Runcorne & Raine
[2008] FamCA 837
•16 October 2008
FAMILY COURT OF AUSTRALIA
| RUNCORN & RAINE | [2008] FamCA 837 |
| FAMILY LAW – CHILDREN – With whom children live – Discussion of the practical application of s 60CC objects and principles - where the mother makes allegations of risk of physical harm from father and father makes allegations of risk of psychological harm from mother – where the parties have no ability to communicate or co-operate – where concerns exist as to the mental health of the mother – where the children need stability and consistency in parenting – where the mother failed to volunteer information of her pregnancy at trial and failed to consider the impact of household composition for the children –where the mother is dismissive of the father’s role in the children’s life – where the father doesn’t appear on the birth certificate and the mother does not call the children by the father’s name - Finding that a significant relationship between mother and children will cause psychological harm for the children - order the children live with the father – order the formal registration of the father on birth certificate – parties to make submissions as to what orders should be made for time spent between mother and children FAMILY LAW – CHILDREN – Parental responsibility – meaning and definition of parental responsibility – where the presumption of equal shared parental responsibility is not in the children’s best interests – discussion of the significance of making an order for sole parental responsibility – order the father have sole parental responsibility – order the father notify the mother of decisions relating to long term issues FAMILY LAW – CHILDREN – Allegations of bias and bribery made against report writers – there being no substance to any of the allegations – evidence of the report writers remains untainted by the allegations |
| Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 65DAC, 65DAE, 68F and 69ZR |
| AIF v AMS (1999) 199 CLR 160 Mazorski v Albright (2007) 37 Fam LR 518 Neil v Nott (1994) 68 ALJR 509 Secretary, Department of Health and Community Services v. JWB & SMB (1992) 175 CLR 218 U v U (2002) 211 CLR 238 |
| APPLICANT: | Mr Runcorn |
| RESPONDENT: | Ms Raine |
| FILE NUMBER: | BRF | 2512 | of | 2006 |
| DATE DELIVERED: | 16 October 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 10 – 14 March 2008 |
REPRESENTATION
| APPLICANT FATHER: | In person |
| RESPONDENT MOTHER: | In person |
| COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER: | Mr Linklater-Steele |
| INDEPENDENT CHILDREN’S LAWYER: | Carter Naughton Rice |
Orders
IT IS NOTED THAT the presumption of equal shared responsibility is, in the circumstances of this case, rebutted by reason of the best interests of the children N and J each born … May 2000.
IT IS ORDERED THAT
Parental Responsibility
The parties shall each have responsibility for making day to day decisions in respect of the care, welfare and development of the children during the time that the children spend with each of them in accordance with these orders.
The father shall have sole parental responsibility in respect of all major long term issues (as that expression is defined in the Family Law Act 1975 (as amended)) in respect of each of the children, save that the father shall, prior to making the sole ultimate decision about any such issue:
(a)Use his best endeavours to advise the mother in writing of the decision intended to be made;
(b) Seek the mother’s written response in relation thereto;
(c)Consider, by reference to the best interests of the children, any such response prior to making any such decision;
(d)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The parties shall each do all such things, sign all such documents and each pay any charges or fees as are reasonably necessary to:
(a)Keep the other informed of their residential address and a landline number, a mobile telephone number and an email address on or at which the children can be contacted whilst in the care of the other and, forthwith, of any changes in each;
(b)keep the other informed of each and all doctors, health professionals, educational institutions, counsellors, therapists and extra-curricular activities which the children each attend;
(c)authorise any person, institution or body referred to in the previous sub-paragraph to provide to the other parent any and all such information in respect of the treatment of the children, or their activities as the case may be, as the other parent might reasonably require;
(d)have the children’s school provide to the other parent a copy of each of the children’s report cards, together with any other written report issued by the school in respect of either child;
(e)authorise any school or educational institution, teacher, tutor or other educational professional to provide to the other parent any and all such information in respect of the progress of the children, including, but not limited to, their social, sporting and extra-curricular activities as, as the other parent might reasonably require.
Each of the parties shall do all such things, sign all such documents and pay equally all such government charges or fees that might be necessary to forthwith:
(a)Include the father on all formal registrations of the birth of the children, including, but not limited to, the children’s birth certificates, as the father of the children and the surname “[Runcorn]” as the sole surname for each of the children;
(b)refer to the children, both orally and in writing, on any occasion and in any context when it is necessary to do so, by the surname “[Runcorn]”;
(c)refrain from referring to either of the children, either orally or in writing, on any occasion and in any context when it is necessary to do so, by any surname other than “[Runcorn]”.
Lives With
The children shall live with the father.
IT IS FURTHER NOTED THAT consequent upon a hearing conducted over five days in March 2008, the Court has today delivered extensive reasons. Those reasons include reference to the need, in the best interests of the children, to hear further from the parties and the Independent Children’s Lawyer, consequent upon each considering the Court’s reasons and these orders, in respect of the matters there identified with respect to the issues of the mother’s time and communication with the children and the nature and extent thereof.
IT IS DIRECTED THAT
The matter be adjourned before Justice Murphy for hearing of those issues referred to in the above notation, to 10.00am on Friday 7 November 2008 in the Brisbane Registry of the Family Court of Australia.
By not later than 4.00pm on 4 November 2008 each of the parties, including the Independent Children’s Lawyer, file, by forwarding via email to the Associate to Justice Murphy at …@...
(a)Any affidavit on which they would seek to rely, but only if considered necessary, and confined solely to the following issues:
(i)The date of birth and state of health of the mother’s new child;
(ii)Any impact same has had on the mother’s mental health, capacity to parent and the responsibilities of parenthood;
(iii)The role, if any of the father of the mother’s new child in the mother’s household;
(iv)The prospective role, if any, of that person in the children’s lives during any time spent by the children with the mother; and
(v)The nature, extent and frequency of the time spent by the mother with the children in the approximate six months between the hearing of this matter and these Orders.
(b)Draft Orders outlining precisely the contentions of each party and the Independent Children’s Lawyer as to the nature and extent of the time that the children should spend with the mother, and/or how and when the children should communicate, with their mother in light of the Orders made and reasons delivered today; and
(c) Brief written submissions in support of the Draft Orders sought.
For the purposes of any appeal, and, specifically, for the purposes of Rule 22.03(2) of the Family Law Rules 2004, the “last order made in the trial” shall be deemed to be the order made consequent upon the hearing on 7 November 2008, which such order will consolidate Orders (1) to (5) of these Orders with the Order made on that date with respect to time and communication.
IT IS RESPECTFULLY REQUESTED THAT the Director of the Legal Aid Office Queensland give favourable consideration to providing, in the difficult circumstances of this case (including the self-representation of each of the parties, further legal aid to the Independent Children’s Lawyer and her counsel for the additional hearing contemplated by these Orders and any necessary work, reasonably ancillary thereto.
IT IS NOTED that publication of this judgment under the pseudonym Runcorn and Raine is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRF 2512 of 2006
| MR RUNCORN |
Applicant
And
| MS RAINE |
Respondent
REASONS FOR JUDGMENT
A decision is required about the parenting orders which best accommodate the best interests of twin boys, J and N, born in May 2000.
That decision occurs within the context of proposals by the father that the children should live with him and spend time with the mother on alternate weekends and nominated special occasions. The father also seeks injunctive relief including an order that the registered surname of the children be changed to “[Runcorn]”, that the mother be restrained from referring to the children by any other surname and that he be recorded as the children’s father.
For her part, the mother seeks orders that would see the children live with her and spend two out of three weekends with the father together with two weeks in the June and September school holiday periods each year as well as special occasions.
The mother, too, seeks orders in respect of the children’s names in these terms: that “all my other children have surname [Raine] apart from the child [T] who has [Raine-…] and choses [sic] to use only the Surname [Raine] …”
The decision about parenting orders (which includes a consideration of any alternative proposal which the court itself considers to be more consistent with the children’s best interests) occurs in circumstances where, as observed by the family report writer: “… there are numerous issues of fact pertaining to … most events pertaining to [the parties’] mutual history”.
Indeed, some issues of fact concern the family report writer himself. The mother asserts that he knew the father without disclosing that fact and/or that he received a cash bribe to write a report and arrive at conclusions favourable to the father.
Other allegations by the mother include an assertion that the father physically harmed the children and that she and the father were never in a relationship at all.
Another assertion by the mother is that her, and the children’s, aboriginality ought be taken into account as a relevant consideration. The mother is adopted. There is no suggestion, including by her, that either of her natural parents is aboriginal. The basis of her claim that aboriginality should be taken into account appears to be an assertion that her adopted father’s mother is aboriginal (an alleged fact about which there is no evidence save her assertion).
The allegations made by the mother also occur within the context of a number of significant concerns about the mother’s mental health.
Relevant Principles
Best Interests Generally
When parents cannot agree about the post-separation parenting arrangements for their children, best interests is the criterion by which the court arrives at parenting orders that will be imposed upon the parents.
Ultimate findings about best interests rest on a fact-finding exercise performed within a mandatory statutory framework. In particular, s 60CC bears the heading “How a court determines what is in a child’s best interests”.
The nature of what is required by that section, together with complementary provisions of the Act, including its Objects and Principles with respect to parenting orders, is central to the court’s role.
The exercise in discerning the proper meaning of the legislation is not an exercise in semantics or sophistry. The court is bound to ascertain best interests in the way mandated by the Act.
Reference to the Act makes it clear, though, that the court’s overriding mandatory function is to determine the orders that best promote the best interests of the particular children the subject of the proceedings in the circumstances specific to them.
The court is reminded more than once (eg s 60CA; s 65AA), that a determination of those best interests is at the heart of the decision - “the paramount consideration” - when arriving, ultimately, at parenting orders.
In Mazorski v Albright ((2007) 37 Fam LR 518), Brown J said (at para 3):-
“The provisions in [the Act] relating to children rest on two pillars. The first is the importance to children of having a meaningful relationship with both parents, the second is the need to protect children from physical and psychological harm. These are stressed in s 60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC(1).”
The purpose of each of the Primary and the Additional Considerations is, as the heading to the section makes clear, to direct a court as to how a decision is to be arrived at, about the subject children’s best interests.
The Act’s mandatory considerations (s 60CC) are, like their predecessor (s 68F(2)), not objective standards. (See, eg. Secretary, Department of Health and Community Services v. JWB & SMB (1992) 175 CLR 218 at 270-2). The s 60CC considerations are signposts or touchstones within which the broad enquiry as to best interests must be conducted. That it remains a broad enquiry is evident from the section itself (s 60CC(3)(m)).
Ascertaining best interests by reference to those mandatory signposts must embrace the fact that: “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require … [b]est interests are values, not facts” (CDJ & VAJ (1998) 197 CLR 172 at 219).
“Best interests” – and, thus, the findings of fact (and values) which underpin it - is also a servant to many masters within Part VII. The Act prescribes but one method for determining best interests and that is the making of findings in respect of the matters specified in s 60CC.
Those findings, though, find their way into a number of different aspects of the decision in respect of parenting orders including, for example, parental responsibility and quantities of time. (See eg s 61DA(4); s 65DAA)
It is in my view, then, to commence the application of the statutory process by examining and making findings about those matters specific to the best interests of these twin boys specific to the circumstances in which they find themselves. Those findings can, then, inform the mandatory statutory exercise.
Best Interests – Parental Responsibility
If making a parenting order, the court must presume that it is in the best interests of the children for their parents to have “equal shared parental responsibility” of them.
The statutory presumption is rebuttable in circumstances where the court has reasonable grounds to believe that a parent has engaged in abuse or violence or where it is in the best interests of the children for that presumption to be rebutted. In the latter case, then, the s 60CC findings as to best interests are again called into use.
Parental responsibility is defined in the Act to mean “… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Save as the court orders, each of the father and mother has parental responsibility for each of the children. A parenting order does not derogate from that save as is expressly ordered.
But, the Act requires something that appears, at least in terms, different: the rebuttable presumption in that situation is that the parents have “equal shared parental responsibility”. That phrase is not separately defined.
Not only is that phrase not defined, it might be thought to involve a concept different to that which guides the practicalities of co-parenting of children in either intact families or in arrangements where high levels of co-operation, respect and agreement attend consensual post-separation co-parenting arrangements.
In those situations, there can be little doubt that, appropriately, parties share parental responsibility (as defined). Yet, common experience shows that parental responsibility (or, at least, aspects of it, for example, responsibilities and duties) is - for a variety of reasons, some born of necessity, others not - by no means always, or even frequently, shared equally.
The Act (s 65DAC) makes it clear that sharing parental responsibility (whether equally or not) in respect of “major long-term issues” is not a passive activity; it requires those having equal shared parental responsibility to make joint decisions and to consult and attempt to reach agreement in order to do so.
Carrying out those tasks and obligations, on what might be a regular basis when children are young, carries with it potential significant difficulties, and all the more so when parents are in high conflict and have little or no capacity to either communicate or predominate the true needs of their children over their inter-adult conflict.
The difficulties accordingly created, and more particularly the impact of those difficulties upon the children, seem to me to be potentially antithetical to the best interests of children.
For reasons and in circumstances which will emerge, the latter situation pertains here.
The parties here have little or no effective communication or capacity to co-operate and each brings entirely different personalities or parenting “styles” to any such requirement. And, as I also find, none of those things are likely to change into the foreseeable future.
A finding that the parties are utterly incapable of achieving now, or in the foreseeable future, what the Act requires of those who share parental responsibility, and a finding that this incapacity is highly likely to spill over into regular future conflict for the children, appears to me to lead to a conclusion that the sharing of parental responsibility in the manner envisaged by s 65DAC – and, in particular, sharing parental responsibility equally - is contra-indicated in the best interests of the children.
Equally, though, an order for “sole parental responsibility” in favour of a party means (as, it seems to me, follows from the statutory definitions) that the other party has no “duties, powers, responsibilities and authority” in respect of “major long term issues” for the children save as expressly ordered. (Decisions in respect of day to day issues are specifically provided for: Note to s 65DAC and s 65DAE).
The exercise of discretion in favour of excluding completely one parent from consultation and decision making in respect of major long-term issues for their children - particularly when, as here, there are many years until the children turn 18 – is, it seems to me, a very significant step, being a very serious interference with the fundamental rights of a person.
There is no doubt that the exercise of that discretion ought be resolved in favour of an outcome which is seen to be in the best interests of the children. But, the fact that this is the paramount consideration does not, in my view, mean it is the sole consideration nor that the legitimate fundamental rights of a parent are irrelevant. (cf AIF v AMS (1999) 199 CLR 160; U v U (2002) 211 CLR 238).
Thus, as it seems to me, a decision about parental responsibility and, specifically about whether the statutory presumption of equal shared parental responsibility is rebutted by reason of “best interests”, involves the balancing of the considerations just referred to, always bearing in mind that these particular children’s best interests, given their particular circumstances, is the ultimate criterion.
Thus, the circumstances of particular children may, for example, require the enumeration of aspects of parental responsibility that will be shared (including equally) and those which are not.
I will make ultimate findings about this issue later in these reasons.
Best Interests and “Meaningful Relationship”
The wording of the delineation between “Primary” and “Additional” Considerations suggests to me that the former are to have particular importance. But, as the word “additional” suggests, they are to be considered in conjunction with the other Considerations and do not, per se, outweigh the “Additional Considerations”.
Findings about harm or abuse or the risk of either, or the likely effect of change for a child, or the capacity of one or both parents to provide for children’s needs, all involve findings of fact which can be readily seen as likely to impact on orders about the nature and extent of a future parent/child relationship.
The position with respect to s 60CC(2)(a): (“the benefit to the child of having a meaningful relationship with both of the child’s parents”) is, it seems to me, less clear.
“Meaningful relationship” is not defined in the Act. Brown J in Mazorski v Albright concluded in respect of the phrase (reasons para 26) that it was not a strictly quantitative concept:-
“…when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one…”
I respectfully agree, noting the use of the qualifying word, “strictly”. That is, quantity of time is an element of a meaningful relationship but not necessarily determinative of it.
Further, in my respectful view, Her Honour’s conclusion receives added weight by reason of the Act specifically eschewing (see note to s 61DA(1)) a presumption as to time. Put in Her Honour’s terms, the Primary Consideration is, then, relevantly, “the benefit to the children of a relationship which is important, significant and valuable to the child.”
But, significantly, as it seems to me, the Act does not require a court to consider whether a party’s proposal is important, significant and valuable to a child. Rather, it appears to require the court to consider that such a relationship is of benefit to the subject children. Whilst not a “presumption” necessary to be rebutted (in the same sense as, for example, the express presumption as to equal shared parental responsibility), the paragraph appears to be presumptive in concept or effect.
The Considerations are the pathway by which factual findings underpinning ultimate findings about best interests are to be arrived at. The court can only “consider” the required matters in the light of factual findings made about those matters (or other relevant matters – see s 60CC(3)(m)). If that is so, it seems to me difficult to know what to make of the Primary Consideration under discussion.
The “presumption”, or consideration of a fait accompli, that a relationship with each parent which is “important, significant and of value” is of benefit to a child is, it seems to me, either axiomatic or a fact in issue. That is, if it be determined - as a fact - that a current, or proposed future, relationship is not, for the particular children, important, significant and valuable, and best interests is the ultimate criterion, a court surely can’t proceed on the basis that such a relationship is of “benefit”. Conversely, if it is found as a fact that a current, or proposed future, relationship is, for the child, important, significant and valuable, and best interests is the ultimate criterion, it is difficult to see how a court could conclude that such a relationship is not of benefit to the child.
In either case, it is difficult to see how, as part of the fact-finding exercise, the sub-paragraph usefully serves as a pointer to the best interests of the particular children in the particular circumstances under consideration. Yet, the heading to s 60CC says that is its purpose.
That is in no sense to undermine its importance. A meaningful relationship clearly has importance – indeed, primary importance. But, it seems to me, its primary importance is in emphasising an underlying philosophy (or Object, or Principle) of the Act. The difficulty, as it seems to me, is one of application.
Factual findings as to attachment, developmental stage, the children’s views, the respective exercise of parental responsibility, the nature of the relationship between child and parents and the like can be seen immediately to shine a light on ultimate findings about best interests.
Each such finding is overtly and intimately attached to individual justice for the particular children and their particular circumstances the subject of the proceedings. Each focuses (or should focus) upon the individual needs, developmental stage, psychological and emotional health and personality of the individual children. And, of course, parenting orders are, axiomatically, about effecting individual justice.
The role of a court in effecting individual justice occurs within a factual context which, by definition, has resisted resolution and which (almost by definition), almost invariably involves parents in high conflict. In such cases, both the nature of the existing, and possible future, relationship between child and parent - and the possible benefit or detriment of any prospective relationship (including a prospective relationship that might not be properly considered “meaningful”) - are frequently in issue.
A presumed or assumed benefit from an important, significant and valuable relationship says nothing of the particular circumstances of a child. Indeed, reference to the relevant statutory objective (s 60B(1)(a)) underlines why this is likely to be so. It assumes individual justice: the objective is to ensure that parents have a meaningful involvement in the lives of their children only “to the maximum extent consistent with [their] best interests…”.
The Primary Considerations, including s 60CC(2)(a), take their place, as it seems to me, as a supervening imperative of primary importance.
That is, to the picture of best interests emerging from factual findings based on all of the statutory considerations, (including s 60CC(3)(m)) must be added a consideration of two matters of primary importance in the ultimate finding of best interests. First, is the need to protect the children from the specified acts and omissions (s 60CC(2)(b)). The second is the consideration (not application) of an assumption that, consistent with the Act’s objects and principles, children benefit from maximising the extent to which both parents have an important, significant and valuable role in their lives.
Of course, it needs to be noted that the Act also requires the court to take account of the past roles of the parents in the care of the children in fulfilling all aspects of parental responsibility, particularly in the post-separation period (s 60CC(4) and (4A)).
Overview of Issues, Considerations and Findings
The issues relevant to the parties’ contentions and proposals readily find clear reflection in the legislative context within which the current proceedings must be determined and, in particular, the mandatory considerations by which the court is to determine the boys’ best interests.
The mother asserts that the twins are at risk of physical abuse in the care of the father. (s 60CC(2(b); (3)(j). Also s 61DA(2) and (4)).
Primarily, as I understand it, that assertion results from allegations of his past violent behaviour toward her, towards other of her children and toward the twins. In respect of her other children, she called evidence in her case from her now adult son, G.
G was not a deponent. The mother made it clear that she placed great store in his evidence, being, as she saw it, in effect corroborative of her allegations of violence against the father. That assertion is contrary to the ultimate findings I will make about G’s evidence and that issue.
The father asserts, for his part, that the children are at risk of psychological harm, and possibly physical harm, the latter, as I understand it, through what he asserts is the mother’s excessive physical discipline. (s 60CC(2)(b); (3)(j). Also s 61DA(2) and (4)).
This assertion as to psychological or emotional harm is based, essentially, on the mother’s extremely negative attitude toward him and how that will likely impact on her attitude to his future role in the children’s lives. That assertion is based in part on what is asserted to be her attitude historically to the fathers of her other children. (s 60CC(3)(c) and (i). Also s 61DA(4)).
If the twins were to receive the bulk of their care from spending the great bulk of their time with their mother, a real issue arises as to whether the mother would accord to the father a meaningful role in the lives of the children. (s 60CC(2)(a); (3)(c). Also s 61DA(4)).
Indeed, an issue in this case is whether the mother would see any benefit or utility in the twins having any relationship with their father that could be described in any sense as “meaningful”. (s 60CC(2)(a); (3) (c) and (i))
There is little doubt – indeed both parties effectively concede, that they have little, and probably no, capacity to communicate, co-operate and agree with respect to issues affecting the children. (s 61DA(4); s 60CC(3)(c)).
As will emerge, there is clear evidence that the mother is suffering from a personality disorder. I consider that the mother’s psychological health is a significant issue in determining the children’s best interests. (s 60CC(3)(c) and (f) and (i)).
Whilst ensuring maximum stability in the lives of children does not, in terms, find reflection in s 60CC, this, in my view, extremely important consideration is clearly embraced within its terms. (eg. ss (3)(b),(d), (f), (m)).
A change in the children’s predominant care arrangements was effected by interim order made in December 2006 by which the boys came to live with their father. Evidence before the court, particularly from their school, suggests a very significant improvement in their progress and adjustment. (s 60CC(3)(b), (d) and (f)).
Only during the course of the trial did it emerge that the mother was pregnant. She could not see how that previously unannounced pregnancy - to a man whose role in that child’s (and the subject twins) life remains unclear - was relevant to the issues before the court. In my view, it is very relevant. (Eg s 60CC (3)(d), (f) and, in particular, (i))
The twins are eight. Their age and level of maturity are each such that I intend to place little direct weight on their “views” in the sense of them expressing a preference for the parenting arrangements that might be made about them. So, too, in this highly-charged dispute, in respect of any comments made by either of them about their parents and their parenting. (s 60CC (3)(a))
I seek to emphasise, though, that the twin’s voices should be heard in these proceedings but, in my opinion, primarily through the observations and opinions constituting the expert evidence before me.
The mother raises the issue of the children’s alleged aboriginality. (s 60CC(3)(h); s 60B(2)(e)). This issue arises in what I consider to be unusual circumstances.
The father discovered that the children’s birth certificates had no record of him as their father and that their surnames are recorded as “[Raine]”. He contends, in effect, that the facts and circumstances surrounding that are indicative of the mother’s attitude to the importance of his role in the children’s lives. (s 60CC(2)(a); (3)(b); (c); (i); s 60B(1)(a), (d)). As will emerge, I agree.
Findings As To The Context of This Dispute
As previously observed there are a plethora of factual disputes between the parties in this matter, the resolution of many of which are not directly relevant to ascertaining the best interests of the boys in this case.
It is, however, important to place many of the allegations which are directly relevant into a broad chronological context. That is particularly so because each of the reporting experts in the case refer to, and attach some importance to, some of the historical antecedents to the current dispute.
First, though, it is necessary to place into that context findings about the father and mother’s evidence.
The Parties and Credit Generally
Each of the mother and father represented themselves at the hearing.
I am mindful that self-representation (and, in the mother’s case, the preparation of her own material) may create for parties some disadvantages.
I have sought to be particularly careful when assessing the evidence (and submissions) to bear that in mind. (I have in mind, for example what the High Court said in Neil v Nott ((1994) 68 ALJR 509 at 510) that: “A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”).
A corollary of the concern about self-representation just expressed is that it can also bring with it the opportunity for a trial court to see and hear things that otherwise might be shrouded in the expertise of that party’s representation.
In his Atkin Lecture in 2002 “The Misnomer of Family Law” Mr Justice Wilson (UK) made the following observations:
“… I have reluctantly to admit that there are benefits for the judge in the appearance in person of a parent, let us say for convenience, a father. One sees him in action throughout the case, not just when produced by the advocate for his performance in the witness box. One sees him when he is tired and under stress and whether he fails with good humour to cope with minor irritants such as the mislaying of a document. Furthermore, one sees him cross-examine the mother. Although the problem must be more acute in prosecutions for sexual offences, family judges have to guard against barbarity which sometimes effects the exercise. But, even if he is misusing the cross-examination in order to harass the mother, the father provides the judge with a valuable insight. There is no better way to discern the quality of their dealings outside court, for example, whether handovers of the child between them would proceed sensibly, and to study their language including of the body, towards each other in that unenviable situation.”
Here, I consider that the self-representation of each of the parties provided an opportunity to compare and contrast their clearly different personalities, reaction to stress and capacity to focus not upon any disagreements they as adults might have but upon the best interests of the boys.
I consider that there was a good opportunity (albeit in the “artificial” setting of a court room) to “discern the quality” of the parties’ respective capacities as parents, including, in particular, their respective insight into the children and their needs.
It has been difficult to obtain a coherent account from the mother of many of the issues she raises. Her presentation was, in general terms, chaotic. She presented as the antithesis of the calm and stable parent that these children clearly, in my view, need.
The mother commenced the trial by seeking that it be vacated. Her reason was that “… there was attempted murder on my [adult] daughter [D’s] life on the Saturday 16th February, 2008” and, the mother continued, she “…can not put my mind to this and give it 100%...”. She went on …”Further more I was going to file my subpoenas and other court documents on the 28th February, when I had a car accident …” The mother’s application to vacate the trial dates was refused.
The mother walked out of the court room on the first day of hearing, saying things which were inaudible. She later explained her behaviour by saying that the air conditioning was too cold and she had a migraine. On another day, the mother telephoned to say she could not get to court (she was living in the Gold Coast area) because her car had broken down.
It goes without saying that things happen beyond a person’s control that impact on court hearings for which no responsibility should necessarily be attributed to that person. But, the events just described added to the overall chaotic presentation of the mother and gave shape to the picture of the mother presented by each of the reporting psychiatrist and social worker to similar effect.
The mother had previously sent a letter of complaint to the Chief Justice (Exhibit M3) outlining her concerns about “corruption in the family law courts”, including specifically in that complaint, each of the reporting experts in this case, Mr M and Dr C.
Dr C reports the mother presenting, on both occasions when he saw her “… in a dramatic fashion”. He says she presented “… with a plethora of complaints and difficulties”. That is entirely consistent with her presentation, assertions and allegations in this court.
Although the doctor’s view that the mother was “…a self-seeking historian” was given in a psychiatric context, I consider it is also an accurate description of much of her evidence in this court. Examples are her account of the alleged past violence by the father toward the children and, specifically, the incident witnessed by G about which she and he gave evidence.
I have grave reservations about accepting the veracity of any aspect of the mother’s evidence and I approach her evidence with considerable caution. Specific examples of evidence from the mother leading me to that conclusion relate to her allegations against Mr M and will be addressed specifically later in these reasons.
Doctor C says of the father that he “… by contrast [to the mother], impresses as a meek, somewhat unassertive man who was clearly attracted by this lady’s overly demonstrative nature”. The father presented in Court as being meek and somewhat unassertive.
I thought, however, that he also presented as someone appropriately committed to the future parenting of his two boys. His calm and considered approach to the issues affecting them during the trial was in stark contrast to the mothers.
So, too, I considered his attitude to the future role of the mother in the children’s lives was child focussed and in stark contrast to the mothers. I will also address this issue further later in these reasons.
I was generally impressed by the father’s evidence, including when being cross-examined by the mother. I am much more confident in placing weight on his account of events than I am in respect of the mothers.
Findings as to Relevant Background Events
The mother has five children (including the twins the subject of this application) to four fathers (including the father in these proceedings). Previous proceedings have attended the parenting arrangements for those other children.
The mother revealed during the trial that she was, at the time of the trial, expecting her sixth child to another man. This issue is, in my view, important and will be addressed below.
In 1995 the mother consented to an order that her children G and D (now aged approximately 21 and 22 respectively) live with her parents.
The mother makes allegations against her father of sexual abuse of her. She did not raise those allegations in the family Court proceedings which resulted in her consenting to her father (and mother) obtaining residence of those children. Dr C raised that issue with the mother in each of two assessment interviews with her. From his perspective, he described her reasons for failing to raise that serious matter in those proceedings as “inexplicable”. I agree.
The mother told Dr C that her father “belted [her] to a pulp” and that he would “regard it as a trophy if he could “make me bleed””. It is not clear if she raised those allegations in the proceedings in which she consented to him having residence of her children.
I accept generally the evidence of Dr C. His report is, in my view, clear and cogent as was his evidence when he was cross-examined. The mother, during her cross-examination did not challenge any of the antecedent factual matters referred to by the doctor in his report.
The mother did not, during the hearing, accuse Dr C of being biased or of taking a bribe from the father. However, her letter to the Chief Justice (Exhibit M3) includes him in the “corruption in the family law courts” by reason of alleged “selected reporting”. It never emerged in the hearing what she meant by that.
The mother’s father was, apparently, Church office holder. She told Dr C that her father had been sacked as such because he “sexually abused girls”. Again, though, it appears this was not raised by the mother in the parenting proceedings earlier referred to.
In interviews with Dr C, the mother told him that the then head of the Church, a Dr Y also sexually abused her. She told Dr C that the abuse occurred, “when she got knocked out and she woke to find herself “bleeding everywhere” and her whole body “vibrating””.
The mother did not live with Mr P, the father of D. She told Dr C that she “did not actually have a relationship with him and their involvement was at best brief”.
The father of G is a man called “[Mr N]”. The mother told Dr C that she had an “eighteen month relationship with [Mr N], they never lived together and he apparently went back to Greece through an arranged marriage”.
In 1993 a child T was born to the mother and a former husband, Mr H. The mother told Dr C that “she and [Mr H] were married but the ceremony was illegal as the celebrant had been deregistered, as he was up on child abuse charges at the time”. The mother told Dr C that “[Mr H] had wanted custody of [T], had eventually got that and at the time this was occurring she was in fact in the Family Court over the custody of all three of her children”.
In respect of the relationship with Mr H, the mother told Dr C that she had “sort of cohabited” for a period of time and now she sees T every second weekend. She told Dr C that Mr H had “gained custody as he lied well in court”.
The parties in these proceedings commenced a relationship in 1999 although, similarly to her earlier relationships just described, the mother asserts that she and the father were not in a relationship at all in any meaningful sense.
The mother told Dr C about a relatively long history of consultation with mental health professionals including the psychiatrists Dr W and Dr R and a further consultant psychiatrist, Dr O.
At the time of seeing Dr C the mother said she was receiving “counselling from her general practitioner”.
Relying on what the mother told him, Dr C reports that the mother saw a couple, Mr and Mrs L (whose expertise remains unclear) during whose counselling, it seems, the memories of sexual abuse by her father came to the mother.
She had also seen, according to the account given to Dr C a psychologist, Ms GN, over a period of about twelve months and a Dr DE with whom, according to her account to Dr C, she “underwent deprogramming”.
The mother deposes to an incident which occurred in 2003 when the father, she says, became violent towards her child of a previous relationship, G. The mother alleged in affidavit, and confirmed in oral evidence, that the father had dragged G and kicked him on the floor. This incident appeared to underpin much of what the mother had to say about the father’s propensity for violence. I will return to it in detail below
In May 2005 N was referred to the behavioural centre at the University of Queensland due to experiencing temper tantrums and behavioural problems.
In September 2005 the father obtained an extract of the children’s birth certificate. He discovered, for the first time, that the children had been registered under the surname “[Raine]” and that no details were included on the birth certificate of the children’s father. There is no dispute that the father is indeed the father of the twins nor, it seems, has the mother ever alleged otherwise.
On an unspecified date in 2006 the mother alleges there was a violent incident between she and the father at which time the father dislocated her finger.
The mother also alleges that the father (and his family) practise witchcraft. Her foundation for that belief appears to emanate from an assertion that the father and his family are Pagans. She says these beliefs are likely to have an impact on the children because, in particular, she alleges that the father has told her that they (including the children) “run naked around a fire” and have “cutting and binding ceremonies” and “smoke lots of dope”. The father denies each and all of these specific allegations. He says he is an atheist but he accepts and respects the beliefs of others. He indulges, he says, in no practices, regularly or at all, that could be described as “witchcraft”. I accept his evidence in that respect.
On the 23rd of July 2006 the mother alleges that, when the father was looking after the children, N suffered a severe asthma attack and the father did nothing to relieve the symptoms. She says N had blue lips. She says she took him to the Royal Children’s Hospital the following morning and N remained in hospital for a week. The mother uses this incident as an example to say that the father has little insight into the care of the children and their medical needs. I accept that an incident of this type occurred but accept that the father’s response to it was appropriate.
It seems that in about early August 2006, whatever had been the true living arrangements of the father and mother up until that point in time, the mother left the home in which the children were then living leaving them in the predominant care of the father.
It seems that the mother departed for a three-week working holiday in Sydney. The effect was to leave the children, (then aged about 6) for that period of time in the care of a person whose capacity to care for them she questions and who she alleges was violent to them. The mother returned from Sydney and the children came into her predominant care.
Soon after, the mother advised the father that the children were being home schooled and were not attending school. The father says, and I accept that, he experienced significant problems seeing the children at that time.
On 19 September 2006 orders were made requiring the mother to deliver the children to the child dispute service at this court on 3 October 2006, and, on that day orders were made for the father to spend time with the children on 8, 15 and 22 October and that the father speak to the children by telephone.
On 23 October 2006 interim consent orders were made providing for the children to live with the mother and spend each weekend with the father pending the preparation of a family report by Ms LS.
Shortly thereafter, the mother objected to Ms LS’s involvement alleging a prior relationship between Ms LS and the father. The Independent Children’s Lawyer engaged Mr M. On 8 December 2006 Mr M’s report was received and a psychiatric assessment was recommended. Mr M made a recommendation that the children live with the father.
The mother alleges a prior relationship between the father and Mr M. The mother also alleges that Mr M took a cash bribe from the father.
On 12 December 2006 orders were made by consent providing that the children live with the father and spend every second weekend with the mother.
As a result of that order the children returned to E State School. They had been removed from there unilaterally by the mother and enrolled at B school. She alleges that the boys were not having their special needs met at the former school. The mother says in her letter to the Chief Justice (Exhibit M3):
“The [B] primary school is the ONLY school in Queensland where they have extra funding to provide parent support and children’s support for behaviour….”.[underlining in original]
The evidence before me points clearly to a conclusion that, since the children have been in their father’s care and attended E school, there has been a dramatic improvement in their school performance and behaviour.
The principal of the B school said in evidence, having been referred to evidence of their progress at E School, that the results and information from that school represented “good news for the boys” and represented a “significant improvement” to their performance whilst at his school.
I consider this evidence to be very important. I consider, contrary to what the mother asserts, that it says little about the merits of the respective schools (at least in the absence of other reliable evidence in that respect) but says much about the respective capacities of the parties to parent and, in particular, the respective capacities of the parties to provide the requisite degree of consistency and stability so as to provide a platform for the children’s behavioural and educational issues to be addressed and improved.
The evidence just described, is, as I find, objective and independent of the parties, and gives real depth to the positive effect on the boys after coming into the care of their father which, it should be noted, was a significant change in their erstwhile predominant care arrangements.
On 20 April 2007 Dr C’s report was received by the Independent Children’s Lawyer. Dr C raised a number of concerns with respect to the mother’s mental health and ultimately concluded that it was “more likely than not that the mother had a mixed personality disorder with both histrionic and borderline features”.
Consequent upon the receipt of Dr C’s report the mother filed an application seeking the removal of both Dr C and Mr M on the grounds that each was biased against her. On 13 September 2007 that application was dismissed. Directions were made for trial.
The mother advised the court on that occasion that she had undergone independent psychiatric assessment with a Dr MC. However, no report or other evidence was introduced by the mother from Dr MC, nor from the mother’s general practitioner, from whom, she told Dr C, she was receiving “counselling”.
In October 2007 subsequent interviews were conducted by Mr M for the preparation of an updating report which was subsequently filed and relied upon by the Independent Children’s Lawyer in these proceedings.
The Evidence of Mr M and the Allegations Against Him
The allegation that a reporting single expert has taken a cash bribe is, of course, a matter of the gravest seriousness. So, too, is an allegation that a purportedly independent report writer has failed to disclose a prior personal relationship with one of the parties about whom a report is being written.
It is not necessary for a person to be legally trained to understand the seriousness of such an allegation. Similarly, it is not necessary for a person to be a lawyer to understand that such an allegation should neither be made lightly nor be made without a proper and firm evidentiary foundation.
If either such allegation is made out, the ramifications for the proceedings are, of course, very serious. The court is not only, in effect, deprived of that witness’s evidence, but is also deprived of something that is very important in a parenting case: evidence from an expert, part of whose potential value is his or her independence of the parties.
If neither allegation is made out, the expert witness and the evidence remains untainted by any such consideration. If the allegation is found to have no real basis, there is the potential for the facts and circumstances surrounding the making of the allegations to say something about the person making the allegations.
Also, as referred to earlier, the mother alleges that Mr M is corrupt by reason of failing deliberately to record relevant and important things said by the children to her teenage son T, who accompanied the mother to the interviews with Mr M.
Prior Undisclosed Relationship
The allegation of prior friendship / relationship, briefly summarised, is this. An unnamed male person, at an unspecified time during 2007, knew, for reasons unexplained, the mother’s phone number and telephoned her. She did not know this person. He never at any time identified himself or explained how he knew her (or knew of her), the father or Mr M.
Apparently, he never at any time explained how he obtained the mother’s phone number.
The male person remains unknown and unnamed. He has, apparently, not contacted the mother again.
This person never at any time explained the reason for ringing the mother (who he did not know) “out of the blue”.
This unidentified male person apparently simply told the mother at some time during 2007 – at a time which the mother can not otherwise specify - that the father was a friend of Mr M.
This information, and, apparently, this information alone is the sole foundation for this part of the allegation that Mr M is corrupt.
No other evidence of any type or description was offered by the mother about that phone call that could in any way assist in giving it context or particularity.
To this day the mother asserts that she doesn’t know who phoned her nor why this unnamed male person did so.
Both Mr M and the father flatly deny any prior knowledge of each other or a relationship of any type or description.
I have not the slightest reason to doubt Mr M’s credibility. No evidence before the court – including assertions by the mother – casts the slightest doubts on his credibility. I accept his evidence.
I also unreservedly accept the evidence of the father to the effect there was no prior relationship of any type or description.
No evidence of, or circumstance pointed to by, the mother persuades me of any alternative conclusion.
I find the mother to be, generally, a very unreliable historian. I suspect strongly that much of her evidence is attended by fantasy or, put another way, attended by matters which are untrue but which she has, for other, perhaps irrational, reasons, convinced herself are true and used such things as the foundation for a conclusion which is, in turn, untrue.
In this particular instance, I have a strong suspicion that the mother has simply concocted the evidence just described. Certainly, I find it utterly unsatisfactory, inherently improbable and bordering on the bizarre. I reject it.
The Alleged Bribe
The mother alleges that Mr M took a bribe, presumably through the agency of the father, to write reports favourable to the father.
Particulars of that allegation were drawn from the mother in cross-examination. During that evidence she indicated that she had witnessed a “wad of cash” being passed between a male person and Mr M, sandwiched between two pieces of paper that “looked like computer paper”. The mother said that she concluded from watching this that Mr M was being bribed by “another father”.
She uses this conclusion to conclude, in turn, that Mr M had been bribed by the father in these proceedings.
It should be noted that the mother uses no direct evidence whatsoever implicating the father in making this allegation.
Mr M gave evidence that, during the course of interviews for his first report, a Mr X – a grandparent involved in a matter entirely unrelated to the present proceedings – had come to his rooms and paid him in the usual course of business for one half of the report. Mr M explained that Mr X was a client paying for his one half of the report the payment of which by each of the parties prior to release of the report is his usual practice. I accept this evidence.
Mr M was adamant that payment was received by cheque. He was equally adamant that no cash whatsoever passed between he and Mr X (or anyone else during the report process for this case). I accept this evidence.
The mother specifically put to Mr M that, as she was going down the corridor of his rooms, “I saw the man taking cash out of his – out of his wallet, and when I was coming back I saw folded money in between paper. So I am suggesting to you that the paper that I saw may indeed have been the cheque plus cash?”. Mr M answered: “Well if you did he didn’t give it to me.”
I am convinced that, what the mother witnessed was as described by Mr M. I do not accept that the mother witnessed any exchange of cash in any form between any person and Mr M.
The allegation was to take a more interesting turn. It emerged, as the particulars of this serious allegation were teased out during the hearing, that the bribe allegation was made (or, at least, formulated) by the mother prior to her witnessing the alleged exchange. I invited the mother to explain how that could be so when, previously, she had said that this exchange informed her bribe allegation.
In answer, she recounted an event which I think it is highly likely she has concocted or fantasised.
Interestingly, it is an event which, to my mind, has clear echoes in the earlier described telephone conversation with the unnamed person said to found the allegation by her of prior relationship between the father and Mr M-.
Her evidence is important and should, I think, be quoted at some length:-
[THE MOTHER]: When I had my first report from [Mr M], I was reading it to myself up at the hospital [where the mother works] writing this notes to [the Chief Justice Exhibit M3] and I was – I was there doing a client so I had it to the side and I was specialling, so I was making my notes. And the lady that came along to the patient in the bed happened to be a registered Judge from New South Wales. And I said, “Oh, goodie?”, and so I just sort of told her a few of the things that had come about. And she said to me, “oh, that’s a paid job”, so that sort of set the ball rolling in my mind that, maybe this was a bit more than I thought. And I thought “that’s a bit far-fetched”, and she said, “No it does happen”.
HIS HONOUR: I see. What was her name?
[THE MOTHER]: I can’t remember
HIS HONOUR: What was her description, just describe her for me.
[THE MOTHER]: She just said, “oh, that’s a ---
HIS HONOUR: Describe her for me, what did she look like please?
[THE MOTHER]: She would have been – she had brown hair ---
HIS HONOUR: yes
[THE MOTHER]: ---long ponytail.
HIS HONOUR: How old?
[THE MOTHER]: About my age
HIS HONOUR: How tall
[THE MOTHER]: About my height
HIS HONOUR: Right. Yes?
[THE MOTHER]: And she was a biggish girl.
HIS HONOUR: Right.
[THE MOTHER]: But I – my – I can’t even say that I can look back on the notes but I thought I took down her details because of who she was and I --
HIS HONOUR: You didn’t mention ---
[THE MOTHER]: ---was going---
HIS HONOUR: ---that to Bryant CJ when you wrote to her that you’d been speaking to a Judge from a court in New South Wales. I find that a bit strange, because, you see, if – I’m just thinking through what I would have done, you see? If I was making an allegation that a family report writer had been bribed, then I would be thinking well I want to complain about that to the Chief Justice. Now, what can I tell the Chief Justice to make her take notice of the fact that what I’ve got to say here is right? Now, I would have thought that one of the things that I would be pretty keen to tell her, is that I was talking to a Judge form New South Wales who had told me, quite specifically having read it, that these things happen. Now that wasn’t mentioned to the Chief Justice, and I’m wondering why that was?
[THE MOTHER]: Your Honour I was reading the document and I put the document down and too because the lady had come in to attend to her sister ---
HIS HONOUR: Yes
[THE MOTHER]: --- and so the conversation didn’t get – I didn’t get to pick up the document or talk to her about the document until the PRNs were given and the patient was settled and ---
HIS HONOUR: It doesn’t matter. Here’s a judge from New South Wales. You managed to have enough of a conversation with her to find out that she was a judge in New South Wales.
[THE MOTHER]: Yes.
HIS HONOUR: And you told her something ---
[THE MOTHER]: yes
HIS HONOUR: ---it doesn’t matter how much. And the Judge, based on what you told her ---
[THE MOTHER]: yes
HIS HONOUR: --- or shown her, or whatever ---
[THE MOTHER]: yes
HIS HONOUR: --- had said to you, “oh that’s a paid job”. Now ---
[THE MOTHER]: “that’s an inside paid job”, Yes
HIS HONOUR: --- the thing that intrigues me is that if a Judge of New South Wales - in New South Wales had said to you why, when you wrote to the Chief Justice you didn’t mention that a Judge of a court of New South Wales had told you that this was a paid job and that’s one of the reasons it needed to be investigated. Can you explain that?
[THE MOTHER]: I think that I was still reading some material and I don’t know whether I had actual already sent what I sent to Ms Bryant. It was all, sort of, around about the same time. I have a funny feeling I had already sent, possibly, this document and I was going over the material up at the – at the hospital – and I got into the conversation with the Registrar.
HIS HONOUR: What’s her name? Do you remember her first name?
[THE MOTHER]: Look, I think, I actually recorded it and I’m – I was going – I was looking for it this morning in one of my diaries ---
HIS HONOUR: yes
[THE MOTHER]:---I actually thought I took down her details because I wanted to get in contact with her ---
HIS HONOUR: Are these the diaries you are bringing to court tomorrow morning?
[THE MOTHER]: No these ones were work diaries, because I had ---
HIS HONOUR: Well you’ve got the ---
[THE MOTHER]: --- a work diary ---
HIS HONOUR: ---work diaries with you.
[THE MOTHER]: yes
HIS HONOUR: yes. Well have a look, where’s it recorded?
[THE MOTHER]: well I tried looking this morning. I have to sit down and ---
HIS HONOUR: Well have another look – have another look now. Mr [M’s] here and there might be things that you need to put to Mr [M] about this serious allegation, so let’s have a look here in the work diaries now where you have recorded the name of this New South Wales judge who told you this was a paid job. And you should be able to figure out when it was because, because remember you told me you’d figured out when it was that you had written to the Chief Justice so you must be able to, sort of, have a bit of a look around the relevant dates.
[THE MOTHER]: Thank you
HIS HONOUR: any luck?
[THE MOTHER]: No. I know that I was at the Gold Coast Hospital. I’m just trying to find when I was at the Gold Coast Hospital. I know that I was in ED
HIS HONOUR: any luck?
[THE MOTHER]: No. I just – like I said your Honour, I know that I was at – working at the Gold Coast Hospital and I’m just trying to think even what she – because I think I got the girl again the next night.
HIS HONOUR: Some of these pages look as though they are tagged Ms [Raine] are they ---
[THE MOTHER]: they were tagged your Honour for
HIS HONOUR: different reason?
[THE MOTHER]: ---different reason
HIS HONOUR: yes. All right. Don’t worry, that’s not – it’s not relevant
[THE MOTHER]: It was---
HIS HONOUR: Anyway I don’t seem to be able to find it so what we know is that you had a look for it this morning and you couldn’t find it. You’ve had a look for it now and couldn’t find it. You can have another look for it overnight and let me know tomorrow morning, ok?
[THE MOTHER]: yes
The mother did not produce any diary entry or reference to the incident or person just referred to.
No other or better description of the “registered Judge in New South Wales” was ever provided.
Exhibit M3 makes no mention of this alleged interchange.
I find the evidence lacking in particularity, in parts internally inconsistent and inherently improbable. I think it highly likely that the mother has concocted this event.
I find there is no substance whatsoever to the allegation that Mr M took a bribe from the father (or anyone else) as alleged.
The Alleged Deliberate Failure to Record Data
The mother alleges that T heard the twins make statements about them wanting to live with their mother and that Mr M deliberately did not record that. Additionally, the mother alleges that Mr M falsely recorded what T said to him about his (T’s) and the boys’ feelings.
The mother appended to her affidavit what she alleged to be a transcript of tape recordings taken by her during interviews with Mr M. The mother did not make Mr M aware that she was taping him, although he said in evidence that he had a suspicion that may be the case.
The tape recording by the mother was effected by various means, including her putting the tape recorder either under or near the closed door to a room in which Mr M was interviewing the children in the absence of anyone else.
The mother asserted that the teenage T had said to Mr M that he had witnessed physical abuse of the twins by the father. Similarly, the mother asserted that T had told Mr M that he (T) had witnessed family violence by the father towards the mother.
In the mother’s letter to the Chief Justice (Exhibit M3) the mother asserted that T had told Mr M that he (T) had “witnessed [the father] flogging [N] with a metal spatula used in the kitchen to turn the eggs.”
She went on in evidence to say that T witnessed an incident which led to her taking N “to the Royal Brisbane Hospital over a huge bruise to his upper thigh area”.
It will be appreciated that these are very serious matters. A teenage boy is, according to the mother, alleging that he has witnessed significant violence or abuse. It is hard to imagine that, if said, a competent report writer would not record such incidents. The mother asked Mr M whether T had any such conversation with him. Mr M replied that he could not recall any such conversation.
The mother specifically put to Mr M that T described to him during interviews“…one incident [of] me being attacked by [the father] from behind; him pulling my ponytail; and then him standing frozen and then [the father] – when my hands where up in the air, [the father] grabbed two of my ring fingers, twisted them around to the point that I dropped to the ground, and he stood there frozen watching while [N] stood on watching”.
When Mr M was asked whether he recalled T saying anything to that effect, Mr M reported that what T had said was recorded accurately at paragraph 66 of his report. That paragraph records:-
“66 On sitting down for his interview, [T] [then aged 13] was initially very intent on speaking about [the father], and when asked why, he told me that his mother had explained to him the purpose of the interview, which apparently was “Mum wanted me to tell you what happened when mum and [the father] lived together”. [T] – in a breathless fashion – then continued on to say that he had seen [the father] hurt his mother on one occasion. He had seen [the father] holding his mother and then he let go of her. This was the only time that he had ever seen anything of this nature.”
Significantly, as it seems to me, T went on to say to Mr M:-
67 He said that his mother reminded him of other things to tell me also, “but I already knew them…she was telling me do you remember the time when he did this or that”. [T] went on to say that “I don’t have any grudges on [the father]” and that they had actually got along well together.
68 [T] is protective of his mother. He is aware that she is stressed and said that “The only time she gets angry is if she is stressed, or sometimes the boys get so loud, that she just goes off her nut and says stop it or yells”
69 He thought that his mother was most stressed when the topic of [the father] came up. If he is mentioned “the boys jump in and say I want to go and see daddy and she gets more annoyed”. He is aware that his mother has a lot on her mind and “when that happens she gets angry and doesn’t want to yell so she goes to a park” when she feels this, or is busy on the computer, he takes care of the boys to take the stress of her, saying “she can get so stressed that is the best I can do for her now” [T] said that he feels “I want to care for Mum but I don’t know what to do, the best I can do now is taking care of the twins”.
The poignant concluding comments by a thirteen year old boy seem to me to be reflective of a child caught in the position of observing chaotic and temperamental behaviour by his mother and assuming a role indicative of maturity – or an expectation of maturity - beyond his years. It is, to my mind, profoundly sad that this young boy feels compelled to attempt to take action to relieve what he appears to perceive as his mother’s stress. It is the mother who owes a duty to T to nurture and protect him. T owes no such duties or responsibilities to his mother.
I am greatly troubled that the twins may also have been exposed to their mother’s stress and to feel similarly (albeit manifested perhaps in a less mature way) to T. All the more so when their particular emotional needs and difficulties are added to the mix.
The mother’s transcripts are very difficult to read and are, for example, punctuated with many references of “inaudible”. With respect to the issue of bruising, and what T may or may not have said to Mr M about bruising, I suggested to the mother and Mr M that page 62 of the “transcripts” was the only reference to that topic. Certainly, it was the only one I could find.
That reference, (at about ten or twelve lines form the bottom) included T saying “yes. They came back and [N] sometimes has got this big bruises all purpley bits scratches”. The transcript goes on:-
[MR M]: Inaudible
[T]: Ah, no, that’s his skateboarding.
[MR M]: So why the –
[T]: [N] keeps on blaming it on his dad. I don’t know. But, like, that’s what he does, he goes, um “oh, my dad does it”, then sometimes does “oh, my dad doesn’t do it”, or inaudible or follows on inaudible
And, um, one time he had this massive bruise, like, the – on his leg um up here and, um, it was like in the shape of a fist, the shape of a fist, an adult’s fist. Mum got to figure it out. Mum got to figure it out. It was [the father].
…And like I did too because it was in the shape of a fist.
When I invited the mother to comment on the fact that it seemed that the initial premise for at least some bruising was skateboarding and that the correlation between the “fist-shaped” bruise and the father having caused it was as a result of mum “figuring it out”, the mother responded that “at no stage” had she “mentioned a fist”. I think that is highly unlikely.
When I suggested to her that T appeared to be saying that it was she who had figured it out and that she had shared that “figuring it out” with him, the mother disagreed. I think it highly likely that this is precisely what occurred, and it seems to me to be clearly what this 13-year-old boy is suggesting.
The mother’s “transcript” reveals that the mother had read Mr M’s first report to T:-
MR [M]: Yes, your mum let you read that
[T]: Yes
MR [M]: Yes
[T]: Kind of
MR [M]: Did you – did you get in to trouble inaudible?
[T]: Ah, no.
MR [M]: Were you ok with that?
[T]: No. I – I don’t know – like I can’t remember it inaudible. I don’t know.
The mother put to Mr M that N had said “Mummy, I told the man I want…I told the man I want to live with you”. She also put that, immediately after that, J said “I told him I want to live with daddy because he’s got a Disney program on his computer” or something to that effect. Mr M responded that it was possible they could have said that, but he did not recall it exactly.
However, importantly as it seems to me, Mr M went on to say that in all the circumstances of this case he would attach little weight and importance to the direct views of the children “…at that age who have been in a fairly – involved in a fairly vitriolic separation between their parents, and at that point in time. So if I didn’t place much weight on that, that would be the reason”.
I, too, place little weight on the alleged direct views of the children for those reasons.
In my view, there is no credible evidence whatsoever to support any of the mother’s assertions in respect of Mr M’s behaviour.
Thus, I do not think Mr M’s evidence, or his reports or opinions, are coloured in any way by any of the matters which the mother alleges against him.
I think his reports are comprehensive and thoughtful. I should say, however, that passages of the reports descend into what might be described as comments on credit or veracity. Generally, unless, for example, supportive of a diagnosis (which an expert is appropriately qualified to give), I think it is unhelpful for a report writer to comment on such matters.
In the usual course, such comments would, generally speaking, be, in my view, inadmissible. Even if Division 12A of the Act now, strictly, permits such evidence (about which I here express no view), I place no weight on those comments in arriving at any conclusion – including as to credit – in this case.
The Mother’s Current Relationship and Pregnancy
The mother told Dr C that she “now has no ongoing relationship though has “friends with benefits””.
The mother gave the following evidence at the hearing:
HIS HONOUR: Do you have a partner living there at the moment? ---Not at the moment.
No. Well has there been – has there been a partner living there? --- Yes.
When did that cease? --- He’s away on work.
Ok. All right. So is it anticipated that he will live with you when he returns from being away on work? ---I’m not sure, your Honour, because we have had a couple of stressful situations and I don’t really think – we – we need to have a lot of…
…Hang on. I don’t want to inquire about that. All I really need to know is, is he going to be an ordinary member of your household if [the twins] come to live in your care? ---Probably later on down the track, yes.
Later on down the track. And I understand it is difficult to put a timeframe on these things, but you know – have you got any idea of when that might occur? ---Look, no, I can’t.
A month …Six months … Four years ..,.you know?. ---No, a few months down the track.
Shortly after that evidence and late in the trial, but only in response to a direct question from me, the mother revealed that she was pregnant.
The father of the expected child was the person to whom the evidence just quoted related. He was not a deponent in the mother’s case or a witness in the proceedings. Any mooted role for him in the expected child’s life was very unclear as was, indeed, the nature or type of the relationship the mother intended to have with the father of that child in the future.
No mention had been made of the pregnancy by the mother prior to that time either in oral evidence in the witness box or in any affidavit material filed by her.
No mention was made by the mother of any arrangements that would exist in her household accommodating a newborn baby and how that might impact on the inter-relationships that flow from that – including, most significantly of all, any potential impact on the twins.
It needs to be borne in mind that, on the mother’s case, the twins have behavioural problems which she has found difficult to handle. T told Mr M that, even before this new child joins the household, he “takes care of the boys to take the stress off her” and that the mother’s stress causes her to go “off her nut”..
The matters just described throw into sharp focus a number of the statutory considerations. It seems to me that a new baby must effect a significant change for the twins and, indeed, for all concerned. Her “relationship” with the expected child’s father, particularly if he is to be a member of the mother’s household “down the track” is of enormous significance as is any role she sees him playing in the twins’ lives. The new child is, for the boys, a new sibship.
Yet, the mother was at pains to indicate that she thought her (unannounced) pregnancy was irrelevant to the determination of the instant proceedings. Again, it is, I think, instructive to cite her evidence at some length:
HIS HONOUR: “…Are you expecting a baby? ---Why?
Well because I need to know who’s going to be a member of your household, you see. Do you object to answering the question? ---No, I don’t object
Ok. Well are you expecting…? --- Possibly, yes.
Ok. When? ---July/August.
July/August. So what are we in now, April? So that is in about three or four months? ---That’s correct.
Well you would want to be doing a bit better than “possibly” if it is due in three or four months. So do I take it as “yes” you’re expecting? ---Yes
…a baby in three or four months? ---Yes.
Righto. When did you learn that you were expecting a baby in three or four months? ---When I – when I conceived.
So what, about five – five or six months ago? ---Yes, your Honour.
I’m just trying to work it out. So that’s about what, November last year? ---yes your Honour.
Ok. Didn’t tell Mr [M] that you were expecting a child when you saw him for the second family report? ---I didn’t see any need to.
I am bound to consider the capacity of the mother to provide for (among other things) the emotional needs of the children and also her responsibilities to the task of parenting.
I consider the mother’s failure to consider what, on any view, are clearly important ramifications for these boys of a new sibling and the impact of that on all concerned within a household in which the new child’s father is to play an as yet unspecified role, to be a significant failing in each respect.
Attitudes, Capacities and Willingness
Aspects of the mother’s attitude to the father and the importance of his role in the life of these boys are referred to in each of the reports of Mr M and Dr C.
Mr M said in his report:
“She had …difficulty providing consistent views in relation to [the father]. At one point describing him by saying ‘he is a good Dad, he loves the boys, they love him very much’ she would then at other times decry his violence to the children, stating that he ‘pinned them to the ground and belted [N] a couple of times’. She added that he has no idea how to manage their behaviour and cited an apparent opinion by a counsellor that they had been seeing together that he lacked parenting skills”.
Dr C comments:
“She told me that…[the twins]…are the issue of a relationship with [the father]…She told me she had no relationship with [the father] and belatedly in the second interview laughed when I suggested that he might just have been a sperm donor. She told me that she lived together on weekends, that she had custody since the birth, that he can have as much contact as he wanted though she, during the interview, denigrated [the father] at every possible opportunity.
She told me that she has problems with child support, [he] has difficulties with cleaning his house and showed me photos of this. She told me that she does not live with anyone, has no interest in commitment, is not able to have a intimate conversation with people and has never had any other long term relationship. Indeed as the interview progressed, it became apparent that her ideas of relationships were characterised by distance, brief stay overs and “friends with benefits”. She told me she would prefer that the father’s had no involvement in the children’s lives”.
And, further:-
“I thought that she was a self-seeking historian who had sought over a period of time, to exclude the fathers of her children from their lives. Indeed she was quite open about this and her clear preference would be for [the father] to disappear for ever.
In oral evidence, Dr C said that he saw the mother on two occasions and, on each occasion she was “dismissive of any relationship the children might have with their father”.
When pushed on this comment in cross-examination by counsel for the Independent Children’s Lawyer the doctor thought the mother’s attitude could be described “at least” as dismissive and was “probably more insidious than that”.
In light of my earlier comments about aspects of Mr M’s report, I should record that I take the doctors reference to “self-seeking historian” and insidiousness to be, respectively, an attempt to describe the narrative in psychiatric terms, and to flag the possibility that the mother’s attitude may be founded in pathology rather than attitude.
In terms of my credit findings it will be clear from earlier parts of these reasons, that I, too, consider that the mother is, at best for her, a “self-seeking historian”. I, too, had the strong impression (despite her assertion to the contrary) that, if the twins lived with her, her clear preference would be for the father to disappear from their lives.
By contrast, when the father was asked, toward the end of the hearing, about his proposals and attitudes to the mother’s future relationship with the children, I consider that he was struggling genuinely to accommodate his genuine concerns about the effects of the mother’s parenting on the boys and a genuine belief that they needed to have a close and loving – indeed, meaningful – relationship with their mother.
Dr C’s assessment of the mother’s mental health has already been referred to and is repeated in this context. I particularly rely upon the opinions of Dr C that:
“I have considered whether or not she has a borderline personality disorder and although there are some features of this. In my view, it is more likely than not that she has a mixed personality disorder with both histrionic and borderline features. There is certainly at this current time, no evidence of any Axis I psychiatric disorder.
However, I have considerable concerns about this lady’s ability to respect boundaries, to respect the nature of other’s interactions with her children and history in this regard would seem to be a fairly potent indicator”
The doctor was asked how his assessment of the mother suffering from a personality disorder combined with the behavioural difficulties in the children to which she refers, might impact on her capacity to parent. The doctor said he was “very clearly of the view” that her manifest personality disorder would impact adversely on her parenting of the boys.
I also consider that her psychological issues, summarised in the doctor’s diagnosis (and the issues more broadly discussed in Dr C’s report and evidence) impact on her capacity to react appropriately to information received from the children, primarily relating to their father and, in many cases, to overreact with adverse consequences to the children. Her reports to the Department of Child Safety are examples.
For his part, Mr M’s opinion was that:
“It is doubtful that [the mother] is currently coping adequately with the children, this prefaced both on observations of her behaviour with them and on the comments of her son [T], who has developed a heightened concern for her welfare and a view that it is his responsibility to reduce her pressure in the short periods of time that he spends with her”
By contrast, Mr M said of the father, “It is my view that [the father] is more suited to providing a stable physical and emotional environment for [the children]. They are closely bonded with him …”
The mother’s attitude to the father and his role in the children’s lives is, in my view, acutely exemplified, by the mother’s evidence in respect of her children’s names.
The submission was made by counsel for the Independent Children’s Lawyer that the mother changes the children’s name at her whim. I accept that such a submission is reflective of the evidence before me.
Further, it seems to me that the only reasonable conclusion open on the evidence is that names are changed as part of the very attitude observed by Dr C – that is, a preference for the fathers of her children to have no real role in their lives.
In the case of the boys, the mother’s evidence both as to their name and to acknowledging the father as their father on their birth certificates bordered on the bizarre.
Certainly, the only inference evident to me was that it was an example of the mother’s attitude to the role she saw for the father in their lives and a measure of the lack of meaning she attributed to that relationship.
Before turning to the issue of abuse, I consider it important to record evidence from the mother which I consider to be an important pointer to her attitude to the future role of the father in the children’s lives and her attitude to the responsibilities of parenthood – both as she perceives her own responsibilities and how she perceives the responsibility or capacity of the father to parent.
During the course of the mother’s cross-examination of Mr M this evidence was given:
HIS HONOUR: …the impression - and I want to be very fair about this to you – the impression I gain from the question you asked …Mr [M] … is that effectively you won’t stop until you can prove to somebody that [the father] is an abuser of these children. Now is that a fair assessment of - - -
…
[THE MOTEHR]: … what I’m asking Mr [M] – and I appreciate that in his view it never happened, okay – the fact that it has happened and I’m asking him, what would he suggest – if it wasn’t me and somebody else who had an abusive situation, how do we record this when it happens and which is the healthiest and the best way to record it? So if you don’t like – if they don’t like the Department of Child Protection or the police, and such like that, what would he suggest that he thinks is appropriate - - -
…
- - - that I can actually put into place so that when something does come about, maybe he – I’ve got a list of questions that I need to ask myself before I jump into it? Maybe I – I’ve got to do a formula of things like people have - - -
Shortly after, Mr M had the opportunity to respond:
“My discomfort with the question is that it – by answering it, and answering it by entering into the framework that you set by your questions, it implies an implicit encouragement of the actions that I’ve just spoken out against. And that’s the very last thing that I would want to do, because I think, Ms [Raine], that you form beliefs and you never let them go. You form beliefs about the children; you form beliefs about people; you form beliefs about lots of things, and those beliefs tend to be unshakeable. And – and the issue here is that if you embark on a course of action in relation to the children, which you see as protection, but other people see as abuse, that’s a path of destruction, really. I can’t see any other way around that”.
As I said during the course of the hearing, what the mother sees as protection, Mr M sees as (emotional) abuse. I agree with Mr M.
I struggle with the issue of whether the mother’s beliefs about the father are genuine or not. My strong suspicion is that, as earlier outlined, she concocts or fantasises things about people to serve or reinforce her belief, this makes it particularly difficult to resolve in my mind the issue of the genuineness of her beliefs.
However, I consider that Mr M is right. Whether the mother holds beliefs about the father which are genuine or not, I have little doubt the mother will not only not let those beliefs go, but is highly likely to use data – some true and some fantasised or concocted – to continue to entrench and reinforce those beliefs. It is in my view highly likely that this will result in continued attacks on the parenting of the father, including the high likelihood of further intervention from State child protection agencies in respect of matters (for example bruises) that have a benign cause.
Allegations of Abuse
The mother alleges that the father has been violent to her and, as referred to earlier, has physically abused the children.
A resolution of competing claims in each respect has, as an overarching consideration, that I have very little confidence in the veracity of any of the mother’s evidence.
As mentioned earlier in these reasons, the mother relies on her adult son G’s evidence to support her account of a specific incident and what she says is physical abuse of the children by the father, primarily through the use of excessive discipline, particularly the use of implements.
An attempt to have the mother provide particulars of the allegations of physical abuse of the children so as to identify the particular occasions and their approximate time frame was met, predominantly, by the mother saying her memory of the events had “faded’. The same applied with respect to specific incidents of violence towards her. Again, it was difficult to obtain particulars of specific incidents.
In light of the suggestion made above that the mother has, in a self-serving way, concocted or fantasised events that suit the picture she now seeks to present, it is interesting to observe that, specifically in the context of family violence, the father put to the mother that “…in your mind, you always believe yourself to be a victim, so even if you attack me, you convince yourself afterwards that you have been attacked?. The mother denied this, but, to me, it had the ring of truth and a ring of consistency with my own observations and conclusions.
Reference has already been made to T’s comments to Mr M. I am very concerned that any information emanating from the children has been influenced (consciously or unconsciously) by the mother. The reference by T to his mother “figuring it out” earlier referred to is a good example.
However, one alleged incident by the mother which involves an assertion of violence by the father to G can be examined by reference to the evidence of the parties (and G) now, and their reported, relatively contemporaneous, accounts given to the (then) Department of Families.
In her affidavit the mother refers to specific incidents of violence toward her, the twins and to G. As to the latter, she deposes to G having been “kicked along the floor” by the father and to his “kicking him out of the house”.
A specific incident of violence toward the mother by the father is deposed to by her. It resulted, she says, in her finger being dislocated. It is alleged that the father came up behind her, grabbed her hair and, as her hands went up to protect herself, the father grabbed her hands and twisted her fingers, dislocating her right finger. The mother said that G could corroborate that incident.
The mother also alleges violence toward the children by the father using implements on the children as a form of discipline.
G’s evidence as to time was confusing, but it seems tolerably clear that any and all of these incidents occurred, as he has it, between mid-2001 and the end of 2003, during a time when G first lived with the parties. The twins were, then, aged between about 12 months and 3½.
G was the subject of involvement by the Department of Child Safety (as it is now called). Some of that Department’s documents were tendered at the hearing (Exhibit ICL 3). The contents of some of those documents were put to G in the witness box.
I consider that G was an essentially honest witness. It was evident that he had significant loyalty to his mother. He told the father that he “didn’t file an affidavit because he didn’t … really want to deal with your problems … I don’t life fighting and I don’t like arguing I don’t like any of this so if I can avoid it, I will at all costs”.
This is, it seems to me, a perfectly understandable position and serves to explain, in part, sections of his evidence. I note, too, that he was seeking to remember events some five years ago, when he was an adolescent. I was not, though, entirely convinced that these were the sole reasons for his professed failure to recall some specific components of the incidents described. More likely, I think, is that he did not wish to be drawn into admissions which he saw – probably correctly – as unhelpful to his mother’s case. The best example is provided when each of the father and Mr Linklater-Steele was putting parts of the Department’s records to him.
In answer to questions from Mr Linklater-Steele, G agreed, and I accept, that there was only one incident of physical violence towards him at the hands of the father which he mentioned to the Department.
In oral evidence, G said, contrary to the evidence of the mother, that the father did not kick him along the floor nor did the father physically push him from the house. I accept his evidence in this respect.
The Violent Incident Involving G
G agreed that his account to the Department of the incident was reasonably contemporaneous with the event. Specifically, the following parts of the Departmental records were put to G::
“… [the mother] asked [G] to do his homework while watching the television because [the father] also wanted to watch the TV but a different channel. [G] refused and got a little angry with [the mother] so [the father] told him to apologise and then go to his room. [The father] then started pushing him, he fell to the floor. [The father] was then swearing and held his head to the floor. [G] got up and [the mother] told him to pack his bags and leave. [The mother] then called the police and [G] left”. [The mother] found him later and told him that the police were looking for him and that he would go to a detention centre if he did it again. The police arrived shortly afterwards and told him that what [the mother] had said was false.”
Parts of that account G did not accept, other parts he did and other parts he “could not recall”. I accept the Departmental account as accurate. I reject G’s evidence both as to his non-acceptance of parts of that record and his professed failure to recall other parts. His claims to each were unconvincing and at odds with other clear recollections.
Whilst I accept that, as he said in evidence, he has, understandably, “tried to put a lot of these things out of his mind”, I am convinced that his denials and failure to recall were more likely motivated by a desire to not concede matters that might be viewed by the court as adverse to the mother’s case.
Obviously enough, any incident which has as one of its effects a teenager leaving his then home with, apparently, no proper place to go, is a cause for concern. It does neither party any particular credit. But, the contrast between the picture just painted and the picture of violence by the father portrayed by the mother is stark.
It is of considerable significance, as it seems to me, that, in the context of a case where the mother uses the alleged violence of the father toward G as, in effect a portent of his likely future treatment of the twins, that Exhibit ICL 3 records G telling the Departmental worker:
“…that he has been physically abused by [the mother] and [the father], although [the father] has only abused him once and knows that he did the wrong thing…. [After an incident where faeces “went everywhere” when [G] was changing one of the twin’s nappy] [the mother] went off at him ([G]) and started hitting him, she even hit him on the back with a wooden spoon.”
The one incident at the hands of the father there referred to was the incident earlier described.
The Department also obtained an account from the mother. She told them of the one incident of violence by the father toward G identified by G (and her) that “[G] and [the father] were wrestling at home and [the father] had him pinned to the ground but there was no malice involved”. Again that version is contrary to the version given by the mother in evidence (both as to how the incident occurred and the father’s motive).
In oral evidence before me, G deposed, contrary to the mother’s version, that the father did not kick him, that the father released him and that the father did not physically force him out of the house. I should add that this account was given in answer to questions from the mother, including questions that might be regarded as strictly leading.
I do not accept the mother’s account of the alleged violent incident toward G. I find that the mother has significantly exaggerated that event, both as to its nature and severity.
I find that the incident occurred as the father said it did, which is essentially consistent with the Department’s recorded version from G.
The version speaks as much - if not more - of a risk of abuse (including emotional abuse) at the hands of the mother.
Alleged Violence Towards the Mother
By way of background to the alleged specific incidents, it is of note that, according to Departmental records, G told the Departmental worker that the father and mother “ … have verbal arguments but have never been physical with each other.”
Whether that statement was true or not at that time (4.12.2003) – and, in that respect, I repeat that G’s evidence as to time was difficult to follow - G gave an account in evidence in these proceedings of two incidents between the parties.
In contrast to the mother’s evidence, G made it clear that he had witnessed only one of those incidents.
In answer to a direct question as to whether he could recall an incident where the father dislocated the mother’s finger, G said:
“I don’t – I know about the incident but I don’t know what – medically, what happened in regards to her finger, but I do know that, like, from what I saw that her hand had been pretty damaged. So I wasn’t there to witness the event but I do know that, after looking at her hands, that, like, something had gone on and there had been, like, a fight. ..
…
I heard something – well, I don’t know how it happened, correct, but I do know that - …
…
HIS HONOUR: So what did you hear?
[G]: Banging and crashing and screaming.
When you say you heard screaming, did you hear two voices screaming or one – Just one
Whose? --- My Mums
Your mother. Right. Did you hear [the father] screaming or using a raised voice, or --- No.
…
... What actually did you see when you came out and came into the room? --- Well, the fighting had stopped and the arguing had stopped, and Mum was angry … and she told me what had happened.
What did she tell you had happened --- I don’t remember, but I know it was in regards to [the father] either coming from behind, pulling her hair back and then, like, telling her to do something, or to do what he wanted to do, that …
What do you actually remember sitting there right now … --- That he’d pulled her hair back and that her finger was sore, or hurting and that she was claiming that it was broken or dislocated.
In answer to a question from the mother, G said that the father was neither present or in the vicinity when this conversation occurred.
The second incident is deposed to by the mother in an affidavit filed on 29 September, 2006. She alleges that the father “physically abused” her “after advising [her] to get over a debt his sister owed to me”. She alleges the father caused a hairline fracture of the leg “which was documented by Dr [Z]”. The doctor was not a witness. His report was not in evidence. Even if such a report was in evidence, I would have grave doubts about relying upon any account given of the cause of any alleged injury given by the mother.
The details of this alleged event never emerged with any clarity. Indeed, in evidence, the mother said that the “dislocated finger incident” earlier discussed was “the one that I constantly remember in the Court case …”.
The father denies that any such violent incidents by him toward the mother as she alleges have occurred. I believe him.
The father put to the mother in cross-examination that, “[she had] attacked [him] because you got so worked up in an argument that you have lost control and started physically attacking me”. The mother denied this, calling it a “blatant lie”. It is, though, remarkably consistent with the “flavour” of what G told the Department. At that time he was not “siding” with the father (or, the mother). Indeed, he said in the witness box that his contact with the Department and the motivation for his statements was to get out of the parties’ household.
I am not satisfied that the father perpetrated any acts of family violence upon the mother that were not part of high conflict between the two and which were not in response to, and probably in defence of, acts of physical violence initiated and perpetrated by the mother and which were a reasonable response in the circumstances.
Alleged Physical Abuse of the Children
It may, perhaps, be obvious but, nevertheless, I interpose here that it was extraordinarily difficult to get a coherent account of any alleged abuse from the mother.
I have already referred to the fact that she said her memory of many events had “faded”. The difficulty in understanding her evidence and the unsatisfactory nature of much of it can, perhaps, be best encapsulated in the mother’s own words in the witness box:
“… even thought I’m trying to recall [specific events], I will probably leave here and in about 24 hours, I will actually – the memory will start to happen when I will remember it more clearly, and it’s just very hard for me to remember – it’s like I gave you an example through the Court case, your Honour: I didn’t even remember my father trying to cut my thumb off. I’ve got the scar of it. I remembered it in a tragic situation talking about cutting chooks heads off. It doesn’t happen – as soon as an incident happens my mind just – it just disappears, and it is almost as if it didn’t happen, it’s just the way ---
This particular piece of evidence came after an exhaustive attempt to have the mother identify and particularise specific incidents which she alleges constitute physical abuse of the children. She identified (in a fashion) three such incidents.
The mother was asked how it was that not one of those incidents had found their way into any affidavit filed by her. Similarly, she was asked how it was that not one of those incidents formed the subject of a complaint to the Department or the Police. (The mother had, of course, made a number of complaints to the Department, including reporting a bruise which, as emerged in evidence in the hearing, the children had told the mother had not occurred at the hands of the father).
The mother could offer no satisfactory explanation for what seem to me to be significant absences.
Those absences add to my doubts about the mother’s veracity and, specifically, of her account of these three incidents, given for the first time in the witness box.
The three incidents are remarkably similar in character and involve the father holding one or other of the boy’s heads in his hands and banging them against a wall or a bed. Interestingly, the mother, during examination in chief asked G whether he had witnessed the father “becoming physical around about [N’s] head or [J’s] head, grabbed his hands and shook the child or physically became - or is it just around the body area?” G’s response was: “No don’t recall any times [the father’s] done that”.
I do not accept that these incidents occurred as the mother described them and, probably, nothing like them occurred at all.
G spoke of the father using what might be described as “physical abuse” or “excessive discipline”. Further exploration during his evidence in chief produced evidence that this consisted of “hitting or spanking” but G then said “But a lot of the time, I’d only heard it from the other room, so I can only know what I heard”. He went on to say it happened “infrequently” and then said that it occurred “once every couple of days”.
Departmental records record the mother saying that she “… she does not like to use her hand to discipline the children as ‘hands are for loving’; she gives one quick sting with the paddle instead.” In a similar vein, the records have the father admitting to “using a wooden spoon in the past.”
It seems to me likely that, prior to November, 2003 the parties each used implements on the children as a means of discipline.
I think it highly unlikely that the father did so after that time. G said in evidence that the physical “punishment” he received was much more severe than anything he saw being suffered by the boys.
The Departmental records indicate G placed the worst of that treatment squarely at the feet of the mother.
This evidence is, though, historical. There is, in my view, insufficient evidence upon which a finding could be made of behaviour of that type by the mother after 2003.
Using all of the evidence available to me, I do not consider that the children are at any unacceptable risk of physical abuse from the father (or any other form of abuse).
All of the evidence before me causes me to have some concerns that the children are at some risk of physical abuse in the care of their mother, but the evidence is not sufficient to allow me to find that the risk is unacceptable.
Issues and Considerations - Summary of Findings
I am obliged to give the issue of abuse or family violence primary importance in arriving at an ultimate decision about the best interests of these boys and I have done so. I reject the mother’s contention that the boys are at risk of physical abuse in their father’s care.
I have some about the mother presenting such a risk to the children, but the evidence falls short of allowing me to make a finding of current unacceptable risk in that respect.
I find that the children are at risk of psychological or emotional harm if exposed to significant care by their mother. I find that she sees no meaningful role for the father in the children’s lives and it is highly likely that, not only will she not promote a meaningful relationship between them and their father, but will actively seek to undermine that relationship.
There is no doubt, and I find, that the parties have little, and probably no, capacity to communicate, co- operate and agree with respect to issues affecting the children.
I find that it is highly likely the mother is suffering from a personality disorder as described by Dr C. Further, I find that this characteristic, and issues with respect to her personality and/or psychological health more broadly described in the reports of both Dr C and Mr M, have a significant adverse impact on the mother’s capacity to parent.
In particular, I consider that stability in the exercise of parental responsibilities and parenting capacity is vital to the best interests of these boys. I find the mother presents in a disorganised and chaotic fashion with little appreciation of the impact of same on the psychological and emotional health of the children. The mother’s pregnancy and her apparent inability to understand how the birth of a new sibling will present issues relevant to the best interests of the children is perhaps the best example. So, too, her apparent disregard for the impact of wholly uncertain arrangements with the father of that child on the children is also relevant in that respect. I find this to be a significant pointer to the children’s best interests.
The boys have now been in the predominant care of their father for some time. This represented, initially, a change to their erstwhile post-separation parenting arrangements (and, probably, to the predominant care arrangements that pertained when the parties were together). I find that there has been significant improvement in their school work, their social relationships at school, their behaviour at school and their behaviour at home since that change was made.
I consider it highly likely that a return to their mother’s predominant care will lead to instability with a high likelihood of detriment to the benefits more recently experienced by them.
The twins are eight. As indicated earlier, I find that their age and level of maturity are each such that I should place little direct weight on their “views” in the sense of them expressing a preference for the parenting arrangements that might be made about them. So, too, for the reasons earlier given, I will not place any real weight on any alleged comments made by either of them about their parents and their parenting.
I continue to be baffled by the evidence of the mother relating to aboriginality. In particular, an issue arises that, if the mother considers herself aboriginal, even if she is not, as the Act defines it, should I take that into account? I consider I should not. In any event, it is by no means clear how the mother says it should be taken into account, even if relevant.
The father’s central contention in respect of the children’s names is, in effect, that the children’s birth certificates and the use by her of a surname different to the father is indicative of the mother’s attitude to his lack of importance in the children’s lives. I have little doubt that this is true.
The mother’s actions in and about the children’s names is, I find, a stark, overt statement by her of a desire to remove the father from a significant role in the children’s lives.
It seems to me that this issue, too, ought be governed by findings as to what is in the boys best interests. I consider that those best interests require the recording of their birth and its official recognition to include the father.
The father gives evidence that the children have been known by the surname “[Runcorn]” since birth and have been enrolled at school as, and known by, that surname save when the mother unilaterally enrolled them at B State School. I accept that evidence. Furthermore, it is the name the children have been using since living predominantly with the father since December, 2006.
I consider it in the boys best interests that they be known by the name “[Runcorn]”. I have no confidence that, absent a court order, the mother will take whatever steps need to be taken to refer to, and have the children referred to, by that name and I intend to order that she do so.
Delay
These reasons will be delivered some six months after the completion of the hearing. The delay is regrettable. As a result of the surprising evidence of the mother’s pregnancy to which reference has previously been made, I intended to deliver these reasons, after obtaining portions of the transcript, as soon as possible. Unfortunately, other responsibilities made that impossible. Thereafter, I was conscious of not delivering these reasons in the late stages of the mother’s pregnancy or immediately after the projected birth of her child.
All being well, the mother’s new child should, according to her evidence at the hearing, now be about a month or so old. I have already referred to my assessment that this new child is highly likely to have a significant impact upon the mother, her capacity to parent and, among other things, arrangements crucial to the exercise of parental responsibilities.
Also, the mother’s evidence relating to her apparent partner and his (then future) role in the life of the mother, the children, T, and the new child, is less than clear to say the least.
Ultimate Orders Reflecting Best Interests
Parental Responsibility
I have presumed, as I am bound to do, that the parties should share parental responsibility equally. Having so presumed, I need to consider whether family violence or abuse rebut that presumption.
I am not persuaded that the presumption is rebutted by reason of my concerns about the potential for abuse of the children at the hands of the mother as discussed above.
I am, however, persuaded that it is in the best interests of these children that the parties do not share equally parental responsibility of them.
The parties’ complete inability to communicate in my view puts beyond doubt that these parents cannot exercise the degree of communication, co-operation and agreement which the Act requires of parents who share parental responsibility equally. I consider the parents’ relationship here antithetical to what the Act contemplates is required of those who share parental responsibility, particularly those who share it equally.
That is all the more so when, as I have found, the active roles that the Act requires of those who share parental responsibility would involve the mother actively undermining the position and authority of the father and the legitimacy of his decisions with respect to the children.
Earlier in these reasons, I have made mention of my views about orders for “sole parental responsibility”. I consider that, generally, such an order ought be made only when there is cogent evidence that leaving a parent with none of the rights, authorities and responsibilities in respect of their children is in those children’s best interests.
Here, the lack of stability which, I have found, attends the mother’s parenting, her attitude to the father, her attitude to the responsibilities of parenthood and the significant improvement in the children since the father has been making day to day decisions for the children persuade me that he should bear sole parental responsibility.
My concerns about the removal of very significant fundamental rights from the mother and the balance between that and the best interests of the children I propose to meet by ordering the father to notify the mother in writing of all prospective decisions about “major long term issues” as that expression is defined in the Act and to seek the mother’s written input in respect of same within a reasonable time, whilst leaving, in the case of disagreement, the ultimate decision to the father.
Time
As a result of the decision made by me in respect of equal shared parental responsibility, it is not necessary for me to consider, in the mandatory manner outlined by the Act, whether I should order equal or, if applicable, substantial and significant time.
However, the Objects and Principles remain relevant and applicable, particularly those emphasising the role of both parents in the children’s lives. I am aware of those Objects and Principles and the need to primarily consider the children having a meaningful relationship with their parents when arriving at a decision with respect to time.
Ultimately, however, the decision is about, and guided by, the boys’ best interests. In my view, a decision about best interests in any case is arrived at by the nature and value of the mooted relationship between parent and child. Time is how divisions in the co-parenting relationship (and court orders) is expressed but a decision about time in my view follows from a decision about the nature, extent and parameters of the relationship between child and parent measured by its value (or potential for harm) to a child.
Here, by reason of the matters discussed, and findings made, above, I am firmly of the view that the children will benefit most from maximising the care-giving provided by the father and the relationship flowing from that. I consider that it is clearly in their best interests for them to receive the great bulk of their day-to-day care and nurturing from their father.
I consider that the corollary is also true; minimising the quantity of care-giving provided by the mother and limiting the sort of relationship she will engender between the children and her and the children and their father is, in my view, likely to be in the boys’ best interests.
They will as I have found, benefit in each case from the stability and routine provided by their father and his assessed superior capacity to parent and his (as I assess it) superior attitude to the responsibilities of parenthood. I think the boys’ emotional and intellectual lives are highly likely to prosper in such a division in relationships.
I will order that the children live with the father.
Despite being acutely aware of the relevant Object, Principle and Primary Consideration, I do not consider that substantial, regular time with the mother is in the boys’ best interests.
In that respect, it seems to me difficult to argue, in a “philosophical” sense, that the boys’ relationship with their mother is not “important, significant and valuable to the child[ren]”. Yet, that imports an objective view. The result of a parenting case is subjective: findings are made about issues relevant to best interests specific to these children and their specific circumstances.
The relationship is only meaningful – that is, “important, significant and valuable to the child” – if the relationship is of benefit to the children. Here, there are, in my view, good reasons to hold that an extensive caring relationship may bring significant detriments to the children.
The father’s initial proposal that the mother spend time with the children each alternate weekend became, I think, more guarded by the end of the hearing. When quizzed by me about his proposals during submissions, I assess the father to have been genuinely struggling with a conflict within himself.
He was, it seems to me, genuinely grappling with competing considerations: an assessment that the boys seek a relationship with the mother and a genuine desire by him for that to occur but, on the other hand, his concern that the mother will actively seek to undermine his relationship with the boys. As will be clear, I assess there is a risk that will occur.
The father thought that, in effect, “the mother’s campaign against him will never end”. I, too, think this is likely.
He is concerned that a significant loss in her time with the children will escalate the conflict. I think there is some prospect of that.
He is also concerned that the mother will leave the children in the care of T overnight and absent herself. Again, I think there is some prospect of this occurring.
Counsel for the Independent Children’s Lawyer submitted at the end of the hearing that the mother’s time with the children should be supervised. The need for that was posited as arising from the mother’s undermining of the father’s relationship, including a concern that she would continue to say inappropriate things to the children about the father, including seeking to have them embrace her views of him as a child abuser. The concerns cited earlier in these reasons with respect to her conduct towards T were cited as an example of how acute that fear should be.
Further, the meekness and lack of assertiveness in the father identified by Dr C was identified by the ICL as a concern; would the father, the ICL asks, be able to withstand pressure from the mother.
I have little doubt, as submitted by counsel for the ICL, that the mother is extremely unlikely to entertain any suggestion (including by reference to these reasons) that her entrenched views about the father are wrong or misplaced.
I have already made reference to the mother’s chaotic presentation at the hearing. As will be clear, there were times when it was difficult to obtain a coherent account of events from her. I am very aware of the opinions of Dr C and Mr M.
The father alleges that there have been recent occasions when the mother has not availed herself of time with the children. He also alleges that there have been numerous occasions (some 18 occasions in approximately nine months) when the mother has “unilaterally changed the collection and/or delivery” of the children. I accept his evidence in that respect.
I am concerned that the mother will not avail herself of time with the boys in a regular and consistent way and I am concerned about any resulting effect on the boys. I do not consider I am in a position to assess whether that is any more or less likely to occur if time is supervised or not. .
I refer again to the issue of the delay between the hearing and now. That period of time, and what may or may not have occurred during that time, is, as it seems to me, potentially very significant in terms of the best interests considerations that should govern the nature and quantity of the time the mother should spend with the children.
In particular, I note that the mother has (I assume) given birth to a new child. I also assume that this involves for her, as it does for any mother, a number of changes, challenges and stresses. I have in mind what the teenage T said to Mr M about what happens when the mother is, as he sees it, stressed.
Also it is, now, to use the mother’s words in evidence, a “few months down the track” and, according to her evidence, the picture with respect to the role (or lack of role) played by the new child’s father, should be clearer.
Furthermore, there has been a period of six months since a lengthy hearing during which, the mother declared that the father “had won the battle but lost the war” – a somewhat confusing reference to the fact that, as she saw it, the father was going to “win” the trial. Given the evidence of the father, which I have accepted, as to the mother’s attitude to, or capacity to, spend time with the children in accordance with orders, it seems to me that six months since the hearing will be revealing in terms of the manner of exercise of time by the mother in the intervening period.
Clearly, a purpose of Division 12A of the Act is to allow decisions about the best interests of children to be arrived at without undue legal form or technicality.
Noting in particular the provisions of s 69ZR, including s 69ZR(2), and bearing in mind, the overriding duty upon the Court to arrive at Orders which are in the boys’ best interests, I propose to hear further from the parties on the issue of the nature and extent of the time the mother is to spend with the children and/or the nature and extent of the communication between them, after each has had an opportunity to read and consider these reasons, the findings they contain and the Orders which I will otherwise make.
I will make directions affording the parties and the ICL the opportunity to present evidence directly relevant to the issues which I have just identified arising from the time between the hearing and now and to make submissions in respect of that issue and to submit draft orders in that respect.
I order accordingly.
I certify that the preceding three hundred and forty-one (341) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 16 October 2008
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