Rudolf and Meicher

FAMILY COURT OF AUSTRALIA

RUDOLF & MEICHER

[2008] FamCA 637

FAMILY LAW—CHILDREN—Best interests—where Father alienated children from Mother—where children are not at risk of physical or sexual abuse from Mother—where Father previously made such unfounded allegations—where Mother poses no risk—where Child at risk of alienation if she lives with Father—One Child (youngest, aged 11) ordered to live with Mother and Mother to have sole responsibility for long-term care—Father and siblings to have no communication with that child—One Child ordered to live with Father and spend time with Mother—Mother and Father to have joint parental responsibility for that child—No orders made in respect of eldest Child

APPLICANT:

MS RUDOLF

RESPONDENT:

MR MEICHER

FILE NUMBER:

BRF

16019

2006

DATE DELIVERED:

21 JULY 2008

PLACE DELIVERED:

BRISBANE

PLACE HEARD:

LISMORE AND BRISBANE

JUDGMENT OF:

BARRY J

HEARING DATE:

14-18 May 2007 (Lismore)

5 September 2007 (Brisbane)

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blond

SOLICITORS FOR THE APPLICANT:

Somerville Laundry Lomax, Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITORS FOR THE RESPONDENT:

Trenches Solicitors

COUNSEL FOR THE INDEPENDENT

CHILDREN’SLAWYER

Ms Nash

Orders

IT IS ORDERED:

There be no order in relation to the child, N born … January 1992.
The child, T born … August 1995 live with the Father.
The child T spend time with his Mother at all such times and subject to such terms and conditions as the parties may mutually agree in writing.
The child, S born … May 1997 live with the Mother.
The Mother have sole parental responsibility for the day to day and long-term care, welfare and development of the child S.
The Father spend time with the child S at all such times and subject to such terms and conditions as the parties may mutually agree in writing.
Save with the express permission of the Mother there is to be no communication between S on the one hand and her Father and siblings on the other.
The Independent Children’s Lawyer be discharged.
Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Rudolf & Meicher is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF16019/2006

MS RUDOLF

Applicant

And

MR MEICHER

Respondent

REASONS FOR JUDGMENT

On 5 September 2007 for reasons given at the time I made interim orders in the following terms:
“IT IS ORDERED UNTIL FURTHER ORDER THAT:
(1)The child, [S] born […] May 1997, live with the Mother.
(2)The Mother to have sole parental responsibility for the long term and day to day care, welfare and development of the child [S].
(3)There is to be no communication between the Father and the child [S] in any form.
(4)There is to be no communication between the child [S] and her siblings, [N] born […] January 1992 and [T] born […] August 1995 in any form.
(5)The Father is not to change the child [T’s] schooling from the [K] State School unless he has specific permission from the Court other than when he completes primary school.
(6)The Father to deliver [S’s] clothes, school texts, school equipment and other possessions to the office of the Independent Children’s Lawyer by 4.00 pm 6 September 2007.
(7)The proceedings be adjourned to a date to be fixed for the handing down of final judgment.”
The trial proceeded before me in Lismore over five days from 14 May to 18 May 2007.
On the fourth day of trial I was advised that the parties had arrived at consent orders on the issue of property settlement. Those orders were handed up on the fifth day of trial. They provided for the Husband to pay the Wife $70,000 over a period of two years.
On the final day of the hearing a handwritten document signed by the parties (exhibit 30) was also produced. That document is in the following terms:
“(1)That the children are not at risk of physical or sexual abuse with their mother.
(2)That the mother has not sexually, physically or otherwise abused the children or any one of them.
(3)That the father has either consciously or unconsciously alienated the children although the father contends he is not the sole cause.
(4)The father agrees to attend the Lismore sub-registry of the Family Court Counselling Service for the purpose of having explained to the children in his presence:
a. the findings of the Court;
b.his expressed desire for the children to have a relationship with the mother.
c.the father agrees to attend this session with photos of all of the family including the mother prior to separation.
d.continue to bring the children for counselling at the direction of the counsellor.”
The passages underlined are in different ink and are insertions made by the Father.
On 4 June 2007 interim consent orders were made in relation to children’s issues in the following terms:
“BY CONSENT IT IS ORDERED:
Until Further Order:
(1)That pursuant to s.69ZS of the Family Law Act a Family Consultant of the Lismore sub-registry of the Family Law Registry, consult with the parties and the children to assist the parties to implement the Orders.
(2)That the parties and the children, [N] born […] January 1992, [T] born […] August 1995 and [S] born […] May 1997 forthwith attend upon a Family Consultant, to pursuant to Section 65L of the Family Law Act and continue to attend upon the Family Consultant. The Family Consultant is to give to the parties such assistance as is reasonably requested by either of them in relation to compliance with and carrying out these orders and any communication with or involvement of the Family Consultant is to be reportable upon further order of the Court.
(3)That as soon as is reasonably practicable the Father shall attend upon the Family Consultant’s rooms of the Court with the children. At this first meeting the Family Consultant will have a copy of Exhibit 29 being the Statement prepared by the Independent Children’s Lawyer and amended by the Father and signed by him. Exhibit 29 will assist the Family Consultant and the Father to explain to the children the Father’s expressed desire that the children have a positive relationship with their Mother.
(4)The children are to spend time with their Mother initially in the Family Consultant’s rooms of the Court as soon as is reasonably practicable following Order 2.
(5)That following the children spending time with the Mother and the Family Consultant the children [T] and [S] spend time with the Mother at such times and on such conditions as recommended by the Family Consultant.
(6)That [N] spend time and communicate with the Mother as agreed between the parents and the Family Consultant in accordance with [N’s] wishes.
(7)That the parties forthwith attend an appropriate post separation parenting program, as recommended by the Family Consultant.”
Pursuant to those orders a further family report was prepared by Ms D dated 8 August 2007. For reasons she sets out in that report in particular paragraphs (k), (l), (m), (n), (r) to (x) (inclusive), she made the following recommendations:
“(y)It is recommended that [S] live with her mother and not have time with either her siblings or her father for some time. It is assessed that maintaining a relationship with both parents at this time is likely to be too psychologically stressful for the child. It is suggested that time with her father and siblings not be considered for around three months.
(z)It is recommended that [T] live with his father and that no orders are made for time with his mother.
(aa)It is recommended that no orders be made in relation to [N] given her age.”
There were other recommendations relating to ongoing counselling but the above recommendations were the substantive ones.
I reconvened the hearing at the Family Court in Brisbane on 5 September 2007. Ms D gave evidence at that time by video link from the Court at Lismore.
Having read the family report of Ms D and heard the cross examination and submissions at that time I delivered reasons and made interim orders as set out in paragraph 1 hereof.
I propose to make final orders in terms similar to those made on an interim basis on 5 September 2007.
My reasons for doing so follow:

Mother’s Case

The Mother relied on evidence from the following witnesses who had each sworn/affirmed an affidavit:
·Ms W (veterinary surgeon). Ms W is the proprietor of a property at K. Upon separation she allowed the Mother to occupy a dwelling on her property. At paragraph 6 of her affidavit she deposes that no renovations were carried out on the house whilst the Mother was living there by the Father or anyone else.
·Ms P (teacher). She gave evidence (refer paragraphs 3 and 4):
“3.During many family visits between our respective homes I have been in the position to observe [the mother’s] interaction with her children in the nurturing environment she has created.
4.[The mother] has always lovingly given her children’s needs first priority and the three children, [N, T and S] always responded to her affectionately in this mutually caring relationship.”
·Ms L. Ms L says she is self employed. At paragraph 6 of her affidavit she notes:
“6.From my observations [the mother] always did the majority of the parenting of the children and I always thought she did a wonderful job. In fact I felt a sense of inferiority in my mothering and housekeeping skills when I saw the obvious pleasure and care [the mother] took in her role as a mother.”
·Ms E. Ms E has sworn two affidavits, the first filed on 24 May 2006 corroborates the Mother’s version of what happened at a meeting at the MHigh School on 3 April 2006. In the second affidavit of Ms E at paragraphs 5 and 6 notes:
“5.I have always observed [the mother] to have a close and loving relationship with all of her children and that loving relationship to be reciprocated by the children.
6.I have never seen anything other than an easy friendly relationship between [the mother] and her children.”
·Ms R. Ms R says in paragraph 2 of her affidavit:
“2.I have always found [the mother] to be honest, hardworking and devoted mum who adores her children. She and her son [T] to my observation have always had a very close relationship. [The mother] would take [T] to kindergarten and to school. I would see [the mother] regularly at school.”
·Ms A. Ms A notes in her affidavit at paragraph 3:
“3. [The mother] always had her children’s wellbeing in mind and her children, [N, T and S] were always in her company. They appeared to me to be the main focus of [the mother’s] life and from my observations [the mother] is an excellent mother.”
·Mr C. Mr C at the time was the President of the Parents & Citizen’s Association at K Public School. He observes that the mother has been a committee member and an active member of the P & C raising issues about which she had concerns, such as the possible loss of an art teacher. At paragraph 4 he notes:
“4.I can say through my observations of [the mother] that she is a very caring and responsible parent.”
·Ms Y. Ms Y is a Teacher’s Aide Special. She corroborates the Mother’s account of the meeting at the M High School on 3 April 2006.
None of the above witnesses was required for cross examination. The evidence is therefore before the Court on an unchallenged basis. It does not sit comfortably that the Father should make serious allegations involving physical, sexual and emotional abuse of the children by the Mother when he is not prepared to have the evidence of these character witnesses challenged in any way, shape or form. In any event, by the fifth day of the hearing the Father had resiled from the allegations of physical and sexual abuse.

Other Witnesses Called by Mother

The maternal aunt.
The maternal grandmother.
The Mother filed her trial affidavit on 8 October 2006. She also relied on updating affidavits filed 19 January 2007 and 9 February 2007.

Mother’s Affidavit

In her affidavit filed on 23 October 2006 the Mother deposes to the fact that the parties were each born in 1962, she in Australia and the Father in Israel. They cohabited from 1991 until separation in July 2005. They did not marry until December 2004.
Consent orders had been made on property settlement issues in the Local Court at Murwillumbah in July 2005 a short time before the Mother moved out of the K property. Much of the evidence in the case was directed towards this issue in response to the Mother’s application under section 79A to set aside those orders for property settlement.
As noted above that issue was ultimately resolved.
I note in written submissions lodged on behalf of the Mother at paragraph 3 Counsel observes:
“3.It is respectfully submitted that although the focus of the submissions is directed towards the children’s issues, the actions and cross examination of the Father with respect to property issues is directly relevant to the Court’s assessment of his credibility, personality and insight and ability to responsibly parent the three children.”
This submission was not challenged. Even if it was challenged I unhesitatingly accept the accuracy of it. A person’s case is judged by all the evidence that has been given in the course of a hearing. Property settlement was certainly a live issue in the proceedings before me until it was resolved on the fourth day.
At paragraph 44 of her affidavit the Mother notes:
“44.My experience of [the father], having lived with him for over fourteen years, is that he is a very controlling and manipulative person. He has, in the past, ostracised other members of his family who he believes have done the wrong thing by him.”
The Mother elaborates on the nature of the ostracism with full particulars in paragraphs 61 and 64 of her affidavit. I have no reason to doubt the accuracy of the evidence given. The Father’s conduct in relation to the children is a further example that once the Mother had separated from him she was to be ostracised from the whole family.
The Father has blamed the Mother for the breakdown of the relationship. I have no doubt that he has openly influenced N and T to be hostile to the Mother insisting to them that they do not wish to see her.
At paragraph 79 of the affidavit the Mother deposes:
“79.In respect of the counselling session I had with Mr [I] on 19 April 2006 Mr [I] spoke of many things relating to my relationship with the children. At no time did Mr [I] raise with me any of the allegations which it is alleged to have been made on 10 April 2006. Indeed Mr [I] and I spoke largely about strategies which I could employ to encourage the contact occurring between myself, [T] and [N]. At that time, 19 April 2006, there was no suggestion that I would not be continuing to have contact with [S] which had been in place for several months.”
Mr I’s evidence to the Court is that no disclosures were made in relation to N. She simply corroborated what T was saying which did not involve any abuse directed towards her.
I will refer in more detail to this aspect when considering Mr I’s evidence.
The Mother’s affidavits of 19 January 2007 and 9 February 2007 do not take the matter a great deal further. I have had regard to the contents of those affidavits.
The Father left issues of disciplining the children to the Applicant. I accept, at times, she raised her voice to the children and on some occasions engaged in a modest level of physical discipline. I would assess the Mother as being quite able to speak up for herself. This is reflected in her dealings with the school, Mr I and the Family Consultant (refer paragraph 34 of family report dated 9 May 2007. She was understandably outraged at the allegations being made against her. The one exception to her ability to speak up for herself is being able to stand up to the Respondent. The circumstances in which she came to sign the consent orders are but one example of this.
I have no difficulty in accepting the accuracy and truthfulness of the Mother’s evidence. She was a convincing witness.

Evidence of the maternal aunt

The maternal aunt had visited the parents’ household at least once a year for a period of approximately fourteen years. I found the maternal aunt to be a very sincere and honest witness. She remained in the rear of the Court to support the Applicant after she completed her evidence.
At paragraph 7 of her affidavit she deposes to the Father saying to her in a telephone conversation after separation:
“She has chosen to leave and deserves nothing. I will put a tractor through the house before I see anyone else living in it.”
This is corroborative of the Mother’s evidence where she deposes to the Father making statements to her in similar terms. The Respondent denied making such statements. I disbelieve him.
At paragraph 14 she deposes to sending a birthday card and a cheque to T in August 2006. She noticed the cheque had not been presented so she telephoned the Father’s household. During the course of the conversation she said to the Respondent:
“I really miss the children can I talk to them.”
The Respondent replied:
“They are not home from school yet.”
Her evidence is at that stage she heard S call out in the background. The Father denied that that was the children and said it was the television. I accept the witness’s evidence that it was S she heard in the background. It is but one further example of the Respondent excluding the Mother and members of her family from any interaction with the children.

Affidavit of the maternal grandmother

The maternal grandmother’s evidence is she was told to leave the house after a visit shortly after the birth of N. She makes observations of the controlling nature of the Father. After that visit there was no communication between her daughter and herself until after separation.
I found the maternal grandmother a convincing witness. I have no reason to doubt her testimony.

Father’s Evidence

The Father filed a number of affidavits but in the joint case summary document he only sought to rely on his affidavit filed on 21 March 2007. This affidavit covers 160 paragraphs in all. Apart from the introduction and the setting out of historical data, up to paragraph 76 is concerned with issues of property settlement and the circumstances in which the consent orders were made. In view of the fact that property settlement issues were resolved by consent I do not have to consider this aspect other than the extent it may reflect on the credibility of the parties or the witnesses.
Much of the balance of the Father’s evidence in his affidavit material relates to allegations of physical and sexual abuse of the children. Once again in view of the contents of exhibit 30 where the Father has signed documents specifically withdrawing any such allegation, the balance of the affidavit could not be said to be greatly relevant.
The Mother and the children saw the counsellor Mr I in March and April of 2006. N and T attended on 4 April and again on 10 April. At paragraph 117 of his affidavit the Father says:
“117.On 10 April 2006 whilst I was sitting outside Mr [I’s] room waiting for [T] and [N] the counsellor spoke to me without the children being present. He said to me words to the effect, “The children have told me that they are being sexually abused by their mother. They are very upset about it.” - - At some stage he said to me words to the effect, “It involved her touching them on their private parts and telling them it was okay because she was their mother.””

When Mr I gave evidence he indicated that N made no complaint that she had been sexually abused, the only complaint was made by T.
In view of the Father’s later conversations with the Police and the Sexual Assault Service considerable doubt must be placed on what he claims to have been told by Mr I as set out in paragraph 117 of his affidavit.
At paragraph 22 the Father details speaking to a case worker with the Juvenile Investigative Response Team at the Department of Community Services (JIRT). I will deal with this aspect of the Father’s evidence when considering the subpoenaed material which was tendered into evidence.
As I noted at paragraph 10 of the reasons for an interim determination on

5 September 2007
:
“I observe that the concessions made by the Father, that the allegations involving physical or sexual abuse by the Mother have no substance, mean I do not have to consider a large volume of evidence relating to such allegations. Even if the Father had not made those concessions at the conclusion of the five days of trial he would have been in my view the only one in the Court room holding to the view that the Mother had engaged in physical or sexual abuse of her children.”
When Ms D interviewed the Father for the purpose of her report he resiled from the contents of exhibit 30 and claimed that he had not read the document. He claimed he was not aware of what he was signing.
I categorically reject such a claim. It is difficult to conceive how the Father would make corrections to the document in his own handwriting in the terms that he did if he had no understanding of its contents.
The Father was represented by a Solicitor and experienced Barrister during the course of the hearing. I find it a preposterous suggestion by the Father that they would have allowed him to sign such a document which had been carefully drafted by the Independent Children’s Lawyer if he was not made totally aware of its contents. Furthermore it simply does not accord with the Father’s mistrusting controlling nature that he would be pressured into signing a document on the fifth day of a hearing where he was not made aware of what it was that he was signing.
During the course of the cross examination of the Father it was noticeable that he was unable to make concessions at appropriate times as to the Mother’s conduct. She had been asked if the children had a good relationship with their Father. She agreed that was so. She agreed with the proposition that the Father had worked hard. At one stage of his cross examination it was put to the Father that he could not say a good word about the Mother and he agreed with that. It was then put to him in relation to the deponents who had filed affidavits in support of the Mother and whose evidence was not challenged that people in K said good things about the Mother. His response was:
“They are lying”.
This was typical of the attitude demonstrated by the Father throughout the entire trial.
In the course of cross examination the Father was asked about his understanding of the allegation that the Mother had sexually abused N. He understood it was touching her on her private parts.
The Father disputed most of the claims that were put to him and those he didn’t dispute he certainly sought to justify his conduct.
Shortly after the Mother had filed the proceedings in this Court seeking an order pursuant to section 79A to set aside the consent orders for property settlement N and himself were constantly phoning the Mother trying to get her not to proceed with her application. In my view he was evasive in his responses generally on such issues.
When the Father borrowed the $250,000 as an extension of the mortgage in December 2005 he immediately acquired a four wheel drive vehicle for the sum of $48,000. He then proceeded to have various accessories fitted such as a DVD, CB radio, tinted windows and a bull bar. It was hardly the conduct of somebody who was in receipt in Centrelink benefits at the time and who had been in receipt of such benefits for a period of many years. He told N and the Applicant that the vehicle had been lent to him by a friend. This was yet another dishonest statement.

Father’s Witnesses

Ms U

This witness read letters and documents to the Father relating to the Family Court proceedings. It is not disputed that the Father is dyslexic and has difficulty reading documents. Ms U noted that she had not seen the Mother attending various functions attended by the Father with the children. She deposed to the fact that the Father had attended various community religious events as well as birthdays and social celebrations with the children. She spoke well of his interaction with his children and his care of them.
These issues were not in dispute.

Mr AA

After consent orders for property settlement were made the Father says that of the $250,000 he borrowed he repaid $75,000 to Mr AA that he had received from him and still owed him $35,000. Mr AA came to Court to corroborate this evidence. The difficulty for the Father’s and Mr AA’s credibility is nowhere were there any bank documents to corroborate the claim the Father received $110,000 in cash from Mr AA at some earlier point in time to assist with the building project. The money was never deposited into an account. There was inconsistencies in the claims as to how much was repaid and when and where.
The Father consulted Hopgood & Ganim Solicitors who acted on his behalf in February 2006 after the Mother had instituted these proceedings. Detailed letters sent by Hopgood & Ganim to the Mother’s Solicitors of 24 February and 27 February respectively were tendered as exhibit 16. Nowhere in these documents is there any reference to the borrowing from Mr AA. Nowhere in the application for consent orders is there any reference to such liability.
I found Mr AA to be almost as unconvincing a witness as the Father. The type of large cash transactions he spoke of do not reflect the conduct of an honest man. I found Mr AA to be a willing participant in a scheme created by the Father to account for the distribution of the mortgage funds. I find it highly likely that no such funds were either lent or repaid. If moneys ever did change hands it was likely that they changed hands as part of a cover up type operation to conceal funds from the Mother.
Mr AA said that he had employed the Father to do the shop fit out for a Restaurant he was planning to operate. Again the nature of the business relationship between them was far from clear. There had been an article in the local press (exhibit 11) which would indicate that the Respondent was the owner of this business.
Mr AA said when being questioned on such matters:
“It’s part of the company we set up.”
I had the distinct impression reference was being made to a company set up by the Father and the witness but no further questions were asked on this aspect. There were significant inconsistencies in the accounts given by the Respondent and Mr AA.

Ms CR

She was not on the list of documents lodged in the joint case summary. Her affidavit was read. She was not required for cross examination. She had affirmed her affidavit on 20 March 2007. She deposes to a positive interaction between the Father and his children and speaks well of their relationship.
This issue was never questioned.

Witnesses for the Independent Children’s Lawyer

·Snr Constable W, Detective Senior Constable, New South Wales Police.
·Ms WA a case worker and acting manager with the Department of Community Services.
·Mr I, counsellor.
·Ms WR a counsellor with The Sexual Assault Service.
·Ms PO, Family Consultant employed by the Family Court who prepared two family reports dated 25 July 2006 and 9 May 2007.
·Ms D, Family Consultant employed by the Family Court who prepared the final family report dated 9 August 2007 and who was cross examined on 5 September 2007.
The only evidence of these witnesses I intend to discuss is the evidence of Ms PO and Ms D. The other witnesses’ evidence is reflected in the tendered documents.

Evidence of Ms PO, Family Consultant

Ms PO is a social worker working as a Family Consultant at the Lismore Registry of the Family Court. She prepared two reports in this matter dated 25 July 2006 and 9 May 2007 respectively.
In general terms Ms PO found the Father to be of a calm disposition and the Mother to be angry. To my mind her observations and recommendations thereafter reflect this assessment. In my view her assessment has been simplistic and fails to take into account the Mother’s natural anger at being labelled a sexual abuser of her children when as it transpires such allegations are totally without foundation. The making of false allegations is in keeping with the Father’s track record of ostracising people with whom he has had a falling out.

First Report of Ms PO

I note in paragraph 1 a minor error where she states that the parties began their relationship in 1999. It is common ground the relationship commenced in 1991.
At paragraph 8 she notes that the Department of Community Services received a notification from Mr I on 12 April 2206 regarding disclosures made to him by N during a counselling session. I note once again that this does not accord with the oral evidence of Mr I.
At paragraph 12 she records that the Department believed that N had suffered psychological trauma as a result of abuse by her mother and that this was substantiated. Ms PO was not to know at this point in time that such a finding was later to be reversed.
I note that at page 4 of her report she lists those persons interviewed for the purpose of the report. She records that she had perused subpoenaed documents 1 to 7. The particular subpoenaed document numbered 1 was the original file from the Department of Community Services. Subpoenaed document number 12 which subsequently became an exhibit has the following stage 2 assessment made by DOCS:
“1.Consideration was given to [S] being interviewed at school however the Principal advised that [S] is now like the older siblings and refuses to speak of her mother and says that she does not like her. It was agreed that interviewing [S] would not offer further information in determining current risk.
2.Ballina JIRT Police to complete record for the files indicating that the matter was not substantiated. [The father] to then be contacted and spoken to by DOCS and Police and advised of this.
3.DOCS to discuss with [the father] that Sexual Assault are no longer able to provide a service due to allegations not confirmed - -
4.[The mother] has been advised that the matter was not substantiated and that she should discuss the matter AVO and future contact with her children with her solicitor.”
On the following page under the heading “Judgments and Decisions for [N]” they record as follows:
“Assessed issues risk of psychological harm – harm consequence concerning harm probability highly likely. Risk of harm to [N] has been substantiated. Future risk level medium. A person associated with causing risk has been identified – father [Mr Meicher].”
At paragraph 20 Ms PO records that the father assisted the mother to move into her new accommodation and negotiated a rent reduction with the landlords in exchange for him renovating the home.
What he did not inform the Family Consultant is that no such renovations ever took place. The Father has stated on a number of occasions that this was the agreement but in oral evidence he claimed that the materials provided to him by the owners of the premises were inadequate or insufficient and he refused to carry out the renovations. In the circumstances, making such a claim to the report writer in July 2006 is quite misleading.
At paragraph 88 of her report Ms PO records:
“88.The children’s allegations of sexual abuse if they are valid, are serious ones: especially given [the mother’s] complete denial. Whether sexual abuse has occurred or not, it is the report writer’s opinion that [the mother’s] behaviour towards the children and her forceful manner in insisting they have contact and complete disregard for their wishes is sufficient enough to warrant their current resistance to contact. This is especially the case given [N’s] age. In light of this it is the report writer’s opinion that [the mother] requires counselling to assist her to recognise the damaging effects of her behaviour on her relationships with the children, and to explore alternatives.”
I do not accept the force of the logic in the opinion being expressed by the report writer. To my mind it is facile particularly in relation to events as they have subsequently developed.

Family Report Number Two – 9 May 2007

At paragraph 21 it is recorded:
“[The mother] states that when he asked her to leave, [the father] took the earrings out of her ears and gave them to [N] along with all of her other belongings.”
This certainly has a ring of truth to it. It is part of the ritual of exclusion – the equivalent of an officer being stripped of his rank by having badges of office removed. It is consistent with the Mother’s claims of the Father’s process of ostracism.
To my mind the Father’s actions such as pressing for criminal charges against the Mother, raising his voice at Police and Department staff, taking out an AVO, are more in keeping with the Mother’s claims of controlling and vindictive behaviour by the Father then of the reverse claims by the Respondent.
I note that at paragraph 28 the report writer observes:
“28.DOCS’ records note that [the father] was strong and controlling in his presentation and that [N] was aware of his feelings about Family Law proceedings. [Ms WR] from [the] Sexual Assault Service reported in her notes that [the father] was focussed on wanting [the mother] charged.”
At paragraph 34 of this report Ms PO notes:
“34.Both parents have been described by different professionals as strong and assertive personalities. This is consistent with the report writer’s observations. Both parties were observed to be forceful in their opinions, to interrupt the report writer, and to become assertive and challenging when challenged about aspects of what they were saying.”
I accept the validity of this observation.
At paragraph 37 there is a report that both children disclosed to Mr I they had been sexually abused by their mother. It came as something of a bomb shell in the course of his oral evidence when Mr I clarified this and said no such allegations had been made by N. Mr I’s file has been subpoenaed and tendered. It is difficult to read/follow his notes. He gave his evidence by telephone link and did not have his notes before him. I can only rely on his oral evidence in the course of cross examination that no disclosures were made by N.
At paragraph 62 of the second report Ms PO records:
“62.[S] then spontaneously started talking about her aunty […] [the maternal aunt]. She states that she doesn’t like her aunty because she “changed sides”, and that when they visited her home she never did anything with them and that her father was the one who made suggestions about things to do. When asked if she had discussed this with her father. (sic) [S] states that she was looking at photos, and that her father told her that he was the one who took her to the places she had been falsely told her aunty took her to.”
I find it extremely difficult to believe that the child could be expressing these views to the report writer from her own recollection. It is abundantly clear that the Father has influenced this young girl to be expressing such views. I note that by that stage the maternal aunt had sworn an affidavit which was filed in the Court on 30 October 2006.
The statements by the child are concerning as to the extent to which the Father has sought to influence the children’s views.
At paragraphs 73 and 74 under the subheading “Evaluation” the report writer notes:
“73.[The father] has been viewed by the report writer and Mr [I] as a caring and supportive parent to the children. More recently he has been viewed by DOCS and Police as pressurising [N] to have her mother charged and as potentially responsible for [N’s] continuing allegations against her mother and for alienating the children. In the interview for this report the report writer observed [the father] to be angry towards and denying of his anger towards [the mother].
74.[The father] claims that he would be happy if the children expressed a wish to spend time with their mother, are inconsistent with his level of anger and expressed wish to have [the mother] charged for her abuse towards the children. It appears that [the father] has become increasingly angry over time that the children are not being listened to, and it appears that he is motivated to see [the mother] charged. He states that he is supporting [N] and has been informed by professionals that this will assist her to recover. Although it appears that he has heard what he wants to and that his actions are largely self interested as he has since been informed by professionals of the potential negative impact on [N] of being continually interviewed.”
The report writer does not appear to have considered the possibility that much of the Father’s anger relates to the Mother continuing to pursue a claim for property settlement. It is recorded in Departmental records that the Father is very pre-occupied with financial matters and this accords with my own observations of his behaviour. The Father’s conversation recorded in exhibit 14 corroborates this view. The anger was exacerbated by the claim to overturn the property settlement orders but I would speculate that the Father’s vindictive behaviour would have occurred in any event because of the pattern of ostracism that he engages in.
At paragraph 77 Ms PO records:
“77.During their interviews the children presented as well rehearsed all ready with their stories of how their mother has behaved abusively towards them. The children used similar words and phrases to describe what sounded like a well rehearsed story. All whilst continually referring to [the mother] as “that woman”. Their interviews suggest that the family have as a whole discussed the mother on a regular basis to the extent that they have formed a shared view of the matter and an agreed version of events.”
At 78 she observes:
“78.The father presents as a warm and caring parent who enjoys a very good relationship with his children. –”
I find it difficult to accept that the social worker could describe the Father as being “warm and caring” when she makes the observations that she has in paragraph 77 that the children presented as “well rehearsed”.
In paragraph 83 she notes:
“83.It is the report writer’s opinion that the children are extremely aligned with their father as a result of complex family dynamics which both parents have contributed to. It is not possible for the report writer to comment on whether the children’s allegations of abuse are true, but if they are then the mother’s contribution to the children’s alignment with their father would be elevated.”
There was no specific cross examination on this issue but I would be of the view that if the allegations of abuse are false then the reverse should be the position that the Father’s contribution to the children’s adverse attitude to their mother is highly significant and totally regrettable.
At paragraph 85 the report writer observes:
“85.It is the report writer’s opinion that there is no evidence to suggest that [the father] is responsible for the children’s allegations of abuse against their mother, and that is just as much as likely a scenario that the children may have taken it upon themselves to have fabricated sexual abuse allegations in the situation where they felt their views were not being listened to and where they had very real fears that orders would be made for them to spend time with the mother who they are extremely angry with and potentially afraid of due to past insensitive behaviours.”

I totally reject this opinion of the report writer. There is considerable evidence that the Father has been instrumental in the children’s views. One only has to look at the observations and opinion expressed in paragraph 77 of this very report. I shall not reiterate all of the evidence that points to this but I find it astonishing that the children should go from having a warm relationship with their mother to such a fearful, anxious, hateful relationship in such a short space of time unless they were encouraged and aided and abetted in that view by their father.
At every turn one can see evidence of the Father’s influence on the children. There is the taped recording of N insisting to the Mother that the new car the Father had was a friend’s vehicle that he had borrowed. This is mimicking the line that the Father had stated in a telephone conversation earlier that day. The fact that the statement by the Father was a bare faced lie does not escape my attention.
At paragraph 87 the report writer observes:
“87.It is the report writer’s opinion that [S] should not be treated separately to her siblings. [S] is now extremely resistant to spending time with her mother and is aware of her siblings’ feelings about this. It is the report writer’s opinion that [S] would be placed under great pressure if she was treated separately in Court orders and that this would not be in her best interests.”
I can record that I had reached the firm conclusion after submissions at the conclusion of the hearing of this matter that at the very least S should be placed in her mother’s care to avoid the poisonous atmosphere in the Father’s household. As a result of the production of exhibit 30 I was asked to give the parties time to allow counselling to take place to see if the parties could resolve the matter between themselves.
Thereafter the consent orders of 4 June were put into place. Ms D then produced her report of 8 August 2007. She was, as I was, totally dismayed by the Father resiling from the statements made in exhibit 30. To my mind the Father has behaved in a totally duplicitous manner in this particular aspect and in many other aspects. At the conclusion of the trial the Father was well aware that his allegations had been thoroughly discredited.
In short, I much prefer the opinions and recommendations expressed in the family report of Ms D then those ventured by Ms PO.
Ms D gives a report of her involvement in this matter since the conclusion of the trial. At paragraphs (v) to (cc) on page 9 she notes:
“(v)It is assessed that [S’s] comments reflect both the father’s comments shared with the children and the merging of the father’s feelings about being rejected with the children’s feelings of loss at their parents’ separation. The father dramatically states that he will defend his children against an abusive parent. However it is most likely the case that he has enlisted his children in a defense of his own hurt feelings at being rejected as reflected by [S’s] comments to her mother. It is also assessed that this is a conscious process on the father’s behalf rather than an unconscious one.
(w)It is assessed that the father will not support the children having a continuing relationship with their mother. It is also assessed that the father’s involvement of the children in this rejection of their mother amounts to extreme emotional abuse and is likely to have a negative impact on their future character development and their ability to form healthy realistic relationships in the future.
(x)It is assessed that [N] and [T’s] extreme alignment with their father is so strong at this time that any order providing for any time with the mother is unlikely to be complied with and is also likely to further erode respect for her as the children are psychologically required to ‘prove’ their complete unwillingness to comply. It is assessed that [S] is not as completely extremely aligned with her father.
Recommendations
(y)It is recommended that [S] live with her mother and not have time with either her siblings or father for some time. It is assessed that maintaining a relationship with both parents at this time is likely to be too psychologically stressful for the child. It is suggested that time with her father and siblings not be considered for around three months.
(z)It is recommended that [T] live with his father and that no orders are made for time with his mother.
(aa)It is recommended that no orders be made in relation to [N] given her age.
(bb) It is recommended that the mother and [S] attend ongoing family counselling, not with the Family Court, to assist them to regain their relationship.
(cc)It is recommended that the father be required to bring the children to the Court for the delivery of the Court’s judgment. It is unlikely the father will readily comply with any order he does not support.”
The observations and recommendations of Ms D accord with my own strongly held views – views which I had formed at the conclusion of the evidence and submissions at the hearing in Lismore on 18 May.
I accept that I was asked to allow the parties the opportunity to resolve the matter and agreed to do so but I was extremely cynical that the Father could be trusted to adhere to any arrangements put in place.

Police Records

The Police records are exhibits 20, 23 and 24. The JIRT file at Ballina noted that N wished to speak with the Police a second time. This occurred seemingly on 11 July 2007.
At the conclusion of the interview the following is recorded:
“[The father] was told that [N] was not able to specify or give details about any of the allegations to a standard that was needed to prosecute the matter.
After [the father] heard this his voice became louder. [Ms WR] had to move [N] from the room next door because she could hear her father. [The father] insisted the Police charge his wife and could not understand what more we wanted from a child. [The father] was told that [N] did her best but was unable to give the detail that was needed. He was told that [N] should continue with counselling.
[The father] at this stage began to talk over the top of the Police and the DOCS worker. He was ranting, “What more do you want?” “What more can she give you”. He said, “I tell you what I will do I will take her back to [Mr I] (psychologist). He will tell her what to say and then she will be able to give the detail then.” It was at this stage that [the father] was pointing at Police and DOCS and interrupting them when they spoke. [Ms WA] (DOCS) started to tell him that it was not in [N’s] best interests to have her interviewed again. [The father] put the palm of his hand in front of [Ms WA’s] face as an indication for her to stop talking.
[The father] was clearly angry and aggressive by this stage. He was told that his wife will be spoken to and Police will contact him after they finish their investigation. [The father] kept repeating, “She had to pay she can’t get away with this she will lie”.
[The father] left the room and met [Ms WR] and [N] in the corridor. [The father] then continued to talk to [Ms WR] about the matter in a loud voice in front of [N]. It was clear to Police that [N] is greatly influenced by her father - - Police and DOCS observed that [the father] can be aggressive and angry, even though he insisted at first that it is not in his nature to be like that.
When the Father was interviewed again he was informed that many members of the [K] community and [K] school could not say a bad word about [the mother]. [The father] said they were lying. Was also told that there had been no bruising found on the children to support the physical assault allegations after [N] stating in her interview that her mother left many bruises. [The father] said they all lie as well. I did not send them to school when this happened. [K] and [M] High Schools said there were hardly any absences from school when their mother was residing with the family. [The father] was told that his ex-wife would not be charged due to insufficient evident (sic). He indicated he was not happy with this decision and would make a complaint.”
Thereafter the Police summarised in their document why they would not be proceeding with charges.
It is noteworthy that when passages from the Police Department’s documents were put to the Father he denied most of the conversations had actually taken place. When portions of the Sexual Assault Service’s file were put to the Father he again denied making such statements. I clearly prefer the independent record as contained in the files of the two Departments.

SECTION 60CC

Primary Considerations

The primary considerations are:
(a)the benefit of the child of having a meaningful relationship with both of the child’s parents; and
(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 examined the evidence relating to the allegations made against the Mother to determine, inter alia, whether such allegations emanated from the Father and whether they were malicious. I have so determined. I note exhibit 30 is in the form of a statement of agreed facts. In that document it is stated:
“1.That the children are not at risk of physical or sexual abuse with their Mother.”
Paragraph 2 is in the following terms:
“2.That the Mother has not sexually, physically or otherwise abused the children or any of them.
3.That the Father has either consciously or unconsciously alienated the children although the Father contends he is not the sole cause.”
In view of the concessions made by the Father in exhibit 30 it is not necessary to consider the validity of the allegations against the Mother. The Father himself has conceded there is no substance to such allegations. However, I have looked at the nature of the allegations in considerable detail as to the circumstances in which they came to arise.
As previously noted the Father’s attempts to resile from the concessions he made in exhibit 30 when being interviewed by Ms D were fatuous in the extreme.
I am left then with the clear concession that the children are not at risk of physical or sexual abuse in their Mother’s care.

Evidence of Abuse by Father

I previously made note of the finding by DOCS that the children were at risk of emotional abuse by their Father.
In her report Ms D notes at paragraph (w) (page 9):
“(w)It is assessed that the Father will not support the children having a continuing relationship with their Mother. It is also assessed that the Father’s involvement of the children in this rejection of their Mother amounts to extreme emotional abuse and is likely to have a negative impact on their future character development and their ability to form healthy realistic relationships in the future.”
The Father’s conduct towards his children and the Mother has been nothing short of despicable.
It has been calculated to punish the Mother for leaving the relationship and has been carried out without the slightest regard for the proper interests of the children – particularly their right to be able to know and love both their parents.
I have given serious consideration to further adjourning this matter to allow psychiatric examination of the parties to be carried out. Ultimately, I have concluded, it matters not what label may or may not be given to the Father’s behaviour under the DSM IV. His behaviour is unlikely to change. He is incapable of promoting a relationship between the children and their Mother.
There is an outside chance that he could be shamed into doing something but how that could be brought about has not been fully explored.
At paragraph (x) of her report Ms D notes (quoted previously at paragraph 94):
“(x)It is assessed that [N] and [T’s] extreme alignment with their Father is so strong at this time that any order providing for any time with the Mother is unlikely to be complied with and it is also likely to further erode respect for her as the children are psychologically required to “prove” their complete unwillingness to comply. It is assessed that [S] is not as completely extremely aligned with her Father.”
It is difficult to explain how the Father could persuade the children in such a short space of time to turn against their Mother. I accept the Father does not engage in physical discipline of the children but he has a powerful, menacing and manipulative manner about him. He controls the Mother and she in turn in my view behaved in a not dissimilar fashion towards the children to exert control over them. When the Mother absented herself from the household the children did not wish to be placed in the position of substitution for the Mother and immediately sided with their Father against her.
This speculation on my part is not really necessary to answer the question of how the Father was able to manipulate the children so strongly, so quickly, so successfully. It is sufficient to note that he has managed to do so and of that I have no doubt.
Reluctantly I must agree with the assessment of Ms D as noted in paragraph (x) above.
I am conscious of the determination of the Full Court in In the marriage of
R (Children’s Wishes) [2002] Fam CA 383 where the facts were somewhat similar to those present in this matter though the genders were reversed. The Full Court consisting of Nicholson CJ, Holden and Monteith JJ, there found:
“There is a real dispute in relation to C. The Mother maintains that her wishes should be respected and that she should not be required to see her Father. The Father says that these wishes have been brought about as the result of the behaviour of the Mother and should not be given the weight that might normally be attached to them.”
The Court held:
“The trial Judge found that the child’s fears and expressed wishes were caused by the background to which he referred in detail and to the behaviour of M. He was clearly aware of these concerns when he made the staggered order that he did in relation to contact.
A Family Court would not be doing its duty if it were simply to give in to circumstances created by the manipulations of one parent resulting in a situation where the other parent’s hopes of ever seeing the child again rested upon the possibility that she may wish to seek him out in the later life, except in the most extreme case and only then when a positive determination was made that the welfare of the child required it.”
So far as N is concerned she is now sixteen and a half years of age. I agree with the assessment of the Family Consultant that her extreme alignment with her Father is so complete that any order providing any time with the Mother is unlikely to be complied with. I propose to adopt the recommendations of Ms D that having regard to her age and her strongly expressed views no order should be made in relation to N.
T is soon to be thirteen and is in the final year of primary school. His mindset appears to be similar to that of his older sister.
Again, I agree with the assessment by the Family Consultant that his views are so enmeshed with those of his Father and so against the renewal of a relationship with his Mother that to make any order in this regard would seem fruitless.
It is immediately apparent on the evidence that the instant case is an extreme one as contemplated by the Full Court in the case cited. It is unfortunate that mere acknowledgement of such grave circumstances will not satisfy the Mother’s desire for a close and continuing relationship with her older children. Those children are, however, of such an age that they can be said to be competent to express their views on how their future should be determined. That those views are necessarily informed by the evil whispered by their Father is clear, but that alone cannot dictate the best interests of the children where such views are so advanced and strongly held.
It is a necessary consequence of the foregoing and the parenting orders that are made hereto that the Mother’s ultimate remedy will lie when the children are moved to see her in later life, free from the corrupting influence of their Father. In the circumstances, granting the orders sought by the Mother to have the children live with her or spend time with her would only exacerbate an already difficult situation, which would entrench the prevailing disorder and ultimately be against the children’s best interests.
It is to be hoped that in the fullness of time the children will seek out their Mother and that justice will be done with the passing of the years.
Since the orders were made consequent upon my judgment of 5 September 2007 S has lived with her Mother. There has been no communication with her siblings nor with her Father. It is most regrettable that such orders had to be put in place. They were done so on the recommendation of the Family Consultant. It is likely if the child is exposed to her older siblings they will endeavour to influence her to leave the Mother’s household and return to the Father’s care. Such a move by S would not be in her interests. If the child is only to have a relationship with one parent or the other to my mind it is far preferable that that relationship be with her Mother. She would not be exposed to the poisonous attitudes of the Father. In the Mother’s household she would not be turned against her Father but the Mother would simply comply with the Court order that there only be such time spent with the Father as may be agreed between the parents. I am confident that the Mother may arrange that by an appropriate form of supervised time between Father and daughter. Having regard to his arrogant narcissistic nature it is highly unlikely that the Father would submit himself to having any time with S supervised – again an instance of the Father putting his own interests ahead of those of his youngest child.
I do not find it necessary in a case such as this to canvass the other aspects of section 60CC. Suffice to say I am more than satisfied the Mother has been a competent parent well able to care for all the children but particularly S in the circumstances which have arisen. I will make an order to allow for the parents themselves to arrange for contact with the non-primary parent to the other children but such order is made more in hope than any realistic expectation.
If in the fullness of time the children N and T in some way become rebellious I would in large measure hold the Father responsible. He needs lengthy ongoing counselling to assist him to change his mindset. Unfortunately as remarked upon by Ms D he is not amenable to such suggestions.
I do not regard the placement of N and T as an optimal placement of the children but it falls within the exception referred to by the Full Court. I only wish that it were otherwise.

Parental Responsibility

I do not propose to give the Father sole responsibility for the child T nor do I propose to make any order in this regard in relation to N. It may be that prior to enrolling T in high school the Father will need the Mother’s permission because of the terms of the Court orders. For the Father to require this permission he may be amenable to a change of attitude in order to persuade the Mother to agree to his choice of high school.
So far as the child S is concerned it is appropriate to give the Mother sole parental responsibility for her upbringing. The Father has totally abrogated any right to be involved with this child. I have every confidence that the Mother will make appropriate decisions concerning her welfare.

Whether Children Should Spend Time with Other Parent

The chances of this happening are remote but I will put in place orders to allow the parties to negotiate to this end. The parties may even agree to go to counselling to try to improve the situation but I would be pessimistic about any such outcome.

In arriving at the conclusions that I have I have had significant regard to the well argued written submissions made by Counsel for the Mother. I adopt and incorporate those submissions as part of my reasons for judgment.
For the above reasons the Court makes the orders set out at the beginning of this judgment.

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry.

Associate:

Date: 21 July 2008

[2008] FamCA 637

21 July 2008

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness