SEAVER & SEAVER
[2015] FamCA 194
•24 March 2015
FAMILY COURT OF AUSTRALIA
| SEAVER & SEAVER | [2015] FamCA 194 |
| FAMILY LAW – CHILDREN – Interlocutory Application – where in the interim it was ordered that the children be placed in the care of the father and spend no time with the mother, pending the delivery of these Reasons for judgment FAMILY LAW – CHILDREN – Best Interests – Where the children have important relationships with the mother and maternal grandparents – where the children have, despite everything, a warm and affectionate relationship with the father – where the children react very differently with each parent in the absence of the other – where the children are likely to be upset and confused by the separation from the mother – where the evidence demonstrates that the children were at risk of harm of emotional abuse from continued questioning by the mother and discussion around the possibility of physical and sexual abuse of them by the father – where the likely effect of the change into the father’s care is relief from that kind of pressure – where the father has the capacity to meet the children’s intellectual, physical and emotional needs – where the capacity of the mother is squarely in issue – where the mother has shown little or no insight into the impact on the children of what she has done – where the allegations raised by the mother are not confirmed by the family general practitioner and are in stark contrast to the supervisor’s notes, taken when the children were spending supervised time with the father – where the mother’s current presentation and level of functioning is of much concern to both the Family Consultant and JIRT – where the mother presently has a reduced capacity to meet the needs of the children – where the children should continue to live with the father – where the Family Consultant’s recommendation for a complete break between the children and the mother is an appropriate one – mother restrained from spending time with or contacting the children for three months – after that period, children to have telephone contact with the mother two times per week – thereafter for 12 months, the children spend time with the mother, supervised, for not less than two hours per fortnight and following, for not less than supervised monthly visits outside a contact centre and as otherwise agreed FAMILY LAW – CHILDREN – Parental Responsibility – Where given the state of the parties’ relationship, the father should have sole parental responsibility, but with the obligation to engage with the mother when major issues are to be determined |
| Family Law Act 1975 (Cth), ss 60CC, 64B Moose & Moose (2008) FLC 93-375 |
| APPLICANT: | Mr Seaver |
| RESPONDENT: | Ms Seaver |
INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 3220 | of | 2013 |
| DATE DELIVERED: | 24 March 2015 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 9-13 February 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levick |
| SOLICITOR FOR THE APPLICANT: | Richardson Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Harper |
| SOLICITOR FOR THE RESPONDENT: COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Catalyst Family Lawyers Mr Mooney Legal Aid NSW |
Orders
That the Application-Contravention of the father filed 7 July 2014 is dismissed.
That all prior parenting orders in relation to B born … 2005 and C born … 2010 (“the children”) be and hereby are discharged.
That the father have sole parental responsibility for the children.
That the father shall, when any long term issue involving the children arises for decision, take the following steps:
(a)Inform the mother of the issue to be decided;
(b)Invite the mother to express her views on the matter within a nominated period of time;
(c)Give consideration to the views of the mother in coming to a decision; and
(d)Advise the mother of the decision taken.
That the father shall do everything necessary for the children to participate in the “Seasons for Growth” programme in due course.
Residence
That the children shall live with the father.
Time and Communication
That the mother is restrained by injunction from spending time with the children for a period of three (3) months from the date of Interim Orders made 13 February 2015 (“Interim Orders”) (13 May 2015).
That within one (1) month, the father shall advise the mother in writing of a telephone number on which she can call the children pursuant to Order 9 herein.
That after two (2) months from the date of the Interim Orders, the children shall have telephone contact with the mother each week on Tuesday and Thursday at a time between 6:30 pm and 7:00 pm, with the mother to initiate the call to the number provided by the father pursuant to Order 8 hereof, and the father to make the children available to receive the call NOTING that the father may listen to the call on loudspeaker and terminate the call if the children become upset and/or the mother questions the children about any of the issues arising from these proceedings.
That at the conclusion of Order 7 hereof, and for a period of 12 months, the children shall spend supervised time with the mother at the Region D Children’s Contact Centre (“the Contact Centre”) at such time as designated by the Contact Centre but for not less than two hours each fortnight, and the mother is otherwise restrained by injunction from spending time with or contacting the children other than in accordance with these Orders NOTING that the maternal grandparents may attend at the Contact Centre provided prior notice is given to the Contact Centre.
That to facilitate Order 10 hereof, each party shall:
(a)Contact the Contact Centre within seven (7) days of this Order and arrange an appointment for assessment for suitability for supervision of time the children spend with the mother;
(b)Attend the assessment; and
(c)Comply with any appointments made by the Contact Centre for supervised time.
That should the Contact Centre referred to in Order 10 hereof be unavailable for any reason, the mother shall, during the period of unavailability, spend supervised time with the children each alternate Saturday for not more than three (3) hours at a location and time to be specified by an officer of E Org.
That to facilitate Order 12 above, each party shall:
(a)Contact E Org within 48 hours of becoming aware of the unavailability of the Contact Centre and arrange an appointment for assessment for suitability for supervision of time the children spend with the mother;
(b)Comply with any appointments made by E Org for supervised time;
(c)Comply with all reasonable rules of E Org; and
(d)Comply with all reasonable requests and directions of the staff of E Org.
That to facilitate time in accordance with Order 12 above, the father or his nominee shall cause the delivery of the children to the Contact Centre or location as nominated by an officer of E Org at the commencement of the supervised time and cause the collection of the children from the Contact Centre or location as nominated by an officer of E Org at the conclusion of the time.
That the mother shall be responsible for all costs associated with supervision.
That at the conclusion of Order 10 hereof, the children shall spend time with the mother not less than once per month for a period up to eight (8) hours, supervised through E Org and at such other and/or additional times, supervised or unsupervised, as agreed between the parties.
Restraints
That each party be restrained by injunction from:
(a)Denigrating the other party or members of the other party’s family to the children or in the presence or hearing of the children, or causing or permitting any other person to do so;
(b)Discussing these proceedings with or in the presence or hearing of the children or showing to the children any document connected with these proceedings;
(c)Using the children to pass any message between the parents; and
(d)Physically disciplining the children.
That the Independent Children’s Lawyer shall provide a copy of these Orders to F School and G Early Learning Centre within 24 hours of these Orders being made.
That in the event that the mother consults a psychiatrist or clinical psychologist in relation to her own mental health, she has leave to provide to that treating professional copies of the following:
(a)The Magellan Report dated 2 September 2014;
(b)The Magellan Family Report of Ms H dated 24 November 2014;
(c)The Addendum to the Magellan Family Report of Ms H dated 11 December 2014; and
(d)A copy of:
(i)these Orders and Reasons for judgment; and
(ii)Orders of 13 February 2015 and Ex Tempore Reasons.
Travel and Passports
IT IS DIRECTED that a Registrar of this Court shall after 42 days from the date of these Orders provide:
(a)To the father in person, the passports for the children presently held by the Court; and
(b)To the mother in person her own passport presently held by the Court.
The Court requests that the Australian Federal Police remove the names of the children B, male, date of birth … 2005 and C, female, date of birth … 2010, from the Airport Watch List at all points of international arrivals and departures in Australia.
That the mother is restrained from applying for a passport in the name of or including any of the children B, male, date of birth … 2005 and C, female, date of birth … 2010.
That the children are permitted to travel internationally.
The Manager of the Family Court of Australia shall provide a copy of these Orders to the Department of Foreign Affairs.
IT IS NOTED that publication of this judgment under the pseudonym Seaver & Seaver is approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 3220/2013
| Mr Seaver |
Applicant
And
| Ms Seaver |
Respondent
And
Legal Aid NSW
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting orders by the parents of
two children, B aged nine and C aged four (“the children”).
The matter proceeded before me on a final basis for the four days commencing 9 February 2015
The applicant is the father aged 46. The respondent is the mother aged 43.
Both parties live in the Region D of New South Wales.
The parties were married for almost nine years. They separated in
February 2013 and are now divorced.
Since 13 February 2015, pending final orders, the children have been living with the father and spending no time with the mother.[1]
[1] Orders dated 13 February 2015
Applications
The applications reflect the width of the dispute.
The Applicant Father
The father asked for sole parental responsibility for the children and that they live with him; that the children spend supervised time with the mother for a period of 12 months; that during that time the mother undertake court ordered therapeutic counselling and that thereafter the children spend time with the mother on alternate weekends, in school holidays and at other special times.
The Respondent Mother
The mother, in her Response, asked for rather similar orders for herself, that is, sole parental responsibility and that the children live with her. However she proposed no face to face time between the children and the father; telephone contact only if the children wished it and a restraint on the father visiting the children’s schools or attempting to make contact with the children at home or at school. The mother also sought a restraining order on any person taking photographs of the children without the mother’s written consent.
In her Case Outline the mother generated three proposals, dependent on findings made by the Court:[2]
(a)Proposal 1: If the court found an unacceptable risk for the children in the father’s care that the mother have sole parental responsibility, that they live with her and spend no time and have no communication with the father; that there be a restraining order on the father attempting to make contact with the children and; that the children’s be removed from their current inclusion on the Airport Watch List;
(b)Proposal 2: In the event that the court found that an unacceptable risk of harm did not exist for the children in the father’s care, that the mother have sole parental responsibility for the children and that they live with her; that both parties and the children engage in intensive family therapy with such therapist as directed by the Independent Children’s Lawyer, with the provision for the children to spend no less than two hours each fortnight, supervised, with the father “until such time that the therapist directs otherwise”;
( c)Proposal 3: That in the event that the court found an unacceptable risk of harm for the children in the mother’s care then the mother and the father have equal shared parental responsibility and that the children live with the mother; that the mother engage in intensive therapy with a therapist directed by the Independent Children’s Lawyer and during that time, the mother live with her parents and the children spend graduating time with the father from day time on Saturday on four occasions, followed by alternate weekends, half school holidays and other special times; that the parties use a communication book; that the names of the mother and children be removed from the Airport Watch List.
[2] Exhibit 2
By putting forward those three proposals, the mother did not concede or intend to concede in any way that she did represent an unacceptable risk to the children.
History of Relevant Events
The parties separated in February 2013.
The mother moved out of the family home with the children and rented accommodation in the local area. The father remained in the family home, subsequently moving to rental accommodation in the local area.
The maternal grandparents, who had enjoyed a good relationship with both parties until their separation, cut off their relationship with the father from March 2013.
For the first six months after separation, the children had a shared care arrangement between the parents where they would spend Monday night to Wednesday morning with the father; Wednesday night to Friday morning with the mother; Friday overnight with the father; Saturday morning to Sunday morning with the mother; and Sunday morning to Sunday night with the father.
Unsurprisingly, both parents found those arrangements impracticable.
Events from September 2013
In September 2013 the father began a relationship with Ms I, who continues to be his partner.
Ms I has two children; a daughter aged 12 and a son aged 10. They live mainly with her and spend regular time with their father who lives locally.
Ongoing from September 2013 the mother raised allegations of verbal and psychological abuse of the children by the father. The children were not made available for time with the father on numerous occasions. The children began to be exposed to an increasingly high level of conflict between the parents from this time, which has escalated in the ensuing 18 months.
The children’s family further polarised. The maternal aunt held a third birthday party for C at the end of 2013. She fell out with the mother and maternal grandparents, who did not approve of her continuing a friendly relationship with the father.
In November 2013 the mother telephoned Ms I at work, ostensibly to alert her to the risk which the father might pose to her children. The mother also sent an email to her work account.
At around that time the mother began seeing a psychologist, Ms J, who diagnosed her with “Reactive Depression and Anxiety”.[3] The mother had been referred by her general practitioner (“GP”), Dr K, to that psychologist.
[3] Exhibit 5 (‘Mental Health Assessment’, subheading ‘Formulation’)
By December 2013 the mother asserts that the children were exhibiting high levels of anxiety and stress. She unilaterally decided to reduce their time with the father. Also in that month, the mother and children moved to live with the maternal grandparents.
The commencement of these proceedings
On 19 December 2013 the father filed an Initiating Application in the Family Court seeking both parenting and property orders. It should be noted that by way of Orders made 13 October 2014, the parties’ parenting applications were severed from their property settlement applications; the parties’ property settlement applications are still pending before this Court.
The father had no contact with the children from Christmas 2013 until about mid-February 2014.
In January 2014 reports began being be made by B to the family GP. The mother told the doctor of his fears regarding spending time with the father.
Around this time, the mother arranged for B to commence seeing Mr L for counselling. Mr L continued to meet with the child, but declined to meet with the father or observe any interactions between him and the child. Mr L made a number of reports to the Department of Family and Community Services (“the Department”).
Initially C was also referred to Mr L and a report was made to the Department after his first interview with her. C was later referred to “M Org”.
The 20 January 2014 notification
A report was made to the Department by a caller reporting that “[d]uring the last five years [the mother] experienced domestic violence including social, financial and psychological and fears for her own life”.[4] The report also stated that the father “took the children overseas trip without telling [the mother]”, which was described by the mother as “abduction”. The concluding words were “other concerns noted such as excessive discipline had already been reported 17 January 2014.” The notification was classified by the Department as “Non-ROSH”, that is no risk of serious harm, and the family was referred to N Org for support.
[4] Exhibit 14 (Tab F2)
The mother denied that she had been the person to make this report and further denied that she had told any person that the father had abducted the children. It is agreed that no such incident occurred. The mother claimed that the initial material about domestic violence was accurate. The notes do record that a notification in relation to excessive discipline had been made in a report on
17 January 2014.
Accordingly, the only information unaccounted for is the report of the father having taken the children overseas without consent of the mother. It is inherently unlikely that the father made such a report against his own interests. The report therefore raises the likelihood that the mother or someone informed by the mother to that effect, made the report.
In February 2014 the father began seeing the children again on specific days nominated by the mother.
Mother’s Response
On 12 March 2014 the mother filed her Response.
The mother proposed that subject to the father attending an anger management course, the parties have equal shared parental responsibility, the children live with her and spend time with the father each alternate weekend, each alternate Tuesday night and on other special occasions. If the father did not complete an anger management course, the mother was to have sole parental responsibility, the children live with her and spend time with the father each Tuesday night, Saturday night and other special occasions.
I take from this proposal that the mother did not hold any fears that the children would be abused by the father, whether or not he had attended an anger management course or not. Her focus was apparently on his emotional state.
On 13 March 2014 orders were made by consent for the children to live with the mother, for them to spend time with the father each alternate weekend from Friday after school until 6.00 pm Sunday and for telephone contact twice a week. Restraints on both parties’ conduct with the children were ordered and the father was ordered to obtain a referral from his GP to a counsellor for “the purpose of addressing anger management and communication with the children.”
The father did attend upon a clinical psychologist, Mr O, with an initial session occurring on 24 March 2014.[5] Mr O contacted Mr L, B’s counsellor, and there were some preliminary discussions between the two about:
(a)Improving communication between the parties and minimising the exposure of the children to any dispute or animosity between the parents;
(b)Positive parenting techniques; and
(c)Education of the father about the likely emotional impact of the separation on the children.
[5] Exhibit 13 (Tab M1)
The father candidly disclosed to Mr O that he was seeking advice and information at the behest of the mother. Ultimately, he transferred to a parenting course after consultation with Mr O.
Between 2-4 May 2014, the father, Ms I and their respective children went away for a weekend break. Thereafter the father says that B in particular was reluctant to speak freely on the telephone with him. The father contacted Mr L, asking to engage with him and the mother in a joint appointment.
On 12 June 2014 there was a long discussion between the mother’s solicitor and Mr L about the latter’s decision not involve the father in any joint session with either the mother or B.[6] The mother’s solicitor raised with Mr L her wish for B to see the father in a supervised contact centre. There is no apparent explanation given as to why orders which had been put in place by consent on 13 March 2014 should, within two months, cease with a movement to restricted supervised time.
[6] Exhibit 4
Mr L expressed views about the father and his conduct with B, presumably based on what he had been told by the mother and the child. He referred to the mother’s anxiety levels as being very high. The statements of Mr L confirm his first-hand knowledge of the mother and the second-hand information about the father.
The first allegation of sexual abuse in June 2014
For the weekend concluding Sunday 15 June 2014, the children were with the father. The father gives an account of what occurred on that day.[7] He says he took the children to the home of Ms I, during the middle of the day. They stayed about two hours and during this time Ms I baked biscuits for and with the children. They left at about 2.30 pm because Ms I was packing to go overseas on Tuesday 17 June 2014.[8]
[7] Father’s Affidavit filed 30/01/2015, par 42
[8] Father’s Affidavit filed 30/01/2015, par 42
In her affidavit, Ms I said that she saw the subject children that weekend on Sunday at lunch time and that her children were also at home.[9] They all had lunch together and then separated into two groups consisting of the father, B and her son and C, herself and her daughter. A photograph was annexed to her affidavit of herself and the two girls in the kitchen.[10] She confirmed that the father and the subject children left at about 2.30 pm.
[9] Affidavit of Ms I filed 30/01/2015, par 17
[10] Affidavit of Ms I filed 30/01/2015, Annexure C
The mother says that on that Sunday evening B was distressed, complained to her about the father’s conduct and told her that both he and C were frightened of the father. B also stated that the father had “threatened to take [him] to the doctor and get needles and leave [him] there.[11] Further, B stated that on the way to the dog park, their dog, P, had bitten a girl on the hand and that when they returned home, the father had “yelled and yelled at C” and there had been an angry argument between the father and B and the father had threatened to kill the dog.
[11] Affidavit of the mother filed 30/01/2015, par 138
C is reported to have said to the mother that Ms I “tells me all the time I’m naughty and horrible. I’m scared of [Ms I].” She said the father frightened her and hit her and that when she cried for the mother he laughed at her and yelled “no.”
After C had gone to bed the mother reports further allegations were made by the child: that the father had hurt her hand, made it very red and that she had “cried and cried”; hurt her in the dark and squeezed her hand and told her not to talk about Ms I; dragged her round by her arm causing her pain.[12] The mother says while the child was telling her these things she was fidgeting with her hands “down the front of her pants” and crying “my wee wee is sore mummy, it’s hurting, it’s hurting.”
[12] Affidavit of the mother filed 30/01/2015, par 150
The mother then talk the child’s pyjama pants off and directed her to “show mummy where it is hurting”, the child replied “here” and pressed on her urethra with her finger. She then said “[Ms I] touched it”. The mother says that she examined the child’s genital area and could not see any redness or swelling or any other unusual signs in the genital area. It is uncontentious in this matter that C suffers from urine scalding and that both parents believe that fruit juice is responsible for this difficulty. The mother then put baby powder on the child’s genital area, put her pants back on and rocked her back to sleep.
The next day the children woke up, had breakfast and went to school. The mother reports that C did not appear to be in pain or distressed about her urethra and so the mother did not mention the matter further.[13]
[13] Affidavit of the mother filed 30/01/2015, par 156
That night, the evening of 16 June 2014, B is reported to have told the mother he was too worried to eat, that “… Dad is getting worse and worse and what he did to us on the weekend … he can’t love us to do those things. This isn’t normal is it?”[14]
[14] Affidavit of the mother, par 140
C stayed with the maternal grandmother on 16 June 2014 and that evening the maternal grandmother reported to the mother that C had been watching television “with her hands down her pants a lot.”[15] The mother reported to the maternal grandmother at that point what C had said to her the night before, “[C] told me last night that [Ms I] had touched her there and it was very sore. She had a lot of trouble going to sleep and she was very distressed”.[16] The mother also reported that B had told her that in the previous weekend (that is 13 to 15 June 2014) he had been sent downstairs with Ms I’s son and C had been left by herself. He said he did not know where C was when he went downstairs.
[15] Affidavit of the mother, par 157
[16] Affidavit of the mother, par 158
On Tuesday 17 June 2014 the mother took C to her first appointment at ‘M Org’. The appointment was with somebody named ‘Q’. The mother makes this statement, “I was very conscious that [C] was in the room [when she was talking to [Q]] and tried to be very discreet about what I was saying”. She said she went further and explained “very quietly” what C had told her on Sunday night about Ms I. The mother was advised by Q that she was a mandatory reporter. She gave the mother some forms to complete, which she did. C was taken to pre-school after the appointment.
B and C spent the evening at the father’s house in accordance with the Orders. C was returned to the mother the next morning.
The mother did not raise with the father in person, indirectly or through her solicitor, her expressed fears about the incident with C and Ms I. She simply made the child available for the Tuesday night contact. It is not consistent with genuine fear for their safety. She did not tell the father that there had been a mandatory report by M Org; she did not communicate with the father at all.
Q at M Org had asked the mother to fill in the ‘Preschool Anxiety Scale (Parent Report)’, which she did.[17] She was also asked to have C’s pre-school teacher fill in the ‘Caregiver-Teacher Report Form’ for C, which she did.[18] The contrast between the two reports is instructive.
[17] Affidavit of the mother filed 30/01/2015, Annexure VS11
[18] Affidavit of the mother filed 30/01/2015, Annexure VS11
The mother rated C as in the highest category of concern for the majority of items relating to worry, fear and distress. C’s teacher rated C at the other end of the scale for the majority of items and made these comments:
Question: What concerns you most about the child?
Comment: Nothing, C seems to be a happy and normal child.
Question: Please describe the best things about the child?
Comment:Funny personality; has made good friends; affectionate with friends and staff.
The mother’s comment in her form had been that the child had experienced family violence and very often remembered the event, becoming distressed as if reliving the experience and showed bodily signs of fear due to “being hit/yelled at or locked in her room.”
I accept the submission of Counsel for the father that it was as if two entirely different children had been assessed.
The mother described C as being in a bad mood when she returned on Wednesday 18 June 2014, yelling and aggressive, kicking at her and pushing the maternal grandmother away.
On Thursday 19 June 2014 the mother had an appointment with her GP. She explained her concerns in respect of C’s disclosure about Ms I. She was advised to contact the police. The mother then contacted her solicitor, the Department and R Town Police Station where she made a report. On her own report the mother kept contacting the police for the next few days until she spoke to an officer who gave her some information about the father.[19]
[19] Affidavit of the mother filed 30/01/2015, par 172
The mother was critical of the police response. In particular of the fact that
Ms I had not been contacted and that the father had been told of the allegation. The mother appeared to be solely focused on Ms I and was hopeful of removing her from the lives of the children.
The mother contacted a senior police officer at another station on the following day. He let her know that the police would not become involved and explained “[Ms Seaver], there’s two sides to every story, your husband denies your allegations. I know you are going to Court, you’ve made this report with us. It will proceed.”[20]
[20] Affidavit of the mother filed 30/01/2015, par 173
By Friday 27 June 2014 the mother decided that she needed to take a protective stance as the father had refused to cooperate by agreeing to suspend time with the children. Therefore she made the decision that the children would no longer spend time with the father. Of course this was also a decision to no longer comply with court orders.
On 1 July 2014 the matter was apparently referred to the Joint Investigation Response Team (“JIRT”).
On 8 July 2014 the mother was served with a Contravention-Application which had been filed by the father on 7 July 2014.
On 10 July 2014 the parties attended the Federal Circuit Court where the current parenting orders were suspended. The proceedings were transferred back to this Court (having been transferred back to the Federal Circuit Court in July 2014 after being originally filed in the Family Court)
On the night of that day in court, the mother asserts that B was sobbing and worried and C made allegations of cruel physical and psychological abuse by the father and Ms I: [21]
[Ms I] pushes me over like this [demonstrated] and I fall over and Daddy laughs at me. I cry for you and she comes close to my face and pinches my face really hard until I cry … [she] says I’m naughty all the time and I cry for you and Daddy laughs. She … hits me like this and shows me her face.
The child is alleged to have finished her statement to the mother with this,
“[s]he can’t hurt me anymore, Mummy”.
[21] Affidavit of the mother filed 30/01/2015, pars 183-184
I infer from this that the mother told the children they would no longer be seeing the father and therefore Ms I. If I accept what the mother reports, both children continued to make complaints about the father and Ms I. I consider that they were closely questioned by the mother on the topic of misconduct by the father and Ms I.
Complaints from the children are reported at a high volume. As was her pattern in all the reporting, the mother put in italics what the children had said, interspersed with sets of three consecutive dots which I take to be an indication of omission of some words. There was no reporting of what the mother herself had said to the children to elicit their statements or what she had said in response. It is a significant omission. The mother omitted her own role from the reporting process.
In her oral evidence, the mother stated that she listened carefully to what the children said but did not write anything down at the time; rather waiting until they went to bed and then working on her memory, wrote it all out.
On 16 July 2014 C was taken to a session of counselling at M Org. She is described by the mother as angry and destructive on that occasion. The mother did not appear to consider that the child might have been reacting adversely to being cut off from the father, Ms I and her two children. On that same day C punched the mother in the face and alleged that the father had punched her in the face.
On 21 July 2014 C is reported to have made a further allegation to the mother, “… [Ms I] hurts me, she hurts me here and makes me sore [pointing at her vagina] … She pushes me over like this, she makes me cry, Mummy.”[22]
[22] Affidavit of the mother filed 30/01/2015, par 200
On 25 July 2014 the mother filed her first Notice of Child Abuse alleging:
(a)Psychological abuse upon the children, namely interrogating, intimidating and belittling them and causing them to witness abuse of the other child as well as the children’s pet dog; and
(b)Physical abuse, namely smacking, pinching, pushing and dragging them as well as causing them to witness physical and psychological abuse perpetrated on the other child as well as the dog.
On 31 July 2014 the mother filed an Amended Notice of Child Abuse with an additional paragraph that the children were at risk of harm in the presence of the father because of his relationship with Ms I, who the mother alleges has touched C on the genitals in a sexually inappropriate manner.
On 31 July 2014 the matter was allocated to the Magellan Protocol.
The second allegation of sexual abuse in August 2014
In August 2014 the mother raised allegations of sexual abuse of C by the father. She says that C told her that the father touched inside her vagina while Ms I watches.[23] The mother reported to police and the Department.
[23] Affidavit of the mother filed 30/01/2015, par 209
On 28 August 2014 the father filed an Amended Initiating Application seeking orders for the parties to share parental responsibility and for the children to live with the father from Monday to Wednesday each week.
On 2 September 2014 a Magellan Report from the Department was made available to the court and released to the parties. The Magellan Report sets out 21 reports of harm. Of these, only five were screened in as containing risk of significant harm. Those five matters did not meet JIRT criteria for further investigation. The Magellan Report noted no child protection history for the children prior to the separation of the parties.
On 8 September 2014, at the request of the mother, a JIRT interview was attempted, unsuccessfully, with C.
On 25 September 2014 the mother filed an Amended Response seeking sole parental responsibility, that the children live with her and that the father be restrained from attempting to make contact with them.
On 30 September 2014 the mother filed her third Notice of Child Abuse setting out allegations that:
a)
That the father used his finger to penetrate C’s genitals while
Ms I has watched on; and
b)That the father had inflicted physical abuse upon C by scratching, pinching, hitting, and bruising the children.
From 13 October 2014, by interim consent order, the children spent supervised time with the father in a Contact Centre for two hours each fortnight. There were also specific issues orders restraining the parties from removing the children from Australia, requiring the mother to deposit the children’s passports to the Registry Manager within this Court, restraining the mother from taking the children to see therapeutic counsellors and from discussing the contents of the Family Report in the hearing or presence of the children.
On 24 October 2014 the mother reports a disclosure by C, “Daddy says he is going to put a needle in my wee wee”.[24]
[24] Affidavit of the mother filed 30/01/2015, par 237
On 5 November 2014 the mother reports that C said to her, “Daddy bites my wee wee here … pokes his finger in me … [Ms I] does this too”.[25]
[25] Affidavit of the mother filed 30/01/2015, par 258
On 18 November 2014 the mother filed her fourth Notice of Child Abuse setting out the allegation that the father had used a needle and his finger to penetrate C’s vagina.
On 25 November 2014 a comprehensive Family Report was released to all parties.
The recommendations of the Family Consultant are in the alternative, dependent on findings, as follows:[26]
(a)In the event that the father is found to pose a risk of harm to the children, then he should cease spending time or communicating with them, with consideration for the mother having sole responsibility for the children; or
(b)In the event that the court found that the children were not at risk of harm in the father’s care, that consideration be given to an immediate change of residency for the children to live with the father and spend no time with the mother until she had undergone a comprehensive psychiatric assessment.
[26] Magellan Family Report dated 24/11/2014, pars 251-252
Those recommendations were consistent with a procedural recommendation by the Family Consultant that there be a psychiatric assessment before final hearing. That course was not adopted.
An Addendum to that Family Report was released less than three weeks later. The Addendum refers to contact by an officer of JIRT with the Family Consultant.[27] The officer expressed concerns about the mother’s level of functioning and the escalation in reports being received by the Department.
[27] Addendum to the Magellan Family Report dated 11/12/2014
The increasing gravity of material contained in the Notices of Child Abuse and the evidence of the mother herself, of the level of discussion about abuse, is consistent with the concerns of police expressed to the Family Consultant in December 2014; the emotional and psychological health of the children was under threat.
The Evidence
The documents relied on in respect of the application were as follows:
(a)Further Amended Initiating Application of the father filed 19/12/2014;
(b)Father’s Affidavit filed 30/01/2015;
(c)Affidavit of I filed 30/01/2015;
(d)Amended Response of the mother filed 25/09/2014;
(e)Mother’s Affidavit filed 30/01/2015;
(f)Four Notices of Child Abuse of the mother filed 25/07/2014; 31/07/2014; 30/09/2014; 18/11/2014;
(g)Affidavit of the maternal grandmother filed 30/01/2015;
(h)Affidavit of the maternal grandfather filed 30/01/2015;
(i)Magellan Report dated 22/08/2014;
(j)Magellan Family Report dated 24/11/2014;
(k)Addendum to Family Report dated 11/12/2014.
The Father
The father presented as open and straight forward, willing to make concessions. For instance, he conceded it had been a method of discipline of his to flick B on the back of his head, hard enough to get his attention when he wanted him to do something, such as turn off the television. He said, and I accept, that through the parenting course he completed and personal reflection, he had learned better ways of parenting than those he had used previously and that the restraint on physical discipline had caused him to stop the flicking, which he had not done since. The father also conceded that he had used language such as “wuss”, and “toughen up” when speaking to B, in the context of events at school. The father said he had spoken to B and said that bad things would sometimes happen in the playground and he had to accept them, “you’re a wuss, you’ve got to toughen up.”
I formed the impression that the father has used rather old fashioned methods of discipline and child-raising, which he has confronted as a result of these proceedings. However it is also the case that there was no complaint to any third party by the mother about the father’s conduct until long after separation. There had been a good relationship between the maternal grandparents and the father until after separation, when they chose to cut off their relationship with him. Accordingly, it seems likely that there may have been a difference of approach to child-raising by the two parties, but the father’s methods were not such that gave rise to concern within the family or such that warranted complaint outside the family.
The father also stood his ground to some extent, and said when asked whether he still held the view that raising the voice was an appropriate means of discipline, that he thought it was. He agreed that when he was angry or frustrated he shouted and that sometimes the children would have been scared.
He also agreed that he had smacked the children and that they may well have been distressed and fearful when he did that. Again, he has been restrained by orders and I have no reason for not accepting that he no longer uses corporal punishment. However, I do not consider that his actions fall into the category of abuse or harm. Smacking is, from a legal point of view, an available means of parental discipline and something that the father did.
The father shed light on a statement made by B that the father was going to “give him needles”. It may relate to the father’s evidence that he had explained to B that the paternal grandfather had been kept alive by supplements in the last 18 months of his life because he was unable to eat. The father had apparently told the child that that might be something that would have to happen for him if he did not eat properly. The motivation of the father is contained in his statement “he’s a finicky eater; I don’t want him to have an eating disorder.”
It is one of many examples where a statement by a child made to the mother was picked up, recorded and ultimately included in an affidavit as a stated concern of the mother’s without any communication between the parties to clarify the matter.
The father agreed in cross-examination that by the time the mother was pregnant with C, the relationship between them had deteriorated and that they were arguing every day, mostly about money. Whilst not directly relevant to the parenting issue, this evidence shed some light on the parties as individuals.
The father agreed that he had shown the mother financial spreadsheets of their budget about four times a year. He also readily agreed that he had told the mother that his asset position had deteriorated because of the big house that they had built and that he had asked her to help with the mortgage (by working) “if we are going to continue this lifestyle.” It is clear that the father strongly expressed his concern that the couple were spending beyond their financial means and I accept his evidence that he felt under financial pressure.
The mother, on the other hand, felt that she was being put under pressure by the father unreasonably, leading to her allegation that he had been financially controlling of her.
B was drawn into an argument between the parties as a very young child because the mother had, without letting the father know, arranged for home delivery of groceries ordered online. B in his innocent enthusiasm about the truck coming to the house spoke to the father about it. There was then an argument between the parties over what the father regarded as an unnecessary expense and the mother regarded as a convenient method of shopping.
I was left with the impression that the father was inclined to put his position forward quite forcefully and the mother interpreted the father’s statements which disagreed with her own views, as unjustified criticism of her and as financial control. It is apparent that the children, especially B, were exposed to arguments between the parties of an angry confronting kind routinely.
The paternal family
The father also agreed that there had been arguments between the parties over members of the extended paternal family, who early in the relationship lived close by. In particular, there had been a falling out between the mother and the father’s sister-in-law. The father agreed that the mother thought he had been unsupportive, but in his view, just because he did not support the mother’s views did not mean that he was unsupportive of her, “I accepted her right to have an opinion but didn’t agree with it.”
This is a further example in another context of each party’s approach to the relationship. The mother’s expectation was that the father would support her in whatever position she took in relation to his family or also to friends. If the father did not agree with her position then in the mother’s view, he was unreasonably critical and unsupportive of her. The father on the other hand accepted that the mother had different views about many things and that the fact that they disagreed was not a rejection by him of the mother. This fundamental difference was apparent throughout the evidence.
The father agreed that by the time C was born, B would sometimes say to him “don’t shout at Mummy, can’t you just be happy.” The father agreed and said “that’s horrible as a parent to hear those things.” There followed evidence that both parties had tried to step back from arguing in front of the children, especially B. The father said that they had agreed to try and talk after he was in bed. However the mother was in the habit of running for a couple of hours early in the morning, “we had different body clocks.” It appears that on the limited occasions when they were together, arguments continued to break out.
The father, on one hand, was a sterner parent than the mother and more of a disciplinarian; however, I consider he was quite perceptive about the children. He said that the shared care arrangements put in place after separation had confused the children from the outset, especially as they were unable to agree on a regime and were constantly making counter proposals for change. The father saw signs of stress particularly in B, “[he] was not bubbly and innocent as he had been 12 months before.”
There is no doubt that the father was pressing for shared care, by his estimate 60/40 in favour of time with the mother, and that the mother was opposed to such a regime and was somewhat offended by it, given that she had previously, prior to separation, provided the majority of care for the children. Unfortunately for the children, the conflict between the parties led to them not seeing the father for Christmas 2013 and for approximately six weeks thereafter.
After 2013 the mother was living with the maternal grandparents in one of the cabins on their property. The father had become concerned that the children, especially C, would have access to an unfenced swimming pool. He raised the matter with the mother and she did not respond. The father then raised the matter with the local council, which then prompted an inspection. The mother was affronted and regarded the father’s conduct as an insult to both her and the maternal grandparents; a failure to accept that she would act responsibly for the children. I accept that the father was concerned about C, however he was probably making the point, by involving the council, that if the mother ignored him he would not go away.
The father very much wanted to participate in the counselling which was arranged for B. Mr L declined to see the father and B together. The father then decided that since Mr L would not see him, to avoid further conflict he should not see anybody who was treating the child, which included the GP who was consulted about the migraines which B suffers. This is unfortunate given that the father himself has suffered from migraines since childhood. An opportunity for B to be assisted on an ongoing basis by the father’s involvement in his medical appointments was lost.
Guns
The mother raised a reference by B to the father having guns.[28] The representation of that conversation was somewhat disingenuous. The father has kept guns all his life and is licensed to do so. The mother was aware of that. I accept the father’s evidence that the mother did not approve of guns and did not want the children exposed to them.
[28] Affidavit of the mother filed 30/01/2015, par 67
I issued a Section 128 Certificate in relation to evidence about a rifle not locked away.[29] The father conceded that during the marriage he had left a rifle out and B had found it and that he had told him not to tell the mother about it. The father said he had in that moment felt sick and told the child that the gun needed to be locked away. It is unclear from the mother’s evidence whether the child told her about the rifle at the time or for the first time in March 2014, which would have been some years after the event. To the extent that the mother represented that B’s information was a revelation to her of the father owning guns, I do not accept that it was.
[29] Order made 9 February 2015
There was also evidence about B having had access to shooting magazines. The father readily agreed that he subscribed to a magazine and that they were usually on the kitchen table. He further agreed that there were photographs of dead animals in the magazines. The father denied any distress for B; rather he said the child had asked what a bullet was and how guns and bullets worked. I accept his evidence. No doubt B is well aware of the father’s interest in shooting and skills with a gun, as he is also aware of the mother’s disapproval of the father keeping guns at all and of shooting in general. That he would display interest in shooting when alone with the father but make complaints to the mother about the presence of guns is entirely consistent with the conflict B finds himself caught in.
Emotional abuse
It was specifically put to the father that he had made the following statements to B, “who do you love the most?”, “who’s the better parent?”, “you have to choose between us two”. The father strongly denied making any of those statements and made the comment that he had always wanted shared parenting. The evidence of both parties supports that proposition, indeed I formed the impression that the father had never expected that he would have full time residence of the children and certainly not sole parental responsibility. The ongoing argument between the parties was always over shared care, but even in that context, the father had not wanted to have more time with the children than the mother did.
In the discussion between Mr L and the mother’s solicitor, there is a reference by Mr L to the mother as someone “caught up in her own little world and is very competitive and feels that she may have lost this and this is adding another layer of stress”.[30] This is in the context of the counsellor describing the mother on the first day he met her as a person “under incredible stress” and as a person in his view “very responsive and appropriate mum around the children but frayed by the process.” That competitive element between the parties was on display in these proceedings but I do not find that the father imposed painful emotional choices on B.
[30] Exhibit 4
The incident on 6 April 2014
In her affidavit, the mother recorded a lengthy complaint by B made to her. Characteristically, it was a series of statements by the child with no information about any questions or comments of the mother. Again, there were three dots which apparently represented an omission of some material:[31]
Dad yelled at me at [S Town] in front of her [Ms I]. He was really angry and said ‘you disobeyed me’. He left me sitting on the beach and took [Ms I’s son] into the water instead. He didn’t even come out and see if I was alright. My wetsuit was hurting a lot. He paid a lot more attention to [Ms I and her son] and told me I should be more like him. He doesn’t love me at all. I’m so sad I feel like a piece of dirt. I’m always left …
I can’t tell Dad the truth otherwise he gets extremely angry and hits me. I feel so stressed and I get angry about the smallest of things, Mum. I need Dad to stop doing this to me. He questioned me all Saturday night I don’t feel like he’s my Dad anymore. I feel hopeless like I’m losing a finger and toe every time. I feel like Dad is pulling my body apart with sadness and shredding me to pieces with his questioning.[31] Affidavit of the mother filed 30/01/2015, par 87
The father’s evidence about this incident was that he had told B and Ms I’s son not to go near the rocks because it was dangerous. Shortly after he had given this direction to the children, both boys had gone straight over to the banned area. The father agreed that he had been angry and raised his voice and used the words, “you disobeyed me.” The father said that he directed the boys to sit on the beach, not to go back into the water, and wait while he went across the road to purchase food for lunch.
I asked the mother about the fact that she had omitted any reference to what it was that B had done to disobey the father in her affidavit. She agreed she had left it out and said that B had mentioned something about going to the rocks. Insignificant as a single incident, it is in my view a characteristic example of the mother’s approach to presenting her evidence. She simply put forward everything that could be categorised as a criticism of the father and made no attempt to present all of the information for the Court to come to its own conclusion.
The incident is evidence of appropriate parenting by the father. If at the time the mother, having heard about this incident, reinforced with B that he should have obeyed the father for his own safety, there is no evidence of that before me. The possibility exists that through the uncritical listening and recording of the children’s statements, the mother is sending a message to the children that she and the father do not take a common position on such matters with all the potential that has to undermine the authority of both of them.
Two weeks later on 22 April 2014 the mother records B as upset because the father had rung to say he would be 25 minutes late, “… why does he even bother, Mum? Why aren’t we important enough? Why can’t he make the effort to be here it’s school holidays?”[32] The mother says that B then went out in the backyard, began thrashing a ball and hurting himself with the racket and ball, throwing things around the garden and crying. This material reads as a passionate statement by B of how much spending time with the father meant to him. If the mother reassured him and helped him deal with his feelings, she does not say so.
[32] Affidavit of the mother filed 30/01/2015, par 92
C
Complaints had been recorded in the mother’s affidavit of C saying that the father had hurt her, squeezed her hand and made it red. The father gave evidence of what he described as rough play between himself and C, where he would try and get the remote back from her when she would not return it, that he would take hold of her hand between her thumb and index finger when she had the remote in her other hand. He agreed that he did tell the child sometimes she was naughty and put her in the naughty chair or some other form of “time out”. There is no evidence before me of the child being injured by anything the father has done. No doubt C did not particularly enjoy the father’s approach, but it does not amount to harm and certainly not abuse.
The children’s dog
The father denied cruelty to the children’s dog, P. He conceded that he used his foot to move the dog away from the bowl and had trained the dog by pushing its nose into urine or excrement in the house until it was house trained. It is evident that the mother has recorded the children’s statements about the dog to the extent that they could be categorised as criticisms of the father’s conduct, but has recorded nothing about the children’s undoubted enjoyment in activities with the dog, such as walking and playing at the park.
The father, when asked whether the children were more anxious after
mid-2014, agreed they were and offered the comment that they were both tearful sometimes on Sunday night, which he had found upsetting but had concealed his feelings from the children.Again in an open way the father conceded that C had been hurt by a football which he had thrown. It accidently struck C in the face. He also conceded that his partner’s children, or at least T, had initially laughed, although as soon as they realised the child was hurt, the situation changed.
The events of 15 June 2014 and following
The father was questioned about allegations of engaging in sexually inappropriate conduct with C. He appeared thoughtful and as someone who had reflected on the allegations in an attempt to understand them. He said he could not remember having done anything that would make C’s genitals painful, “not that I can remember, I put her on my shoulders sometimes but there’s been no complaint from her.” The father said it was a complete surprise to hear of the allegation four days after the event (15 June 2014).
He was asked whether he had put his fingers on C’s labia. He denied that he had put his fingers on C’s labia, but readily conceded that he used baby wipes when he changed her and could have touched her with a baby wipe in that area. He was challenged as to whether he might have been rough whilst attending to the child by accident. The father said “no, I have been changing her all her life. I’ve always tried to be careful and delicate.” When asked whether he had been rough with her deliberately in touching that area, he responded in a definite but dignified tone, “no.”
Ultimately in submissions, the father was criticised for not having put into his affidavit such matters which might have represented an explanation to the mother’s allegations. For instance, he was asked whether he had ever put a needle in C’s “wee wee”. He denied it, but had clearly thought about this allegation. He said that syringes had been used as water pistols in the bath, never with needles in them and that the children were used to being squirted and squirting each other with those syringes. The father also readily agreed that he had kissed or blown raspberries on C’s stomach.
I consider that the father has searched his memory and tried to understand how it could be that he was being accused of cruelly treating and sexually abusing the children. Again when he was asked whether he might have spoken to the child about “checking her wee wee”, he agreed that he would have, “only when [she was] coming off the toilet.”
I consider that the father was genuine when he said he thought the mother was a good mother “nurturing, nutritional, takes them to surfing lessons but I don’t appreciate the messier side.” He spoke with obvious love and affection about his knowledge of the children, their interests; in the case of B time with his cousins, surfing, camping, riding his bike, playing with the dog, spending time with friends; in the case of C, fishing, paddle boarding and whatever the family was doing, “she loves to join in”.
The father and Ms I made the decision to seek advice from the U Clinic about parenting skills and have, since July 2014, attended four sessions. The father said, and I accept, that he had found the advice useful and perhaps somewhat confronting, “you think you are doing the right thing until you get advice and see other ways to do things”.
The father did not hesitate in saying that in the event the children lived with him and he had parental responsibility for them, he would want the mother to continue to be involved. He had clearly given thought to the commitment that he was taking on and part of that thought was to presently be working very long hours in order to accrue credit with his employer, which could be used if the children came into his care.
It was noted that despite concerns raised by the mother about anxiety problems for B outside of school, including breathing problems, the teachers’ note stated that “[B’s] doing really well in the classroom. No sign of distress”. Both children are healthy, although B suffers from migraines as does the father.
The mother asserted that B had been diagnosed by the family GP as suffering with stomach migraines, attributed to stress and anxiety. The mother also stated that B suffered from “lip eczema” which in her view corresponded to the level of anxiety and stress in the household and which the father attributed to B licking his lips.
The mother also asserted that B had developed an eating disorder and had been under the supervision of the GP in that regard. The mother attributed the eating disorder to stress and anxiety around eating. The mother also asserted that B had developed abnormal heavy breathing and that the GP, having tested B for asthma and other breathing conditions, attributed B’s breathing condition to anxiety. The GP’s notes do not bear out these assertions.
On 14 January 2014 information was provided by the mother that B had expressed fears about the father, “scared will do anything wrong”. The mother asserted the child had not been eating but gradually increasing his food intake as he revealed more about punishments by the father. The GP makes this note: “not divulged to me by [patient] … nil signs phys[ical] abuse noted but with mum 2 weeks ... happy today bright lad ... note weight same as pre
[September 2012]”.
On 4 March 2013 the GP noted, in relation to the eating, that B was finicky and intake seems related to parent’s breakup.
In relation to headaches, on 27 April 2012, there is a note, “new onset past few months severe headaches with photophobia and vomiting … Father had same as child and still does”. The GP concluded that it sounded like hereditary migraines but was taking steps to exclude other causes.[77]
[77] Exhibit 12 (F1-F4)
I note that the mother had clearly discussed her concerns in front of the child but the child himself had not made a complaint about the father and that overall the matters of health raised by the mother[78] are not confirmed by the GP who have been consulted by the family since each of the children has been born. I give this finding substantial weight.
The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
[78] Affidavit of the mother filed 30/01/2015, pars 54 and following
I consider that each parent has wanted to attend to the children’s needs and initially each understood the need for the children’s relationship with the other parent to be supported and protected post-separation. Most unfortunately, this awareness in the case of the mother slipped away.
In December 2013 the mother shared with her psychologist her feelings and grief and loss over the loss of the marriage and the father’s new relationship. The mother is reported to have been aware that she felt let down and disappointed that the father had given up on their relationship and she was upset by the idea of being replaced (in the father’s affections).
The psychologist at that time noted the need to work through grief and loss over the relationship. Most unfortunately, those feelings of grief and loss and whatever other factors about the mother are operative, caused the mother to give priority to proving that the father was a bad father and to have him excluded from the children’s lives.
Any family violence involving the child or a member of the child’s family and Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
There have been no apprehended violence orders made in this matter. The mother did approach the police for an apprehended violence order but was not supported in that application.
There is no evidence at all to corroborate the mother’s assertions of domestic violence made post separation. There is likewise no evidence to suggest contemporaneous complaint by the mother. Those matters raised about financial control and emotional abuse of her by the father appear to reflect the mother’s view that disagreement with her opinions amounts not only to criticism but abuse.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
Urged on the court in submissions was that to make an order for limited supervised time with the mother would inevitably lead to a further application at emotional and financial cost to both parties. I agree that it would.
However the children need protection from the mother’s anxiety and behaviour. They also need to renew their relationship with the mother whom they undoubtedly love. Supervision provides that protection and meets that need.
However, the present state of affairs is the children are at risk of harm in the mother’s care. She does not accept any of the observations of her by the Family Consultant; on the contrary, she is suspicious of the Family Consultant and regards her as a person who inflicted trauma on the children with callous indifference in order to suit to the father.
As I have stated, there is no basis for making an order compelling the mother to obtain treatment for personality disorder or on any other basis. The most significant reason for this is that the mother herself does not perceive a need for therapeutic intervention and further there is a risk that a contingent order for the mother to spend time and communicate with children could encourage attendance on a psychiatrist or psychologist with no intention to engage.
Accordingly I conclude that balancing the needs of the children for protection and contact leads to progressive orders, but without moving on from supervision.
One outcome of these Orders may be that circumstances change and the mother, through her own reflection or professional assistance, becomes more insightful. It is possible that the father will have cause to become confident, without further recourse to the Court, that unsupervised time or time with non-professional supervisors is appropriate.
Provision is made in the Orders for that to happen by agreement.
Another outcome is that the mother will make a further application based on steps she has taken which could be considered to represent a change of circumstances, but the father is not sufficiently convinced to agree to changed arrangements of the type the mother seeks.
It is impossible to predict. Orders should not be made based on hope and guesswork. To do so would be inconsistent with the priority given in the legislation to the safety of children over meaningful relationships with a parent.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
The children have had a turbulent period in the two years since the parties separated. Their parents had a conflicted relationship prior to separation which had an impact, particularly on B. Nevertheless, B in particular would like to see his family reunited. It is understandable from his perspective that it might reduce the amount of pressure he is under. He feels protective to the mother and wishes to be loyal.
The mother has not had the opportunity to see the easy affectionate, playful relationship that both children have with the father and Ms I in her absence. The mother chooses to reject the possibility of that being the case on the basis that she did not see it herself. This is despite the fact that B’s teacher, C’s teacher, the Family Consultant and the Senior Police Constable in the JIRT team all represent a different perspective than the one held by the mother. It has not been sufficient to cause her to doubt her own beliefs or to reconsider her own actions.
Conclusion
In a parenting conflict, where one parent has the capacity to meet the needs of the children and the other one does not, the need for the children to live with the parent who can meet their needs is overwhelming. In this case it is the father and the children and the children are already living with him. They should continue to do so.
Given the state of the parties’ relationship, the father should also have sole parental responsibility for the children but with the obligation to engage with the mother when major issues are to be determined before coming to a conclusion and reporting back to her on each decision that is taken.
The most difficult question is time and communication between the children and the mother and also with the maternal grandparents. I consider that the recommendation of the Family Consultant for a complete break between the children and the mother is an appropriate one.
Reported allegations, increasingly alarming in the nature, have been made more often since June 2014 when the first report was made that C was being inappropriately touched by Ms I. There is no basis whatsoever to support that allegation. By the end of 2014, several reports per week were being made to the Department. The wealth of detail in the mother’s affidavit suggests that there was a conversation not less than every day between herself and the children.
There were reports of allegations by C that she had been bleeding from the urethra in the father’s home, had needles inserted in her urethra and/or her vagina by the father, but there was no evidence of trips to the doctor, medical attendance, injury or extreme distress at the time when those events occurred. There is no basis for considering that those discussions would cease or that attempts to question and record responses would cease.
The children will need to make contact with the mother because they love her and because they need reassurance that she herself is managing without them. B in particular knows that the mother is sad and misses them when they are away with the father.
Telephone calls will be reassuring and should start before there is any contact between the children and the mother again. I accept that the telephone calls will need to be on loudspeaker to enable the father to terminate a call if the mother did question the children about issues arising from these proceedings or about their own safety.
Because the children need to have contact with the mother, supervised contact is appropriate and I adopt the submissions of the Independent Children’s Lawyer and the father in that regard. Neither proposed that the mother should be excluded from the lives of the children entirely. Supervision outside a centre is obviously a more enjoyable and natural experience for the children and provision has been made for that to happen.
Orders are made for telephone contact to commence before face to face contact to ease the children’s return to seeing their mother in person.
Orders are made for twelve months of supervised contact in a Contract Centre with a fall-back provision for external supervision if the Contact Centre became unavailable.
As the final stage, Orders are made for whole day contact monthly, supervised outside a centre as a minimum, with the possibility of variation by agreement
Time for the children with the maternal grandparents in the absence of the mother would be both reassuring and enjoyable for the children. I consider that the father has the capacity to put aside his own feelings about events and to engage with the maternal grandparents for the sake of the children to arrange such visits. However, I have not made an order for definite times and circumstances. Both maternal grandparents have chosen to take the mother’s side in their own terms, even at the cost of another daughter who maintained a relationship with the father post-separation and raised with them the possibility that there was another side of the story that they had not heard.
I am unable to determine how the mother would react to the maternal grandparents being able to see the children when she could not. She might be pleased and gratified that that connection was maintained or could regard it as negative and an undermining of her relationship with the children. Accordingly, I will leave it as a matter for the father to contact the maternal grandparents and for them to decide whether or not they wish to engage with the children in the father’s care. The address of the mother and maternal grandparents, although provided to the court, is not known to the father. So the initial contact would no doubt have to be made by the mother’s solicitor.
A request was made post-hearing for leave for the mother to provide to any therapist consulted the Family Reports, the Magellan Report and a copy of these Orders and Reasons. I consider that an appropriate course and an order is made accordingly.
There are also presently orders in place that restrain the mother from holding the children’s passports or from travelling with them overseas. Those orders were made arising out of the concern expressed by the Family Consultant that the mother would consider leaving the country with the children. The father having sole parental responsibility, he now should hold the passports for the children and the mother’s own passport should be returned to her. The children’s names can be removed from the Watch List and permission given for the children to travel internationally. However, the mother should be restrained from obtaining further passports for the children and an order is made accordingly.
Contravention Application
On 7 July 2014 the father applied for the mother to be dealt with for contravention of orders. These proceedings have overtaken the need for that Application to be determined. The father consents to the dismissal of that application and that order is made accordingly.
I certify that the preceding three hundred and forty eight (348) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 24 March 2015.
Associate:
Date: 20 March 2015
Key Legal Topics
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Family Law
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Injunction
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