Small and Small
[2016] FamCA 433
•2 June 2016
FAMILY COURT OF AUSTRALIA
| SMALL & SMALL | [2016] FamCA 433 |
| FAMILY LAW – CHILDREN – final orders – where the parties are in dispute as to the parenting arrangements of the children – where it has been a significant period of time since the father spent any time with the children – where the mother alleges a history of domestic violence and sexual abuse perpetrated by the father against her and the children – where the father denies the allegations – where it is ordered that the mother have sole parental responsibility and that the children live with her – where the father’s application is dismissed. |
| Family Law Act 1975 (Cth) s 60CA, 60B, 60CC, 65DAA, 61DA, 69ZW, 69ZQ, 69ZR, 69ZT |
| Baglio & Baglio [2013] FamCA 105 Beckham & Desprez [2015] FamCAFC 247 Blanding & Blanding [2016] FamCAFC 21 Champness & Hanson (2009) FLC 93-407 Cotton & Cotton (1983) FLC 91-330 Jones v South Eastern & Chatham Railway Company’s Managing Committee (1918) 87 LJKB 775 Loddington & Derringford (No 2) [2008] FamCA 925 Maluka & Maluka (2011) FLC 93-464 Maluka & Maluka [2012] FamCA 373 MRR v GR (2010) 240 CLR 461 Sigley & Evor [2011] FamCAFC 22 Soulos & Sorbo [2015] FamCA 196 Wang & Dennison (No 2) [2009] FamCA 1251 |
| APPLICANT: | Mr Small |
| RESPONDENT: | Ms Small |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 3193 | of | 2009 |
| DATE DELIVERED: | 2 June 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 4,5,6,7,8 August 2014, 20,21,22 October 2014,1,2, 4 December 2014, 22 February 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dillon |
| SOLICITOR FOR THE APPLICANT: | Calderwood Atkinson |
| COUNSEL FOR THE RESPONDENT: | Ms Dubarry |
| SOLICITOR FOR THE RESPONDENT: | Women's Legal Service SA |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs Tinning |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
The mother have sole parental responsibility for C born … 2004 and D born … 2005 (“the children”).
That the children live with the mother.
That the father be at liberty to send cards, letters and gifts to the children on no more than one (1) occasion each month and at a postal address provided by the mother and that the mother do ensure that the same are read to and provided to the children.
That the father be authorised to receive direct from the children’s school (at his expense) information regarding the children’s attendance and progress, including but not limited to school reports, school photos and parent newsletters.
That the father be able to speak to the children’s school and school representatives concerning the children’s education.
That the mother provide the father with the full names, address and contact numbers of all doctors and educational specialists with whom the children are referred or treated and that the father be entitled to obtain all information and have the mother authorise him to access all educational and medical records.
That the mother do provide to the father no less than three (3) current photos of the children on each occasion with such photos to be forwarded every three (3) months to a postal address provided by the father.
That the parties be restrained from denigrating the other in the presence of the children or allowing any other person to do so.
That the order appointing the Independent Children’s Lawyer be discharged.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Small & Small has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3193 of 2009
| Mr Small |
Applicant
And
| Ms Small |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Initiating Application filed 28 March 2014 Mr Small (“the father”) seeks parenting orders in respect of C born in 2004 (“C”) and D born in 2005 (“D”) (collectively “the children”).
A summary of the orders sought is as follows:-
1)That the children live with the mother.
2)That the parties have equal shared parental responsibility.
3)That the children spend time with the father each Sunday on a gradually increasing basis eventuating to overnight time each alternate weekend from Saturday to Sunday.
4)That the mother provide the father with details of medical and educational specialists.
5)That the parties be restrained from denigrating the other in the presence of the children.
6)That the father give one week’s notice to the mother if he is unable to spend time with the children due to work commitments.
7)Further ancillary orders relating to the father’s attendance at school events and sports/extracurricular activities as well as receipt of school reports, newsletters and photographs.
By Amended Response filed 18 June 2014 Ms Small (“the mother”) seeks orders that she have sole parental responsibility for the children and that the children live with her. She also seeks an order for costs.
The parties were represented by counsel and the Court was assisted by the involvement of the Independent Children’s Lawyer (“ICL”).
The father relied upon the following documents:-
1)Amended Initiating Application filed 28 March 2014
2)Affidavit of the father filed 8 July 2014
3)Affidavit of the father filed 28 March 2014
4)Affidavit of the father filed 21 September 2012
In addition, the father relied upon a Case Outline document filed 1 August 2014.
The mother relied upon the following documents:-
1)Amended Response filed 18 June 2014
2)Affidavit of the mother filed 17 September 2009
3)Affidavit of the mother filed 22 January 2013
4)Amended Affidavit of the mother filed 15 July 2014
5)Affidavit of Mr E filed 18 June 2014
6)Affidavit of Ms F filed 18 June 2014
7)Affidavit of Dr G filed 18 June 2014
8)Affidavit of the mother filed 18 June 2014
9)Affidavit of the mother filed 4 August 2014
In addition, the mother relied upon a Case Outline document filed 1 August 2014.
The ICL relied upon the following documents:-
1) Affidavit of Mr H filed 6 March 2013
2) Family Report dated 4 June 2013
3) Family Report dated 9 October 2014
4) Affidavit of Ms I filed 12 May 2015
5) Affidavit of Dr J filed 12 September 2014
6) Affidavit of Ms I filed 1 December 2015
Background
The father was born in 1963 and was 52 years of age at the time of trial. The father is unemployed and in receipt of a Centrelink benefit. The father lives in K Town.
The mother was born in 1973 and was 43 years of age at the time of trial. The mother is unemployed and in receipt of a Centrelink benefit. The mother lives in L Town with the children.
The parties commenced a relationship in 2002 and separated in July 2009.
There are two children of the relationship, C and D. The mother has one adult child from a previous relationship, Mr E born in 1993 (“Mr E”) and one child of a subsequent relationship, M born in 2013 (“M”). The father has two adult children from a previous relationship, Mr N born in 1992 (“Mr N”) and Mr O born in 1989 (“Mr O”).
Both children of the relationship have been diagnosed with Autism and suffer from learning difficulties.
Between 2012 and late July 2015 the children were enrolled in Open Access College. Their education was conducted primarily from their home with the assistance of their mother. In July 2015 the children were enrolled at P School following government intervention.
The mother alleges the parties’ relationship is characterised by a history of severe domestic violence and sexual abuse. The mother also maintains that the father has sexually abused the children. The allegations also related to the father’s adult children Mr N and Mr O. The mother asserts that the father presents an unacceptable risk. The allegations are broad and the subject of trenchant denial by the father.
There is an intervention order naming the mother as the protected person.
The children have not spent any meaningful time with the father since March 2010.
Procedural history
The father initiated proceedings on 13 August 2009 in the Federal Magistrates Court (as it then was). On 21 September 2009 the matter was transferred to the Family Court for inclusion in the Magellan Program. An ICL was appointed.
On 27 October 2009 the matter came before Justice Burr in the Family Court. The parties had come to an agreement in relation to parenting orders. The ICL opposed the orders on the basis of the serious allegations made by the mother against the father. The concern for the ICL was that the agreement was not in the best interests of the children. The Court refused to endorse the agreement and on 12 November 2009 Justice Burr invited the Minister for the Department of Families and Communities (Families SA) (as it then was) to intervene.
On 21 June 2010 both parties filed a Notice of Discontinuance. By order of the Court the matter was removed from the pending list.
The father again initiated proceedings on 24 February 2012 in the Federal Magistrates Court (as it then was). On 28 August 2012 Federal Magistrate Mead (as she then was) dismissed the application for want of prosecution and ordered that the mother have sole parental responsibility for the children and that the children live with her.
On 21 September 2012 the father initiated proceedings for a third time. The matter was transferred to the Family Court on 5 November 2012 and an ICL was appointed.
The matter first came before me on 14 February 2014. On that date I listed the matter for trial the week commencing 4 August 2014.
On the first day of trial counsel for the mother made an oral application for the proceedings to be adjourned on the basis that of recent date C had made disclosures in respect of her father to Dr G a general practitioner involved in the treatment of the children. The nature of the disclosures had no definition or particularity but in a general sense alleged that there has been some sexually inappropriate conduct involving the father and the child. I granted leave to the mother to prepare and file an affidavit setting out the circumstances surrounding C’s disclosures by that afternoon. Upon receiving the affidavit I concluded that there was nothing to suggest that the recent disclosure by C was a new disclosure. I dismissed the mother’s application for an adjournment.
On the second day of trial, as a preliminary matter, I canvassed with counsel that the proceedings would be conducted pursuant to the provisions of s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) and in determining and giving effect to the principles as set out therein, I advised of the general duties and powers as set out in s 69ZQ and the ability I have to make determinations, findings and an order at any stage of the proceedings if it will assist in the better management of the trial pursuant to s 69ZR. I specifically outlined the principle that highlights the importance of the proceedings being conducted in a way that would safeguard the children concerned from being subjected to or exposed to abuse, neglect or family violence.
The more significant issue in terms of the mechanics of the proceedings were matters relating to s 69ZT of the Act. This section relates directly to the applicability or otherwise of the provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) in relation to child related proceedings. In determining whether the Evidence Act should apply I considered the provisions of s 69ZT(3) namely, that I must be satisfied that the circumstances are exceptional and that I have had regard to the following matters:-
a)The importance of the evidence in the proceedings;
b)The nature of the subject matter of the proceedings;
c)The probative value of the evidence;
d)The power of the court (if any) to adjourn the hearing to make another order or give directions in relation to the evidence.
The mother in her Case Outline document alleges the following:-
a)The father poses an unacceptable risk of physical and psychological harm to the children.
b)There has been domestic violence perpetrated by the father against the mother.
c)The children have been exposed to domestic violence.
d)The father has been physically and psychologically abusive towards the children.
e)Since 2010 the children have not had any physical contact with the father.
It is the mother’s case that the father has perpetrated sustained and ongoing domestic violence including sexual violence against her and the children. The father trenchantly denies the allegations.
The Full Court in Maluka & Maluka (2011) FLC 93-464 gave consideration to the circumstances of the application of s 69ZT in a case that involved allegations of family violence and sexual abuse. At [121] the Full Court considered the extent of judicial discretion in the application of the section and held:-
[121]Before us, it was submitted that where the subject matter of the hearing involved consideration of the determination of a child’s relationship with a parent, a trial Judge must apply Section 69ZT(3) of the Act to the entire hearing. Whilst it was acknowledged the Sub Section is not expressed in mandatory terms, any other outcome was said to be erroneous.
[122]The Full Court decision is Johnson v Page (2007) FLC 93-344 and Amador v Amador (2009) 43 Fam LR 268 adopt a common approach to s 69ZT. Namely, that the decision to apply sub-section (3) is discretionary which discretion is to be exercised in accordance with the factors contained therein…
[123]We do not accept the father’s argument that the effect of s 69ZT is to establish a rule of general application but in cases where a court is asked to terminate a child’s relationship with a parent, a judge would err if he or she failed to apply the rules of evidence excluded by Section 69ZT (1) of the Act to an issue or to the entire hearing. It must be remembered that it is not uncommon for such cases to involve, in effect, a risk assessment exercise which may not include consideration of whether to make positive findings of sexual abuse or consider conduct which would constitute criminal offences in the upper range of seriousness. There are sound reasons associated with the protection of children and victim partners why, notwithstanding an order is sought to terminate the child’s relationship with a parent, a judge might determine the risk issue by reference of ss 69ZT(1) and (2) of the Act.
In the rehearing of Maluka (supra) Coleman J in Maluka & Maluka [2012] FamCA 373 said:-
[28]As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for section 69ZT(1) is in the Court’s view, likely to be mischievous and not just for one party.
…
[32]It is a matter of significance within section 69ZT(3)(a)(i) that the evidence in relation to domestic or family violence will impact very significantly upon the Court’s determination of these proceedings. It may even be, as the High Court discussed in M & M (supra), that the findings will be decisive or almost decisive, but whatever their ultimate significance the findings will have a major impact on the determination of the parenting proceedings.
…
[37]Perhaps for the present purpose the short and simple answer is that particularly in the context of determining disputed issues of fact or belief in respect of domestic or family violence or apprehension thereof it would appear unsafe to afford inadmissible evidence any significant weight in the exercise of the Court’s fact-finding function.
I concluded that the provisions of the Evidence Act excluded by s 69ZT would apply to the evidence that related to the allegations of sexual assault by the father against the children and the mother. The implication of such was that in respect of matters relating to family violence s 69ZT would apply and the rules of evidence would be excluded.
On 8 August 2014 the trial was adjourned. During the period of the adjournment the Court sought an updated family report on the basis that the first family report dated 4 June 2013 (“the first family report”) indicated the following at paragraph 57:
The information obtained for this report also does not provide adequate information to accurately evaluate the children’s likely response to spending time with [the father], or their capacity to cope with spending time with him. An observed interaction did not occur, and while [the mother] described the children as very fearful of [the father], some of her information appeared to be unreliable and incomplete. There was little direct information obtained from the children indicating a fear of [the father], although [C] described having a nightmare about him.
The family consultant also observed and outlined in his report the demeanour of the mother as “anxious, fearful and agitated … and … [he] observed [her] to be trembling at times”. During the assessment the mother became aware that it was possible that during the course of the assessment the children may come into contact with the father for the purpose of an observed interaction. At paragraph 42 the family consultant says:
[The mother] expressed surprise and outrage when she was informed that the Family Report interviews might include observed interactions with the children and [the father]. She claimed that she had not been informed that this might occur and her emotional dysregulation rapidly escalated to the extent that I had concerns about her ability to maintain a functional level of emotional control during the interviews.
That observation was then the subject of further comment at paragraph 50:
An observed interaction was not held with [the father] and the children, primarily because of concerns about [the mother’s] capacity to function effectively, or have adequate emotional regulation, in response to such an event on the day of interviews, with possible subsequent negative effect on the children’s wellbeing. In addition if [the father’s] account is accepted, then the children have not seen [the father] for a lengthy period of time, and they may be experiencing traumatic effects in relation to [the father]. If so, and they are reintroduced to him after this long time period, it may be important for it to occur with careful preparation of the children and [the mother].
I proceeded the make an order for the preparation of an updated family report. The decision was supported by both counsel for the parties and the ICL. The order specified that it was at the family consultant’s discretion as to whether an observed interaction between the children and their father would take place provided that the exercise of that discretion was not influenced by the presentation or views of the mother. I further ordered that the affidavit of the ICL filed 6 March 2013 which annexed reports from psychologists, doctors, speech pathologists and the like form part of the family consultant’s considerations.
The report was received on 9 October 2014 (“the second family report”).
On 20 October 2014 the matter resumed for three days. It was anticipated that the evidence would be concluded by the third day however this did not eventuate and regrettably the proceedings were further adjourned.
The matter resumed on 1 December 2014 and continued for three days. Final submissions were heard on the third day at which point the ICL sought orders that essentially aligned with the recommendations of the family consultant, which were that the proceedings be adjourned and the Minister for the Department of Education and Child Development (Families SA) be invited to intervene. Counsel for the ICL expressed concern that the children were at risk of abuse and proposed the mother undergo a psychiatric assessment.
On 4 December 2014 I made orders pursuant to s 91B of the Act and invited the Minister to intervene. To better facilitate consideration of the matter the Minister was provided with a copy of the second family report prepared by the family consultant and the affidavit of Dr J as well as the transcript of their evidence and the submissions made by counsel for the ICL.
On 30 January 2015 the Minister was joined as a party to the proceedings. Between that date and 25 November 2015 Families SA conducted investigations. The mother underwent a parenting capacity and mental health assessment conducted by the Department of Psychological Medicine at the Q Hospital.
On 25 November 2015 the matter came before me for further consideration. It was revealed that the parties had received a Families SA assessment, investigation actions and outcomes report. I considered that the parties needed an opportunity to properly consider the matters raised in the report and the matter was adjourned for a brief period.
The trial recommenced on 1 December 2015. On that occasion counsel for the Minister sought leave to file an affidavit dated 27 November 2015 which annexed the report dated 24 November 2015 as well as letters relating to the further involvement of the department, the offer of programs and services and an acknowledgment that the reports in respect of the children attending school have generally been favourable.
I proceeded to grant leave for the Minister to withdraw. I also considered it reasonable that the ICL via counsel be given leave to reopen her final submissions.
The final day of trial was 22 February 2016 at which time judgment was reserved.
Chronology
| 1963 | Father born. |
| 1973 | Mother born. |
| 1993 | Mr E born. |
| 2002 | Parties commence relationship. |
| 2004 | C born. |
| 2005 | D born. |
| July 2009 | Parties separate. |
| 13.08.2009 | Father initiates proceedings. |
| 21.06.2010 | The parties each file a Notice of Discontinuance. |
| 2011 | D diagnosed with Autism and a severe speech disability. |
| 2012 | D’s diagnosis is further confirmed. |
| 2012 | C diagnosed with Asperger Syndrome. |
| Oct 2012 | C diagnosed with Autism. |
| 2012 | Children commence Open Access College. |
| 24.02.2012 | Father initiates proceedings for a second time. |
| 28.08.2012 | Father’s application is dismissed for want of prosecution. |
| 21.09.2012 | Father initiates proceedings for a third time. |
| 05.11.2012 | Matter transferred to the Family Court of Australia. |
| Dec 2012 | Contact between the father and the children ceases completely. |
| 04.06.2013 | First family report. |
| 2013 | M born. |
| 14.02.2014 | Matter listed for trial to commence 4 August 2014. |
| Mar 2014 | C discloses abuse perpetrated by his father in a letter. |
| 04.08.2014 | Trial commences. |
| 08.08.2014 | Trial adjourned. |
| 09.10.2014 | Second family report. |
| 20.10.2014 | Trial recommences. |
| 22.10.2014 | Trial adjourned. |
| 01.12.2014 | Trial recommences. |
| 04.12.2014 | Trial adjourned. Minister invited to intervene. |
| 30.01.2015 | Minister joined as a party to the proceedings. |
| 27.04.2015 | “Update in relation to Families SA assessment and investigation” report. |
| 29.07.2015 | Children enrolled at P School. |
| 14.08.2015 | Report of Dr R, Psychiatrist. |
| 24.11.2015 | “Families SA assessment, investigation actions and outcomes” report. |
| 01.12.2015 | Leave is given for the Minister to withdraw from the proceedings. Leave is given for counsel for the ICL to reopen final submissions. |
| 22.02.2016 | Trial recommences and concludes. Judgment is reserved. |
Allegations of family violence
The mother relies upon paragraphs 63, 64, 66, 71, 72, 77, 84 and 85 of her trial affidavit filed 15 July 2014 and upon paragraphs 11, 12, 13, 15, 16, 18, 19, 23, 27, 29 and 35 of the trial affidavit of Mr E filed 18 June 2014.
The mother alleges that the first incident of physical abuse occurred when D was aged six months. She recalls that the father returned home in an intoxicated state, saw the children for about 10 minutes and then went to the shed where he continued drinking.
Later that evening an argument ensued in respect of the quality of the meal that the mother had prepared. She alleges that the father was abusive and threw his plate of food onto the floor.
The parties continued to argue and following an accusation by the father that the mother was having a sexual relationship with another person, she alleges that he pushed her into a veranda post and then hit her across the face with his fist.
In 2008 the parties argued over the mother’s intention to attend a darts game in S Town. She asserts that the father did not want her to go. Eventually she did go but throughout the evening she received phone calls and messages that were of an offensive, derogatory and overtly sexual nature. She further alleges that because she ignored his phone based entreaties he then called the hotel that hosted the darts event and she says that she could hear D screaming in the background, with the father threatening that he was holding D by the neck and would not release him until the mother returned home. On another unspecified occasion the mother alleges that in order to prevent the mother from attending a darts evening he tore her clothes and expressed the following sentiment, “Show them the slut that you are”.
In 2007 the mother alleges that she discovered the father had been growing marijuana in the shed. She destroyed the plants, but when her actions were discovered by the father he hit her, shoved her into the cupboard and raped her. She did not call the police as she was frightened of the father’s threats to harm the children if she made a complaint.
In the same year the mother alleges that the father stood behind her and placed a gun to her head.
In May 2009 the mother was asleep in bed with C. The father was naked and got into the bed attempting to force the mother to engage in sexual intercourse.
In July 2009 the mother alleges that the father had consumed alcohol in the shed. He was intoxicated. When he returned to the house the children were having a shower together, she heard the father’s voice and upon entering the bathroom saw that both children were naked and that the father was touching C around the genital area and that C was holding the father’s erect penis.
According to the mother, the father did not consider that his conduct was inappropriate, an argument ensued and the mother requested the father leave the house and not return.
She states that the father hit her across the face with his fist and then pushed her head against a door. She reports he said words to the effect of “don’t you ever fucking mention this again, I swear … I will fucking kill you if you bring it up again. Do you hear me, bitch?”
The allegations of family violence did not end at the date of separation or even after the mother obtained a police apprehension report.
In late 2009, upon the father becoming aware of the mother’s allegations, he again placed a gun to her head in an attempt to force her to withdraw the allegations. She alleges that he left a rope tied into a noose hanging in her shed. She perceived that the intention was as a reminder of his threats to cause her harm.
On 27 December 2011 the mother says that she was raped and hit by the father at a shack in T Town. She was cleaning the premises in preparation for new tenants to arrive. The children were in K Town being looked after by her son. She says that the father knew she would be on her own, attended and violently raped her. The mother allegedly reported the incident to Sargent U at the V Town Police Station. She alleges that the police officer told her that he thought she was lying and took no action. Notwithstanding a subsequent complaint, no charges were laid.
In January 2012 the parties met to enable the father to pay child support directly to the mother. They met across the road from the father’s home. She alleges that whilst the mother was writing out a receipt he pressed a pocket knife against her leg. She defended herself and hit him with the back of her hand. He then cut her left upper leg with the knife, she hit him on the head with her fists and kicked him in the groin.
Both parties called the police and alleged that the other had been the perpetrator of the assault.
Sargent U attended and questioned the mother. She says that the police officer did not believe her and considered that any injury to her leg had been self-inflicted.
There was then an altercation between the police officer and the mother over the possession of her phone on which she had allegedly recorded the assault with the father. The mother then argued with the police officer and she says that he slapped her across the shoulder and pushed her to the ground.
As matters transpired, the mother was charged with assaulting a police officer.
Allegations of sexual abuse
In addition to the mother’s alleged observation of the father showering with the boys and having C touch his erect penis, Mr E alleges that whilst the mother was away playing darts, he walked in on the father who was naked and asleep in bed with C. Mr E removed the child to a different room.
The mother says that following their separation, C woke up from a nightmare and said words to the effect of “mum, I can’t tell you, I’ll get in trouble with dad…dad touched me”. C gave no detail of when and where the alleged sexual assault had taken place.
At paragraphs 100, 101 and 102 of the mother’s trial affidavit, she records conversations with C where he recollects the alleged abuse at the hands of the father, with particular reference to the night that Mr E found the father naked in bed with C.
The discussion with C took place in March 2014 in respect of an incident that allegedly took place in 2009.
The mother alleges that C confirmed the incident in the shower, but gave greater detail namely, that his father made him touch his erect penis and that he was frightened of the father, in particular that he feared his father may hurt him for disclosing the incident to the mother.
C further related an incident that occurred on 14 August 2009 when the father attended at the local playground. The children and the mother were present.
Despite her refusal, the father took the children to the end of the jetty for about 20 minutes. The mother alleges that he took the opportunity to abuse them both physically and sexually. She says that C disclosed that his father had touched him on the bottom.
After these disclosures the mother made a formal report to Families SA. As at the date of her trial affidavit there had been no response to her allegations.
The mother alleges that the impact of abuse on the children has been dramatic. D is petrified of having a shower and they were too afraid to wipe their bottom after they used the toilet.
The family have become hyper-vigilant and the children ask every night that the home is checked for security. They are insistent that all of the doors are shut, locked and that the blinds are closed. A noise in the household will induce fear.
Evidence of the father
The father’s evidence is contained in his trial affidavit material filed 28 March 2014 and 8 July 2014.
He denies that he perpetrated any act of family violence in respect of the mother or the children.
It is his position that he does not present a risk to the children either in respect of physical or psychological harm and that it is the mother who presents a risk to the children. In particular, there is concern as to the involvement of the mother’s adult son Mr E and the extent to which the mother abrogates her parenting role to him.
Under cross examination the father accepted that the parties separated in 2008 or 2009 but later reconciled and were together until April 2010.
Thereafter, the father has not seen the children other than by chance. The parties and children both reside in the K Town area.
The father denied that there was ever an occasion when he was naked and in bed with C in circumstances as alleged by Mr E.
He was questioned in respect of an alleged assault in August 2009. The father said that he tried to talk to the mother, but that she kicked him in the groin and then told Mr E to call the police. They attended. He was arrested and he says that he was then assaulted by a police officer before being put into a cell overnight. He was not charged, but that this incident was the catalyst for the parties separation.
By December 2009 the parties had reconciled and had resumed a sexual relationship. The mother denies that there was any reconciliation.
The focus of the cross examination was on the history of the relationship between the parties. The issue of family violence was explored. The father denied that he had ever physically assaulted the mother save that on one occasion he remembered that he pushed her away when she tried to assault him.
He has no recollection of other police involvement, charge or criminal activity save and except for the intervention order obtained by the mother.
He was reminded that the police had been called to an incident following a complaint by the mother that the father had taken some of her pain medication. The father agreed that this had occurred and when the police arrived he ran to the bottom of the paddock. He says he didn’t wish to speak to the police and didn’t think that his attendance would help.
He was reminded of a further incident that occurred on 18 March 2007 where it was alleged that during an argument with the mother he bent her thumb back to a point where she was clearly in pain causing her to kick him in the groin.
According to the father, it was the mother who was the aggressor. He says that she kicked him in the groin when he tried to shake her hand.
On 18 March 2007 at 10.10 pm, a call was received by the police to say that the mother was locked in her car.
When the police arrived they observed that the father had a strong smell of alcohol on his breath and that he was abusive.
The father agreed that he was yelling and he was unhappy that the police had attended. He considered their attendance unnecessary. The father was searched and the police record that the father was aggressive and out of control. He was making threats alleging that a police officer would be shot.
The father agrees that he was behaving poorly, but he explains his conduct by having been assaulted by the police officer.
The father did agree however that he and the mother frequently argued but that when the argument was likely to lead to aggressive behaviour, he would walk away.
The father agrees that from time to time he used language which was offensive and abusive. In particular, he confirms the allegation of the mother as contained in paragraph 19 of her affidavit namely, that in mid-2000 he said words to the effect “you’re a lazy bitch…you used to work 50 to 60 hours, now you don’t do anything”.
I do not accept the father’s denial that from time to time that he did not engage in family violence during the time that the parties were together. His denials in respect of the events of 18 March 2007 are simply not credible. The father did not impress in his attempts to explain his poor behaviour by alleging that it was purely reactive to the mother’s behaviour.
The father’s evidence was confused and ill-considered.
In relation to the incident outlined in paragraph 69 of the mother’s trial affidavit, I find that the father agrees that the incident took place but note his denial that he used offensive language to her.
He says that the mother’s participation in darts had become obsessional to the extent that she was no longer attending to the care of the children.
He does however agree that in respect of the incident described at paragraph 74 and 75, he was intoxicated and did push her backwards. He says that the mother then reacted by pushing him over.
The father denies any allegation that he raped the mother in the marijuana growing shed on their property. He admits that they had sexual intercourse but that it was consensual at all times.
He denies any allegation that he had sexual intercourse with the mother without her consent. Indeed, he says that an indication of the consensual nature of their sexual encounter in the shed was the mother’s production of a condom for him to use.
He denied that he had ever threatened the mother with a gun. He did agree that he once owned a rifle but he had handed it in to the police in about 2008 or 2009.
From time to time the father and mother were in contact both to discuss the payment of child support, but also in order to resolve their outstanding property matters.
The father was aware that the intervention order prohibited the parties conversing, however, he did so from time to time and specifically in response to a request to meet by the mother.
In 2014, the father says that the mother would ring him almost every morning.
He did not deny that there had been heated telephone conversations with the mother and that strong language was probably used. In effect, he acknowledges that the parties should not have been speaking but clearly had decided to circumvent the conditions of the intervention order to discuss property settlement and child support.
The father was challenged as to the incident in January 2012. It is alleged by the mother that following an argument the father stabbed her in the leg with a pocket knife. His evidence is that at first there was a polite exchange between the parties. It was not uncommon for them to meet and exchange child maintenance. He says that he did not want to hand over the money to the mother without first receiving a receipt. There was a “tug of war”.
The father denies that he had a pocket knife, or that he used any weapon causing a cut on the mother’s leg. He does concede that there was a physical altercation. When he tried to grab the receipt book he says that the mother started to kick and punch him. He then left the mother and called the police. When spoken to he decided he did not want to do anything about his allegation that the mother had assaulted him and simply wanted it to be recorded, but taken no further.
It was later in the day that the father received an advice from the police that the mother was alleging that she had been stabbed by him.
The father accepted that during the relationship the mother was the primary carer for the children. That is not to suggest that he did nothing, but other than assisting with the evening meal, bathing the children and putting them to bed, he concedes that the mother attended to their primary care.
The mother’s allegations that the father had behaved inappropriately with the children were the subject of strong denial by him. He states that there was never an occasion when he sexual abused the children or showered or bathed with them in circumstances where he was naked and the children touched his genitals.
He admitted that from time to time he may have smacked the children but without force or intention that they suffer hurt or injury.
From time to time the father saw the children in public. On 23 July 2014 the mother and C were shopping in a supermarket in L Town. The father was present. It was a chance meeting. The father did not call out to C, but did see him from a distance of about 50 metres. If anything, his evidence is that he tried to hide and curiously it was the mother who followed him into a liquor outlet.
The mother’s allegation is that the father followed her.
The father has had little contact with the children since separation. Following an order made by Burr J in April 2010 and up until Christmas 2011 he saw the boys twice a month. He had assisted the mother in obtaining a motor vehicle in 2011 and often when in contact with the mother, one or both of the boys were present.
On another occasion the mother broke her toe and the father took her to the hospital.
The proceedings were previously discontinued because the parties were attempting to resolve their differences and the father was spending time with the boys.
Once the parties began to argue about money and property settlement, he was not easily able to arrange to see the children and proceedings were then recommenced.
The father concedes that he has never had the children overnight, but has had them out of the presence of the mother and on one occasion took C to L Town for the day. On another occasion he took the children to the T Town shack and spent time with them until the mother arrived later in the afternoon.
The longest period that he spent time with the children away from the mother would be about three or four hours.
In 2011, the father estimates that he saw the children about 12 times, but that he did not see them after 29 January 2012.
He considers C to be a shy child who would get upset quickly. It is his observation that C reacted badly to discipline.
The parties have discussed the father providing money to the mother to assist in speech pathology. There is a dispute between the parties as to whether either of the children suffers from Autism Spectrum Disorder. The father does not consider that the mother is correct in her assertion.
The father gave evidence that he took an Autism course and was impressive in his understanding of the symptoms of Autism Spectrum Disorder.
It was a source of dispute between the parties that the mother would make constant requests for money allegedly to assist the children, but that she would not provide information about the children to the father.
The father considered that an Autism report was needed, but was not provided.
Mr E observed that the father was intoxicated from time to time. It is also a complaint of the mother. The father conceded that he did drink too much, but not to the point where he lost control or that he engaged in sexually inappropriate conduct with either the children or the mother.
He specifically denies being naked in bed with C as described by Mr E.
The father admitted that he has criminal convictions that relate to domestic violence. He was required to submit to bail conditions and in 2007 he recalled that a condition of bail in respect of an offence of assault was to attend upon a domestic violence counsellor. He attended on six to eight visits.
He admitted that on one occasion he returned home in an intoxicated state. The mother stopped him at the door and refused him entry. He pushed her aside, he says the mother pushed him back and he fell over. The father’s companion then took him away.
My impression was that the father was attempting to minimise his aggressive and physical conduct. He did concede that his behaviour could be categorised as verbal and physical abuse.
Much of the father’s adverse behaviour can be explained by at times heavy use of alcohol.
Curiously, the mother’s involvement in darts became a source of high conflict. The father says that her involvement became prolific after D was born and she played both summer and winter darts comprising three nights per week in competition and two nights per week for practice. She also practiced at home during the day and sometimes she played darts on the weekend.
In the early stages of their development, the father recognised that the children displayed developmental issues but did not know what was wrong. He considered that if they had been provided with mainstream education at an earlier stage then they may have had a better outcome. I accept that the father recognised a problem, but did not have the personal resources to deal with it.
Whilst the parties did not argue significantly about the children’s development, they could not agree on the father’s proposition namely, that the children should be in mainstream formal education.
The father was challenged as to the argument that ensued on 21 March 2008 when the father consumed significant quantity of alcohol and then took six of the mother’s anti-anxiety medication. It is alleged that he disappeared on the property and the mother was not able to find him. An ambulance and police were called and after a period of time he returned home and went to bed.
The father denies the incident, but could not explain why if nothing occurred the mother had considered it necessary to call the police and an ambulance.
I suspect that there was an argument between the parties and it is possible that the father may have created the impression that he had overdosed on the mother’s medication.
The mother alleges that following an argument and in a state of significant intoxication, the father bent her thumb back causing pain. She retaliated by kicking him in the groin. The police were called and police notes suggest that the father threatened the police.
The father did not deny being intoxicated but does not accept that he bent the mother’s thumb back to a point where she felt pain.
He considers that the police were the aggressors.
The father’s evidence was nonsensical on this topic. I consider that the father was intoxicated and that whilst he sought to deflect culpability onto the mother, nonetheless, from time to time I accept he was the aggressor.
The father has not had any time with the children since about December 2011. He acknowledges that it will be difficult to re-establish a relationship with them noting that more than four years has passed since they were last together. The father considers that the orders that he seeks which would provide for a gradual reintroduction, are conservative.
Notwithstanding that he has spent no time with the children, I accept that he has made a significant effort in terms of the payment of child support, in that respect various receipts evidencing payment by the father to the mother were tendered into evidence.
Evidence of the mother
In examination in chief the mother indicated that she did not rely upon her earlier affidavit of 22 January 2013. She also accepts that monies were paid by the father by way of child support as recorded in exhibit “4”.
She also relied upon a photograph of her left upper thigh (exhibit “5”) which she says were caused by the husband stabbing her on 29 January 2012. Apparently the photograph had not been provided to anybody.
On 23 July 2014, the mother took C to see Dr G as part of a mental health care plan. It was at this appointment that C allegedly told Dr G that whilst they were at the farmhouse C was lying in bed naked with the father and that the father then slid his penis in C’s bottom. C screamed and allegedly Mr E came into the room and took him from the bed. C also disclosed the incident involving the father in the shower with the boys.
Following the conclusion of the appointment, the mother and C were shopping in Woolworths. She says that the father followed them around the shopping centre, called out to C and then demonstrated a cutting action across his throat.
The mother attended the L Town Police Station to notify the police of what she considered to be a breach of the intervention order.
She agreed that the father had entered a liquor outlet and had followed him on the instruction of police.
She also denied that she had provided a condom as alleged by the father in response to her allegation that she had been raped at the T Town property.
The mother was questioned as to her allegation that she was stalked by the father in Woolworths on 23 July 2014. She gave further detail. She recollects that the father had called out to C and because he was scared of the father they went to the car. The father allegedly stood in the middle of the road laughing at the mother. She put the groceries in the car, picked up her phone and then took photos of the father. She did this because a police officer in June 2014 had told her to take photos of the father.
She was asked why the expanded version of the incident had not found its way into an affidavit. The mother’s response was that she had not been asked.
She also insisted that it was C that wanted to go to a police station after the Woolworths incident and not the mother.
It was at the police station that C made a number of disclosures alleging sexual abuse.
The mother was asked whether the reason for the attendance at the police station was not the father following her at Woolworths but rather, the serious nature of the disclosures that had been revealed by C. The mother’s response was that she didn’t know what C wanted to say to the police.
The difficulty with this response is that earlier that day C had allegedly told Dr G the following:-
·That the father had punched the mother and then had taken the children for a long drive. That he stopped the car and asked C to pull down his pants. When C refused the father became angry and forced him to do it.
·That the father had threatened to kill the mother.
·That he was lying in bed naked with his father and that his father slid his penis in C’s bottom.
·That the father had made him hold his erect penis whilst in the shower.
The mother allegedly recorded the disclosures on her phone. In evidence she said that the disclosures had been deleted and her counsel confirmed that nothing was to be put to the Court evidencing the disclosures.
The mother says that the disclosures made to Dr G were “out of the blue” noting that he had not spoken to his father for more than three years.
The mother attempted to create the scene of C interacting with Dr G and making the disclosures. The mother could not recollect anything that could be considered as a catalyst for the child making the disclosures and the words C used were not ever used in the mother’s home.
For reasons that are uncertain, C did not want a student/trainee doctor in the room.
The child allegedly described in some detail how he had observed his father punch the mother and then they went for a drive which resulted in the father pulling down his pants. The mother observed the child’s action to be one of simulated masturbation.
It is from the alleged disclosures by C that the mother says she first learned of these matters, noting the appointments with Dr G occurred in July 2014.
The mother was keen for C to see Dr J, a child psychiatrist. The urgency was brought about by her concerns as to the child’s development, but also that the child may have been abused by the father.
The mother considers that the separation in 2009 came about because she saw the father and C together. The father was drunk and he displayed his erect penis.
Whatever assertions C may make, the mother says that she had no doubt in terms of her observations.
Accordingly, Dr J was consulted in respect of the following matters:-
·Sexual abuse
·Speech therapy
·Nightmares
·Developmental delay
It was put to the mother that the appointment with Dr G was of eight minutes duration and occurred the day after there had been a notification made to Families SA.
The implication was that the mother had engaged the child in a number of different agencies and health professionals in order to reinforce the alleged disclosures in close proximity to the commencement of trial on 4 August 2014.
On 5 June 2014, C and D saw Dr J and C repeated his disclosures that his father had touched him on the penis.
The mother agreed that she indicated to Dr J that the father may want to take the children away from her. She spoke of her fears and concerns in respect of the children and I find that she attempted to provide deliberate reinforcement for the disclosures that C had made.
The mother did not agree that she had discussed the father in derogatory terms or had raised the allegations of physical and sexual abuse in C’s presence.
The doctor’s notes suggest that the mother was intrusive during the interview with the boys and “was right up in their face, whispering in their ear, sort of coaching them in what she wanted them to say”.
The mother denied that she in any way interfered with the interview process.
She said that she did not prompt or coach the children, but when asked what may have caused C to whisper “I do not want the father to get you mum”, she considered that this was yet again a spontaneous statement by the child.
The mother’s evidence on this topic was poor. She was unconvincing in her denials that the children, but in particular C, made spontaneous disclosures to Dr J.
By the time that the children were interviewed by the doctor, there had already been an attendance on Families SA and on Dr G.
The evidence of Dr J does not support the mother’s contention of spontaneous and unassisted disclosures.
I consider that the evidence supports the contention put in cross examination namely, that the mother manipulated the opportunity for allegations to be made and I find it is unlikely that C made any unsolicited or spontaneous remarks.
The significant allegations of sexual abuse occurred in 2009 and it would seem a difficult proposition to accept that C raises these matters for the first time five years later.
To place the allegations into some context, in the mother’s initial application to the Court in September 2009, the parties reached agreement in respect of parenting arrangements. The proposed orders were opposed by the ICL on the basis of the allegations that the mother had made in respect of family violence.
The mother however withdrew those allegations in early 2009 and by order made 12 November 2009, the children were to spend time with the father on a regular basis. A child protection report was prepared on 17 December 2009 which concluded that the children were not safe in the father’s care and were at risk in the mother’s care. Specifically, the basis for the recommendation was a history of physical and sexual abuse perpetrated by the father against his two older children together with family violence in respect of the mother, her son Mr E and the subject children. As at 4 June 2013 being the date of the first family report prepared by Mr W, family consultant, the mother suspected that C had been sexually abused by the father in 2008 or 2009 and notwithstanding that she had encouraged him to open up to various health professionals, he had not done so.
There is clearly an inconsistency in the evidence the mother provides in terms of what she says she observed and what had allegedly been reported to her by the children and her son.
The mother had previously alleged that the father had knocked her unconscious and then abducted the children. It was during that event that the father allegedly sexually interfered with them.
It was put to the mother that she had never raised this with the police and the first report was to Dr G on 23 July 2014.
The mother had no explanation.
The mother’s trial affidavit filed 15 July 2014 did not include any reference to the father assaulting the mother and then taking the children for a period of three to four hours. There was no reference made to the mother’s alleged observation of the children returning to her care in a hysterical state.
It was put to the mother that the father asserts that he hadn’t seen the children since 2011. The mother was insistent that he attended the property in March 2012, knocked her unconscious and took the children. When given an opportunity, the father was not cross examined on this incident.
The mother now says that they were driving along a dirt road near X Town and C spontaneously commented that he recognised the spot where the father had taken him. The mother considers that the father’s actions are tantamount to an abduction.
The mother’s evidence was confused and unreliable. She was asked why she was driving along this particular stretch of road and she said that she had gone to T Town for a barbecue with some friends and then to X Town. Initially she would not disclose the name of the friend that had invited her and the children, but ultimately revealed the name and address. Whilst she had driven down a particular road to T Town they came back via a different road and it is on the way home that C became concerned about the spot where he says the father abused C and possibly D.
The road was apparently a shortcut.
The mother’s evidence was nonsensical. In respect of this topic I consider her to be entirely unreliable and have formed the strong view that the evidence of the children being “abducted” to be a deliberate fabrication and a recent invention.
It was put to the mother that the children were socially isolated. The children have been home schooled but attend an open learning college so that there is at least some interaction with other children.
Notwithstanding the mother’s evidence, I find that the children were isolated and intentionally so.
D apparently sleeps in his own bed, whereas C still goes to sleep with the mother although she says that she then moves beds.
The effect is that all of the children sleep with the mother in the one room.
The mother was challenged as to why her allegation that she was raped by the father has not proceeded. She says that the rape occurred on 27 December 2011 and was first reported by her to the police in 2013. She prepared a statement, but when asked whether there was any reference to the assault of her and the abduction of the children she did not think that this had been reported to the police.
According to the mother the police are still investigating her allegations but she is not certain in respect of which incident.
The mother states that an interview was arranged and that the record of interview would clearly show that C had raised certain allegations.
The mother conceded however that C knows nothing about dates and times and when asked for a copy of the statement, the mother’s response was that it could only be achieved by an application under freedom of information.
Again, the mother’s evidence cannot be believed.
The cross examination returned to the mother’s assertion that the catalyst for the separation of the parties was her observing the father and the boys in the shower.
The mother was asked to consider her affidavit filed 17 September 2009 and highlight where in that document the mother raises the allegation of her having seen the father in the shower with the boys. The mother could not explain why the incident which she says was central to the separation did not form part of the initial allegations.
In her affidavit of 17 September 2009, the mother says as follows:-
[23]I admit that in about the month prior to 1st August 2009 I spent two weekends away. On the 18th July I was away from about 11.30am on Saturday and returned at 6pm on Sunday. On the 19th July while I was away the father made me do shopping for him.
[24]On the 25th July I was away from about 10.30am on Saturday and returned on Sunday at about 4pm. The father had to go away for work. I returned by 4pm as I had to get a few things in Adelaide for him to go to work with.
[25]On both occasions I was visiting a family friend while trying to find a house in Adelaide so I could have some accommodation as I was planning to separate from the father. After I returned on both weekends [Mr E] told me that he undertook most of the care of the children.
In her affidavit of 22 January 2013, the mother says:-
[116]On the weekend of 25 July/26 July 2009 I was away looking for housing in Adelaide. When I returned home, [Mr E] reported a disturbing incident when I returned home. [Mr E] told me that he had been frightened of letting me know because of being frightened of the father’s reaction. He told me [C] and [D] fell asleep on the futon after [Mr E] put the two boys down to sleep there. The father removed [C] from the futon and put him in the father’s bed with the father. [Mr E] said it was after 12 midnight because he had just got off the internet. He said [C] was crying and the father was still asleep so [Mr E] walked in to see if [C] was okay.
[117][Mr E] told me that when he walked in he had his phone light on and he used it as a flash light. He shone it towards where [C] was laying and noticed that the blankets and sheets were only covering the father’s legs and that the father had no clothes or jocks on and that he was asleep, naked with [C] in the bed. [Mr E] went in and grabbed [C] around the other side of the bed and put him onto the single bed where [C] finally fell asleep. [Mr E] told me he did not say anything to me because he was frightened to do so. Other times when he had told me things the father had yelled at him or physically abused him for telling me what had happened when I was not at home.
Mr E sets out his version of events in his affidavit of 18 June 2014 as follows:-
[29]I remember one incident that occurred when mum was at darts. The children and I were at home with [the father]. I was in the room trying to get the children to sleep. We were lying down on the sofa bed. [the father] had been drinking alcohol. [The father] suddenly came into the room and grabbed [C] from my arms. He just took hold of [C] with two arms and lifted him by force out of my arms. He didn’t ask me to hand him over or anything. I waited for a little while and then used my phone torch to go and check on [C].
[30]I found [the father] naked on the bed with [C]. I saw that [the father] was naked because the blanket had fallen off. I quickly grabbed [C] and went out of the bedroom. [The father] did not notice that I went in because he was intoxicated.
[31]I cannot recall exactly how old [C] was when this happened but I believe he was only a few years old. I am unsure when I told Mum about what had happened but don’t believe I said anything that night as [the father] would become abusive towards me if I told Mum things that happened while she was away.
[32]Mum did not play darts very often. She attempted to play normally one week on a Monday but [the father] would often try and prevent her leaving to play darts. I recall one time he ripped her pants to prevent her going.
The mother records a different version of the incident in her trial affidavit as follows:-
[97]Shortly after the applicant left the house, when the children were only a few years old, my eldest son [Mr E] informed me that on one occasion, a few months earlier when I was away for the evening playing darts, he had walked in on the Applicant father naked and asleep in bed with [C]. [Mr E] informed me that when this occurred he took [C] out of the bed without the Applicant father noticing as he was intoxicated and asleep. [Mr E] did not tell me about the incident immediately as he was frightened of how the applicant father may have reacted if he found out.
C was born in 2004. Depending upon which version of the events the mother relies upon and assuming that the incident occurred shortly after separation, the child would have been at least five years of age and certainly not two years of age. Furthermore, the different versions are entirely inconsistent with each other. The mother appears confused as to whether the incident occurred before or after separation and on a darts night, or a night that she was away in Adelaide allegedly looking for accommodation.
The mother was cross examined at length in respect of these inconsistencies and ultimately admitted that she was now not certain what weekend it was, but was sure that the incident occurred whilst she was at a darts tournament in Adelaide.
The circumstances are more confused in that she says that on the weekend of 25/26 July 2009 the mother was in Adelaide with the children because the father had dropped the children off to her.
According to the mother’s evidence, she returned home on 26 July 2009 and assisted the father to leave for work. Accordingly to the mother the father then did not return to the house. The children and the mother stayed with a friend for four days from 27 July 2009, returning on 30 July 2009.
The mother was asked to consider paragraphs 23, 24, 27, 29, 30 and 31 of her affidavit filed 17 September 2009.
The mother agreed that the matters raised in her affidavit were not true, but for reasons that defy explanation, she says that it was the father who made her include the allegations in her first affidavit.
I am unable to accept the mother’s evidence. It was put to the mother that in paragraph 78 of her trial affidavit she alleges that the shower incident occurred in July 2009. Such was her disgust at the observation that she told the father to leave the home and not come back. Whilst he was preparing to leave, she says that the father hit her across the face with his fists and then pushed her head against a door. He said words to the effect of:-
Don’t you ever fucking mention this again, I swear … I will fucking kill you if you bring it up again. Do you hear me bitch?
The mother says that she then fell to the ground.
It was put to the mother that there was no opportunity for the shower incident to have occurred. Moreover, the mother’s evidence is that when she returned on Sunday 26 July 2009, the father was still in the home and she assisted him to pack his car and leave for work.
In the mother’s affidavit of 17 September 2009 the following reference to a shower appears:-
[111]In mid August [C] woke up in the night screaming. When I spoke to him he said “Dad touched [D’s] willy”. I asked if that was in the shower and [D] said “No”. I do not have any other indication that the father may have sexual abused the children and I do not know why [C] made that disclosure.
Accordingly, it was put to the mother that the issue of an incident in the shower had been specifically raised and at that stage neither of the children had made any disclosure.
The importance of the shower incident is that the mother alleges that this was the catalyst for separation.
Not at any stage had the mother spoken to the police about the allegations of sexual assault. She agreed she had made numerous complaints in respect of physical assault, but notwithstanding the opportunity provided, no allegations were raised.
As if to add insult to injury, the mother filed a further affidavit on 4 August 2014. The following reference to Mr E removing C from the father’s bed is set out as follows:-
[10]Then [C] told [Dr G] that while we were at the Farmhouse and [C] was at the [Y School], [C] was laying in the bed naked with his father and then said that his father slid his penis in [C’s] bottom. [C] then said that he screamed and then [Mr E] came and took him from the bed. [C] also disclosed the incident that occurred in the shower as referred to in paragraph 78 and 79 of the said Affidavit. [Dr G] then tried to settle [C] down and explain to [C] the procedures for making the mandatory notifications. [Dr G] then asked [C] if it was okay for him to speak to the relevant authorities about [C’s] disclosures.
I find that there can be no possibility of the incident occurring as alleged by the mother.
The mother has fabricated her evidence in respect of the various allegations of sexual abuse.
The mother has alleged that the father threatened to arrange a member of a motor cycle gang for her and the children to be killed.
Under cross examination the mother agreed that she had lied in order to protect the children.
The lie assisted the mother to obtain a restraining order. The contents of the affidavit in support of the restraining order being annexure “E” to the mother’s affidavit of 17 September 2009 were put to her in terms of the matters alleged to have occurred on 17 and 24 July 2009. Demonstrably, those allegations are inconsistent with the other evidence presented by the mother.
The mother attended upon Dr G at 4pm on 29 December 2011. This is two days after the allegation of rape. There was no note made by Dr G of any allegation made by the mother, in particular no observations were made of a black eye that the mother said she received as part of the sexual assault.
The mother considered that she wasn’t able to speak to the doctor about the matter, although she did raise with the doctor that the parties had engaged in rough sex.
Counsel for the ICL questioned the mother in respect of her allegation that she was raped by the father in 2007 when she discovered his cannabis crop. She says that he beat her, locked her in a cupboard and then raped her.
She did not seek any medical advice notwithstanding that she was able to see Dr G repeatedly during that period.
She was asked why she did not report the sexual assault and her response was that the father had threatened to kill her.
It was put to her that she has alleged that the father has raped her on three occasions as follows:-
·2007 when the mother discovered the father’s cannabis crop.
·2008 in the mother’s bedroom.
·2011 at the T Town property while she was preparing the property for new tenants.
Notwithstanding that it was alleged the father had raped her in 2009, the mother did not consider that this had occurred.
The mother was reminded that in her affidavit of 17 September 2009 at paragraph 28, she says that she was raped on 17 July 2009. The evidence of the rape is clearly not consistent with the other evidence.
On reflection, the mother was now not sure of the date of the alleged third rape. The description of the assault in the bedroom was quite different to the destruction of the father’s cannabis and the assault in the cupboard.
It was put to her that paragraph 78 of her trial affidavit, namely that the father entered the shower with the children, could not have occurred.
The mother was asked to consider her evidence that if she was raped on 17 July 2009 in the shed, she then came to Adelaide on 18 to 19 July 2009 for either a darts competition or to look for accommodation. On reflection, the mother was uncertain as to the chronology.
The mother alleges that on 24 September 2009 the father assaulted her by pushing her against a wall or a door. So severe was the impact that she suffered an epileptic fit. The mother agreed that she had a clear recollection of the police being called, but in her affidavit in support of the restraining order, the mother said that a fight did ensue and in fact she pushed the father. There was no report of a fit.
The mother was again asked to consider her evidence that she went to play darts possibly in Z Town and then AA Town, but was reminded of her previous evidence that the father delivered up the children to her at Z Town. The mother then changed her story and said she went to Z Town on Saturday morning, came home in the afternoon at about 4pm and the father left the house later that night but after dinner. The difficulty with that version of the events is that it was common ground that the father had left the home on Sunday 26 July 2009 at about 6 to 7pm.
Therefore, the children must have been with the father for the weekend rather than in the care of the mother as alleged.
The further cross examination by counsel simply highlights the unsatisfactory nature of the mother’s evidence. The allegations made by the mother in respect of the father’s alleged sexual assault of the children and of her being raped by him are entirely without foundation.
Paragraph 116 of the mother’s affidavit of 22 January 2013 does not suggest that C was naked but only the father. C has not given any better information.
The mother was challenged as to her allegation that the father attended at the X Town playground whilst the children and the mother were present. The father then allegedly took the children to the end of the jetty for around 20 minutes. The mother said he took the opportunity to abuse the children and was later told by C that the father had “touched my bum”.
She says that when the children returned from this trip, D had a dark red mark on his arm.
In the affidavit in support of the restraining order, the mother alleges that the incident occurred on 15 August 2009. The affidavit and the mother’s trial affidavit are inconsistent in respect of the incident. The mother did not have an explanation for the inconsistencies in the police affidavit in support of the restraining order, her affidavit of 17 September 2009 and her more recent affidavit of 13 January 2013. The mother was not able to answer. I find that the mother has fabricated the incident.
There was further focus on the alleged assault in the shower. It was put to the mother that there was no need for C to provide his version of the events because on the mother’s case she saw it. Again, in the mother’s affidavit of 17 September 2009 which sets out the events leading up to the separation in terms of what happened on the weekend of 17/18 July and 24/25 July, there is no reference to an assault in the shower.
This affidavit was prepared and filed six weeks after separation. It was no longer an issue of the mother being fearful of the father.
Eventually the mother alleged that she had told her solicitor of the shower incident but she refused to include it in the affidavit.
She could not answer why the incident was not in the police affidavit.
She attempted to explain the important omission by revealing that her son had typed up the police restraining order affidavit. Clearly, she had not read the document and it is difficult to understand how her son was able to include allegations that were not of his knowledge.
Again, the mother’s evidence is entirely unreliable.
At the conclusion of the mother’s evidence, I formed the view that at best the mother’s evidence was inherently unreliable and at worst it was a deliberate fabrication. The preponderance of the evidence would support a more malevolent intention on the part of the mother. Whilst I accept that the relationship between the parties was volatile and that from time to time the father was aggressive in his conduct, I consider that the evidence of the mother is so ill-conceived and without foundation that I am able to find on the balance of probabilities that the father did not sexually assault the mother or sexually abuse or assault the children.
Mr E
This witness is the eldest son of the mother. His evidence is as contained in his affidavit filed 18 June 2014.
He states that he had a poor relationship with the father and during the period of the relationship he observed the father to be aggressive, on occasion violent and frequently intoxicated.
His affidavit sets out what he says are the incidents that are “most vivid for [him] me”.
He remembers an incident of aggression between the parties following an argument. He observed the father to grab and twist the mother’s arm up behind her back and his concern was such that he called the police. He says that the police attended and upon the father being advised that he would be arrested, he started to resist. He observed the father to attempt to assault the police officer and ultimately the father was arrested.
The children were apparently disturbed by their observations.
On a separate occasion when the children were quite young, the father returned home in an intoxicated state. When the mother refused him entry into the home, he apparently pushed her to the ground. The witness called the police.
Relevant to the proceedings is the observation of the witness as to the relationship between the father and the children. He states that the father did not assist significantly in their care and his conduct was such that the children would often be frightened. He observed them to physically shake with fear.
The witness considered the father to be aggressive towards the children and would smack them hard.
In particular, the witness remembers clearly an incident that occurred when the mother was at a darts competition. The children were at home with the witness and the father. The father had apparently been drinking, came into the room and removed C from the witness and took him to his bedroom. The witness allegedly saw the father naked on the bed with C. He remembered that C was only a few years old. He does not believe that he said anything to the mother that night, but rather told her sometime later.
He supplemented his trial affidavit by examination in chief. As at the date of his evidence the witness was not working and considered that his main task was to look after the children.
He confirmed the isolation of the children and agreed that at that time they did not have any friends over to their house.
He stated that he specifically stopped studying to look after the children. It is not intended by him to be a permanent state of affairs and he hoped in 2015 to either find employment or to continue studying, possibly interstate.
The witness was strongly challenged under cross examination. He was not able to assist as to the chronology of the events that he considered were the most vivid.
It was put to him that in relation to the incident described in paragraph 11 of his affidavit, the mother’s evidence is that she retaliated and kicked the father in the genitals. The witness did not recollect that it had happened.
The circumstances of the mother, the witness and the children escaping the premises as set out in paragraph 12 were explored with the witness. It was suggested that there was no need for them to escape. The father had apparently left the premises.
He was also asked why in relation to the incident referred to in paragraph 29 and 30 of his affidavit the children were not in their bedroom but rather in the lounge room. On reflection, he considered that he was settling the children down. D was already asleep. The father came and took C. He said that the child was crying. It was put to him that there was nothing in his affidavit that referred to C being distressed.
He was not able to recall when he told his mother about the incident, but agreed that it was not when she returned but may have been a few days later.
He thought that C may have been three years of age but again was not able to remember more.
The evidence of this witness was replete with inconsistencies. I do not consider that he was attempting to assist the Court in a better understanding of the evidence but rather, was prepared to fabricate serious allegations and then modify his evidence when inconsistencies arose.
In respect of his recollections of incidents of sexual and physical abuse, where not corroborated by third party evidence, I consider this witness to be inherently unreliable and of little or no assistance.
Of greater moment however is the very real impression created by his evidence as to the extent that the mother relied upon him to care for the children.
The witness was in receipt of a carer’s pension for his mother. He asserted that she had a slight physical disability and accordingly he was entitled to receive a benefit. In his application, he considered that she needed assistance in hanging out clothes, doing housework and assisting with the “disabled children”.
The mother’s evidence has not previously revealed the extent of care undertaken by her son. As at the date of his evidence, I am satisfied that it was significant. I am also of the view that this witness was uniquely unskilled to care for the children other than as to their most basic needs.
The police officer
Following the altercation between the parties during which the mother said the father stabbed her with a pocket knife, the police were called. Sargent U attended on the mother and took a statement. Generally the matters described by the mother were inconsistent with later evidence.
Difficulties for the mother were however compounded by the evidence of the witness that she was aggressive towards him. His observations of the alleged injury were considered by the police officer to be inconsistent with a stab wound. He was shown photos of the injury annexed to the mother’s trial affidavit at “KS10” and he did not consider that they represented the marks that he saw.
It appears that the family had a level of notoriety in the area. Unfortunately the conduct of the parties had drawn the attention of the police on a number of occasions. When asked whether he was aware of other allegations of family and domestic violence, the police officer conceded that there had been a number of complaints, but that they were anecdotal.
Ultimately the evidence of this witness was of assistance in a better understanding of how this family functioned, rather than it being corroborative of any specific allegation.
Whilst the police officer considered that the father was aggressive in his conduct, the mother’s interaction with him provided an unfortunate counterfoil.
Dr J
Her Honour considered that the continuation of the reunification therapy would place the children at an unacceptable level of emotional and physical risk:-
[76]…[The father] has pursued with grim unrelenting determination the opportunity to have a meaningful relationship with [the children] but has not done so out of bitterness or vindictiveness towards the mother. Nor has his campaign been based on selfishness. I find that he is solely motivated by a desire to provide his daughters with a warm and loving home environment which he believes, with some justification, it is beyond the capacity of the mother to provide.
[77]It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of the children can appear to reward bad behaviour on the part of one parent and in apparent injustice for the well motivated and best performing parent. The Court has regard to what is fair as between the parents but, ultimately, parental interests must be subordinated to what is in the best interests of the children, or at least to the extent of any conflict…
In Baglio & Baglio [2013] FamCA 105 Murphy J was confronted with a father that had neither seen nor spoken to the child for three years. The only positive memory the child had of her father is that she once “received fruit juice from him”. The father has a history of criminality and substance abuse but has successfully remained drug free in recent years. The mother alleged the father was the perpetrator of domestic violence in the presence of, and directed towards, the child. The ICL and father contended that there should be no finding of unacceptable risk to the child.
The mother remained “implacably opposed” to the child spending time with the father and will not encourage a meaningful relationship. The mother gave evidence that there is no mention of the father in her home and that the child “basically knows of [the father’s] existence and violence”.
She said she lives in constant fear of the husband and acknowledged that the child would have been exposed to her state of fear and conversation revolving around this topic. The mother had intentionally alienated the child from the father.
Murphy J found there to be a “chance of a meaningful relationship…which is beneficial to the child” and that the corollary was also true in that the absence of such a relationship had “the potential to cause the [child] harm in the long term”.
Following a finding of no unacceptable risk his Honour held at [121]:-
…if there is no unacceptable risk of harm to her, the child should have the opportunity to know, and have an image of, a father who did not hit her.
At paragraph [148]:-
…I am concerned by the mother’s actions in intentionally alienating the child from her father and removing from her life all references to him, other than references to violence. The child’s rights, enshrined in Part VII Objects and Principles pertain. I am also concerned by the mother’s repeated assertions that she will not encourage a relationship between the child and her father, even if the Court were to find that the father does not pose an unacceptable risk of harm to the child. I consider such statements and conduct to be completely antithetical to the child’s best interests and demonstrative of an inability on the part of the mother to place the child’s needs and in particular the benefit she may obtain from a relationship with her father, over her own issues with the father.
Family violence principles
In the recent decision of Soulos & Sorbo [2015] FamCA 196 Foster J explored the issue of family violence.
His Honour considered the definition in the Act at 4AB and at paragraph [121]-[122] said:-
The issue of family violence and findings in regard thereto was considered by the Full Court in Sawant & Karanth [2014] FamCAFC 235 where the court said:
[37]In Amador itself this Court referred to the fact that the trial Federal Magistrate had held that she was “…unable to make a finding that the father perpetrated the specific acts of violence alleged by the mother upon her…”. Their Honours considered at some length what was said by the High Court in M v M (1988) 166 CLR 62 (a case involving serious allegations of a different type – child sexual abuse) and, having done so, said:
87.The above passage from the High Court is sometimes quoted to support an argument that it is unnecessary for a trial judge to make positive findings in relation to allegations, inter partes, of assault and other serious matters of domestic violence. Consequently the Court is urged not to allow any exploration of any such allegation. A close reading of the decision makes it apparent that is not what fell from the High Court.
88.It is clear from the decision of the Full Court in A v A (1998) FLC 92-800 that, in appropriate cases, it may be important to make findings of this nature if they are available and necessary to determine what is in the best interests of the child. It is important to note that A v A was not a case where allegations of abuse of the children was made. The allegation was that the father had attempted to murder the mother. The Full Court said in A v A:
3.22We consider that his Honour’s approach was inappropriate. Whilst it is correct to say that the Family Court is not a criminal court, and that its primary task is not to determine guilt or innocence, that is entirely different from an approach which declines to examine that issue at all. The whole emphasis of the High Court in M and M is its identification of the essential issues in cases of this sort as being whether the evidence establishes “an unacceptable risk”.
…
[44]… the High Court said in the following passage in M v M …
… The Family Court’s consideration of the paramount issues which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegations of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegations of sexual abuse on the balance of probabilities.
Parenting considerations
The primary considerations are intended to focus on the benefit to the child of having a meaningful relationship with both of the child’s parents, but tempered by the need to protect the child from physical or psychological harm or being subjected to, exposed to abuse, neglect or family violence.
The father concedes that the children should remain in the primary care of the mother. The focus is therefore the extent of time that he should have with the children.
It could not be said that at present he has any relationship with the children at all. Whilst there is some uncertainty on the evidence, it is uncontroversial that he has not spent meaningful time with the children since at least 2011. Accordingly, for more than five years he has had nothing to do with the children either physically or by communication.
He is uncertain as to the stage and development of the children and but for these proceedings the father would have no knowledge as to how the children are progressing both in terms of their general development but in particular their education.
It is regrettable that such an extended period of time has been allowed to elapse.
To a significant degree the delay is occasioned by the mother’s resolve to keep the children from the father, but also the time that it has taken for the various investigations and assessments to be undertaken and concluded as to the needs of the children.
It is not to be overlooked that the assessment of Families SA is that the mother is resistant to cooperating with their requests for access to both children and the mother’s home environment.
The question of meaningful relationship must then start from a position recognising that there is currently no relationship between the children and their father and focussing on whether there would be an advantage to the children in having a relationship with him.
To some extent the first consideration is whether the mother’s assertion that the father presents as an unacceptable risk needs to be determined. Whilst not necessarily an absolute consideration, within the circumstances of this case, if the mother’s allegations in respect of the father’s alleged sexual abuse of the children are established, then it is unlikely that he could expect to resume a relationship with the children other than under the most strict of conditions.
That raises other considerations as to whether these children with their behaviour issues would realistically cope with seeing their father in a supervised environment over an extended period of time.
The mother alleges a long history of domestic violence and instances of sexual abuse.
It should be noted that at the commencement of the proceedings, I considered that the relevant provisions of the Evidence Act should apply to allegations of sexual abuse but not to those of domestic violence.
I consider it likely that both parties behaved aggressively towards each other. It was a volatile relationship. I suspect, but do not know, whether the father was the aggressor in the household.
I am satisfied that from time to time the father was intoxicated and resorted to moderate levels of family violence directed to the mother. On occasion the mother retaliated and it could not be said that only she remained the victim in the relationship.
I consider that there is sufficient evidence in respect of the excessive use of alcohol by the father to support the further contention that on occasion he would act aggressively within the family.
I specifically reject the mother’s allegations of the father having raped her on at least one occasion and possibly three occasions. I have found the mother’s evidence to be inherently unreliable and moreover I consider that she has undertaken to deliberately fabricate the evidence of rape.
I am specifically reminded of the mother’s incomprehensible explanation to the domestic violence worker that much of her allegations in respect of the father were made up because she was in fear of blackmail and threat from another person.
The mother’s evidence is confused and unreliable in respect of her allegations of sexual abuse. As discussed, I reject the observations of Mr E and consider his evidence to be unreliable and a likely fabrication in order to assist his mother’s case.
Even though I am not obliged to make a finding that a particular incident either occurred or did not, in the circumstances of this case I have little difficulty in dismissing the mother’s allegations that the father abused the children or either of them in the following circumstances:-
·By engaging in sexually inappropriate conduct in the shower with the boys.
·By engaging in inappropriate conduct with C having removed the child from the lounge room and taken him to the father’s bed.
·That the father took the children from the mother and whilst in the car removed the children’s pants and interfered with them.
·That he took the children from a playground and on a jetty touched the children’s bottoms.
Accordingly, I do not consider that any allegation of sexual abuse would enable the Court to find either that the father presented as an unacceptable risk, or even, that he presents as a risk at all.
The same of course cannot be said for the allegation of domestic violence.
This home was an unhappy and volatile environment. Whilst I accept that at times the mother behaved aggressively and was quick to temper, equally I accept the general tenor of the observations of the mother and the police together with the admissions of the father that at times, and usually whilst intoxicated, he behaved aggressively.
I also note that the father has of recent date attended a number of courses.
I am generally of the view that appropriate measures could be put in place which in and of themselves would ameliorate any risk posed by the father. In any event I do not consider the evidence in respect of family violence to manifest itself as the father presenting an unacceptable risk.
Views of the children
The evidence of the children and their various statements are inherently unreliable. Whilst their questionable development and poor linguistic skills are clearly an impediment, their conduct and statements are likely to be a reflection of the mother’s position and not their own.
For the majority of their separate lives they have not known any other environment other than that which has been created by their mother namely, to demonise their father. These children are not resilient. They suffer from anxiety at an extreme level and each of them either have symptoms consistent with Autism Spectrum Disorder or at least significant behavioural aspects of Autism.
It is unlikely they would have had any clear recollection of the relationship between the parties prior to separation in 2009.
It should not be forgotten that immediately after separation the mother was supportive of the children spending time with the father and it occurred. It was the mother’s decision following what she said was an altercation between the parties that caused time with the father to be terminated.
I am troubled by the presentation of C when interviewed by Dr G on 23 July 2014. The doctor was cautious in accepting at face value the rote recitation of alleged abuse by the father.
I consider it likely that the mother has influenced the children to a level and degree that they are not capable any longer of independent consideration of the relationship, if any, that they should have with their father.
Nature of the relationship of the children with their parents
The children have no relationship with the father. Up until recent date and the enrolment of the children in mainstream education, their primary relationship was with their mother and step-brother. The relationship was damaging and was predicated upon social isolation.
The proceedings however are not about the relationship the children have with their mother other than how that impacts on their ability to form a relationship with the father free of interference.
The effect of any changes in the child’s circumstances.
The mother does not propose that the children spend any time with the father, nor that she be obliged to communicate any information about the children to the father.
He seeks that there be a graduated reintroduction which he acknowledges will take some considerable time given the level of alienation that is self-evident in the children’s presentation.
There is no evidence of the children having any interaction with the father. The closest that there was occurred in the course of the assessment undertaken by the family consultant. It was proposed that there would be observed interaction between the father and the children. The family consultant was concerned at the level and extent of the distress of the children and did not consider that it would be in their interests to require the children to see their father.
It is not suggested that in the setting of a family assessment process that the father would have presented as a risk. It is also not suggested that the children would have any clear recollection of the behaviour of the father before the 2009 separation.
The children’s refusal gauged by their reaction was distressing, irrational, but strongly maintained. The family consultant properly considered that she would not be able to easily bring the father and the children together.
There is little or no evidence as to the current state of the children’s presentation.
It is hoped that much of their inconsistent behaviour may well be lessened by their reintroduction to mainstream education and the need to deal with students and teachers.
It appears that the process of normalisation is ongoing and is likely to benefit the children.
What has not changed is the mother’s attitude towards the father and her ability to fabricate and manufacture allegations seemingly without regard to the mischief created. In particular, the children are unlikely to be free of the mother’s toxic view of the father.
Practical reality of the parties proposals
It is unlikely that the children could easily be reintroduced to the father without a process that would first of all ascertain whether there has been some improvement in their outlook and therefore a lessening of their anxiety directed to the father without assessment and therapeutic intervention.
That process would of necessity require the mother to accept that it would be in the children’s interests to spend time with their father and that there could be confidence that she would support therapeutic endeavours.
If that was the position presented there may well be some opportunity for the parties to undertake what would be a complicated and potentially unnerving process directed towards a re-establishment of the relationship between the father and the children.
That is not the position that presents itself. Whilst the parties could certainly be ordered to attend therapeutic intervention, I have no confidence that the mother would do so voluntarily, or if ordered, with a genuine desire to reduce their fear and anxiety of contact with the father.
The capacity of the children’s parents to provide for their needs
I consider that the mother has the capacity to provide for the physical needs of the children, but demonstrably she lacks significant ability to understand their emotional needs and to nurture the children in a way that promotes a balanced view of the world and their father. It is only as a result of intervention by the Minister and the threat of Court order that ultimately resulted in the mother agreeing for the children to be enrolled in mainstream education. The mother was aware of the wide view of all of those involved in the children that the open access education program was demonstrably failing the needs of the children. She was steadfast in her refusal to consider normalising the children’s education unless and until the threat of removal loomed large.
As for the father, his ability to engage with the children and to provide for their needs is unknown. His history of care is poor, but I accept that he presented as a person willing to engage appropriately with the children and I acknowledge the various courses that he has undertaken as to matters of Autism and parenting generally.
The mother does not have the ability to promote and support any relationship between the children and their father.
Family violence
The mother has alleged that the father was the perpetrator of family violence within the home. Her allegations are supported by the evidence given by Mr E and she seeks to rely upon the various statements made by her to the police, domestic violence workers and health professionals concerning family violence.
The mother’s statements to others are considered to be self-serving statements. In the ordinary course of evidence, self-serving statements are inadmissible to support the credibility of a witness: Jones v South-Eastern & Chatham Railway Company’s Managing Committee (1918) 87 LJKB 775 at 779.
The making of a self-serving statement provides an opportunity for a party to give false evidence.
In any event, a self-serving statement has little probative value.
Section 69ZT of the Act applies in respect of evidence relating to family violence. It is therefore not necessarily excluded. I am entitled to bring the evidence to account but to consider the weight that should be attributed to the evidence presented.
It has been the subject of comment both by the family consultant and other witnesses that the mother has a propensity to involve numerous agencies and then rely upon their involvement to add weight to the allegations when dealing with subsequent agencies.
Furthermore, I reject the contention that the evidence of Mr E provides any assistance to the mother either in terms of his own alleged observations, or as corroboration for the mother’s evidence. His evidence is inherently unreliable.
The mother has also made statements that suggest at least some of her allegations may have been false.
The mother is an entirely unreliable historian. There is some substance to the general perception that aggressive conduct by each of the parties, but in particular the father, was not unknown. For his part, the father admitted to occasions of intoxication and altercation with the mother. Whilst he would assert that it was the mother who was the aggressor and he the victim, I am left in little doubt that there were occasions of assault and family violence perpetrated by the father. It is acknowledged that family violence has a broad definition and there are many behaviours that can constitute family violence, not necessarily involving physical contact or assault.
I consider that the father was controlling and was quick to denigrate the mother at times in the presence of the children. At times of intoxication the father behaved aggressively, but given the state of evidence it is difficult to focus on any particular allegation. The general perception of the local police was that the household was marred by domestic violence. Whilst the mother is not without fault and given her aggressive interaction with the police officer she is clearly capable of physical aggression, I suspect that the father would be quick to anger, abuse and aggression if provoked.
Unlike the mother, the father appears to have taken some steps to moderate his conduct and to gain insight into the damaging consequences of family violence. He says that whilst at one stage it may be considered he was a poor role model that is not now his presentation.
The issue of family violence needs to be considered against the factual matrix of the proceedings and tempered by the best interests of the children subject to orders being made that would ensure their safety and protection.
I do not consider that my findings in relation to family violence could be seen as supporting a finding of unacceptable risk and therefore a barrier to the father spending time with the children.
It is likely that there is still an intervention order in place, but again this would not preclude orders that the children spend time with the father.
Orders that are least likely to lead to further litigation
The ongoing litigation has not been to the advantage of the children. They are aware of the proceedings and the mother has clearly had a focus in terms of her preparedness to promote the children’s fear of their father and to heighten their anxiety. The children are vulnerable and whether it was the mother’s intention to do so, she has taken advantage of that vulnerability.
As was considered by both the family consultant and the children’s various psychiatrists, the mother has become so invested in the matter that she is now not able to prioritise the needs of the children over her own.
The orders sought by the father are modest and are predicated upon an acceptance by the father that the children’s transition from the exclusive care of the mother to spending time with the father will be difficult.
I consider that the father has underestimated the distressing predicament in which the children find themselves.
The children are not resilient. They are likely to have symptoms consistent with Autism or Autism Spectrum Disorder. They have had no contact and therefore no relationship with their father from 2010. He has been demonised by the mother and the underlying presentation of anxiety and fear has been heightened by the litigation and the mother’s refusal to support their relationship with the father.
The orders sought by the father are likely to lead to further litigation. It is inevitable that without the mother’s support there is unlikely to be any basis for assuming that if orders are made for the children to spend time with the father that they will be complied with.
Parental responsibility
The parties have no ability to communicate with each other, nor is there any willingness to do so. The mother has made serious allegations in respect of the father’s conduct and whilst he has not been charged, nor have I found any evidentiary support for the mother’s allegations, nonetheless it is difficult to see how an order for shared parental responsibility could achieve any result other than heightened disputation and conflict.
Given that I have found the mother is either not able or is unwilling to isolate the children from her conflict with the father, they would inevitably be adversely affected.
The mother’s retention of the children following the intervention of the Minister was predicated upon the successful transition of the children to mainstream education and for the mother to obtain assistance in terms of her compromised parenting.
Neither of the parties have a proven ability to manage the children or parent them responsibility and in a safe and developmentally focussed environment. I can see no advantage to the children of an order that would require the parties to consult with each other. It is beyond their joint and several abilities to do so.
Accordingly, parental responsibility should remain with the mother.
CONCLUSION
The circumstances of this case are unusual but nonetheless tragic. The father does not have a relationship with the children. That is not necessarily a situation of his own making, but rather arises from the mother’s distorted but negative view of the value of the father to the children and her inability to separate her needs from those of the children. Nonetheless, the children’s ability to develop and integrate into society is compromised and tenuous.
Their transition to mainstream education has been significant. The risk is that if orders are made that would require the children to spend time with their father they may well cause them anxiety and distress (notwithstanding that it would be irrationally held), thereby upsetting the progress that has been made. The evidence supports the contention that the mother would easily return to a position whereby the children were socially isolated and developmentally stunted.
Accordingly, I decline to make orders in terms of the father’s application.
I certify that the preceding five hundred and one (501) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 2 June 2016.
Associate:
Date: 2 June 2016
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