SPALDING & BARBARO
[2018] FamCA 362
•23 May 2018
FAMILY COURT OF AUSTRALIA
| SPALDING & BARBARO | [2018] FamCA 362 |
| FAMILY LAW – CHILDREN – Parenting capacity – Where the relationship of the parents is volatile – Where both parents allege the other poses an unacceptable risk of harm to the children – Where the mother alleges the father’s prescription drug use affects his parenting capacity – Where the father alleges the mother’s alcohol use affects her parenting capacity – Where it was found neither parent poses an unacceptable risk of harm to their children – Where it was found the father was seeking appropriate treatment for his condition – Where it was found there was a risk of the mother abusing alcohol however it was not unacceptable. FAMILY LAW – CHILDREN – Parental responsibility – Where the presumption of equal shared parental responsibility was rebutted due to family violence – Where it would nevertheless be in the best interests of the children for the parents to have equal shared parental responsibility – Where it was ordered the parents have equal shared parental responsibility for all major long term issues except for health and education – Where the father was granted sole parental responsibility for health and education. FAMILY LAW – CHILDREN – With whom the four children live – Where the children expressed a desire to spend equal time with both parents – Where it was ordered that an equal time arrangement between the parents would be proper. |
| Family Law Act 1975 (Cth) |
| Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 VR v RR (2002) FLC 93-099 |
| APPLICANT: | Mr Spalding |
| RESPONDENT: | Ms Barbaro |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
| FILE NUMBER: | BRC | 10027 | of | 2011 |
| DATE DELIVERED: | 23 May 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Carew J |
| HEARING DATE: | 3 – 6, 12 April 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Alexander |
| SOLICITOR FOR THE APPLICANT: | Simonidis Steel Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Dart |
| SOLICITOR FOR THE RESPONDENT: | Wallace Perkins Family Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Horsley |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
All previous parenting orders be discharged.
The mother and father have equal shared parental responsibility for the children D born … 2008, E born … 2009, B and C both born … 2012 in relation to ‘major long term issues’ (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth), other than major long term issues relating to health and educational issues.
The father have sole parental responsibility in relation to major long term issues relating to the children’s health and education save that, at least 7 days prior to making any decision, he notify the mother in writing of the proposed decision together with any relevant information and invite the mother to respond in writing within 7 days. Upon receiving any written response from the mother, the father shall consider it and inform the mother of the decision he has made within 7 days and the reasons for it.
The father keep the mother advised of the details of appointments made by him for the children to attend on any specialist medical or allied health practitioners, those details to include the date and time and location of the appointment/s and to be provided by him to the mother at the time of making the appointment/s, and the mother be at liberty to attend at those appointment/s, with the practitioners retaining the ultimate discretion as to which parent, if either, attends the appointment/s.
The father keep the mother advised of the details of the children’s school enrolments.
During school term the children live with each parent on an alternating week about basis commencing with the children living with the father from after school on Friday 25 May 2018 until before school the following Friday.
Save as provided to the contrary in this Order, during school holidays the children are to spend the first half with the father in even numbered years and the second half in odd numbered years and the children are to spend the first half of the holidays with the mother in odd numbered years and the second half in even numbered years.
For the purposes of this Order, the children’s school holidays start after school on their last day of school and cease at 5.00pm on the last day before the start of a new school term, with the midpoint at 5.00pm with the date calculated by dividing the total number of nights equally and if an uneven number then the parents alternate retaining the children in their care for the additional night, with the mother to have the first such night.
At Christmas time, the children spend time with the parents as follows:
(a) in even numbered years:
(i)with the mother from 2.00pm on 24 December until 9.00am on 26 December; and
(ii)with the father from 9.00am on 26 December until 2.00pm on 28 December;
(b) in odd numbered years:
(i)with the father from 2.00pm on 24 December until 9.00am on 26 December; and
(ii)with the mother from 9.00am on 26 December until 2.00pm on 28 December.
The children spend time with the father on Father’s Day weekend each year from after school Friday until before school Monday and the children’s time with the mother is otherwise suspended for that weekend.
The children spend time with the mother on Mother’s Day weekend from after school Friday until before school Monday, and the children’s time with the father is otherwise suspended for that weekend.
During school term or at the commencement of school holidays, changeovers occur on Fridays at the children’s school, and at other times, the parent from whom the children are leaving to live or spend time with the other parent shall deliver the children to the other parent’s residence. Each parent may have a third party known to the children deliver or receive the children.
Each parent be restrained and an injunction hereby issues restraining each parent from entering the other parent’s residence without prior written permission.
At the end of any time the children spend with each parent, each parent is to return to the other parent the clothing the children arrived in at the commencement of their time with that parent.
This Order be sufficient authority for each parent to obtain information from third parties relevant to the children. This Order does not require the release of information by a third party rather it merely authorises its release and any cost associated with the provision of information shall be at the cost of the requesting parent.
Each parent be restrained and an injunction hereby issues restraining each parent from contacting the other save as provided in this Order or in the case of emergency. The parents communicate only about the children and only via the Our Children Australia website (or a similar website in the event that website ceases operation) and for that purpose each parent forthwith sign up to the said website and provide to the other parent any details to enable communication with the other parent within 7 days. All communications be respectful and limited to the issue at hand.
The parents keep each other advised by SMS text of the particulars of any medical or other emergency involving the children.
The parents keep each other advised of their current email address and mobile telephone number.
Each parent be restrained and an injunction hereby issues restraining each parent from interfering in any way with the time the children live with or spend time with the other parent and in particular the mother be restrained and an injunction hereby issues restraining her from withholding the children from living or spending time with the father in accordance with the terms of this Order unless she has first obtained:
(a) an order of the Court which permits her to do so; or
(b) a written authority of a member of the Queensland Police Service (Child Protection Investigation Unit) or an employee of the Department of Child Safety, Youth and Women, which directs her to do so.
The mother be restrained and an injunction hereby issues restraining her from permitting the children to be interviewed in relation to abuse allegations involving the father, by any person unless directed by a member of the Queensland Police Service (Child Protection Investigation Unit) or an employee of the Department of Child Safety, Youth and Women.
Each parent be restrained and an injunction hereby issues restraining each parent from enrolling the children in any extra-curricular activity that requires participation during the time the children are living with the other parent save if that parent’s written agreement is first obtained.
Each parent be restrained and an injunction hereby issues restraining each parent from using physical discipline or punishment on the children, and each parent use their best endeavours to ensure that no other person uses physical discipline or punishment on the children.
Each parent be restrained and an injunction hereby issues restraining each parent from denigrating the other parent:
(a) to or in the presence or hearing of the children;
(b) to the children’s treating medical practitioners;
(c) to any members of staff at the children’s school; and
(d) to any persons or organisations facilitating the children’s extra-curricular activities;
Each parent is restrained and an injunction hereby issues restraining each parent from conducting any CCTV or other surveillance of the children in their bedrooms.
The mother be restrained and an injunction hereby issues restraining her from consuming alcohol which would cause her to be over and above the legal limit for driving whilst the children are in her care.
The father be restrained and an injunction hereby issues restraining him from using any opioid or narcotic medication that is not personally prescribed for him by his treating medical practitioner(s).
The father attend consistently on a singular general medical practitioner clinic (the sole GP clinic), in regard to his use of and prescriptions for opioid or narcotic medication.
The father be at liberty to consult with and attend upon any pain management clinic, psychiatrist or other specialist medical practitioners to whom he is referred (in writing) by the sole GP clinic, as to his use of and prescriptions for opioid or narcotic medication.
The father comply with any requests made from time to time by his treating medical practitioner(s) for pathology testing (including blood tests).
The father provide a copy of this Order to:
(a) the sole GP clinic (and ask that the clinic record in their Patient Notes that they have received this Order); and
(b) any other medical practitioner on whom he attends to seek a prescription for opioid or narcotic medication (and ask that the practitioner record in their Patient Notes that they have received this Order).
The father provide a copy of this Order to the children’s schools.
The father provide a copy of this Order and the Reasons for Judgment to any treating medical practitioner of himself or the children.
The Independent Children’s Lawyer be discharged.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
NOTATION
A.This Order applies unless there is a written agreement between the parties to the contrary.
B.The father consents to paragraphs 22 and 26 to 30 (inclusive) of this Order.
C.The mother consents to paragraphs 19, 22 and 25 of this Order.
D.The Independent Children’s Lawyer will provide a copy of this Order and the supporting Reasons for Judgement to the Department of Child Safety, Youth and Women Queensland.
E.“Major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
i. the child's education (both current and future); and
ii. the child's religious and cultural upbringing; and
iii. the child's health; and
iv. the child's name; and
v. changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
F.To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spalding & Barbaro has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10027 of 2011
| Mr Spalding |
Applicant
And
| Ms Barbaro |
Respondent
REASONS FOR JUDGMENT
There are four children involved in this case: two boys aged 10 and eight respectively and twin girls aged six. Their parents, Mr Spalding and Ms Barbaro, have been fighting about them for years. The father has described the saga as a ‘war’ and I think that is an apt description. I consider each parent to be at fault for the conflict in largely equal degrees. The conduct in which each has engaged has been nothing short of appalling.
The children have been damaged by their parents’ conduct. The children are caught in the middle of the conflict and sadly feel responsible for finding a solution. The children have been video recorded, audio recorded, had their conversations analysed, had various parts of their bodies photographed, all in the name of evidence gathering by their parents. I agree with the family report writer’s opinion that the ‘long-standing issues of parental conflict are insurmountable’. If there were a realistic option of removing the children from both parents I would seriously consider it.
I have come to that conclusion, not because either parent is unable to provide an adequate level of physical care for the children but because of the level of enmity and distrust directed by the parents at each other and their seeming inability to put their hatred of each other aside for the benefit of their children.
Although the children have a close and loving relationship with each parent, I am very pessimistic about the future outcomes for these children. It is unlikely that any order of this Court will end the conflict between these parents or completely protect the children from exposure to ongoing conflict.
For the reasons which follow and although it might appear counterintuitive, I have come to the conclusion that the order that is proper, in the unique circumstances of this case, is for the children to live with each parent for an equal time and for the parents to have equal shared parental responsibility for major long term issues as that term is defined in s 4 of the Family Law Act 1975 (Cth) save for issues relating to health and education which will be for the father to decide after consultation with the mother.
I have concluded that anything short of ‘equality’ of time is more likely to expose the children to conflict. Interestingly, these young children have also come to that conclusion. I can only hope that the parents take heed of my reasons for judgment, and the pleas of their children for peace, and change their ways before it is too late.
issues
The mother’s position at trial was difficult to understand. The issues raised by her and findings sought by her were the subject of three iterations. It seems that at least some of the uncertainty in earlier versions was due to her counsel’s misunderstanding of the mother’s instructions. The final version[1] makes this concession:
The mother concedes that the evidence currently before the Court in relation to sexual and/or physical abuse of the children does not reach the threshold where the Court would find that the Father poses an unacceptable risk of sexual or physical abuse.
[1] All three versions form exhibit 17.
Despite that concession the mother nevertheless seeks findings that:
The father has engaged in inappropriate conduct towards the children. [Unspecified, but presumably related to allegations involving the father drawing on his penis and putting his finger into B’s anus].
And
The father has engaged in physically disciplining the children, including causing bruising to [D].
Ultimately, the mother submitted that the issues of alleged physical harm or other ‘inappropriate’ conduct were matters relevant to the determination of ‘parenting capacity’.
The issues agitated at trial can be summarised as follows:
a)Does the father pose an unacceptable risk of emotional and/or psychological harm to the children by reason of exposure of the children to family violence and/or his negative views of the mother and/or his personality vulnerabilities?
b)Does the father have the capacity to care for the children and provide them with a safe environment and in this context:
i)How does the father’s chronic pain and reliance on prescription medication impact on his parenting capacity?
ii)Did the father cause bruising to the child D on 10 September 2017?
iii)Has the father subjected the girls to inappropriate conduct by drawing a smiley face on his penis in their presence and then photographing it?
iv)Has the father subjected the child B to inappropriate conduct by inserting his finger or an object into her anus?
c)Does the mother pose an unacceptable risk of emotional and/or psychological harm to the children by reason of her enmity of the father and in this context:
i)Has the mother used the father’s wish to spend time with the children as a means to extort money from him?
ii)Has the mother concocted or engineered allegations against the father involving his harming the children?
iii)Is the mother able to protect the children from her negative views of the father?
iv)Does the mother have a propensity to interpret statements made by the children about the father in a negative way?
v)Will the mother comply with court orders?
vi)Does the mother have the capacity to care for the children and provide them with a safe environment and in particular is the mother’s parenting capacity impeded by reason of her history of significant alcohol abuse?
background
Before turning to a consideration of the issues, I set out a brief background of this family.
Mr Spalding and Ms Barbaro were married in 2008, having commenced to live together in 2007. They separated in 2011 and divorced in 2014.
Mr Spalding and Ms Barbaro have four children, namely, D born in 2008, E born in and B and C born in 2012.
The parents live in close proximity to each other in Region H.
D and E attend J School (an expensive private school) where they are in grades 4 and 3 respectively. D has been diagnosed with dyslexia, Attention Deficit Hyperactivity Disorder and has a number of motor and vocal tics. He is also being investigated for possible Autism Spectrum Disorder. E has some learning difficulties. Both children participate in a high level learning support program called ‘FF’ which occurs at J School.
B and C attend the Suburb I State School where they are in grade 1. They previously attended K School for their prep year (another expensive private school). Neither of the girls have any significant medical or behavioural issues. B suffers from mild eczema as does C. Their eczema is treated with the application of a steroid cream from time to time.
The father has been unemployed for a number of years. He was a businessman but has managed financially for the last several years on ‘passive’ income from investments. Given his outgoings, which include expenses for the children of $3,600 per week, this ‘passive’ income must be significant. He lives alone in a very large property but has historically had the children spend time with him at this property. The property has 28 closed circuit television cameras in and around the property. The cameras were in situ at the time the parents bought the house together.
The mother is not employed but has qualifications in a professional occupation. The mother lives in a property purchased four years ago for $1,250,000. Under the parent’s 2013 property settlement order the mother will receive that property unencumbered in 2019. Until then, the father is responsible for the payment of outgoings relating to that property including the $1,000,000 mortgage. The mother’s sole source of income is Centrelink benefits. The father has a current child support debt of $36,909 and the parties are engaged in a Child Support Agency dispute about the accuracy of this debt. It does seem somewhat surprising that the taxpayer is supporting the children when they are in the mother’s care, given the assets, income and/or earning capacity of the parents.
In 2013 the parties consented to a ‘final’ parenting order providing for the boys to live in a week about arrangement with the parents and for the girls to spend gradually increasing time with the father. The order made provision for a review of the time the girls spend with the father after six months. The order also made provision for the parents to have equal shared parental responsibility.
The father commenced overnight time with the girls in November 2015.
During the period February to May 2016 the boys lived with the father and did not see the mother or the girls and did not attend school. During the same period the girls lived with the mother and did not see the father or the boys and did not attend prep. This situation initially arose as a result of allegations made by the mother involving inappropriate touching of the child B while in the father’s care. The father responded with allegations against the mother.
Child protection authorities investigated the allegations and no further action was taken. The authorities expressed a suspicion that the girls were being coached to make allegations by one or both parents.
In July 2016 an order was made for the week about arrangement to continue for the boys and for the girls to spend alternate weekends and alternate Thursday nights with the father (in the same week as the boys were living with the father).
The matter returned to Court on 16 February 2018 as a result of the mother again stopping the time the children were spending with the father. The allegations made by her against the father were of a sexual nature.
The father has only spent supervised weekly time with the children since then. This has proved problematical for the children as evidenced by the observations of the supervisor, Ms BB. It is clear that such limited time with the father is not meeting the children’s needs.
A continuing theme in the mother’s allegations against the father invites the inference that the father has engaged in sexually inappropriate behaviour with the girls or has exposed the children to ‘inappropriate’ conduct.
A continuing theme in the father’s allegations against the mother is that she uses the children in order to gain financially from him and in the process fabricates allegations of abuse and violence against him.
There are mutual protection orders in place which expire in July 2018.
Applicable legal principles
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects, principles and matters that must be considered when determining what parenting order is proper,[2] but such consideration will focus in particular on matters raised as significant issues by the parties and of course the Court.[3]
[2] See Family Law Act 1975 (Cth) s 65D.
[3] See Goode & Goode (2006) FLC 93-286; SCVG & KLD (2014) FLC 93-582; Banks & Banks (2015) FLC 93-637.
The Court is not required to make findings of fact on every factual dispute raised by the parties.[4]
[4] Baghti & Baghti [2015] FamCAFC 71.
The objects and principles of Part VII of the Act are set out in s 60B(1) and (2) and those sections make clear that the Court is concerned with children’s rights to be, among other things, cared for by both parents when it is safe for that to occur.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC outlines the primary and additional considerations that the Court must consider in determining what is in the best interests of the child. In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the Order any safeguards that it considers necessary for the safety of those affected by the Order.
Section 61C provides that each parent has parental responsibility for a child subject to any order made by the Court.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider s 65DAA as to whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation.
Although I may not specifically discuss in these reasons each subparagraph of each relevant section in what is sometimes referred to as the ‘legislative pathway’ I have considered all sections as required when making my determination.[5]
[5] Banks & Banks (2015) FLC 93-637.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities having regard to the ‘inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding’ and proof to the reasonable satisfaction of the court ‘should not be produced by inexact proofs, indefinite testimony or indirect inferences’.[6] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[7]
[6] See M & M (1988) 166 CLR 69 citing Briginshaw v. Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
[7] Ibid and see also N and S and the Separate Representative (1996) FLC 92-655.
Proposals of each party
The father proposes that the children live with him and, after a moratorium of three months, spend supervised time with the mother for initially two hours. Time with the mother is to increase after a year, to seven hours each fortnight. He also proposes that he have sole parental responsibility for major long term issues.[8]
[8] The precise form of order sought by the father is set out in the father’s proposed orders retained with the court papers.
The mother proposes, in the event of a finding that the father poses an unacceptable risk of harm, that the children live with her and spend time with the father for three Saturdays in each calendar month from 9:00am to 8:00pm and in school holidays for five consecutive days in each alternate week from 9:00am to 8:00pm. There is some inconsistency in the order sought by the mother. In her Case Outline she sought an order for the time with the father to be supervised if a finding of unacceptable risk was made but in the document tendered at the end of the trial (exhibit 24) there is no mention of supervision. In the event that there is no finding of unacceptable risk, the mother proposes that the children spend each alternate weekend with the father from after school Friday to before school Monday and extended time during school holidays. The mother also proposes that she have sole parental responsibility for major long term issues.[9]
[9] The precise form of order sought by the mother is set out in exhibit 24.
The independent children’s lawyer recommends that the children live with the father and spend alternate weekends with the mother. She also recommends that the father have sole parental responsibility for major long term issues.[10]
Does the father pose an unacceptable risk of emotional and/or psychological harm to the children by reason of exposure of the children to family violence and/or his negative views of the mother and/or his personality vulnerabilities?
[10] The precise form of order sought by the independent children’s lawyer is set out in exhibit 23.
Family violence between the parents
As the issue of alleged abuse of the children is dealt with separately I have confined my consideration of family violence under this heading to the parents.
The parent’s relationship has been described by Dr AA and Dr BB as volatile. Dr AA provided counselling to the parents in the lead up to their separation. He expressed concern about the volatility and instability of the relationship and made reference to the parties both cuddling affectionately in his office in contradiction to their behaviour during the session. Dr BB, a psychiatric expert who assessed the parties in September 2017, refers to volatility as ‘essentially the principal feature of the relationship between the parents.’ In this context the mother concedes that her alcohol consumption was often a source of conflict and that she underwent treatment in 2015 for alcohol abuse under the supervision of her doctor who prescribed Naltrexone.
After their separation the parents maintained an ‘on again, off again’ sexual relationship. The father was somewhat obsessed by the mother for a number of years as noted by Dr BB, whose opinion I accept. Although it must also be acknowledged that the mother was a willing participant in the sexual relationship for several years after the 2011 separation and, for a period at least up to 2012, engaged in the exchange of sexually explicit photos and videos with the father in which they each displayed their genitalia.
After the mother ended the sexual relationship with the father in 2014 matters became very unpleasant to say the least. The father sent the mother numerous text messages, sometimes up to 40 a day. Many of the text messages were abusive and called the mother appalling names e.g. ‘a low life lying cunt’, ‘fucking lying dog’, ‘scumbag’, ‘slut’ etc.
Surprisingly, but perhaps consistent with the characterisation of their relationship by both Dr AA and Dr BB, the parents attempted a reconciliation in 2015. When the reconciliation failed the father sent the mother frequent text messages. For example, in October 2015 the father was sending up to 39 texts a day. The content of many of the text messages was augmentative and he repeatedly called the mother a ‘pathological liar’ and ‘pure evil’. What he thought such text messages would achieve is a mystery. The content of the texts certainly would not have inspired co-operation from the mother. In short, the father repeatedly berated the mother for all of her perceived shortcomings.
Throughout 2013 to 2015 the father communicated his thoughts about the mother to many people including his father and his mother-in-law. In his written communications to his father he referred to the mother in the most appalling terms e.g. as a ‘cunt’, ‘slut, ‘bitch’ and also called his father a ‘cunt’ for spending time with the mother and children. The father perceived his father’s actions as a betrayal. In his written communications to his mother-in-law he made reference to the mother ‘sucking his cock’ and of having video footage of the mother naked. These communications reflect very poorly on the father and demonstrate his inability to regulate his behaviour at that time.
Graffiti incident
Although no specific finding was sought by the mother in relation to the ‘graffiti incident’ (see exhibit 17) this incident was a focus during the trial. I assume the mother invites a finding that the incident is an example of family violence after separation.
The incident involved the discovery, by the mother, of graffiti on her front fence on 22 December 2017. The graffiti depicted a penis and the word ‘slut’. Despite there being no evidence that the father had any involvement, the mother invites the inference that the father was responsible for the graffiti painted on her front fence. The mother also invites the inference that the father’s actions were a response to the second family report which had been released to the parties on the afternoon of 21 December 2017. Presumably, although this was not made clear during the trial, the inference is said to be open because of the father’s attitude to the mother evidenced in his numerous text messages to the mother and others up to January 2016. The mother not only invites the inference that the father was responsible but that he left the children unattended at his home while he painted the graffiti on her fence.
The father denies any involvement in the painting of the graffiti on the mother’s fence.
It is common ground that the children were in the care of the father from 3.30pm on 21 December 2017 until 9.00 am on 22 December 2017 and that the graffiti appeared sometime during that period. When the children were returned to the mother at 9.00am on 22 December 2017 they saw the graffiti. Despite the mother’s evidence that the children were traumatised by it, the graffiti was not removed or covered by the mother until a week later. The mother arranged for the police to attend at her home while the children were in her care. I reject the mother’s evidence that she was unable to take any action to remove or cover the graffiti because of police direction or that she could not have arranged to make her complaint at a time when the children were not in her care.
At the time of the incident, the father was subject to a protection order and as a result of the mother’s complaint to police identifying the father as the only likely suspect, proceedings were commenced against the father for a breach of the protection order. The police also attended (unannounced) at the father’s home at a time when the children were at the father’s home. The proceedings were ultimately discontinued but not before the father had incurred considerable cost defending the allegations.
While it is perhaps understandable, given the history, that the mother suspected the father, there was in fact no evidence of his involvement. It is also understandable, given the history, that the father suspected the mother was responsible for the graffiti in order to ‘set him up’. Each of them were so caught up in blaming the other that they failed to take any action to protect their children from exposure to the graffiti and the consequent investigation.
The impact on the children is likely to have been detrimental. Indeed the mother says they were traumatised. Each time they left their home they would have seen the graffiti. It is beyond comprehension why the mother or the father could not have taken action to put some covering over the graffiti. I reject the father’s contention that he offered to have it removed.
The failure of each parent to protect the children is indefensible.
Assessment of risk of exposure to family violence
Whatever the situation was in the past, there has been a significant change in the parents’ engagement since 2016. They have very little face to face contact and while they still communicate in writing, the mother concedes that the father’s abusive text messages ceased by the beginning of 2016. Given that the personal relationship between the parents is at an end, the opportunity for the parents to come into contact is significantly curtailed and can be further curtailed, if necessary, by order.
The father has been seeing a psychiatrist, Dr GG, for many years and continues to do so. Dr GG says that he and the father have had many discussions about disrespectful behaviour and the futility of responding aggressively. In his assessment the father has made ‘significant progress’ in being able to disengage and is now a much healthier person. Dr GG is in the best position to make such an assessment given his long involvement with the father.
I should also record that the father has acknowledged and expressed regret for his abusive communications to the mother in the past.
In my view, the father’s ability to disengage from the mother, has been demonstrated by his failure to react aggressively to allegations made against him by the mother since 2016. For example the father reacted appropriately to the allegations that he had been responsible for the graffiti on the mother’s fence.
These are all positive signs and I find that the father has gained some insight into the unhelpful nature of such communications and is unlikely to engage in such overt behaviour in the future. As the parties rarely come into contact the risk of the children being exposed to family violence (as that term is defined in s 4AB of the Act) between the parents is low.
Accordingly, I reject the mother’s submission that there is an unacceptable risk of harm to the children from the father by reason of exposure to family violence.
This finding should not be taken to be inconsistent with my early finding that the children are likely to continue to be caught in the middle of their parents’ dispute which, of itself, does not fall into the definition of family violence.
The father’s negative views of the mother
Having regard to the vile text messages sent by the father to the mother and others and the father’s description of the mother to the boy’s school and medical practitioners as ‘evil’ and a ‘liar’ etc., I find that the father loathes and detests the mother.
Given the conversations between Mr F, the family report writer, and the children reported in the 2016 and 2017 reports and the various statements made by the children as reported by the parents and others, I find that the children are aware of the father’s poor opinion of the mother. Just one example in support of that finding is when D said to the mother in or about 2016 – ‘Daddy is right about you, you shouldn’t have had kids, you’re a fucking maggot’. Whether or not the father expressed this view directly to D, it is consistent with the views held by the father, which I find have been imparted to the children.
Mr HH, the J School principal, expressed the view that ‘when speaking with the boys, given their age and developmental stage, that some of the language and terms they use would only come … from either overhearing conversations between adults or conversations with adults. … I think the boys are certainly privy to information and conversations that … are not necessarily age appropriate…’. His evidence certainly supports my finding that the children are caught in the middle of this ongoing dispute between their parents.
Both parents, but particularly the father, have drawn the schools into the dispute. The father has written copious emails to J School containing criticisms of the mother and self-serving statements about himself. That type of communication is unhelpful and should stop.
Although the father has made significant progress in being able to disengage from the mother and avoid reacting aggressively, there remains a risk that the children will be exposed to his negative views of the mother in the future. For example, the children may well become aware of derogatory comments directed by the father to third parties e.g. J School, Ms EE (the children’s former psychologist), Dr II and others. Dr BB was certainly pessimistic about the prospects of the father being able to change his behaviour. He predicted that the father would not facilitate the children’s relationship with their mother if they lived primarily with him. He said that ‘the degree of hostile ambivalence was quite extraordinary’.
A way to ameliorate that risk and counter the negativity is for the children to spend significant time with the mother. The children will then be able to rely on their own experiences of her. It must be remembered that the vilest of communications by the father about the mother ceased some time ago. He has made significant progress in disengaging from the mother according to his treating psychiatrist, Dr GG. As the risk can be ameliorated, it is not an ‘unacceptable’ risk.
The father’s personality vulnerabilities
Dr GG and Dr BB agreed that the father has significant personality vulnerabilities in the area of ‘obsessionality’, ‘impulsivity leading to self-defeating behaviours’, ‘difficulty tolerating uncomfortable affect’, having an ‘external locus of control’ and using ‘projective defences’.
These personality vulnerabilities will no doubt continue to compromise the father’s ability to provide optimal parenting. However, the father continues to work with Dr GG and has made significant progress. I do not regard the vulnerabilities, of themselves, to support a finding of unacceptable risk.
Does the father have the capacity to care for the children and provide them with a safe environment?
The mother’s focus in relation to this issue encompasses a number of matters including:
a)The father’s chronic pain and his reliance on opioid medications;
b)Bruising to D’s buttock on 10 September 2017; and
c)Exposing the children to ‘inappropriate’ conduct.
The father’s chronic pain and reliance on opioid medication
The father suffers with chronic back pain. There has been considerable medical investigation but, as yet, there remains no conclusive diagnosis. There is no evidence that his chronic pain impedes his ability to carry out his role as a parent although I am prepared to infer that it is likely to make the carrying out of certain tasks more difficult. He has not, of course, had all four children living with him for extended periods to date. How he will cope with that is as yet untested. Certainly in July 2017 Dr GG expressed the view that ‘the father at that time was physically fatigued, confused, overwhelmed and has been struggling to cope’. Since then, however the father has undertaken a complete review of his pain medication, is under the supervision of his GP, Dr N and has shown significant improvement according to Dr GG whose opinion I accept.
As a result of his chronic pain the father takes opioid medication. I find that the father misused his medication in the past by taking considerably more than he had been prescribed and obtaining the medication from numerous doctors at the same time. The father self-referred to a detox unit in mid-2017. By all accounts the admission to the unit was a success. However, the father continued to misuse his medication until in or about October 2017. The father says he filled numerous scripts for opioids without taking the medication. His evidence on this issue was entirely improbable and I reject it.
Since December 2017 the father’s opioid use has been carefully monitored by his treating GP, Dr N. The prescription of the opioid medication is subject to regulatory provisions which restrict the quantity available to a patient. It is unclear how the father was able to successfully ‘doctor shop’ given those restrictions but now that Dr N has been alerted to the previous problem I consider the risk of future misuse to be low. The risk can be ameliorated by order of the Court and I note the father has indicated his consent to such a course.
The ‘smacking incident’ on 10 September 2017
At approximately 8:00am on Sunday 10 September 2017 the mother says that she received a telephone call from D who was at that time with his father. The child was sobbing and said that he had been hit and wanted his mother to come and get him. The mother did not do so.
On the following Friday 15 September 2017 when D was returned to the mother, she says that D told her that his father had hit him with a wooden spoon more than once and that he was still bruised.
On that same day the mother took D to see the children’s psychologist, Ms EE. As a result of what D told her during her consultation, Ms EE made a mandatory notification to the Department of Child Safety, Youth and Women.
On Saturday 16 September 2017 the mother photographed D naked. While the photographs tendered are small it is apparent that there is a small bruise on the child’s left buttock.[11] The photographs produced by the mother during the trial were said by her to be the only photographs she had taken of the bruise. I reject that evidence. The photographs provided to the police by the mother are different and show D with his pants down and shirt pulled up. There is a bruise on the child’s left buttock and a very tiny bruise on the upper part of his right buttock.[12]
[11] Exhibit 5.
[12] Pages 206 and 207 of exhibit 8.
The mother says she was advised by police to take D to the doctor. On 17 September 2016 D was extremely upset at the surgery and refused to be examined. He crawled under a chair and was clinging to a ‘blanky’. The mother nevertheless drove the very distressed D to the police station and organised for her mother to bring the other three children to the police station. Prior to being interviewed D was very distressed. He was yelling and punching a toy. The interview nevertheless proceeded after he had calmed down. All four children were interviewed by police.
In the police interview with D which was video recorded, I was struck by how unperturbed D appeared for much of the interview. He had clearly overcome his earlier distress. He seemed to be enjoying the drama of recounting his story. He described an altercation between himself and his brother resulting in D throwing some clothes over the internal balcony at his father’s home. Among other things D said that his brother had kicked or punched him. He blamed his brother for ‘fake crying’ and causing his father to hit him really hard and call him a ‘fucking idiot’. There was no mention of a wooden spoon initially. He said that his skin had been broken and that there were tiny droplets of blood that was black in colour. He also said that he had to walk around on his hands for quite a few days. He enthusiastically provided a demonstration. When D was asked when it happened he said that his mother had told him it had happened on Sunday. D presented as a very enthusiastic and practised story teller. In this context, I note a communication from the paternal grandfather to the father on 29 November 2015 in which he says – “You should realise by now that [D] makes things up as he goes along.”
During the police interview D said that his father had grabbed him around his arm and had left marks. When asked by the police officer whether anyone had taken a photograph of the marks D said “I was getting tempted to take pictures with my phone” and that his mother had photographs of the marks. No photographs of marks on the child’s arm were produced during the trial. D was quite suggestible during the interview e.g. he initially said the wooden spoon was returned to the drawer but when he was told by the officer that he had heard the spoon had broken, D readily adopted that version and said “did the spoon break?” “it was an old wooden spoon though, … it did have little splinters sticking out of it”, “I think it did snap cause I heard a snap”.
The other three children were interviewed by police and confirmed that the father had struck D on the bottom with a wooden spoon but that the spoon did not break and was returned to the drawer.
The father was later interviewed by police and admitted hitting both D and E with a wooden spoon on the day in question. In relation to D he told police that D had been warned earlier in the day not to hurt his sisters. Upon hearing E yell “[D] is hurting [B]” the father went upstairs and found that D had put a plastic bag over her head. The father then smacked D with the wooden spoon. The father denied causing the bruising stating it was already there. He indicated on the photograph that he had hit D higher up near the hip and had left a red mark.
The police records note among other things:
The IO has considered the 93A statements in which of all the children agreed that D was smacked on the bottom with the wooden spoon but all the other information was varied and the 93A’s couldn’t determine if the smack caused the bruise.
The victim child’s behaviour on the day of the 93A was very defiant and quite violent and it is possible he behaves like this from time to time. From what [Mr Spalding] has explained a smack on the bottom would be reasonable in the circumstances but it is unknown whether this smack has caused the bruise or not.
Both parents talk badly of each other and the situation seems quite volatile.
Conclusion in relation to the ‘smacking incident’
I am not prepared, on the evidence, to make a positive finding that the father caused the bruising to the child. It may, in fact, have been caused by his brother kicking him or by some other means. I do not regard the admitted action taken by the father to have been abusive in the circumstances. Rather I find the mother’s actions to have been a complete overreaction to what was on any view a rather minor incident. It is clear that she prioritised the gathering of evidence against the father ahead of protecting the children from the conflict.
Subsequent to this incident each parent provided an undertaking not to physically discipline the children. The father has expressed regret at smacking the boys and says he will never do so again. The parent’s consent to the continuation of that prohibition.
While it may have been unwise of the father to use an implement to smack the boys, I am not persuaded that there is an unacceptable risk of the children being physically abused by their father in the future nor does the mother seek such a finding. And as noted above the father has taken active steps to regulate his behaviour.
‘Inappropriate conduct’
Smiley face on penis
One allegation made against the father is that he drew a smiley face on his penis in front of the girls and then photographed it and showed it to all the children. This was an allegation made in January 2018 and was one of two allegations of a sexual nature relied upon by the mother at the interim hearing in February 2018 when she sought the imposition of supervised time for the father.
The father denies the allegation and in turn accuses the mother and the maternal grandmother of showing the children a photo that he had sent the mother depicting his penis with a smiley face on it. The mother rejected the proposition that she or her mother had done such a thing and denied that she had been sent such a photo. Her evidence during the trial was at odds with her concession during the interim hearing on 18 February 2018 that she had a ‘vague recollection’ of receiving such a photo. No attempt was made by the mother to explain that inconsistency prior to cross-examination. It is common ground that the parents exchanged sexually explicit photos of themselves in the past. The mother says that she does recall the father drawing a smiley face on his penis when they were in a relationship.
Each parent relies entirely on what they say they have been told by the children as proof that the incident each allege against the other occurred. In addition, the mother relies on the evidence of Ms EE, a psychologist, who says she elicited information from the children during her treatment of them.
Perhaps not surprisingly there are numerous inconsistencies in the evidence on this issue. For example, Ms EE initially thought that the child C was referring to something she had seen in a photo and it was only after ‘clarification’ that she discovered it was an actual event. Ms EE introduces the topic by asking the girls whether there had been any more ‘play’ with the ‘friendly worm’. There had been no suggestion made by the girls at any prior time that they had been ‘playing with a friendly worm’. Ms EE’s questioning of the children is regrettable to say the least. She has permitted herself to be drawn into this dispute between two parents who have been more intent on gathering evidence against each other than protecting their children from their conflict.
The maternal grandmother provided inconsistent accounts in her affidavit and her oral evidence of what she says the girls said to her about this incident.
Paw-paw ointment
Another allegation made against the father involves his putting his finger in B’s anus. The mother says that on 30 January 2018 B said that her ‘wee wee’ was hurting and that ‘It was hurting at Dad’s on the weekend and I didn’t want to tell him because he would sting me’. Then, the mother alleges that B said in one continuous uninterrupted sentence:
And Dad put paw-paw cream on my bum-bum after he put it on his penis and bum-bum and he has diabetes and I don’t want to catch it and he didn’t wash his finger and he said a douche bag is when you stick a hose in your bum-bum and Dad does this so he can poo and he is in there for hours pooing and weeing.
On 31 January 2018 the mother took the children for an appointment with Ms EE. The mother says that at the session with Ms EE, B ‘disclosed’ that while she was at her father’s the previous weekend the father was in the kitchen with her alone and he was naked and that she said:
Her wee-wee was hurting and then her father put paw-paw ointment on his penis and then his bum-bum and then he pulled down her pants and put it into her bum-bum and she wasn’t happy because he did not wash his hand and he has diabetes and she doesn’t want to catch diabetes.
Ms EE fails to corroborate the mother’s version that B ‘disclosed’ the above information in one continuous statement. Ms EE says that the information had been forthcoming over an hour long interview. Ms EE describes this interview as commencing with the mother saying to her ‘It gets worse’. She describes the mother as looking distraught. The mother was present for the session with the girls.
As already noted, Ms EE commenced the session by asking whether there had been any more play with the friendly worm. Her narrative form of describing the session is most unhelpful from a forensic perspective but what is clear is that Ms EE engages in questioning of the girls and ‘clarifies’ what she thinks they are saying to her. It is difficult to determine what, if anything, B is describing.
What is most alarming is that Ms EE holds up her finger and asks B whether the father’s finger may have slipped. B responds by pointing to ‘well below the first joint of my index finger and then said he had also put his finger inside the top of the cream and that he had put that in her ’bum-bum’ too’. I describe this evidence as alarming because of the very leading nature of the questioning by Ms EE who also notes that the child would not have been able to see what the father was doing.
There is no evidence of any injury caused to the child’s anus which one might expect if an adult male’s finger and a ‘top of the cream’ were inserted.
Unfortunately Ms EE appeared to have no insight into the impact of her leading questions (in fact she denied that her questions were leading). I find it quite extraordinary that a psychologist could be so oblivious to the suggestibility of young children. Ms EE described herself as a ‘general psychologist’ with no particular expertise in sexual abuse matters. I consider her involvement to have been most unhelpful and potentially dangerous given that her involvement may have contaminated evidence.
Ms EE certainly did not give the impression that the information she elicited from B necessarily indicated abuse. She seemed reluctant to make any notification to the Department of Child Safety, Youth and Women but did so because her supervisor advised her to in order to ‘cover themselves legally’.
It is common ground that historically the father has showered with the children and that he has informed the mother that he had applied ointment to B after observing what he described as a ‘vaginal rash’.
Conclusion on whether father has engaged in inappropriate conduct
Sexual abuse of children is an abominable reality in some families. It can be a difficult thing to prove or to disprove.
In this case the alleged statements made by B and to a lesser extent C are at times inconsistent, confusing and tainted by questioning from both the mother and Ms EE. I reject the mother’s evidence that the statement made to her by B was made in one continuous stream. I consider it is more likely that the mother, through her questioning of B, elicited responses that were then summarised by the mother in her affidavit and which she thought could be used against the father.
Neither child made any statement to police that indicated abuse.
At the interim hearing on 18 February 2018 the mother’s then counsel conceded that if his client’s affidavit were the extent of the evidence relied upon by the mother her prospects of success in having the father’s time supervised would be poor. However, it was submitted that the evidence from the children’s psychologist, Ms EE warranted further investigation by way of cross-examination and pending that opportunity it was submitted that the Court should adopt a cautious approach and impose supervision on the father’s time. That position was supported by the independent children’s lawyer. For the reasons then explained, the children’s time with their father was severely restricted and supervision was imposed. The interim decision sought to provide a reprieve to the children from the ongoing conflict.
I have already made comments about Ms EE’s attempt at forensic involvement in this case and how it has well and truly fallen short. It is also apparent from Ms EE’s notes that the children had a number of sessions about ‘private parts’ and boundaries and there is reference to one of the grandmothers referring to their genitalia as ‘bits and pieces’. In short there seems to have been a focus both at their mother’s home and during sessions with Ms EE, about genitalia.
The evidence relied upon by the mother falls well short of enabling a positive finding against the father. The evidence in support of the allegations made by the mother against the father relies upon ‘inexact proofs, indefinite testimony or indirect inferences’ and the behaviour itself is ‘inherently unlikely’ to have occurred. That is, of course, not the end of the matter. An assessment is required as to risk and the magnitude of that risk. The inconsistencies, the questioning of the children, the focus on evidence gathering and the general unreliability of the evidence lead to the conclusion that, if there is a risk, it is at the very low end of the scale.
Importantly, there are other more feasible explanations. For example, in relation to the ‘smiley face’ allegation the children may have seen a photo depicting a smiley face on the father’s penis by accident or have overheard a conversation where it was discussed. I find that such a photo is likely to have existed and that the mother was aware of its existence. I reject the allegation that the father drew a smiley face on his penis in front of the girls and then photographed it and showed it to all of the children. I also reject the father’s allegation that the mother and her mother showed the children such a photo. Despite the intensity with which the mother and her mother loath the father I consider it improbable that they would expose the children to a photo in this way.
In relation to the ‘paw-paw’ ointment allegation, whatever B was describing I reject the allegation that the father acted inappropriately towards her. Again, there is a more feasible explanation. The father concedes that he has applied ointment to the child in the past when she has complained of soreness. She also suffers from eczema. It is more likely that the treatment of these conditions is what the child was describing, if anything. The questioning of the child by the mother and Ms EE turned the statement into something it was not.
I accept the father’s denials that he has engaged in the activities alleged against him.
The evidence does not support a positive finding of abuse or a finding of unacceptable risk, a concession made by the mother. It is regrettable that the children’s time with their father was interrupted and remains restricted because of these allegations.
Does the mother pose an unacceptable risk of emotional and/or psychological harm to the children?
Has the mother used the father’s wish to spend time with the children as a means to extort money from him?
I am satisfied that there were times when the mother used the father’s wish to see or communicate with the children as a means of obtaining money from him. The mother made some concessions to this effect although she did not accept the propositions entirely.
In January 2015 the parties agreed on parenting arrangements that would see an increase in the time the girls were to spend with their father. Notwithstanding that agreement the mother did not adhere to it and refused to sign a parenting plan reflecting the agreement until August 2015. The mother insisted child support matters be resolved before she would sign. The mother sent text messages to the father tying the payment of money to his time with the children.
Whether or not the father was failing in his obligations to support the children financially (and I make no such finding) the mother’s actions in making one conditional on the other was detrimental to the children’s interests and created a significant source of conflict. I find that there were occasions when the mother returned the children to the father in their underwear only, in order to force him to buy clothing. On other occasions the mother would refuse to return school uniforms to the father causing him to repeatedly buy replacement uniforms. In 2017 the father spent $3,930 at the boys’ school uniform shop as a result of the failure of the mother to return uniforms. At one point in 2014 the mother threatened to ‘expose’ the father in the media for allegedly failing to pay child support.
The mother was certainly more co-operative about parenting matters when the father complied with requests to pay money e.g. she readily agreed to the time the father requested upon his paying an $18,750 instalment pursuant to the 2013 property order.
The mother did not dispute, in these proceedings, that the father spends $3,600 per week on the children (which includes school fees at J School and the attendance of the boys at a special program called ‘FF’). The mother also conceded that in the 2017 financial year she received $15,000 in child support. This was at a time when the boys were spending alternate weeks with the father and the girls were spending four nights a fortnight.
I am satisfied that the mother’s perceived sense of injustice over child support matters caused her to place the children in the middle of the dispute by seeking to extort money from him in exchange for her agreeing to him spending time with the children.
Has the mother concocted or engineered allegations against the father involving his harming the children and/or does the mother have a propensity to interpret statements made by the children about the father in a negative way?
The mother has a propensity to interpret statements made by the children that involve the father in a negative way as discussed above. Mr F came to the same conclusion. That propensity has resulted in the children being involved in numerous investigations and interviews. It has also resulted in the unjustified interruption of the children’s time with the father.
12 February 2016 incident
The incident that occurred on 12 February 2016 is an example of the lengths to which the mother and the paternal aunt, Ms JJ, would go to concoct evidence against the father. On that day, the mother was contacted by K School and told that B said that the mother’s boyfriend had pinched her and hurt her. B said a number of things about a person called “KK” stating he had pinched her, poked her and kicked her.
The mother’s reaction to being told what B had said at school was startling. She and the father’s sister, attended at the school. The school refused to be involved in recording the child while questions were asked. So, the mother and Ms JJ took the girls to a park. There they engaged in what I regard to be a disgraceful exercise in video recording the child for the purpose of eliciting information to be used against the father. The mother says that she engaged in this activity in order to ‘clarify’ why the child had said the mother’s boyfriend had pinched her when she did not have a boyfriend. I reject that explanation because there were no questions posed to the child about that at all. I also reject the mother’s evidence that she has disclosed all video recordings made that day because very early on in the recording a woman’s voice is heard to say ‘yeah, that one isn’t obvious’ which I infer relates to another recording. I reject the mother’s statement that she did not know what that statement meant. During the video recording the child is squirming to remove herself from Ms JJ’s lap but Ms JJ holds her tightly and continues her questioning. The following exchange between Ms JJ and B occurs:[13]
[13] The transcript is exhibit 6 and the recording is exhibit 7.
[Ms JJ]: … how was last night at daddy’s?
[B]: not good
[Ms JJ]: Oh it wasn’t good?
[B]: Because he had a boyfriend which has hurt me
[Ms JJ]: A boyfriend that hurt you? Who was that darling?
[B]: [KK]
[Ms JJ]: Who’s [KK]?
[B]: I don’t know. He’s a boyfriend
[Ms JJ]: A boyfriend a daddy’s house?
(child nods)
…
[Ms JJ]: …So this man at daddy’s house, did he do anything else to hurt you babe?
[B]: He pinched me
[Ms JJ]: he pinched you? Where did he pinch you?
(child gestures to her crotch area)
[Ms JJ]: Oh. Did he really? Is that really what happened?
(child nods)
…
[Ms JJ]: … I’m a bit worried about what’s happened at daddy’s house. So just tell me again what happened?
…
As already noted the mother denies having a boyfriend and suspected the father had coached the child to make the statement to the teachers referred to above. The mother denies any knowledge of a ‘KK’ in her material but conceded knowing two men called ‘LL’. It is certainly conceivable that the child was referring to a shorthand or nickname version of a ‘LL’ when she said ‘KK’.
After obtaining the video the mother took the child to a doctor on 15 February 2016 and then to a paediatrician, Dr R. I find that the mother took these steps in an attempt to deflect responsibility for actions taken by her, to others. The tendency to do so is a recurring theme in the history of this matter and demonstrated on numerous occasions during the mother’s oral evidence. As a result of what the mother says were Dr R’s concerns she decided to suspend time with the father. When one considers the content of Dr R’s letter it is clear that he is referring to the mother’s concerns. He opines that the issues are not medical but legal.
On 16 February 2016 the mother picked the girls up early from school and sent an email to the father’s solicitor stating only that – ‘For reasons which I will explain in an email to your office as soon as I can, I’m suspending [Mr Spalding’s] time with the children from today.’
The father complained to police about the mother failing to provide the children. His decision to take that course was another poor decision because the police attended at the mother’s house when the children were present. The mother provided the police with a copy of the video recording.
It was not until 19 February 2016 that the mother provided a copy of the video to the father. The mother did not inform the father what B said to the teachers at her school about being hurt by the mother’s boyfriend. This was a topic the father had raised with the mother on a number of occasions previously i.e. the children complaining of being hurt by her boyfriend.
A series of communications occurred between the mother’s lawyers (and sometimes the mother directly) and the father’s lawyers in relation to the mother ceasing time between the children and the father.
Having relied upon the video recording to stop the children’s time with the father, and claiming it was necessary for their protection, the mother gave an absurd explanation in the witness box about what she thought the statements by B meant. She suggested that a tradesman may have been at the father’s house or some other man that may have hurt B. She rejected absolutely that she had made any suggestion that the father was homosexual yet seems to have done nothing to dissuade that perception to police. The mother was most unimpressive in her attempt to minimise the damage caused to the children.
The father’s sister played a significant role in this incident, for which she deserves condemnation. Her personal animosity towards her brother coloured her judgement and exposed the children to emotional damage.
On 22 February 2016 the father spoke to the boys at school and was told among other things:
Mummy says you didn’t pick us up because you don’t love us.
Mummy doesn’t want us to tell you what’s going on. If we tell you the truth, mummy says you will try to send her to jail and she won’t love us.
Whether or not the mother actually said those things to the boys, it is clear that the boys had that perception as a result of what the mother has said or done either to or in the hearing of the children.
On 25 February 2016 the girls were interviewed by police. Neither child said anything to support the claim by the mother that the children required protection from the father. B spoke about her father giving her a ‘shiny burn’ (it seems this is a reference to a Chinese burn). There was no suggestion of pain or injury. Curiously B denied having any brothers and sisters; denied ever sleeping over at her father’s and denied eating or showering at her father’s. C claimed to enjoy spending time with her father. She mentioned ‘shiny burns’ but in a playful way. The police were left wondering what, if any, influence either parent was having on the children in relation to the ongoing issues between the parents.
By 21 March 2016 it was clear that the investigation instigated at the behest of the mother had concluded. The mother then sought to recommence the previous arrangements whereby the boys spent alternate weeks with the father and the girls spent two nights per week with the father. I find that the mother’s unilateral suspension of the children’s time with their father was completely unwarranted.
Rather than resuming the previous parenting arrangement the father retained the boys and required the mother to provide a host of undertakings before he would agree to resume the prior arrangement. None of the undertakings (which were largely mutual) were terribly onerous and one might wonder why the mother did not simply provide them. Some of the undertakings sought were already the subject of the 2013 parenting order. The result was a ‘Mexican standoff’ which deprived the boys of a relationship with their mother and their sisters and deprived the girls of a relationship with their father and brothers for fourteen weeks during which none of the children attended school. Ultimately, but not until some months later, the father did not press for any of the undertakings to be provided by the mother.
Each parent bears responsibility for this appalling state of affairs and it is apparent from Mr F’s observations that this episode was damaging to all of the children.
Is the mother able to protect the children form her negative views of the father?
The mother has a deep loathing for the father as do her supporters, namely, the maternal grandmother, the paternal grandparents and the paternal aunt. That was patently obvious during their oral evidence. Any prospect of the father mending bridges with his family disappeared after they gave their evidence. The father is involved in Supreme Court litigation against his parents over money issues. There was obvious enmity demonstrated by the father’s family towards the father. His parents in particular were prepared to believe the absolute worst of their son including that he had molested his own daughter.
One example of the mother’s disregard for the father was her admission that in September 2015 when the mother was informed that the father had attended hospital with a suspected heart attack her response was that he deserved it.
The boys have reported to the father that the mother has referred to him as a ‘cunt’ and a ‘fucking wanker’. Whether or not the mother expressed this view directly to the children I find it is consistent with the mother’s view of the father.
I have already found that the mother has a propensity to interpret anything said by the children about the father in a negative light.
Conclusion as to whether the mother poses an unacceptable risk of emotional harm
The mother portrays herself as a mother simply wanting to protect her children. That is not an accurate depiction. The mother claims she is just believing what her children tell her but she is very selective in what she believes and of course she is unable to explain what some of the statements made by the children actually mean. I find that the mother has been actively attempting to undermine the children’s relationship with the father for some time. Her propensity to interpret everything the children say about the father through a negative prism is emotionally damaging for the children.
However, it must be noted that this is the first time that the parties have proceeded to a trial of their dispute. The allegations and counter allegations have been dissected and discussed and I have made findings about them.
I am hopeful that the mother will accept the findings made in this case and actively improve her capacity to embrace the father in the children’s lives. The mother claimed in the witness box that in future, if the children said anything that alarmed her, she would discuss it with the father and accept his explanation. While I find it difficult to accept the mother’s evidence to this effect I am prepared to accept that it is her intention to do so. I note with some optimism Ms BB’s recent observations of the parent’s engaging appropriately with each other at changeover. A way to ameliorate the risk of the children’s exposure to the mother’s negative views of their father is for the children to spend significant time with the father. Accordingly, I do not assess the risk as unacceptable.
Will the mother comply with court orders?
The mother has taken it upon herself on numerous occasions to suspend the children’s time with their father. She may well do so again but if she does, there is every prospect that there will be impediments placed upon her spending time with the children.
As already stated, this is the first time the parties have had a trial where their grievances against each other have been fully aired. It is to be hoped that the mother will change her behaviour. Specific restraints can be placed upon the mother taking matters into her own hands in the future if necessary.
Does the mother have the capacity to care for the children and provide them with a safe environment and in particular is the mother’s parenting capacity impeded by reason of her history of significant alcohol abuse
In 2015/2016 the mother was treated with Naltrexone for her alcohol abuse. On the mother’s own account she was drinking a bottle of wine per day in July 2015. While the Naltrexone helped the mother reduce her intake of alcohol she was unable to abstain. The treatment continued from at least June 2015 to at least February 2016. It is unclear when the treatment actually commenced and finished. Given that history it is rather extraordinary that the mother described her problem with alcohol abuse as ‘minor’.
The mother has undertaken a number of Carbohydrate Deficiency Transferrin tests (“CDT”) during these proceedings. The results do not support the ongoing abuse of alcohol.
However, on 1 March 2018 the mother attended J School with the girls. A teacher, Mr MM, described her presentation thus:
Highly agitated or aroused state
Disoriented speech and thoughts, at times incoherent
Rapid and erratic speech and conversations
She appeared to be under the influence of some type of substance and I was concerned for her capacity to care for her daughters. She did not know what day it was, what month it was or the type of medication her son was taking nor the dosage of frequency when filling out the [J School] medication form.
Dr BB offered an alternative explanation for the mother’s presentation, namely, distress and anxiety. However, Mr MM’s evidence was not challenged and coupled with the mother’s initial refusal to take a CDT when requested by the independent children’s lawyer, recently, I find there remains a risk that the mother will abuse alcohol although I do not find it to be an unacceptable risk.
conclusions about what parenting order is proper
On one view an order that the children live with one parent and have no time and no communication with the other would mean a more peaceful life for the children but the children would be deprived of a relationship with a parent they love. I accept that the children have a close and loving relationship with each of their parents.
Living with one parent predominantly and spending only weekend time with the other parent is unlikely to protect the children as the ‘losing’ parent is likely to undermine the arrangement and the parent with the predominant care is likely to have a greater influence on the children, perhaps in a negative way.
The boys have been used to an equal time arrangement. An equal time arrangement for the girls is untested but at their age they will manage the extra time away from their mother. Mr F certainly thought the girls would manage with more time with the father.
All of the children have expressed a wish for equal time although not necessarily in week blocks. While they are young, they have lived with this conflict all of their lives and as, Mr F opines, they have taken on a level of responsibility for finding a solution. They clearly think equality for their parents may provide the peace they so desperately seek.
Mr F is a very experienced social worker. He prepared two family reports in this matter. The first was in 2016. As a result of his intervention the parties agreed to resume the arrangement of week about for the boys and that the girls spend two nights each week with the father.
Despite expressing significant misgivings about the shared care arrangements for the boys continuing into the future, Mr F recommended the continuation of those arrangements on an interim basis. In his 2016 report he said the following:
[181] I have considerable misgivings about how an equal shared living arrangement can be sustained for the children in the longer term. My concern is that the quality of the parent’s co-parenting relationship leaves them poorly equipped to sustain it. Their communication is poor and their mistrust is high. … They interpret information from the children about events in each other’s home in a very negative way. They make significant allegations about their conduct towards each other and to the children. The longer-term risk in this matter is that rather than cooperate, the parents are likely to compete to assert their dominance over the lives of the children. …
Mr F remained sceptical about equal time as did Dr BB although the latter considered that with some proscriptive and prescriptive orders such an order may work.
The parents have quite different parenting styles as noted by Mr HH. The father favours structure while the mother has a more laissez-faire approach. That may make an equal time arrangement more challenging for the children.
D requires special mention as he is a child with a number of challenges. It is apparent on the evidence from the parents, the police, J School, Ms EE etc. that D’s behaviour can be extremely challenging at times. It has created conflict with his siblings too. He is no doubt a troubled little boy who talked about suicide as an option for himself in January 2018 with one of the teachers at J School. In March 2018 concern was expressed by J School over some of D’s conversations with other students where he spoke about cutting the heads off rats; chewing the skin off his finger and enjoying the taste of it; slicing the arms of small animals and also about his behaviour being volatile and stabbing a teddy bear with a pencil.
In March 2018 the J School health nurse expressed concern about D’s mood being more elevated and ‘there is a lot of grandiose story telling going on’ for which she provides examples. She felt his mood was ‘almost manic’.
The J School clinical psychologist also reported concerning features of D’s behaviour surrounding graphic and violent thought processes and conversations with staff and peers. She noted D’s increased use of inappropriate language to peers and staff, ‘[D] discovered that this language has served him well in the past to stop others from teasing him, making others frightened of him, also he gets a lot of attention from this behaviour serving as a secondary gain.’
It is most unfortunate that school has not been able to be a haven for the children rather than another battle ground for the parents. I felt some sympathy for the principal who gave evidence because, although diplomatic, I certainly gained the impression that this family presents many more challenges than most.
The parents recently agreed for D to attend upon a psychiatrist, Dr CC for further assessment.
D said to Mr F on 9 October 2017 that he did not want to be separated from his parents. He also said he wanted to live in a week about arrangement which was consistent with what he had said during the family report interviews in 2016 at which time Mr F described his wishes as being ‘genuine and heart felt’. D wished for there to be peace and for his parents to like each other and not be continually mean to each other. D spoke about killing the judge if he was taken from either parent. He spoke about always feeling stressed. He was at times agitated during the day of the interviews. He seemed to have an unhealthy preoccupation with the ‘system’ saying that judges and police are ‘fucking idiots’ and referred to police coming to his home.
Mr F noted D’s heightened arousal at interview and considered it may be as a result of feeling anxious about and pressured by the high level of conflict and mistrust between his parents. He considered that the number of interventions, including counselling, may have been too much for D. D was attune to being the focus of his parent’s conflict and presented as wanting to be balanced in his statements so as not to be seen to be taking sides.
E wished that the whole family got along. E expressed a wish to live alternate days with each parent because he misses the other parent when he is not with them but he certainly made it plain that he did not want to spend any less time with either parent than he does now.
Neither boy was enamoured with the idea of the girls spending the same amount of time with the father as they do.
C wanted to spend more time with the father than she does currently and in particular more time on school days. She said she would like four nights at her mother’s and four nights at her father’s but she was not bothered by the current arrangements staying in place.
B made it clear that her parents were not friends. She expressed a wish to spend more time with her father than she currently does. She thought a week about arrangement would be great. She did not want the current arrangement to remain as she wanted to spend more time, including school days, in her father’s home. She wanted a weekend with each parent and then three days with one and three days with the other alternating.
Mr F observed in the recent interviews that the parents maintained friendly, child focused mannerisms around each other during the family report process although no direct discussion between them was noted.
As long as there is structure and frequent time spent with each parent Mr F did not see a need for communication between the children and the parent with whom they were not living particularly if it was likely to expose the children to more conflict. I accept that opinion.
Mr F thought that the girls could spend longer periods with the father.
He thought the girls were invested in the idea of equality as a solution to the parental conflict. He did not suggest that the wishes of the girls were influenced by the father.
None of the children were assessed by Mr F to be of an age or have a level of maturity to understand the consequences of structural change. That said, D and to a lesser extent E, are ‘averse to living primarily with one parent and the aversion is expressed with a conviction beyond a preference.’
Mr F opined that while there may be a number of factors influencing the children’s stated wishes, he considers they have been ‘shaped by an exposure to the intense, overt parental conflict and mistrust’. He was of the view that all the children were attempting to take some responsibility for resolving the conflict, particularly D.
Both parents demonstrated an ability to manage all four children in a confined space. The children were affectionate with each parent.
Mr F opined that the parental conflict is ‘having a detrimental, distressing impact on the children and likely to have more of a detrimental impact on them in the longer term.’ Mr F urged the court to ‘take whatever steps are necessary to provide the children with an opportunity for as much stability and day-to-day consistence as possible, while also preserving their connections to the parents.’ However, he advised against an equal time arrangement because it will ‘potentiate’ their exposure to conflict and in his view is delivering poor outcomes to the boys. In his report, Mr F recommended the children live primarily with the mother and spend regular frequent reasonably broad ranging time with the father. In his oral evidence he supported the children living primarily with the father if it were found that the mother had concocted the allegations of abuse or was incapable of ceasing her propensity to interpret everything the children say about the father in a negative way. Mr F considered that equal shared parental responsibility would be likely to contribute to the continued exposure of the children to parental conflict and risked a continuation of court proceedings.
Although it is offered by Mr F that a greater degree of co-operation is required for an equal time arrangement than something less than that, I do not agree that to be the case here. Whatever arrangement is in place (short of the children living with one parent and spending no time with the other) there will be a need for some co-operation between the parents. If one parent spends only alternate weekends with the children the issue of school uniforms, homework, and attendance at extra-curricular activities will still be issues that may arise from time to time. Mr F, in expressing misgivings about the long term sustainability of equal time referred, among other things, to the likely disagreement about whether or not a child should attend upon a doctor or be enrolled in a team sport. Neither of these matters concern a major long term issue. Each parent will have the ability to make day to day parenting decisions. Prescriptive and proscriptive orders will be necessary to decrease the likelihood of dispute. As much information as possible should be obtained directly from the source e.g. school, medical practitioner etc. without reliance on the other parent to supply information. It will be up to each parent to make appropriate arrangements with third parties to receive relevant information.
The parents live in reasonably close proximity to each other and to the children’s schools so there is no practical impediment to an equal time arrangement.
The financial obligations created under the 2013 order will be finalised in 2019. Hopefully that will reduce the opportunity for further bickering between the parties on at least that issue.
An equal time order may be a means of minimising impact on children of the personality vulnerabilities of each party. An equal time order is what the parties agreed to in final order for the boys and were working towards for girls in 2013. An equal time order may ameliorate the impact of the negative views by each parent of the other by enabling the children to experience each parent for significant periods. Such an order may also minimise the risk of any impact of exposure to alcohol abuse in the mother’s household or opioid abuse in the father’s household. Such an order also increases the likelihood of each parent being able to cope with four challenging children because they will have a break each alternate week. It also meets the children’s wishes and the experience of the boys to date.
There are negatives of course. Each parent has a different parenting style and it may be difficult for the children to adapt to that. The girls have always lived in the primary care of their mother and there will no doubt be a period of adjustment. There is likely to be a continuation of exposure to conflict but that will be the case whatever order I make (other than a no time order for one parent).
In many cases in might be preferable for children to have one home base but the aim in this case is to make orders that will best protect children from harm.
On balance, I consider the best arrangement for the children in the circumstances of this case is to have equal time with each parent in a week about arrangement.
I strongly recommend that each party obtains counselling on the particular issue of co-parenting and communicating in a civil and helpful manner. I see no point in ordering them to undertake that counselling. It must be a voluntary exercise for it to be of utility.
parental responsibility
The parent’s relationship during their marriage was volatile and the boys were exposed to the explosive nature of their parent’s exchanges. During the 2016 family report interviews D refers to his father yelling and his mother being scared and saying ‘I’m leaving the house’. Given the nature of the ‘on again off again’ relationship after separation, I also find that all the children have been exposed to that volatility since the birth of the twins in 2012. I find that there are reasonable grounds to believe that one or both of the parents engaged in yelling and swearing and that such behaviour is likely to have coerced or controlled one or other of the parents or caused them to be fearful. Such behaviour falls within the definition of family violence and as such the presumption that equal shared parental responsibility is in the children’s best interests does not apply (see s 61DA).
However, as the Full Court said in VR v RR[14] the Court should only interfere with, or diminish the responsibility of either parent to care for a child in the manner that that parent deems appropriate where the Court is of the view that the welfare of the child will clearly be advanced by the making of such an order.
[14] (2002) FLC 93-099.
According to Mr HH, J School principal, the parents have very different approaches to raising the children and to their educational expectations for the children. The father is more interventionist while the mother regards some of the structure put in place for the children as too stressful for them. The different approaches have made it difficult for the school at times managing the different expectations and philosophies of the parents.
The parents were initially unable to agree about D being assessed for ASD. In resisting the further assessment the father was guided by the opinions of psychologist, Dr NN, and paediatrician, Dr MM, given in 2017 that D did not have ASD. His opposition to further assessment in late 2017/early 2018 was therefore understandable. The assessment was pressed by the mother on the recommendation of Ms EE. I am unaware of any expertise that Ms EE has in this area. Ultimately the parents agreed that D should attend upon a psychiatrist, Dr CC for further assessment.
In December the father proposed the parties attend mediation and offered to pay the costs. He proposed that the parents attempt to resolve all parenting issues. The mother declined the invitation.
I considered making an order that one parent have sole responsibility for major long term health issues and the other parent have sole responsibility for major long term educational issues but the independent children’s lawyer pointed out the overlapping nature of those issues in relation to the boys in particular. I have been persuaded against making that order.
While the parents have ultimately been able to reach agreement about matters concerning health and educational issues it has not been without considerable input from third parties and has made the implementation of any decision difficult for the school and doctors. There needs to be a circuit breaker by having one parent make the decision if they cannot agree.
While there is some evidence that the father incorrectly provided medication to one of the boys on one occasion and trialled E on medication prescribed for D on one occasion I do not consider those instances to be reflective of the father making poor decisions generally when it comes to health issues.
The father has the capacity to pay for the children’s schooling. Whether or not the girls return to a private school is not an issue that currently troubles the girls (although it clearly troubled the mother and her supporters). Educational issues involving the boys has been a source of considerable dispute between the parents.
I consider the father to have been more conciliatory in recent times and I find that he is more likely to involve the mother in decisions about major long term issues. Accordingly, in relation to major long term issues involving health and education the father will be able to make the ultimate decision after consultation with the mother.
I nevertheless consider that the parents should have equal joint parental responsibility for major long term issues other than health and education. It is less likely in my view for there to be such issues arising and the major conflict to date relates to issues involving health and education. It is also important that both parents feel equally entitled to jointly make decisions about major long term issues for their children as far as possible. It is hoped that such an order will diminish the feeling that one party has ‘lost’ to the other.
conclusion
I have found that neither parent presents an unacceptable risk of harm to their children although risks do remain.
The father has a history of abusing pain relief medication and suffers from chronic pain. He has never before had the care of all four children for other than short periods although his provision of care for them during periods of supervision has been impressive. He has admitted to hitting the boys with a wooden spoon and is likely to have sworn at the children when frustrated by their behaviour. He has a very negative view of the mother and the children are aware of that view. However, the father has shown signs of change for the better. He is under the care of one GP who monitors his condition and medication. The father continues to be treated by his psychiatrist, Dr GG, who has seen significant progress in the father. The father has shown a recent willingness to engage in joint decision making with the mother.
The mother has a history of alcohol abuse that she continues to minimise. There is some indication she may have abused alcohol in recent times. There is a risk she will abuse alcohol in the future although the magnitude of the risk is low. The mother has shown a propensity to interpret anything said by the children about the father in a negative way. She has a very poor opinion of the father and the children are aware of that view. She has concocted evidence on at least one occasion in order to interrupt the children’s time with the father and she has overreacted to things said by the children on other occasions. The mother has been prepared to interfere with the children’s relationship with their father on numerous occasions including placing monetary conditions on the children spending time with their father.
Despite the many shortcomings of each parent, their children love them and want to spend time with each of them. The children have advocated for an equal time arrangement as a means of resolving the conflict between their parents.
The children have a close relationship with each of their parents and each parent has the capacity to provide adequate parenting.
The major problem in this case is the conflict and enmity between the parents.
Ultimately I have come to the conclusion that the parenting order that is proper in this case is for the children to live in a week about arrangement with each of their parents and for the parents to have equal shared parental responsibility for major long term issues other than issues relating to health and education. The father will have sole parental responsibility for such issues after consultation with the mother.
miscellaneous
Before concluding I feel compelled to make an observation about the poor quality of the affidavit material relied upon by the parents in this case. It is unfortunate that material is consistently produced in this court that offends against the requirement that evidence be relevant to an issue in dispute in the proceedings. So much of the affidavit material was self-serving, comment, argumentative, speculative and/or verbose. I note that I cautioned parties and their solicitors during the interim hearing about including everything a client wanted in an affidavit without attention to basic rules of admissibility. It seems my comments went unheeded.
I certify that the preceding two-hundred and three (203) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 23 May 2018.
Associate:
Date: 23.05.2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Consent
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Remedies
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