I find this sad I have to follow what is advised, I have continued to provide updated information and photos to [Mr N] despite receiving no response as I am hopeful he will one day seek treatment himself to try to re-build the relationship with [H].
69. [J] continues to have regular phone contact with [Mr N], I encourage her to call whenever she likes sadly again [Mr N] as shown in his affidavit before the court does not allow the child to call outside of set times.
70. [H] while went through a twelve month spiral of issues he is a child and you never give up on a child I will continue to support and seek any avenue for assistance for [H]. I am deeply concerned though that he was labelled a criminal and put into a category where he would continue with his behaviour despite evidence suggesting there was more to his issues.
71. I also refer to Exhibit 22 “Child safety records” clearly showing Mother is acting protectively and appropriately, the school failed to locate any evidence of drugs at school, the mother has continued to obtain mental health support and treatment for [H]. What is important in this report is that it was [H’s] father making the allegations of Drugs at school, what father does that when they live 2000km away.
The reference to exhibit 71 in that extract was then to the mother’s proposed tender bundle. Ultimately the psychiatric report was contained at pages 157-8 of her tender bundle as handed up. Relevantly it provides as follows:
[H’s] aggression /violence has resulted in his choking his mother recently, recent admission to a psychiatric unit in [DD Town] and his being charged with some offences including stalking with intimidation and breach of a domestic violence order for which he has cases outstanding in the courts.
That was the only indication in the mother’s material as to certain events which occurred on 20 January 2015. Those events are alarming; the best record of them is in material produced on subpoena by New South Wales Police. The names of the victims, the maternal grandparents, were redacted in that document as it appears in evidence, but it is not in contest that indeed the grandparents are the victims and it is their names who have been redacted.
On the day in question the mother, the maternal grandparents, H, Ms Morris and J were all at the maternal grandparents’ home. H demanded the mother give him his scooter. The mother refused to do so until he cleaned up his room. H said that he had done so. An argument ensued. The maternal grandparents became involved. H ran outside the house and pushed over two bikes, before kicking the maternal grandparents’ motor vehicle, denting the bonnet and marking a door. The grandfather intervened and H tried to punch him without success. H then ran inside, in the course of which he pushed his grandmother over into a pot plant. Once inside he picked up a dining chair over his head. The grandfather invited him to go outside, and then went outside to wait for him. After two minutes, H emerged holding a knife with a 30-40cm blade over his head. He pointed the knife at someone (their name is redacted, but it was likely either the grandmother or a sibling) and said to the mother “give me my fucking scooter”. Eventually the scooter was given to H and he left, throwing the knife onto the driveway as he left, shattering its handle.
Police were called. The report says “whilst attempting to explain the legal proceedings and procedures to [the mother].. she stated “I work in legal, I am aware of how it works” whenever police mentioned a procedure. Of course the mother has never worked in a legal firm or had legally related employment. She has commenced some legal studies, however plainly what she told the police was untrue.
However it is not that little lie which is the most telling feature of this – it is that but for the Independent Children's Lawyer subpoena to New South Wales Police, the truth of the horrific event would never have been revealed. At most, there would have been paragraph 200 of the mother’s affidavit of 16 October 2014 (“H has an exceptionally close relationship with his grandparents…”) and the psychiatric report references – at best oblique, at worst non-existent – to the events of 20 January 2015. I say possibly non-existent references because in fact as a result of the 20 January episode, an apprehended violence order was obtained in which the mother and grandparents were the named aggrieved, but that is only indirectly referred to in the psychiatric report in the context of it having been breached by H, and resulting in criminal charges both for that breach and stalking with intimidation. The evidence does not contain any other reference to those obviously post 20 January 2015 events, and moreover there is no other evidence as to H choking the mother “recently” either.
To the extent the mother put the report in, it was only to try and persuade me that H’s problems are his father’s fault, because his alleged violence to H caused diagnosed Post Traumatic Stress Disorder. Its inclusion in the evidence was not to disclose the alarming events of 20 January 2015.
I am satisfied that mother deliberately refrained from putting on evidence containing any detail about H’s recent outbursts, because she knew it might reflect poorly on her, or otherwise hinder her case to obtain the return of the children the subject of these proceedings into her care. She was not being candid. She was withholding highly relevant information, and in that sense was plainly trying to mislead me. She was being untruthful.
In the course of preparing her report, the Family Report writer undertook a detailed comparison of the mother’s various assertions with the documentary material. She also interviewed the mother. At paragraphs 85 to 86 of the first Family Report she said:
85. It also seems that [the mother] may regularly use deception to a minor degree in her daily communication by adding superfluous detail about herself and her life which create interest or seriousness. For example, in her medical records there are numerous reports which are incongruous with known facts such as her report of having to use “plane travel every week” and being a “social worker”. This tendency to add false, unnecessary or implausible information was also observed during the report interview.
86. [The mother’s] retrospective appraisal is also difficult to rely on. She said in the report interview that she has a positive co-parenting relationship with [Mr R] and a congenial separation because they grew apart. [The mother’s] notifications of [Mr R] contained in the CSS subpoenaed material (2010) state that she lives “in fear of her life” from [Mr R] because of his severe violence and threats to “slit her throat” and shoot her and threats to drive his vehicle through the family home.
I accept those observations as accurate, partly because they are supported by the relevant documents, but also because they are consistent with my own observations and views of the mother, and her evidence.
I am satisfied that the mother’s evidence needs to be treated with great circumspection. Unless it is inherently probable, or not in contest, or corroborated by contemporaneous or independent third party compiled material, I am not prepared to accept it as likely to be truthful.
Conclusion
The only evidence that exhibit 95 to the father’s trial affidavit is not an authentic and complete record of the text and iMessage communications that passed between the mother and father over the relevant period is the mother’s contested testimony. Her evidence is not inherently probable. It is not corroborated by contemporaneous or independent third party compiled material. I reject her evidence that the entries in exhibit 95 are not authentic, and I am satisfied on the balance of probabilities that they are authentic.
Some other records not contained within exhibit 95 are also not admitted to be authentic by the mother, for instance an RSVP dating site entry purportedly relating to her. However the authenticity of that is not a matter which I need to determine.
I have not overlooked the fact that the mother has, largely by way of an affidavit of a Ms EE filed by her on 2 March 2015, highlighted that it appears as though on occasions some emails purportedly sent by the mother, when compared with other emails, would support the conclusion that the email in question has been modified by a person unknown. However to the extent that any party is identified as likely being the modifier of that email, it does not point to the father, but rather Mr N. I will consider the father’s association with Mr N when determining the risk, if any, the father poses to the children, but for present purposes I am not persuaded on the balance of probabilities, even if indeed some emails were modified, that was done by the father.
In submissions, the mother conceded that if I were persuaded that she indeed had sent all of the messages purportedly sent by her in exhibit 95, that would comprise harassment of the father. As I have indicated, I am satisfied that indeed those messages are authentic, and I am further satisfied that they comprised severe harassment of the father. I will discuss the significance of that harassment when discussing whether these parties could possibly co-parent later in these reasons.
CHILDREN’S RELATIONSHIP WITH FATHER
The father’s own evidence is that he enjoys an excellent relationship with both of the twins. He is supported in that regard by evidence from Ms O and Mrs Richards, the paternal grandmother. It is also strongly supported by the most recent Family Report of Ms L, who observed the children interacting with the father and Ms O. She reported “[G] and [S] displayed direct eye contact with both [the father and Ms O] and were highly interactive with each smiling and reciprocating play…. Both [Mr Richards] and [Ms O] encouraged the children’s play and responded to their affection and approach. The children displayed bright, inquisitive, smiling interactions with the adults.”
During the report interviews, Ms L reintroduced the twins to the mother. I will consider that in detail in due course. However for present purposes, both the father and Ms O gave uncontradicted evidence that the consequence of the twins spending even that brief time with the mother, was that they became distressed and had aberrant behaviour for a period thereafter. It is plain that in the aftermath, the children obtained comfort and security from both the father and Ms O.
All of this material persuades me that the children do indeed have a meaningful relationship with the father, and he is presently their primary attachment and source of security.
CHILDREN’S RELATIONSHIP WITH MOTHER
The mother led evidence from a number of witnesses, including child care providers, about her interaction and relationship with the children prior to them being removed from her care. That did not appear to excite any substantial controversy. As but one illustration, in the affidavit of Ms W filed 28 April 2014 at paragraph 21 she said “[t]he children are always clean and tidy. I have seen [the mother] with all the children and watched how happy they are. They appear to be happy and the children share a strong connection with each other and their mum.”
In the first Family Report interviews, the mother’s interaction with the children was observed by Ms L. She made no criticism of what she observed of the relationship between the mother and the children.
However by the time of the interviews for the second Family Report, the mother had not spent time nor communicated with the children since they were taken from her care on 11 July 2014, a little over five months earlier. At paragraphs 44 to 51 of that report Ms L recited her observations, which largely commence with the children ignoring the mother and not apparently recognising her. She observed that the children “did not voluntarily return to [the mother] for more physical interaction.” Moreover, there was the peculiar way in which Ms Morris brought the interaction to an end. Ms L records it as follows:
[The mother] approached [G] and said “[G] did a poo” and she said she would end the observations so he could get changed.
In fact it later transpired that G had not soiled himself.
Further, as referred to earlier, the uncontradicted evidence of the both the father and Ms O is that for some days afterwards, both of the children were very upset and concerned about being left alone. Ms L opined that the children may have experienced attachment strain from seeing Ms Morris “which may have reactivated earlier attachment strain when the children transitioned from living with Ms Morris to Mr Richards.”
Be that as it may, I am nonetheless not persuaded that the children presently enjoy a meaningful relationship with the mother. Rather they barely, if at all, recognise her. In all candour however, that is only to be expected given that they have had no contact with her since 11 July 2014 other than in the course of the interviews for the preparation of the second Family Report.
BENEFITS OF MEANINGFUL RELATIONSHIP WITH FATHER
At paragraph 55 of her second Family Report, Ms L said:
[The children] continue to display their strongest security and comfort seeking behaviours towards [the father]. Typically, the type of security and comfort seeking behaviours becomes pronounced under pressure such as being around unfamiliar adults or environments, and when distressed or feeling frightened.
At paragraph 57 she continued that “the children also displayed a range of positive attachment behaviours (direct eye contact, calm, physical proximity, confidence to share experiences or objects, affection) reciprocal, interactive behaviours and expression with Ms O and [the father]. Ms O was consistently responsive, warm, unobtrusive and reassuring with the children. However [the father] tended to be prioritised by both children for security seeking when [the mother] was in the room…”
The mother’s material contained a number of statements from various witnesses as to the father’s lack of involvement in the children’s lives prior to separation. Even if that be true – and it is unnecessary to determine that – plainly that situation has dramatically changed. By all accounts, the father is now significantly child focussed and involved in the children’s lives.
Moreover, the father has a sustained history of employment, including in highly responsible positions within major corporations. There is every reason to think that the children would benefit from a meaningful relationship with a secure, successful and loving parent.
I am satisfied that the children would obtain both physical and emotional benefit from such a relationship with the father. I am satisfied that the means by which those benefits can be best obtained is by having regular face-to-face experience of him, in all facets of their lives, in an environment free from conflict.
BENEFITS OF MEANINGFUL RELATIONSHIP WITH MOTHER
I have already adverted to the considerable body of evidence from a number of witnesses called by the mother, that the mother presented as a caring and loving parent to the children whilst they were living with her. It appears as though she was the primary attachment figure in their lives up until 11 July 2014. That said, her care of the children was the subject of some criticism both by the father and Ms O. For instance they asserted that the children were frequently filthy whilst in the mother’s care, and that she therefore poses a risk of neglect to them. I will consider risks associated with the mother in due course.
A convenient starting point is the general proposition that ordinarily children do benefit from having a meaningful relationship with both of their parents, barring any unacceptable risk which attaches to them. However Ms L at paragraph 63 of the second Family Report questioned whether there was “tangible positive benefit to the children from redeveloping an emotionally close relationship” with the mother. This was a theme which Ms L had initially taken up in the first Family Report. At paragraph 88 she said:
In summary if [the children] continue to live primarily with [the mother] the report writer has no confidence their basic wellbeing will be consistently met and they will likely continue to experience unnecessary medical symptoms, assessments and treatments. [The mother] constant involvement in complex conflict situations and relationships and the mental health difficulties of [H], would certainly prevent a week-to-week focus on the children’s emotional and developmental needs.
At paragraph 90 she continued:
[The mother’s] poor insight into her contribution to aggression, deception, manipulation and conflict, mean that her regular involvement in the children’s life or [the father’s] will be very likely to undermine the children’s wellbeing, [the father] parenting and mental health.
At 91 she said:
This is one such situation where retaining [the children] in [the mother’s] care will certainly reduce their wellbeing in every developmental domain, increase the risk of adult criminality and likely result in a severely insecure attachment relationship with [the mother].
In her oral evidence, Ms L also focussed on the fact that the only means she could identify of them having a relationship with the mother would necessarily require the parties to continue to interact. Thus, when asked what her view was as to the time that the children should spend with the father if they were to live with the mother, she said that had grave concerns in such a situation for the children’s development in every domain, including social, health, education emotional and personality development. It was particularly the prospect of the children being continually exposed to the involvement of police and child protection and the like that would be counterproductive and concerned her.
I accept Ms L’s evidence in these respects. However I do not construe that evidence as saying that the children would obtain no benefit from a relationship with the mother, if orders could be fashioned which overcame those difficulties. Indeed in the first Family Report at paragraph 94, Ms L opined “.. it is possible that risks of manipulation and emotional abuse of [the children] might be prevented by allowing infrequent supervised time with [the mother] so that they had the benefit of knowing her.” It was this which informed her recommendation that there be two hours of contact approximately two times a year supervised at a Contact Centre.
I am satisfied that, provided the mother does not pose an unacceptable risk of harm to the children, and orders could be fashioned to overcome Ms L’s concerns that they would indeed obtain some benefit from a relationship with her, even if it only be a knowledge of their biological parent, to assist them in forming their adolescent and adult identity.
RISK OF HARM BY FATHER
Plainly, the mother does not assert that the father presents a risk of physical harm to the children. As recently as November last year, she was pressing for an equal shared time arrangement, which is inconsistent with the father posing any risk. Even at the conclusion of the trial, she proposed that the father should spend significant blocks of unsupervised time with the children. To the extent that her position had changed, it was only because she had relocated to C Town, and the father lived in Brisbane. I am not satisfied that the father poses any risk of physical harm to the children.
However somewhat indirectly, the mother asserted that the father posed a risk of emotional harm to the children in that he was seeking to exclude the mother from their lives by falsely creating material which painted her in a poor light and otherwise conducting a campaign against her, all with the view of making her look like a bad parent, and hence providing justification for the orders which he seeks.
I have already discussed the authenticity of the material contained at exhibit 95 to the father’s trial affidavit, and reject the mother’s assertion that the father has falsely created such communications with a view to putting the mother in a bad light. However that was not the only basis upon which the mother advanced her case. Principally she relied upon two other matters, firstly what she claimed was a long history of false and harassing notifications having been made by the father or others acting in concert with him to DoCS, and secondly and most recently, a campaign to vilify the mother both to the children’s child care providers and the mother’s friends and associates.
Turning firstly to the allegation that the father or others acting in concert with him have sought to harass the mother by making false notifications to DoCS, it is indeed the case that the mother has a substantial history with the Department, not only in relation to these children, but all of her children. It appears as though there has been something in the order of about 48 notifications in total made in relation to the father’s and Mr N’s care of the children from time to time. That said, the notifications contained, it seems, many individual allegations. Whilst they were not placed into evidence, they were analysed by Ms L. She said that about eight of the notifications were in relation to the mother’s care of the children the subject of these proceedings, and another four were more generally in relation to all children in her care. A further 15 notifications related to the mother’s care of J and/or H, four related to the foster child discussed earlier in these reasons, and two were difficult to determine. There were then two notifications in relation to the father’s care of the children the subject of these proceedings, and five in relation to his care of J and H. There were eight notifications made in relation to Mr N pertaining to J and H.
On 6 November 2014 I gave leave to the parties in this matter to ask questions of the father which might disclose the identity of, or lead to the identification of, relevant notifiers to DoCS, together with a grant of leave to tender material containing evidence of the identity of such notifiers. I gave written reasons for that unusual ruling on 19 November 2014, and do not stay to repeat those here (Richards & Morris (Identification of Notifier) [2014] FamCA 1027.)
In consequence of that ruling, the number of notifications from those on the “father’s side” against the mother can be ascertained at no more that 12; those emanating from the “mother’s side” against the father are probably no more than two.
In cross-examination it was suggested to the father that the notifications against the mother pertaining to the children the subject of these proceedings were either him or made by others at his instigation. He denied that, and further denied that nearly all of them came from people that he knew. Likewise he denied that he had ever tried to persuade people to make notifications on his behalf. It was suggested that one of the notifiers was his sister in Melbourne, but the father explained that she had made a notification arising out of an event that occurred when the mother and the children stayed with her some time after separation. He specifically denied that he attempted to persuade his sister to notify and said that so far as he was aware, all of the persons who had made notifications of the mother had done so independently of any direction by himself.
On the following day, then counsel for the mother returned to the theme in cross-examination of the father. He suggested to the father that he was in a “tag team” with Mr N intended to keep the mother on the wrong foot by having her constantly having to deal with DoCS’ investigations into her. The father denied that suggestion. He likewise denied that he swapped information with Mr R about the mother.
It can therefore be seen that the attempt by the mother to suggest that there was some orchestrated campaign of notifications against her fell flat. Other than the identity of the notifiers and the number of the notifications, there is little evidence from which it could be inferred that the notifiers were acting in some form of concert with the father. Moreover, plainly there have been legitimate matters of concern which the mother has demonstrated from time to time in relation to the children in her care.
The allegation which the mother makes in relation to the father in this respect is a serious one. I am not persuaded on the balance of probabilities that it is established.
That then leaves the mother’s claim that the father has been involved in a campaign to smear her. The campaign, if that be the correct word, appears to have had two main prongs to it. The first was a letter that was sent to a number of child care providers in the E Town area. Exhibit 6 to the mother’s affidavit filed 16 October 2014 was a photocopy of an envelope, a type written notice and three unclear photographs.
Evaluation and conclusion
I am satisfied that the mother has in the past severely harassed the father to the point where he is no longer prepared to contemplate her having any form of involvement in his life. He simply cannot contemplate any form of interaction with the mother, whether in relation to the children, or at all.
Any form of joint parenting of these children is indeed problematic, to the point of being probably impossible. However in the ultimate equation, it is unnecessary to determine whether it is practical: the father has denied that he would be involved in anything by way of parenting orders that involved the mother, and in the event that any such orders were made, would not avail himself of them.
There is no reason to doubt the father’s intentions in this respect. The lengths to which he and Ms O have gone to immunise themselves from any interaction with the mother are considerable and speak to their genuine fear of her.
I am satisfied that the parties relationship could not support any form of co-parenting between the parties.
SECTION 60CC CONSIDERATIONS
It will be appreciated that in discussing the issues, I have already addressed many of the s 60CC considerations relevant to this case. However I make the following further observations.
Section 60CC(2)(a): The benefit to the child of having a meaningful relationship with both of the child's parents
I have concluded that neither parent poses an unacceptable risk of harm to the children. I have further concluded that the mother’s care of the children in the past, whilst not exemplary, has been acceptable. Further, the mother did not contend that the children would not benefit from having a meaningful relationship with the father, as was implicit in the orders which she sought. I have also concluded that the children would derive some benefit from a relationship with their mother, even if it be only at a recognition level.
The practical difficulty however is that the father expressly disavows any desire to co-parent with the mother, to the point that he would not wish to even spend time or communicate with the children in the event that they were to live with the mother. He says that he could not cope, nor could Ms O cope, with the perpetual prospect of the mother’s continued harassment of them arising out of any co-parenting. It therefore appears that however unfortunate, this case necessarily has as its consequence that the children will not have a meaningful relationship with both of their parents on any scenario. Either they will have a meaningful relationship with their father, and no relationship with the mother, or alternatively they will have a relationship with their mother – for better or worse – and no relationship with their father.
Section 60CC(2)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
I have found that the mother does not present an unacceptable risk of abuse or neglect. However her coercive and controlling behaviour plainly is family violence as defined in s 4AB, as is her threatening behaviour. Whilst it is not said that this family violence poses a physical threat to the children, the evidence does suggest the risk of harm to the children by virtue of being exposed to the impact of the mother’s conduct on the father and Ms O. Particularly, as I have earlier said, in the event that the children were to live with the mother and spend time with the father, Ms L opined in cross-examination by counsel for the Independent Children's Lawyer that she “held grave concerns for the children’s development in every domain including social, health, education, emotional and personality development.”
Section 60CC(3)(a): Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
The children are too young to express any views.
Section60CC(3)(b): The nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child)
The children do not have a current relationship with the mother but have a good relationship with the father and Ms O. There is little evidence as to their relationship with the maternal or paternal grandparents.
Section 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
Both parents have taken the opportunity to involve themselves in the children’s lives to the extent that their personal circumstances and court orders permitted it.
Section 60CC(3)(ca): The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
In the past the father had a large child support debt which has been progressively reduced from the time that the children went into his care by the payments that would otherwise have been due by the mother being offset against that debt.
Section 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
To the extent that the children have suffered effects from being separated from their mother in consequence of the orders of Judge Coker in July 2014, they are now settled.
Section 60CC(3)(e): The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
The father and the children live in Brisbane; the mother resides in C Town. There is therefore some practical difficulty in expense in any movement of the children or parents between those centres, but it was not said to be prohibitive.
Section 60CC(3)(f): The capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
It was not said that either parent had a lack of capacity to provide for the children’s physical needs, but there is criticism made of the mother’s capacity to provide for emotional and intellectual needs given her personality issues.
Plainly the children are flourishing in the father’s care, however other children in the mother’s care, particularly H, have shown highly disturbing behavioural issues.
Ms L opined at paragraph 66 of the second Family Report that the mother’s erratic life decisions may be disruptive to children in her care.
Dr B had a stronger view. He said that the father was “a very capable and highly competent individual who would be able to continue to provide well for the twins.” He said that the father “presents as being a much more competent and balance individual who would be able to provide will for the children.” He later continued:
7. In my view it is most likely that [the mother] does have a significant personality disturbance with dependent personality features and deep feelings of insecurity and overreliance on others which then lead to feelings of desperation when the relationships have broken down. It may be very difficult for her to continue caring for her current children if she is under such stress and feeling so abandoned. The reports were that [H] in particularly was struggling, and had a lot of disruption moving between his parents. [J] also has some significant issues, as does [K]. I would be concerned about [the mother’s] ability to cope with the needs of the three children who are probably all travelling with difficulty through their lives. The other danger is that [the mother] might form another dependent relationship that is likely to be unstable.
I am satisfied that the father has far and away the better capacity to provide for these children.
Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I have sufficiently addressed this earlier in discussing the issues.
Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family
At pp 93 to 94 of the mother’s tender bundle, the mother listed a “chronological history of domestic violence and harassment.” They enable some, but not much, precision to be ascertained in relation to the mother’s allegations that she was assaulted by the father or otherwise the victim of family violence perpetrated by him. In addition, the mother also led evidence from Ms W as to her observations of some alleged behaviour on the part of the father during the parties’ engagement party in August 2012, and other occasions when the mother had reported to her that the father had behaved violently, for instance destroying furniture or smashing a door.
Many of the instances relied upon by the mother are wholly dependent upon her veracity, and are not independently supported by either third party accounts or contemporaneous corroboration.
As to the events of the engagement party, there is a considerable conflict of evidence between witnesses called by the mother and witnesses called by the father. Whilst I am satisfied that there was a disagreement between the parties, I am not persuaded that any of the witnesses have a good recollection of the events in question, either because they were likely effected by liquor, or because of passage of time or poor observation in the first place.
It follows that I am not satisfied that the father has been violent during the relationship to the extent alleged by the mother. However that is not to say that I am not persuaded that there have been instances of physical engagement between the parties, associated with arguments, yelling and other unruly behaviour.
Ms L, in the first Family Report, having reviewed the relevant material concluded:
It is the report writer’s view that there is no evidence that [the father] instigated physical violence or coercive control [the mother]. There is a pattern however which appears to be consistent with situational violence. That is, situations of [the mother] extreme emotional distress and unpredictable behaviours in combination with [the father] emotional distress and attempts to contain or behave the behaviours have the capacity to escalate to violence (ie, pushing, shoving, grabbing, yelling) unpredictably…
I accept that evidence, and it aligns with my own impression of the material. I am however satisfied that the mother’s threats and coercive behaviour towards the father comprises family violence.
Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
The Family Violence Orders that have applied were only made without admissions. I draw no inferences from those orders.
Section 60CC(3)(l): Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Plainly in this case it would be desirable to put this litigation to an end.
PARENTAL RESPONSIBILITY
There are reasonable grounds to believe that there has been family violence. The presumption of equal shared parental responsibility therefore does not apply.
Although at one stage the mother pressed for equal shared parental responsibility, ultimately she concluded that the relationship between the parties was so toxic that any such arrangement would be unworkable. I accept that is indeed the case.
Given the parties’ complete inability to communicate in a way which does not become chaotic, and which is not able to be used by the mother as part of a coercive and controlling strategy, I am strongly of the view that an order for equal shared parental responsibility would not be in these children’s best interests.
WITH WHOM SHOULD THE CHILDREN LIVE
Both the Family Report writer and Dr B strongly advocated for the children living with the father. At paragraph 67 to 68 of the second Family Report Ms L opined as follows:
67. Based on the observations of the children with each parent, the parent’s perception of the children’s needs and their own personal functioning it is strongly suggested that [G and S’s] short and long term developmental outcomes will be best met by living with [the father].
68. Aside from the allegations about which parent is stalking, allegedly modifying email and text content, [the father’s] capacity to identify the children’s needs over his own and stable lifestyle means he is best able to prioritise the children’s wellbeing. In the almost two months since the last trial in November 2014, [the mother] continues to show some life decisions (e.g. relocating, loss of house, recurrent relationship changes, additional school changes) which appear impulsive and disruptive to consistent family environment.
Dr B concluded in relation to the father “that he was a capable, caring parent and that he would be able to provide well for the children, and there was no mental health reason for him not to provide well for the children.” As between the two parents he said as follows:
With regard to which parent is the more capable, it would seem that [the father] presents as being a much more competent and balanced individual who would be able to provide well for the children. However I do not have a strong view not having met the other children.
I accept the evidence of both of those witnesses.
The following factors support the father’s case that the children should live with him, or are adverse to the mother’s case that the children should live with her:
·The father clearly has the better capacity to parent these children;
·The children have flourished in his care;
·It appears to be the only way in which the children will maintain any relationship with the father;
·There is no clarity as to whether the mother would facilitate a meaningful relationship between the children and the father;
·There is some risk associated with the mother by virtue of her significant personality disturbance, although I accept that that risk falls short of being an unacceptable one;
·There is some physical risk associated with living with the mother, given H’s behaviours and the fact that he is likely to continue to have regular contact with his siblings that are in the mother’s care;
·There is a lack of clarity as to the mother’s present living arrangements;
On the other hand, the following points are in favour of the mother’s proposal, and against the father’s:
·It appears to be the only way in which the children will ever have a meaningful relationship with the mother;
·It would optimise the opportunities for them to have meaningful relationships with their siblings.
Upon balance, in my view these factors strongly weigh in favour of the children living with the father, and I am satisfied that such an order would be in their best interests.
TIME AND COMMUNICATION WITH MOTHER
The father and the Independent Children's Lawyer say that this is a case where the need for peace in the father’s household, and the protection of the children from the adverse consequences of any interaction between the parties, means that the best interests of the children require then to neither spend time nor communicate with the mother. That is because they say that there is no regime of orders which can adequately protect the father and the children from the mother.
The mother presently lives in C Town and apparently intends to continue to do so. That inevitably means that any time that she were to spend with the children would either require them to travel to her, or her to travel to Brisbane. Given the age of the children, the latter is presently the only feasible alternative.
The mother did not present any firm proposal as to where she may see the children in Brisbane. It may be the case that she has relatives with suitable accommodation on the Region MM. There is a level of practical detail missing from her evidence, no doubt because for most of the hearing her case was concentrated upon proving the non-authenticity of the various text and iMessage communications.
However leaving aside those practical deficiencies, the real difficulty with the mother spending time with the children arises out of one or both of two things. The first is that she presently has no relationship with them – she is a virtual stranger. The impact of the children spending time with the mother in those circumstances was a cause of concern for Ms L. Particularly she was unimpressed with the mother’s strategies that she deployed during the observation to interact with the children (being loud voiced conversation, and cuddling or tickling when the children had avoided it or did not initiate it). She said that these were experienced by the children as stressful but said “it is likely to be very difficult for [the mother] to try to modify behaviours to adjust for the children’s unfamiliarity or discomfort.”
I am also mindful of Ms O’s evidence given in cross-examination by counsel for the Independent Children's Lawyer, when she was asked how would she see the children adjusting if the court ordered that they were to live with the father but spend supervised time with the mother. She said words to the effect “after seeing their reaction after only 20 to 30 minutes contact with the mother, I can’t imagine putting them through that again.” A little later she said that she could discern no benefit to “short term access” with the mother as it was simply “too distressing on the kids”.
In order for the children to obtain any benefit whatsoever from spending time with the mother, there would need to be a deliberate strategy put in place to try and reignite a relationship between the children and the mother. Simply requiring the children to intermittently spend time with the mother is likely to distress them and be of no benefit. Some form of reunification would need to be effected. However that leads on to the second difficulty, which is that to develop and maintain any such relationship, inevitably would require communication between the parties and give the mother the opportunity to, consequent upon seeing the children, raise fresh allegations in relation to the father and Ms O.
I have already traversed Ms L’s evidence as to her concerns in relation to the mother’s continued involvement in the children’s life. However specifically as to supervised time, at paragraph 63 of the second Family Report she said as follows:
63. Maintaining supervised time between a parent and children should not be established without an end goal or outcome which can be reasonably worked toward. Setting up a progression of supervised time would require the children to be vulnerable, reliant on [the mother] during those supervised sessions. Without tangible positive benefit to the children from re-developing an emotionally close relationship with [the mother], such an endeavour will weaken the trust and security of their attachment relationship with [the father]. It would also not necessarily lead to a secure attachment with [the mother] without change to how she responds to the children.
Dr B’s recommendation pertinent to this issue was as follows:
I have concerns about the twins who were in the primary care of [the mother] now having no contact with their mother. I am uncertain of the nature of their attachment. It is for the Family Reporter to assess how strong the attachment is between the twins and each of the parents, and whether it is important to maintain a significant attachment and what is [the mother’s] capability.
As has been seen, Ms L’s view of the attachment is that it is presently non-existent.
A little later Dr B continued:
It does appear sad that the tyranny of distance will prevent some better arrangement than recognition contact. If there has been a strong attachment between the children and the mother, it is a shame and concern that some more regular contact might not be possible, where the children could maintain at least a secondary attachment to the mother.
The following factors weigh in favour of the father’s proposal and against the mother’s proposal:
·It would wholly protect the father and Ms O from ongoing harassment by the mother, either through communication with her, or by her having the opportunity to spend time with the children and hence generate further complaints in relation to them;
·It would protect the children directly from such risks as the mother presents (accepting they are not, of themselves unacceptable);
·It would provide the children with a peaceful home environment in which to grow;
·It will afford the children a meaningful relationship with the father.
On the other hand the following factors are against the father’s proposal, or in favour of the mother’s:
·The children will not have any form of relationship with the mother, whether a meaningful one, or even one of recognition only;
·The children are unlikely to have meaningful relationships with their siblings.
Particularly given the principles espoused in s 60B(2) of the Act, I recognise that it is a very serious step indeed to make an order which would wholly deprive the children of any relationship with their mother. Nonetheless, this is one of those rare cases where the peace the tranquillity of the children’s household does make such an order in their best interests.
I have given consideration as to whether some form of regime of orders, short of a total prohibition on time and communication could be fashioned. Particularly as to whether the mother’s time could be supervised in Brisbane, the following tell against such a proposal:
·The children presently have no relationship with the mother and it may be seriously doubted whether limited supervised time would ever see a relationship of any benefit to the children ensue;
·Such time is likely to lead to further distress of the children;
·The mother is likely to use such opportunities to generate further concerns and complaints in relation to the father;
·If the parties were required to communicate it is likely to lead to the mother further harassing the father;
·It is likely to led to adverse psychological consequences for the father and Ms O;
·In the circumstances, there is no discernible tangible benefit to the children from such arrangement, and there is likely to be net detriment.
I have also given consideration as to whether or not a regime of communication such as Skype or telephone conversation might be workable. However again the following points are against such a proposal:
·The children are very young, and would be difficult to engage by such technology;
·The children have no extant relationship with the mother and there is no reason to think that they would even now recognise her;
·There is unlikely to be any tangible benefits to the children from such a communication regime;
·There is again a real risk that the mother would use such communication opportunities to either harass the father and Ms O, or to generate further complaints in relation to the children.
I have also given consideration as to whether or not the mother should be given the opportunity, should she so wish, at some point in the future to bring an application to be re-introduced into the children’s lives without the need to satisfy the so-called rule in Rice & Asplund. For instance it might be thought that at age eight, or thereabouts, the twins would be unlikely to experience the same level of distress upon being obliged to spend time with the mother, and moreover they may be of an age where the mother would be able to interact with them other than in the highly physical way which she demonstrated in the Family Report observations. The benefit of such a regime would allow the children to at least have some experience of their biological mother, which presumably would be of assistance to them in forming the concept of their identity later in life.
However there are at least two problems with such a proposal (accepting that neither party advocated for it in any event). The first is that it would mean that this litigation would not really end, but only go into some form of hibernation until the children were of that age. In my view, in this case, the additional consideration at s 60CC(3)(l) is deserving of considerable weight. That is because critical to my thinking in relation to the parenting orders for these children is the need for the father and Ms O to be able to raise these children in an environment free from the fear and harassment to which they have now been subjected for some time.
The second problem is that there is no material before me which would enable some arbitrary age limit to be specified. That is scarcely surprising, given that there would be many variables associated with the development of children, to say nothing of variables as to the mother’s progress through life as well. As to the latter, given that the mother appears to have deep-seated personality issues, which have expressed themselves over several relationships over many years, the inevitable hope that one has that she may yet modify her behaviours is probably unjustified. Dr B in cross-examination described the mother’s difficulties as “quite fundamental issues with respect to self-esteem”.
Therefore, although with considerable reluctance, I have concluded that the only regime of orders which is in the best interests of these children are those proposed by the father and Independent Children's Lawyer.
However I am satisfied that the mother should be permitted to send birthday cards and gifts and Christmas cards and gifts to the children on one occasion per year, and that for those purposes the father should be obliged to keep the mother advised of his postal address from time to time and vice versa.
I am further satisfied that the father should provide the mother a report in relation to the children two times per year, although in so ordering, I do not necessarily conclude that such an exchange of information is of itself directly in the children’s best interests, but rather it would enable the mother to be aware of their development and life when fashioning her written communication to them.
OTHER ORDERS
I am satisfied that the restraints sought by the Independent Children's Lawyer and father are appropriate and will make them. Otherwise I am satisfied that the incidental orders proposed by the father and Independent Children's Lawyer are in the children’s best interests and will make them.
CONCLUSION
For those reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding three hundred and five (305) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 21 October 2015.
Associate:
Date: 21 October 2015
0
9
3