SS & AH

[2005] FamCA 481

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

No. BRF 1070 of 1999

BETWEEN: SS
APPLICANT MOTHER

AND

AH
RESPONDENT FATHER

BEFORE THE HONOURABLE JUSTICE BUCKLEY

REASONS FOR JUDGMENT

Dates of Hearing:         7 & 8 February 2005
  10 & 11 February 2005
  14, 15, 16, 17 February 2005
  7 March 2005
  27 April 2005

Date of Judgment: 10 June 2005

Appearances: Mr Fleetwood of Counsel

appearing for the Applicant Mother
Mr Sweeney of Counsel
appearing for the Respondent Father
Mr Kent of Counsel
appearing for the Children’s Representative

OVERVIEW

This case concerns competing residence, contact, and specific issues applications for final Orders under Part VII of the Family Law Act 1975 (“the Act”) between the Applicant Mother and the Respondent Father in relation to their son J born in October 1993 (now aged 11 years 8 months) and their daughter K born in September 1997 (now aged 7 years 8 months).
The Application which culminated in the present trial was that filed by the Mother on 28 August 2002 in which the Mother sought that paragraph 4 of the Order made by May J on 5 April 2000, following a 5 day trial between the parties concerning children’s issues and property settlement, be varied.
Paragraph 4 of the Order referred to specified the Father’s contact including, inter alia, alternate weekend contact to both children; weekly afternoon contact to both children; half school holiday contact and Christmas contact.
By her application filed on 28 August 2002, the Mother sought to vary that Order. On an interim basis she sought to:-
(a)Reduce the Father’s contact to each alternate Sunday from 8.00am to 4.00p.m:
(b)Discharge the Order for weekly afternoon contact to both children;
(c)Discharge the Order for half holiday contact;
(d)Reduce the contact period on Christmas day in 2002;
(e)     Ensure that the children have no contact whatsoever with extended family members of the Father, namely, their uncles DH and PH and their aunt RH;
(f)     Ensure that the children were not left in the care of the paternal grandfather;
(g)     Provide the Mother with sole responsibility for non-emergency medical or dental treatment for the children;
(h)     Provide for other medical matters.
In terms of final Orders, the Mother sought variation of paragraph 4 of the Order of May J made on 5 April 2000 but reserved her position concerning the Orders for contact to be sought by her on a final basis, pending a family Report pursuant to s.62(G) of the Act and otherwise, similar specific issues Orders as referred to above.
At the time of filing that Application, the Mother also caused to be filed a Notice of Child Abuse or of Risk of Child Abuse in Form 66 (filed 28 August 2002) which set out the following particulars of alleged abuse:-
“Between about 10 March 2000 and 15 July 2002 whilst the children [J] … and [K] … have been with the Father… on contact visits, [J] has, from time to time, been hit on the body by his Father and by his Uncles, [DH] and [PH] and by his Aunt, [RH] and by his paternal Grandfather….”
The Order of May J of 5 April 2000 had otherwise provided for the children to live with the Mother; for each party to have sole responsibility for day to day care, welfare and development of the children during any period when the children were living with them; and for the parties to have joint responsibility for decisions concerning the long term care, welfare and development of the children.
The Mother’s application filed 28 August 2002 came before Bell J on 5 September 2002. Although represented at that hearing by his solicitor, the Father had apparently had insufficient time to prepare any material in response. On 5 September, Orders were made by consent, substantially suspending the Orders for contact made on 5 April 2000 and providing for the Father’s contact to be reduced to 4 hours on each Saturday and Sunday each alternate weekend and further, that such contact be supervised by MR J and/or LB. An Order was also made for the appointment of a Court Expert pursuant to the then Order 30A of the Family Law Rules to prepare a Report for the Court. There was also an order for psychiatric assessment of each party. Further, the Father was required under those Orders to ensure the children had no contact with their uncles and aunt and were not left in the care of their paternal grandfather.
When the matter came before Registrar Dittman on 1 October 2002 and again on 20 November 2002, the Report of the Court Expert was not available and the application was ultimately heard on an interim basis on 30 January 2003.
The Court Expert appointed by the parties was Mr A, a Clinical Psychologist. His initial Report was annexed to an affidavit sworn by him on 2 December 2002. Once the parties received that Report, it was agreed between them that the requirement for the Father’s contact to be supervised would be waived. Thus, between 5 September 2002 and mid-December 2002, the Father continued to have contact with the children on a supervised basis in accordance with the orders made on 5 September 2002. The Father’s contact from mid-December 2002 until the hearing on 30 January 2003 was unsupervised but still limited to the times as ordered on 5 September 2002.
Dr D (affidavit filed 29 January 2003) undertook a psychiatric assessment of each party in November 2002.
Following the hearing on 30 January 2003, Registrar Dittman made Orders on 4 February 2003 which, inter alia, restored the Father’s alternate weekend overnight contact and holiday contact.
Following the Orders made by Registrar Dittman on 4 February 2003, a Pre-Trial Conference was scheduled for 6 August 2004 when the matter was listed for a defended hearing for 6 days. In the meantime, a further family Report of the Court appointed expert, Mr A, was filed in March 2004.
On 13 October 2004 the Mother filed a Form 2 Application seeking discharge of the contact Orders made on 4 February 2003, pending investigation of allegations of sexual abuse concerning the child K. In relation to that application, Judicial Registrar Smith made Orders on 21 October 2004 for the children to be represented in these proceedings and on 28 October 2004 Judicial Registrar Smith made further Orders for contact, namely, for alternate weekend contact on the conditions that such contact be supervised and that the Father not be permitted to remain overnight in the same residence as the children. Judicial Registrar Smith also made Orders for December 2004/January 2005 holiday contact prior to this trial.
In her Summary of Argument filed on 2 February 2005, the Mother seeks Orders for the children to reside with her and for the Father to have supervised contact on a reduced basis not precisely specified. She maintains the position that the children should have no contact with extended family members of the Father and otherwise, reiterates the range of specific issues Orders similar to those set out in her Application filed 28 August 2002.
Conversely, taken from his Summary of Argument filed 3 February 2005, the Father seeks an Order for the children to reside with him. He seeks an Order for sole responsibility for the long term care, welfare and development of the children. He contends for what may be described as standard contact Orders for the Mother, save that he proposes that the Mother’s contact be supervised “until the Mother has been treated and/or stabilized for any psychiatric illness for which she may be suffering and in order to satisfy this Honourable Court or the Children’s Representative or the Father that such treatment is effective, the Mother shall provide to this Honourable Court or the Children’s Representative or the Father a certificate or Report from the treating medical practitioner or specialist to this effect.”
The Father suggests that the supervisor be one approved by the Children’s Representative. Relevantly also, the Father seeks to have sole responsibility for liaising with school authorities in relation to the children’s progress and day to day attendance at the school. He also seeks to restrain the Mother from administering prescribed medication to the children or having them assessed by any medical practitioner, specialist or counsellor without obtaining his written consent to do so.
If the Father does not succeed in obtaining a residence Order, he seeks to have contact on an alternate weekly basis from after school Friday until before school Tuesday and in the “other” week from after school Monday until before school Tuesday. Otherwise, he seeks what may be described as standard contact Orders for half school holidays and the like. The Father’s proposals are detailed in his Summary of Argument filed on 3 February 2005.
In summary, it is the Mother’s current position that the Father’s contact should be supervised and occur on a reduced basis. She maintains this position on the basis that the children need protection from their Father primarily because of alleged sexual abuse in respect of the child K. She also maintains that the Father is irresponsible towards attending to the children’s needs and that his inconsistency is a substantive source of distress and anxiety for the children. For his part the Father’s position for seeking a change of residence is primarily on the basis that he maintains that, in effect, this is the only means by which the children will be permitted a relationship with both of their parents.
The trial was heard by me on 7, 8, 10, 11, and 14 to 17 February 2005, 7 March 2005 and 27 April 2005.
Very extensive and detailed written submissions were then prepared by or on behalf of each of the parties. The matter was further listed before me on 27 April 2005 to provide each of the parties with the opportunity to respond to the submissions. I was informed at that hearing that the Mother’s submission had not been prepared by her Counsel, but by her solicitor in consultation with the Mother and in accordance with her specific instructions. Unfortunately, some of the Mother’s submissions proved to be unhelpful, as some of them relied on assertions as to the evidence which had been adduced which, in fact, had not been adduced. Others contained significant factual errors and some were even internally inconsistent.
I have reviewed all of the evidence carefully and have had regard to the detailed submissions. It will be readily apparent from a perusal of these Reasons, that I have relied heavily on those prepared by Counsel for the Children’s Representative. I found his submissions to be extremely helpful. In particular, I found them to be accurate so far as his identification of the actual evidence relevant to the issues in question. Furthermore, many of his submissions as to the treatment of that evidence and any conclusions to be drawn from it, accorded with my own views.
Because of the sheer length and extensive nature of each of the submissions, I have adopted the process of where I have relied on any excerpt from any of the submissions in these Reasons, I have not attempted to attribute them to the author. Nor have I attempted to edit those excerpts in any significant way.

GENERAL PRINCIPLES - CHILDREN

In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act.
In determining applications of this nature, regard must be had to the provisions of Part VII of the Act, including the objects of that Part (s.60B(1)):
‘The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.’
and the principles underlying them (s.60B(2)):

‘The principles underlying these objects are that, except when it is or would be contrary to the child’s best interests:

(a)	children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)	children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c)	parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)	parents should agree about the future parenting of their children.’

Subject to any Orders of this Court, each of the parents of a child has parental responsibility for that child (s61C).
Should parties be unable to agree about matters touching upon the welfare of a child and seek Orders from the Court in relation to that child, the Court must, in determining whether it should make Orders or in determining what Orders should be made, regard the best interests of the child as the paramount consideration (s65E).
Under the provisions of s68F, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case:

‘(a)	any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
(b)	the nature of the relationship of the child with each of the child’s parents and with other persons;
(c)	the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)	either of his or her parents; or
(ii)	any other child, or other person, with whom he or she has been living;
(d)	the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(e)	the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f)	the child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g)	the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i)	being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii)	being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h)	the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(i)	any family violence involving the child or a member of the child’s family;
(j)	any family violence order that applies to the child or a member of the child’s family;
(k)	whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(l)	any other fact or circumstance that the court thinks is relevant.’

BACKGROUND FACTS

The Mother was born in Africa in May 1961 and is currently aged 44 years. The Father was born in Sydney in December 1960 and is currently aged 44 years. The parties met in 1988. At that stage the Mother was married and the parties started a sexual relationship. The Mother divorced her first Husband and the parties married in the United Kingdom in July 1992.
At the time of the marriage, the Mother had an interest in a dentistry practice in the United Kingdom and the Father was a gym instructor. The Mother was employed in the dentistry practice from the time of the marriage in July 1992 until the parties came to Australia in August 1993.
The parties moved to Australia in August 1993 at which time the Mother was 37 weeks pregnant with their first child, J who was born in October 1993. Their second child, K was born in September 1997.
The parties separated in January 1999. At that stage the child J was 5 years and 2 months of age and the child K was aged only 1 year and 3 months.
Prior to their separation, the Father was the income earner from the time of their arrival in Australia up until separation, with the Mother being a fulltime parent. It seems that when the Mother moved out of the then matrimonial home with the children upon separation, the Father provided little or no financial assistance. The Mother rented a house for a short period of time and then purchased her present home. It was necessary for her to return to work to support herself and the children and the Father made little or no financial contribution to the children for a lengthy period post-separation.
Not long after separation in January 1999, the child J started grade 1. It seems that the parties were able to negotiate contact and the Father had daytime contact as well as overnight contact to both children. The child K was cared for by home day care on Tuesdays and Thursdays while the Mother was at work.
The now lengthy history of litigation between the parties commenced upon separation. An Application for final Orders was filed on behalf of the Father on 5 January 1999 when he sought Orders that the children reside with him and that the parents have joint responsibility for the long term care, welfare and development of them. An amended Application for final Orders was filed on his behalf on 10 February 1999 when he sought additional Orders concerning property settlement. The Mother filed a response to the amended Application for final Orders on 11 March 1999. She sought Orders that the children live with her and that she have the sole responsibility for day to day care, welfare and development of them. She also sought Orders pursuant to then s.65(Y) of the Act for the parties to be at liberty to take the children out of Australia for holiday purposes upon notice.
The Mother filed a Form 8 Application on 21 June 1999, asking that the Father forthwith deliver the children to her and that a warrant issue. This was in relation to an assertion by her that the Father was holding the children over and that she was fearful. On 21 June 1999, Jerrard J made the first of the many parenting issues Orders to be made in this Court.
On 19 October 1999 it was ordered by consent that the children have contact with their Father during December 1999 and January 2000 Queensland school holidays from 5.00pm Tuesday 21 December 1999 to 2.00pm Christmas day and from 9.00am Tuesday 28 December 1999 to 5.00pm 30 December 1999. The matter was then set down for trial. Mr E was appointed the Court’s Expert to provide a Report.
The then competing claims proceeded to a 5 day trial in this Court before May J between 6 and 10 March 2000 and Her Honour delivered judgment on 5 April 2000 and made the Orders referred to earlier in these Reasons.
As can be seen from the Reasons for Judgment of May J, at that time the Mother sought for the children to live with her and for the Father to have contact on alternate weekends and from 3.30pm to 6.00pm on alternate Thursdays, being the week that the Father was having no contact, and for one half of the school holidays. For his part, the Father sought Orders that the children live with him and in the alternative, that there be shared care so that the children live with the parents week about (Reasons paragraph 20).
Even at the time of that trial the Mother expressed concern that ever since separation, the child J was having medical problems which might be stress related and some learning difficulties (Reasons paragraph 25). The Mother questioned the capacity of the Father to care for the children regularly (Reasons paragraph 50) and alleged him to be generally unreliable (Reasons paragraph 51). Notably, it was the Mother’s case at that stage that a regime involving frequent movements between households was not appropriate and that the moving between the parents, who were in serious conflict, caused the children difficulty (Reasons paragraph 53).

For his part, the Father maintained a case that the Mother had deliberately attempted to denigrate him in the presence of the children and had failed to include him in counselling for the child J and that the Mother was deliberately attempting to limit his involvement in the children’s lives (Reasons paras. 35 – 38).
Taken from the date of 10 March 2000 particularised on the Mother’s Form 66 Notice filed 28 August 2002, the Mother attributed significant problems with contact, comprising in particular physical abuse of the child J, commencing prior to and continuing beyond the date of those Orders.
Following the Orders made on 5 April 2000, the Mother began seeing Ms B on 26 October 2000 (Ms B Tx 4:30) leading to Ms B beginning to see the children on 21 November 2001 (Ms B Tx 5). It seems clear that whatever may have been the position prior to then, by the time of the Ms B interview with the children on 21 November 2001, the Mother’s position was that the children’s contact with their Father was causally related to anxieties/behaviours in the children (Ms B Tx pp. 8 – 12).
Importantly, that the Mother herself had formed the view that contact with the Father was causally related to the alleged problems with the children, as opposed to such an opinion being formulated by an independent expert and then conveyed to the Mother, is confirmed by paragraphs 13 and 14 of Ms B’s Report dated 21 August 2002 (Ms B Affidavit filed 29 January 2003 ANNEXURE A) which relevantly are as follows:-
“13. [The Mother] presented with the children in November. (2001) She was concerned about learning difficulties manifested by [the child J]. She was of the opinion that his difficulties were compounded by the disruption of mid-week contact and [the Father’s] non-compliance with homework, care and supervision requirements. …
14. [The Mother] was also concerned that the contact regime did not allow for an appropriate attachment and relationship development for [the child K], with her as primary parental attachment figure.”
In light of the events which were to later unfold, as set out in these Reasons, it is of considerable concern to note that the recommendation of Ms B contained in paragraph 15 of her Report was apparently formed at this point (November 2001) well prior to the one and only time on which Ms B saw the Father with the children on 8 July 2002:-
“15. I recommended that she follow-through on the educational management advice and seek legal advice about negotiating contact to better meet the special and educational needs of the children.”
I am satisfied that the Mother had formed the clear view that contact with the Father (rather than the parents’ conflictual relationship) was the cause or aggravating feature of the difficulties which the children were allegedly experiencing and her opinion in this respect was simply reinforced by Ms B.
Ms B referred the Mother and the children to Dr C on 8 April 2002. Her letter of referral is part of ANNEXURE C to the Affidavit of Dr C filed 2 February 2005.
ANNEXURE C to that same Affidavit also contains a hand written letter dated 11 March 2002 from the child J to Ms G, which has also been separately admitted as Exhibit 6 in these proceedings. The Mother admits that this letter is predominantly in her handwriting and says that this was a letter dictated to her by the child J. In this context, the Mother admits in her evidence that throughout the period from separation until her therapy with Dr F took effect (late 2003), she exposed the children to her negativity concerning the Father and her anxieties concerning the children. She also admits that the children were influenced by her views throughout this period. Significantly, this letter is manufactured in the above circumstances shortly before the children are seen for the first time by each of Dr C and Ms H.
I am satisfied that, notwithstanding the content of the letter written on 11 March 2002, Ms G gave the Mother the advice she did on 8 April 2002 as clearly confirmed by Ms G in her oral evidence at trial. (Ms G Tx p. 4, line 25 and Tx p. 7, lines 25 to 40).
Dr C first saw both children on 11 April 2002 and in turn, referred them to Ms H who first saw the children in May 2002.
Ms B produced a Report dated 21 August 2002, in which she expressed her opinion that there were serious risk factors for the children with the then current contact regime and recommended a dramatic reduction in contact “for at least 12 months” (ANNEXURE A to Affidavit of Ms B filed 29 January 2003). As already noted, the Mother then filed her Application on 28 August 2002, resulting in the events outlined in paragraphs 2 to 12 above concerning the Father’s contact for the period between August 2002 and the Orders made on 4 February 2003.
As already noted, for the purpose of the Hearing before Registrar Dittman leading to the Orders of 4 February 2003, the Court appointed expert, Mr A provided his first Report recommending that the children remain in the residential care of the Mother but have regular unsupervised contact with the Father (Affidavit filed 6 January 2003). At paragraph 155 and 156 of that Report, Mr A made observations as to the Mother’s lack of insight as to the extent of the impact of her attitudes upon the children and recommended that both parents seek ongoing, individual psychotherapy (Recommendation No. 9).
The Mother commenced counselling with Dr F, Psychiatrist, in March 2003. In this respect, it is to be noted that the Mother related to Mr A in his second Report (Affidavit filed 12 March 2004 – paragraph 52) an expression of amazement that she had believed that she did not have much influence on her children and “now did not believe this”. The Mother’s oral evidence at trial was to the effect that the therapy was successful in the Mother ceasing her denigration of the Father to and in the presence of the children and ceasing her “influence” upon the children in this respect.
Whilst Dr F did not give evidence in the proceedings because of the need to preserve the therapeutic relationship between the Mother and Dr F, Dr I, Psychiatrist, refers in her evidence (Affidavit filed 2 February 2005) to the therapy and the Mother’s response to such therapy. Dr I’s Report (p. 6) records the Mother Reporting to Dr I that until the Mother read Mr A’s Report, she had not been aware of the degree to which her negativity towards the Father was adversely impacting upon the children and she related that this “had been the principle focus of change for her in the past 12 months”.
It is clear from her evidence (and indeed in the way she gave her evidence) that she is filled with absolute loathing of the Father. When shown her affidavit in cross-examination and asked to point to one positive comment about the Father she could not find none.
Whilst it is clear that the Father denigrated the Mother in the presence of the children, I accept Mrs P’s evidence in this regard. I am satisfied that this was not a course of conduct which he generally adopted. It was not an issue pursued by Counsel for the Mother in cross-examination and whilst tested in the Report of Mr A he could find nothing to corroborate alienation. Mr A maintained this position in both Reports. (see paragraph 130 of first Report -“ I could find no evidence that would suggest the Father had significantly encouraged a negative view of the Mother in the children” and paragraph 224 of second Report-“ I could find no evidence that would suggest the Father had significantly encouraged a negative view of the Mother in the children since in Report one”).
In February and March 2004 Mr A undertook the interviews for his second Report and the Mother maintained her position that contact should be significantly reduced (Affidavit filed 12 March 2004).
As is evident from Mr A’s second Report (Affidavit filed 12 March 2004), the Court Expert did not endorse the Mother’s proposed reduction of contact and indeed, Mr A’s Report canvasses the prospect of a change of residence to the Father.
In this Report, Mr A recommended that the children be monitored in regard with their psychological functioning through their regular or periodic involvement in psychotherapy with a reputable and experienced child psychiatrist or child psychologist (Recommendation c). Registrar Dittman did not make such an Order.
In April 2004 the Mother commenced counselling for the child K with Ms L. The Mother purports to rely on Mr A’s recommendation for the involvement of Ms L notwithstanding Mr A’s specific recommendation as to the qualification of the person and that the recommendation contemplated an Order and that the involvement of either or both parents would be a matter for the expert (see Exhibit 23 – entry “April 2004”).
By September 2004, the child K was being taken by her Mother to appointments with both Ms L and Ms H. In September/October 2004, the allegations of sexual abuse arise. As these allegations loom large in the proceedings, they will be addressed separately in these Reasons.

APPROACH TO SEXUAL ABUSE ALLEGATIONS/PRINCIPLES TO BE APPLIED

Resolution of allegations of sexual abuse against a parent is ancillary to the Court’s determination of what is in the best interests of the children.
As part of the exercise of determining what orders should be made, in a case such as this, the Court must examine the nature of the allegations of child abuse and the evidence supporting those allegations. In some cases, it may be appropriate to make a positive finding on the question of abuse. However, as was observed by the Full Court in B -v- B (1988) FLC 91-957 it is not the role of Trial Judges to hear such cases as criminal trials designed to establish the guilt or innocence of a party and it would be entirely inappropriate to proceed on the basis that contact is the reward for an acquittal and a denial of contact the punishment for a conviction. At page 76,923 of the judgment of Baker and Maxwell JJ, the following observation appears:
“In the course of the hearing of a custody or access application, the court may make one of the following findings in relation to an allegation of child abuse:
(a)that the allegation is proved; or
(b)the allegation is not proved ; or
(c)there is insufficient evidence to determine either (a) or (b).
Any such finding, however, may not necessarily be the determinant factor in the ultimate decision.
The issue for the court, in our view, is not whether a parent has sexually abused a child but whether in all of the circumstances of the case access should or should not take place, following a consideration and an evaluation of the various matters referred to in s.64(1), including any findings in relation to child sexual abuse, with the overriding principle being the paramountcy of the welfare of the child.”
The High Court considered the duty of the Family Court when deliberating upon cases of sexual abuse in M -v- M (1988) FLC 91-979 and B and B (1988) FLC 91-978. In those decisions the Court expressed the view that there are compelling reasons which should persuade a Trial Judge to refrain from making positive findings of sexual abuse unless impelled to do so. Further, the Court confirmed the principle that such a positive finding should not be made unless the Court could be satisfied according to the civil standard of proof as prescribed in Briginshaw -v- Briginshaw (1938) 60 CLR 336 at 362. (See also G -v- M (1995) FLC 92-641 and WK -v- SR (1997) FLC 92-787).
The effect of the High Court judgments is to remind the Trial Judge that he or she should not become distracted in cases of child abuse from the wider issue of determining what is in the best interests of the child.
Some of the principles governing the approach to cases involving allegations of sex abuse have been restated recently by the Full Court in ReW (Sex Abuse: Standard of Proof) [2004] Fam. CA 768.
It is submitted that if a Trial Judge elects to proceed to consider making the findings discussed by the Full Court in B -v- B (supra) a finding that the allegation is proved is likely to be decisive in all but the most exceptional cases. However, any other finding including a finding that the allegation is not proved, requires the Trial Judge to then turn to consider whether or not unsupervised contact or supervised contact poses an unacceptable risk of, not only sexual abuse, but of emotional or psychological harm.

CONCLUSION RE: SEXUAL ABUSE ALLEGATIONS

I have carefully reviewed all of the evidence pertaining to this issue. I am satisfied that the child K has not made any disclosures which could reasonably be concluded to be genuine disclosures of sexual abuse being perpetrated upon her by the Father. Accordingly, on the totality of the evidence, I am not satisfied that the allegations of sexual abuse of K have been proved.
My Reasons for these findings include the following:-
(a)     The evidence contained in the Crime Report (Exhibit 2); the Department of Child Safety records (Exhibit 19), the oral evidence of Ms N and the oral evidence of Detective O, all of which points to any statements by the child K being the product of pressure upon her to make negative statements about her Father rather than being genuine disclosures of abuse;
(b)    K’s presentation when out of the care and control of her Mother including when in the care of her Father;
(c)     The fact that K has never made a direct disclosure of alleged sexual abuse to any person other than the Mother;
(d)    the flawed processes adopted by Ms L, K’s counsellor, and Ms H in their methods of “interviewing” K;
(e)     The fact that Exhibit 4 as elaborated upon by K in the tape recorded recitation by Ms L on 13 October represents the “high point” of any disclosures;
(f)     The feature that once peripheral detail is explored with K, the disclosures “evaporate” as genuine disclosures of abuse;
(g)     Her failure to make any disclosure directly to Dr C despite the extraordinary pressure he placed upon such a young girl;
(h)     The Father’s adamant denials of anything untoward;
(i)      The conclusions reached by both the Officers of the Department of Child Safety and the Officers of the Queensland Police Service who were able to conclude that there was nothing of substance in K’s disclosures notwithstanding K’s involvement in the numerous interventions by Ms L and others at the instigation of the Mother during the critical investigative phase.

THE MOTHER’S EVIDENCE

Because the Mother’s own evidence is of central importance to the resolution of these questions, her credibility as a witness needs to be carefully considered.
The Mother presented as highly intelligent and well-educated. However, I accept Counsel for the Children’s Representative submissions that although the Mother was clearly intelligent and articulate, she was also evasive and unconvincing on many central issues and ultimately proved to be a witness upon whom little reliance could be placed. I have also accepted Counsel for the Mother’s submissions, as well as Counsel for the Father’s, that the following matters support that conclusion:-
(a)     On the critical issue of disclosures of alleged sexual abuse, the Mother could offer no rational explanation for the fact that the content of her diary note for 2 October 2004 (Exhibit 7), which on any view, is a critical and vital piece of evidence, does not appear in her Affidavit which she confirmed was prepared by her by reference to her diary notes;
(b)    The Mother was adamant in her denials that as at 8 April 2002 she wished to re-visit the issue of contact with Ms G or that Ms G suggested the strategy of gently challenging the children as to their conflicting presentations, yet Ms G has contemporaneous notes to this effect and gave unequivocal oral evidence to confirm her records. I have no hesitation in accepting Ms G’s evidence in respect of this issue;
(c)     The Mother alleges that she did not terminate the services of Ms G in April 2002 and indeed did not see Ms G at that time. She then conceded that she may have. She denied that she saw Ms G for the purpose of raising or indeed that she did raise, the issue of reduced contact to the Father. The Mother further denied that:
(i)Ms G offered her any strategy for coping with the children’s distress; and
(ii)That she, the Mother, was not prepared to accept the advice offered.

(d) The notes of Ms G were put to the Mother. Ms G noted:
“session with [the Mother] 8.4.02. [The Mother] stated that she was wanting to revisit the issue of contact and perhaps consider decreasing contact time due to the children’s suffering. Impression: [the Mother] keen for me to support her against [the Father] as she feels this would be the most beneficial for [the child J] in particular. Told me she has taken the kids to Ms [RP] who stated the children were stressed......spoke to [the Mother] about possibility of gently challenging the children about the conflicting presentation ie that they were apparently negative and difficult about [the Father] (to her) yet when they were with him they were contented and happy”.

Having suggested alternative strategies the notes record:
“[The Mother] advised that she was unwilling to put the children through this. She said that they have been put “through enough”.

(e)     The Mother was taken step by step through these allegations and made very specific denials of each allegation. Those notes were subsequently adopted by Ms G as an accurate record. Ms G’s very clear recollection of the evidence contradicted the Mother. Ms G was an impressive witness with no interest in the outcome. I accept Ms G’s evidence in respect of this issue. Given that the Mother was also consulting Ms B at this time, in my view it is not unreasonable to conclude that the Mother is likely to have visited Ms G on this occasion to garner support for a fresh application to reduce contact.
(f)     The 8th April 2002 (being the date of the attendance on Ms G) coincided with the period of the attendances upon Ms B and intensive therapy thereafter. Despite the Mother’s advice to Ms G that she was not willing to put the children through the strategies recommended by her, the Mother proceeded to involve the children in the intensive counselling which predated the preparation of the Report by Ms B and the Application to the Court to suspend contact.
(g)     The Mother gave evidence that both children fear the Father. She said that the child J has been fearful of his Father ever since separation. It was her view at one point in her oral evidence that all of J’s problems are attributable to his fear of his Father. However, the Mother’s assertions in this regard are inconsistent with the Mother’s own diary note of 30 October 2004 which records J’s anger at his contact to his Father being supervised; nor does it accord with the Mother’s history to Dr D taken in November 2002; nor the history the Mother gave Dr I; nor the history obtained by Mr A. The Mother attempted to suggest that she informed Mr A of the child J’s fears but he simply did not record it in his first Report. Even the Mother’s own witness, Ms H whilst supplied with a history very negative to the Father, received no information from J that he was scared of his Father (Ms H Tx p. 4, lines 30 to 40);
(h)     The Mother in oral evidence consistently attempted to downplay her level of animosity towards and loathing for the Father. However, upon testing of her evidence, it was readily apparent that the Mother was being less than truthful about her true feelings. For example, she denied ever referring to the Father as “the abuser” but was compelled to concede the term was contained in her diary note of 29 November 2004. As a further example, the Mother denied that she said to Mrs P what is recorded in paragraph 91 of Mr A’s second Report as follows:-
“I don’t know how to protect my children from this evil man” and
“I was at therapy and we were talking about abusive, manipulative, evil men like [the Father] and I don’t know how to protect my children from his evil and I don’t want [the child J] to turn out like [the Father].”

Mrs P who was subpoenaed to give evidence and had a clear and specific recollection concerning the accuracy of the above. Again, I had no hesitation in accepting Mrs P’s evidence in respect of this issue;
(i) The Mother’s evidence concerning her own level of “belief” as to whether the child K has actually been the victim of sexual abuse perpetrated by the Father provides a good illustration of the Mother’s capacity to be evasive and contradictory. Her statements about her own level of belief include the following contradictory statements:-
“I don’t have a view on whether [the child K] is at risk. I have a view on her disclosures.”
“[K] believes that she is at risk of sexual abuse.”
“If there is no supervision then I believe that there is a risk of physical abuse to both children and there is a risk of sexual abuse to [K]”.
“I believe that [K] has disclosed sexual abuse”.

Later in cross-examination, the Mother confirmed she did not know whether or not the Father had sexually abused the child K but rejected the possibility that K was just saying these things to please her because of her own anxieties on the basis that both Ms H and Ms L, K’s counsellors, “believe that [K] is truly saying it as well”;
(j)     The Mother identified others who have had disclosures made to them by K as being Ms W-B, Mr DH, Ms L and Ms H but in the same context said she did not have a view regarding the abuse (i.e. a view that the allegations are true);
(k)    The Mother has asserted that Ms W-B obtained a direct disclosure of sexual abuse from the child K but Ms W-B was convincing in her denial of this and I accept her evidence in this regard. In this context it is to be noted that the Mother alleges that Ms W-B was not telling the truth regarding comments attributed by the Mother to Ms W-B to the effect that Ms W-B regretted becoming involved and would not notify the Department of Child Safety if another child made sexual abuse disclosures. Again, Ms W-B gave convincing evidence to the contrary. In this context it is also to be noted that the Mother asserts that school personnel are “prepared to lie” on the basis of legal advice in relation to conversations that the Mother has had with various school personnel;
(l)      I am satisfied that the Mother was aware that Ms W-B had accused her of completely fabricating stories that the Mother had relayed to the Department of Child Services (“DoCS”) and indeed had sought legal advice in respect of the Mother’s actions. Furthermore, she denied, despite what the Mother had represented, that she had ever said that she would not meet the Father as he had “threatened” her;
(m)   The Mother’s evidence was that the relationship with the children’s teachers was “good”. She knew this not to be the case when she gave this evidence. She qualified this assertion later in cross-examination to indicate that the relationship was not as good in recent times. The truth was that even this was a gross understatement of the current state of the relationship the Mother had with the teachers.
(n)     I am satisfied that the Mother was aware that the teachers had refused to hold discussions with her without a witness being present, and that she had threatened the principal with media exposure for his apparent lack of action in respect of the abuse allegations.
(o)    In her oral evidence at trial, the Mother confirmed that she has never told anyone about the child K’s disclosure to her on 2 October 2004 as recorded in her diary note for that date (Exhibit 7). Yet, in the letter dated 3 March 2005 from the Mother’s solicitor to the Children’s Representative, which is Exhibit 23, there is the assertion that in fact the Mother did advise K’s counsellor, Ms L, of this. Ms L could not recall being so informed (Tx Ms L p.57:25);
(p)    The Mother’s evidence about her inability to have K leave the home on 8 October 2004 for the interview with the relevant authorities is highly improbable and incredible. On the Mother’s evidence, K did not know she was attending for an interview. On the Mother’s own evidence, the Mother had not had difficulty having K leave the home in the preceding school holiday period. Even though the Mother apparently told K that she would not have to go to school that day, the Mother suggested she could not even convince K to go for a drive. Yet the Crime Report, which is Exhibit 2 in these proceedings, describes a happy and relaxed child watching television when the authorities arrived at the Mother’s residence. Moreover, the Mother had no apparent difficulty in taking K to see Ms L on 4 October; Dr Q on 5 October and Ms L again on 7 October 2004. K’s presentation to Ms N and Detective O on the morning of 8 October 2004 as recorded in the Crime Report is entirely inconsistent with the Mother’s version that K would not leave the home, was distressed and was holding onto the furniture so that she could not be moved from the residence etc;
(q)    Cross-examined about the incident involving the Mother finding 3 dead birds on 27 September 2004, the Mother was forced to admit that what she asserted to the Magistrates Court in her Domestic Violence Order Application was false;
(r)     The Mother denied that she returned to see Ms B in late 2000 for, in part, a reduction of the children’s contact with the Father. However, given the evidence already outlined above in paragraphs 43 and 44, it is plain that that was, in fact, the Mother’s purpose, at least in part;
(s)     Notwithstanding her admissions that her negativity concerning the Father and her anxieties concerning his contact had influenced the children over the period from separation until the therapy with her therapist, Dr F, took effect, the Mother was adamant in her oral evidence at trial, that it was not emotionally harmful for the child J for her to take the role which she did in producing the letter which is Exhibit 5. The Mother suggested she would do it again and suggested she could see nothing wrong with this. That is, with the benefit of hindsight and Dr F’s therapy the Mother could not see any problem with the role she took in that letter being produced. Contrast this with her assertion that Mrs J had “coached” the child J and her readiness to assert that such alleged coaching of J constituted emotional abuse (see Exhibit 19 – Mother’s letter to SF, R area office dated 6 December 2004);
(t)     The Mother asserted that her proposals for supervised contact simply reflected the wishes of both children. Yet her own diary note of 30 October 2004 (Exhibit 7) records, as the Mother conceded in cross-examination, the child J’s anger that his contact with his Father was supervised;
(u)     The Mother’s proposals for supervision extended to supervision of contact with any family members of the Father. Her assertions as to the need for such supervision were unconvincing;
(v)     The Mother was unprepared to accept that the children demonstrated a happy, rewarding and close relationship with the Father when in his care. This evidence conflicts with that of Ms G as well as other persons who have had the opportunity to see the children with the Father. The Mother attempted to portray Ms N’s observations of a contact changeover, in circumstances where the Father and the children were unaware of her presence, as an isolated event and unrepresentative of the children’s usual response to their Father;
(w)   The Mother was likewise dismissive of information contained in school records and from school personnel to the effect that the children’s presentation at school is inconsistent with the Mother’s description of the children when in her care;
(x)     The Mother asserted that the Father’s dysfunction included the child J attending school late on many occasions. However, when taken to Mr A’s first Report (paragraph 66) detailing the information provided by Mr R, the Mother “disagreed absolutely” regarding whether it was an issue for the school regarding J’s lateness;
(y)     The Mother’s own evidence is that on 18 October 2004, Dr C made the following statements to the child K:
·Tell the truth.
·People don’t believe Mum if you don’t tell.
·Some men say they’ll kill little girls when they have sex with them, and those little girls don’t get killed because they tell.
·You have to tell otherwise adults cannot help you. It is adults’ responsibility to help, they can’t if you don’t tell.
·Dad probably won’t go to prison, but even if he does, it is his responsibility and not yours.

The Mother denied any suggestion that K was put under any pressure by Dr C by the making of such statements.
(z)     She attempted to attribute statements to witnesses which they denied making. In addition to the children’s teachers, as set out above, she attributed statements to Detective O in order to lend credence to her sexual abuse allegations. It was put directly to Detective O in cross-examination by Counsel for the Mother that the Mother was told by him during the course of the initial interviews on the 8^th October that “it sounds like he (the Father) has been grooming her”. When specifically put it was denied by Detective O. He was further challenged as the Mother insisted that this was said. Detective O was both adamant and convincing and responded with “I don’t use the word grooming… I can tell you with absolute certainty that I did not use the word grooming”. Again, I accept Detective O’s evidence in respect of this issue.
(aa)     The Mother went to great lengths to rely on the entries in her diaries to substantiate important events and allegations. On the first day of the Trial (and prior to her being requested to produce her diaries), she gave evidence that those matters would be listed in her diaries. Her diaries were called for. She indicated her preparedness to produce them on the following day. She at no stage indicated that the diaries had been destroyed or that diary notes taken from additional sources had been destroyed. On the second day of the trial the Mother asserted for the first time that she had a policy of destroying diaries at the end of each year. If this was true the policy would have been something she would have known about on the previous day when she agreed to produce them;
(bb)    The non-production of the diaries and the journals of the child J (which were continually asked for and not produced) is an important issue which impacts on the Mother’s credit. She initially gave evidence that they would be produced (never asserting that they did not exist). When the challenge for production was made the Mother was specifically made aware that those diaries would be scrutinised for corroboration of her evidence that the children had said they were “scared” of the Father’s Mother. She failed to produce either book.
(cc)     Whilst the Mother has compiled copious notes and produced some documents, it is apparent that the production of some of them appeared to be selective. An example of this is seen from an examination of Exhibit 5 (a letter written by J). This contains a reference to a four page letter which J had written. The Mother has not produced that letter. She provided no explanation for that omission when questioned.
(dd)    The Mother said she recorded important events, comments and matters in her diary. She further said she used that diary to assist her in the preparation of her affidavits in these proceedings. She tried to dismiss gaps or omissions in her notes and evidence by saying that at the time events happened she was, “very tired, very confused and very stressed”. This is the explanation for instance for the omission in her diary of the important disclosure made to her that the Father had “tickled ([K]) on the inside of the thighs”.
(ee)     The Mother’s attempts to use documents of questionable origin to assist her case was relied upon by the Counsel for the Father to challenge her credibility. I accept his submission that this course of conduct demonstrated the lengths to which the Mother was prepared to go to garner evidence. Examples of this approach by the Mother include the following:
(i)Exhibit 3. This letter (or note) was produced to demonstrate the level of the child K’s fear of the Father. The Mother was able to interpret the letter and link it to contact with the Father as she had been careful to make a contemporaneous marking on that note to show it was made during contact on 14^th October 2004. Her note reads “14/10/04 on return from contact”. Contact, as the Mother later conceded, was not taking place at this time and the Father had not had contact since 25^th September 2004. Accordingly, I am satisfied that the Mother fabricated this evidence;
(ii)Exhibit 4 was also of questionable origin as the Principal Mr DH noted how unusual it was for a Grade 1 student to have the capacity to prepare such a letter. The Department of Child Safety notes reveal that Mr DH was noted as advising them that he was “amazed at the maturity of the letter and felt that it may have been dictated“.
(iii)Exhibit 5. She conceded she played a role in encouraging the production of the letter the child J wrote to Dr C and Ms H - she was not accepting of the proposition that this constituted manipulation. She clearly had no insight into the impact which such conduct would have upon J.

Relevant to assessing the Mother’s credibility as a witness is the persistent theme throughout the Mother’s Affidavit and oral evidence that the Mother relies upon, and responds to, professional advice. Indeed, the Mother asserts that her proposals for reduced and supervised contact are formulated in reliance upon the views of Ms B, Ms L, Ms H and Dr C. She rejected the proposition of Mr A, the Court appointed expert, and Mr S that supervision gives the wrong message to children and asserts that Ms B, Ms L, Ms H and Dr C have seen the children more often. I accept Counsel for the Children’s Representative’s submission that an objective analysis of the evidence as a whole leads to the following conclusions concerning the Mother’s approach:-
(a) The Mother had been well aware, at least since May J delivered her Reasons for Judgment on 5 April 2000 (see paragraph 26) that there are limitations to the weight a Court can give to any expert opinion in circumstances where that expert does not obtain the complete picture or balance provided by interviews and observations of both parties with the children. That was reiterated in the Reasons for Judgment delivered by Registrar Dittman at the interim stage on 4 February 2003. At pp. 7 to 10 of those Reasons, the Registrar analysed the expert evidence then available and noted:-
“In terms of the weight that should be given at this interim hearing to the different expert opinions, taking into account the history of Ms [RP’s] involvement with this family, particularly the somewhat belated timing of the approaches to involve the Father, I conclude that there must be questions concerning Ms [RP’s] lack of neutrality in terms of the role as an expert witness. On this issue I find the comment and opinion of Mr [P] worthy of significant weight. Even without this aspect, it is clear on the evidence that the Court Expert Report of Mr [W] has been prepared following much greater balance in terms of the consultation process compared with the Report of Ms [RP], which I consider can accurately be described as “a one sided Report”. The Court has frequently commented on the limited weight that should be afforded Reports prepared in such a way.”
(b) The Mother dismisses or rejects professional opinions (such as Ms G and Mr A) that do not accord with her desire to establish that the Father’s dysfunction is the reason for the difficulties which the children are experiencing even when those professionals have had the obvious advantage and balance provided by the Father’s involvement in the process. Conversely, the Mother embraces the views of professionals who have relied exclusively on a history provided by her or by the children when solely in the Mother’s care (Ms B, Ms H, Ms L and Dr C). It bears repeating that the histories relied upon by those persons were incomplete in the sense that the Mother did not tell any of them of her admission to the effect that she exposed the children to her own negativity concerning the Father and her anxieties concerning his contact over an extensive period from separation until the therapy with Dr F took effect by her own account sometime in mid 2003.
A striking illustration of the Mother’s dismissal of any evidence which does not suit her purposes was provided by the evidence of Detective O. Detective O presented as a conscientious and experienced police officer involved in the investigation of alleged child sexual abuse. His usual experience of the response of a concerned carer when that carer is informed to the effect that a child is not disclosing what might have been thought to have been sinister, is one of relief. Detective O noted the Mother’s response to be quite to the contrary. Detective O was aware that the Mother wanted an outcome that the child K disclosed allegations adverse to her Father. She agitated for that to be the outcome of the investigation through a campaign of extensive correspondence and complaint.
As I have outlined earlier in these Reasons, I accept Counsel for the Children’s Representative’s submission that the evidence which demonstrates that the Mother is unreliable as a witness in respect of the allegations of sexual abuse, and which demonstrates that there is simply no substance to the allegations, is that provided by the Crime Report (Exhibit 2); the records of the Department of Child Safety (Exhibit 19) and the evidence of Ms N and Detective O. A review of that evidence demonstrates that it was a simple matter for each relevant investigating officer to explore peripheral detail with K which demonstrated that she was not in truth relaying allegations of sexual abuse but, rather, was making negative statements about her Father, which lacked substance. It is inconceivable that the Mother could not have similarly tested K if she had a “neutral” role in the statements being made.
In a similar vein, Counsel for the Children’s Representative sought a finding that, in truth, the Mother does not believe that K has disclosed actual sexual abuse. In support of his submission, Counsel for the Children’s Representative relied upon the Mother’s own equivocal statements as to her “belief” as noted above and upon the evidence of Dr I who assessed the Mother to have a very obsessional personality (not amounting to a psychiatric disorder) and who gave evidence that in those circumstances the Mother’s expression of acceptance of a decision adverse to her proposals indicated a “low level” of “belief” (Ms S Tx pp. 10 – 11 particularly at p. 11, line 10). Reference is also made to the Mother’s diary note of 29 November which does not include reference to sexual abuse (Exhibit 7).
A careful analysis of the chronology of relevant events (Exhibit 22) indicates that the Mother has been determined to limit the contact of the children since mid 2002. In August 2002 the Mother sought reduced and supervised contact on the basis of allegations of physical abuse by the Father and his extended family members concerning the child J. That led to reduced/supervised contact for the Father until the Orders of Registrar Dittman on 4 February 2003. Those Orders were made with the benefit of Mr A’s first Report which clearly did not support supervised/reduced contact.
Even in February 2004 when she was interviewed by Dr I, it remained the Mother’s desire to significantly reduce contact and eliminate overnight contact (Report of Dr I).
By March 2004 Mr A’s second Report became available which did not recommend reduced contact. By August 2004 the matter was proceeding to trial. Given the contents of the Court Expert Report of Mr A in March 2004, the Mother was obviously confronted with not only the prospect that she would not achieve a reduction of the Father’s contact but, perhaps for the first time, the very real prospect that parental alienation would be an issue which may contribute to a change in the children’s residence to the Father. The following observations may be made so far as the Chronology is concerned:-
(a)     Notwithstanding the adverse comments made by this Court on two previous occasions as to this course, the Mother persisted in involving Ms H, Ms L and Dr C without ensuring the involvement of the Father;
(b)    The Mother filed her Form 2 Application seeking discharge of the contact Orders on 13 October 2004. However, the Application is dated and signed 7 October 2004 which is significant given Dr C’s evidence. His evidence was to the effect that he caused his secretary to tell the Mother to contact the Department of Child Safety and that the Department should assess the allegations (Dr C Tx p. 40). It follows that the Mother must have been told on or before 7 October that the Department was the appropriate investigative body. This follows Ms L having notified the Department on 4 October 2004. Notwithstanding this, the Mother took the child K to see Ms L again on 7 October 2004. After the interviews with the Department of Child Safety and Detective O on 8 October 2004, the Mother does not take any steps to limit K’s contact with Ms L. K then prepares the 12 point letter (with the Mother’s encouragement) and takes it school on 13 October 2004 and to a further interview with Ms L later that day when the recording of her reading the letter is made (Exhibit 4);
(c)     As the Chronology indicates, on the evidence of Ms N, a further appointment was made at some point prior to 18 October 2004 for there to be a further interview by Ms N on 20 October 2004. Notwithstanding that such interview was then imminent, the child K was distressed and refusing to speak on the telephone to Ms L on 18 October 2004 but was taken by the Mother on that date to see Dr C when the distressing statements are allegedly made by Dr C to K. On that day K is prescribed Zoloft. Thus, the happy and cheerful K, as observed by the relevant authorities on 8 October 2004 and as she presents on the recording on 13 October 2004 by Ms L progresses to the distressed child who by 18 October is refusing to speak to Ms L even on the telephone and who is then assessed by Dr C as requiring Zoloft.

As part of the Mother’s case concerning the allegations of sexual abuse, the Mother contends that both children are in fear of the Father. In her oral evidence the Mother expressed her belief that the children are “controlled” by their fear of the Father and she identifies this as the reason that the Father does not have the same difficulties as the Mother with respect to behaviours of the children. Leaving aside the Father’s own evidence (which is to the effect that the children did not exhibit any fear of him), there is a body of evidence which demonstrates the unlikelihood of the Mother’s contentions. This evidence includes the following:-
(a)     The evidence of Mr J and Mrs J as to their observations of the relationship between the Father and the children. Both of these witnesses were cross-examined. Ms LB, in particular, was an articulate and convincing witness;
(b)    The evidence of Dr I, Psychiatrist, who was called as a witness in the Mother’s case. Dr I confirmed in her evidence that she was not given a history by the Mother to the effect that the children fear their Father (Dr I Tx p. 9, line 20). Perhaps of more significance is the evidence of Dr I to the effect that the Mother would cope with a change in residence as earlier referred to. It seems incomprehensible that the Mother, having a very obsessional personality, would be able to contemplate a change in residence in the manner described by Dr I if she truly believed that her children lived in, or were controlled by, their fear of their Father;
(c)     Nothing in the evidence from the schools or via school personnel (Mr DH, the Principal; Ms W-B; Mrs P) corroborates in any way that these children, who both function adequately at school, live in fear of their Father;
(d)    Whilst Ms G and the Court-appointed expert, Mr A, last saw the children prior to the date of the sexual abuse allegations arising, they were involved extensively with the children at times when the Mother suggests that the children were in fear of their Father. Nothing in their evidence corroborates the Mother’s contentions and to the contrary, both made observations confirming a happy, rewarding and close relationship between the children and their Father. Of significance here is paragraph 159 of Mr A’s first Report. It will be recalled that the Mother gave evidence to the effect that because the children fear their Father, they behave when they are with him. Ms B made similar assertions (Ms B Tx p. 9, line 45). Likewise, Ms H gave the following evidence (at Tx p. 27, line 10):-
“Q: An important mechanism for testing, for example, [the child K] saying something very negative about her Father would be to see how is [K] when she’s in the presence of her Father? Does this child exhibit fear if that’s what she’s just told me in an interview? That’s an important mechanism, isn’t it?
A: Yes, but you also find that when they’re in the presence of the person that they do fear often they are very well behaved because that’s what they need to be. So you can’t assume that either. In fact, with the person they’re most comfortable with often they are the more challenging and the more difficult with that person and the children are very challenging with [the Mother] at times, very confronting with her.”
In paragraph 159 of his Report, Mr A noted:-
“The children were far more active, excitable, talkative, playful, competitive, testing of the rules and boundaries and defiant with their Father.”
(e)     As appears from Exhibit 2 and Exhibit 19, officers of the Department of Child Safety and Detective O found no evidence to suggest that the child K was fearful of her Father. Moreover, Ms N gave specific oral evidence at trial of her observations of a contact changeover as recorded in the records to the effect that neither child displayed any fear whatsoever of their Father in that interaction.
Despite having all these matters put to her however, the Mother would not finally recant and accept that fear of the Father was not only not alleged but was not an issue. When it was put that, “can’t we forget that the fear of the Father causes this (the stomach aches)?”. The Mother responded by saying, “no, I can only go by what I see and pick up….I have to go with what I see at home and the advice I get”.
The Mother could not accept that the child J could have been truthfully withdrawing his allegation in respect of being locked in the cupboard by his uncle when he spoke to Mr A. He also denied that his bird had been killed by his uncle and believed that he had, “flown from its cage”. The Mother preferred to accept the view that J was not being truthful in this regard as he had told Ms G something different. She attributed this denial again to fear of the Father and knowledge by J that, “the Father was there or involved in the interview process”. There was no attempt by her to accept any scenario, other than one adverse to the Father.
The Mother’s evidence has to be considered in the light of her diary entries and in particular her diary entry of 26 November 2004. On that day she referred to the children’s fear of “the abuser”. Further, she agreed that she had written to the R Family Service Department on 6 December 2004 and stated, “it is documented that children often seek approval from an abusive parent as the children feel that they have done something wrong in causing that parent to be abusive in the first place”.
Her diary entries make it quite clear that she only weeks ago was convinced of the strongly held view that “the Father will expose the children to ongoing psychological and emotional abuse”. She remains firmly of the view, as stated to the R office of the Department that, “I have also been advised that my children may well make further disclosures with regard to the contact with their Father as they mature and continue with their regular counselling with trusted professionals”.
Given the unreliability of the Mother as a witness, it is necessary to consider the evidence of the other witnesses called in the Mother’s case relevant to this topic.

Ms L

Other than the Mother, Ms L is the only witness in this case purporting to have received from the child K a direct disclosure of anything that could be characterized as an allegation of sexual abuse. For that reason, her evidence is of potential significance.
It became abundantly clear during the course of her cross-examination that Ms L is not qualified by any formal qualification, training or experience to provide any expert opinion (within the meaning of Section 79 of the Commonwealth Evidence Act 1995) to assist this Court in its forensic endeavour to determine appropriate findings concerning the allegations of sexual abuse or indeed, the parenting Orders which are in the best interests of the children.
A review of Ms L’s curriculum vitae (Exhibit 8) discloses that aside from certificates and diplomas in counselling, Ms L holds a Bachelor of Arts degree majoring in Linguistics and Psychology. It could hardly be suggested that these qualifications of themselves equip Ms L with the relevant expertise to provide expert opinion on the complex issues in this case, including alleged sexual abuse.
Ms L confirmed that she is not registered to practise as a psychologist in Queensland; she does not answer to any Medical Board or Psychology Board; and she is not a member of any Psychological Association. She practises as a counsellor (Ms L Tx p. 43).
Ms L does herself no credit in adopting the title “Doctor” on the basis of a so-called “Doctor of Philosophy” received from the entity or source entitled (misleadingly) “[K] University”.
It transpired from her own evidence that she has a PhD from a university in Denmark where the qualifications obtained by her (in linguistics) are not even recognised in that country;
Ms L did further irreparable damage to her own credit in professing ignorance as to the status of “[K] University” or its “degrees” (Ms L Tx pp. 41 – 42). Ms L would have this Court believe that she has “never looked into” the status of this claimed qualification in Queensland (Ms L Tx p. 42:45) and when challenged, gave ludicrous evidence about spending 9 years at Griffith University working on her Ph.D.
Aside from a lack of relevant formal qualifications, Ms L had no relevant training or experience to provide her with relevant expertise. After obtaining certificates/diplomas in counselling/counselling skills, Ms L spent no more than 2 years in a hospital rheumatology department undertaking counselling (between 1994 – 1996) and then as a counsellor in private practice (Ms L Tx p. 43).
Ms L has never before been a witness in Court and on only one previous occasion has written a Report for Court purposes (Ms L Tx p. 14:40 – 45).
I am satisfied that none of the opinions expressed by Ms L in her Report (Exhibit 9) or in her oral evidence can be relied upon as opinion evidence from an appropriately qualified expert. Ms L is thus to be treated as any other lay witness as a witness of fact. However, her credit generally must be seriously in doubt for the foregoing reasons.
Ms L’s lack of relevant expertise; her presentation as an advocate for the Mother rather than as an independent or objective observer; and the danger of placing any reliance upon her evidence is highlighted (apart from the foregoing) by the following features:-
(a)     Ms L’s ignorance of the true history that over the years from separation until at least late 2003, these children were influenced by their Mother’s anxieties and negative attitudes towards the Father;
(b)    Ms L’s failure to ensure the involvement of the Father at any stage of the “counselling” process she undertook;
(c)     Ms L’s willingness to express the views contained in her Report (Exhibit 9) and in her oral evidence in circumstances where she has never met the Father nor has she ever made observations of the children when in their Father’s care or control;
(d)    The process she undertook on 13 October 2004 in tape recording the child K reciting the twelve point letter (Exhibit 4).
Aside from the potential damage done to K by tape recording her reciting the twelve point letter (Exhibit 4) on 13 October 2004 the following observations are made concerning Ms L’s conduct in this respect:-
(a)     Ms L conceded that the sole purpose of this one and only occasion of taping K was an evidence-making step (Ms L Tx p. 55, lines 10 to 50);
(b)    Ms L purported to suggest initially that the tape recording was of K’s independent recollections of whatever she could remember (Ms L Tx p. 29, line 40 to p. 30, line 15) but only on further questioning revealed that the tape recording was no more than K reciting the letter (Ms L Tx p. 37, line 45 and p. 45);
(c)     When initially attempting to explain why the tape recording produced was the second attempt Ms L gave as the specific and sole reason that K started giggling because the volume on the machine was not turned up (Ms L Tx p. 33, line 40). Ms L reiterated this as the reason (Ms L Tx p. 47, lines 15 to 20). Ms L only admitted to the quite different context of K’s giggling when Ms L was confronted with what she had told the police as recorded in the Crime Report as follows:-
“[K] started giggling and went funny when she got to the sex word. She went all coy” (Ms L Tx p. 47, line 20) and Crime Report Exhibit 2);
(d)    Ms L made no attempt to explore any peripheral detail as revealed in the Crime Report (Exhibit 2) (Ms L Tx p. 35);
(e)     Ms L congratulated K at the conclusion of the tape recording.
When giving evidence, Detective O described her attempt to obtain a disclosure from K and to record same as “incompetent”.
There were many troubling aspects to Ms L’s evidence but a good illustration was her initial assertion that parental alienation simply does not exist; that this case was the first time she had ever heard of it; and that her exploration of it consisted of speaking to several doctors, including her Husband (Ms L Tx pp. 27 and 28). Ms L did herself no credit in attempting, after initially clearly stating that parental alienation does not exist generally, to assert that she meant parental alienation did not exist in this case (Ms L Tx p. 27, lines 1 to 40).
The only assistance that Ms L’s evidence provides to this Court is the extent of the pressure that the child K was obviously subjected to over this critical period to make some disclosures adverse to the Father. Moreover, when one compares the tape recording to what is actually written on the letter (Exhibit 4), it is apparent that K does not understand what “sex” is (i.e. “like kissing and that”) and indeed, if the letter can be said to be the high point of the evidence, it is clear that K is not disclosing actual sexual abuse.
Ms L conceded during cross-examination that she did not believe that there was sexual abuse but felt a professional responsibility to Report the allegations. She agreed that the allegation when considered in context (and as recorded on the CD) were not really indicative of abuse. In cross-examination she even was confused with the timing of the allegation that related to the child being forced to undress in front of the Father. Whilst indicating initially that she thought that this was a recent allegation, she had to concede that the allegation could have easily have related to an event which occurred when the child was four years of age.
Ms L gave evidence that at 11.00pm on Saturday, 26 September 2004, she received a phone call from K.
She accepted in cross-examination by Counsel for the Children’s Representative that this call was from K’s home and accordingly the Mother must have been there. The child was emotionally distressed. She had just awoken from a nightmare and couldn’t breathe. She was inconsolable initially but after about one hour on the telephone with her she was settled. Ms L only needed to tell her to “get her Mother to make her a glass of warm milk and go to bed”.
Apparently, this pattern of behaviour was not isolated. Ms L gave evidence that she had received many calls from K late at night. There was certainly evidence of many calls over the next month. It is curious that Ms L did not even speak to the Mother on the night of 26 September 2004. She accepted that she did not telephone the Mother later that night or early the next morning to see how this distressed child of the night before had coped.
The question must inevitably be asked though as to why the Mother could not reassure the child and why there was a need for a seven year old child to constantly make late night telephone calls. These calls, and particularly the alleged frequency of them are indicative of how emotionally disturbed this child is and has been, whilst in the Mother’s care.

MS H

I accept Counsel for the Children’s Representative’s submissions that Ms H was not an independent or objective witness, but was rather an advocate for the Mother and ultimately was a witness upon whom little reliance could be placed. The foundation for this includes the following:
(a)     Ms H was prepared to express the views and opinions that she did without ever having met the Father nor having observed the children when in the care or control of the Father;
(b)    Ms H relied exclusively on a history provided by the Mother;
(c)     Ms H was unaware of the Mother’s admissions concerning the extent of influence she exerted over these children over many years post-separation and the impact of that upon the children;
(d)    Ms H clearly made no attempt to explore peripheral detail concerning the child K’s alleged disclosures which would have revealed the historical nature of some of K’s “disclosures” and the innocent context of others (Ms H Tx pp. 18 to 22);
(e)     Ms H proceeded on an understanding that K had never been influenced by negative attitudes of the Mother (Ms H Tx p. 23, lines 25 to 30) when in fact the Mother’s admissions already referred to are quite to the contrary.
Ms H saw the children in 2002 for assessment. She saw them again for the purposes of preparing a Court Report in September 2004 and according to her evidence may not have seen the children “for some months prior to this”. Her records did not assist her in providing more specific information particularly as to the date of any such consultations. Certainly the last two Reports provided by her were specifically provided for the purpose of Court proceedings.
It is clear from the evidence of Ms H that the history that she received was provided in large part by Ms B. Ms H described Ms B as the Mother’s “therapist”. From discussions with Ms B before 2^nd May 2002 she was aware that Ms B saw her role in the case at that time as one requiring her to prepare a Court Report.
Ms H clearly approached this matter rejecting the “alternate hypothesis” that the children’s presentation to her was in response to their Mother’s anxieties. Indeed, Ms H suggested that she had “checked it out with the children” and never found any evidence of this (Ms H Tx p. 24, lines 40 to 50). Presented with the actual evidence, Ms H purported to suggest that it made no difference to assessing the “alternate hypothesis” (Ms H Tx pp. 25 and 26).
As detailed elsewhere in these Reasons, Ms H conceded that an important mechanism for testing statements made by children, which are negative to one parent, was to observe the children when in the presence of that parent (Ms H Tx p. 27, line 10) and of course, Ms H never had that opportunity.
The interview between the child K and Ms H (and in the presence of the Mother) on 14^th September 2004 is of critical importance in this case. The Mother was aware of the fact that these allegations were going to be made beforehand.
Despite the Mother knowing of the intention to raise this allegation she made no mention of it in her diary notes of either 13 or 14 September. It is clear as a matter of history that:
(a)The interview with Ms H was arranged by the Mother’s lawyer;
(b)It is the first time that any of the allegations of sexual abuse is raised;
(c)The Mother is the person who raised the allegation (in the presence of the child);
(d)The Mother, in making the disclosure, makes it clear that she has prior knowledge of the allegation.
(e)At all relevant times the child is present when particulars of the allegations are discussed.
There is no suggestion that the Mother, or her lawyers, armed with this information as disclosed to Ms H (ie that the child may have been abused) did anything or raised anything with the Father or his lawyers immediately following the interview with Ms H. There was in fact no correspondence until a letter was sent to the Father’s lawyer during holiday contact dated 22^nd September. Further, the Mother made no attempt to suspend or interfere in any way with extended holiday contact which was due to occur in coming days. She made no attempt to disclose the information to the authorities at that time.
It defies belief that in the context of this highly conflictual situation an independent and objective professional would have no difficulty with the methodology adopted in the 14 September session in the child K sitting on her Mother’s lap; whispering into her Mother’s ear; and the Mother relaying statements allegedly made by K or indeed, adding new information in K’s presence (Ms H Tx p. 30).
A simple example of the dangers of this process relates to the allegation that K ever said the word “genitals”. According to Ms H, the Mother relayed that K had complained that the Father had tickled her up near her “genitals”. Ms H confirmed that “genitals” was the word used by the Mother in K’s presence (Ms H Tx p. 30). Even Ms L confirmed (as did the authorities – see Crime Report) that K did not, at the time, use the word “genitals” but referred to “private parts” (Ms L Tx p. 18, line 40).
Ms H ultimately conceded, in relation to the allegations of sexual abuse, the importance of obtaining peripheral detail or background to any disclosure (Ms H Tx p. 31) and indeed, Ms H conceded that it is of alarm if a child is trawling through something that happened years before perhaps when she was 4 years of age (Ms H Tx p. 31, line 35).

I accept Counsel for the Children’s Representative’s submission, based on all of the evidence, that whilst the Father has not done what he could to promote the Mother to the children, any level of active denigration by him of the Mother pales into insignificance when compared with that exerted by the Mother.
Leaving aside the Mother’s own admissions in this respect, a reading of Mr A’s two Reports conveys numerous examples of the children making statements confirming their having been exposed to their Mother’s negative attitudes to the Father, yet the same is not true in reverse. At paragraph 130 of his first Report, Mr A records that he could find no evidence that would suggest the Father had significantly encouraged a negative view of the Mother in the children and a similar finding is recorded in paragraph 224 of Mr A’s second Report. The contrast as regards Mr A’s findings concerning the Mother could not be more stark. This is, of course, even before the allegations of sex abuse surfaced.
Whatever may be the true views of the Father towards the Mother, there is no evidence to suggest that they reach the zenith of the Mother’s feelings towards the Father in describing him as “evil” to Mrs P, even before the onset of the allegations of sexual abuse.
Adding the allegations of sexual abuse, and the Mother’s obvious role in the situation being reached that such allegations are advanced, it seems inescapable to conclude that the Mother is incapable of meeting the children’s emotional need to have, continue and further their relationships with their Father whom they clearly love.
In addition to the above, it is clear from the evidence including the Father’s assertions to Mr A and his concessions when giving evidence, that he has, since the separation of the parties, failed to provide appropriate financial support for the children.

(g)the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i)being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii)being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person.

The evidence of Mr S addresses the extent of emotional harm that is caused to children by parental alienation. I accept his evidence in this regard.
In view of my clear finding that the allegations of sexual abuse are not proved, the oral evidence of Mr A concerning the potential emotional harm to both children of them growing up believing that the child K has been the victim of sexual abuse by the Father assumes considerable significance.
During the course of his evidence, Mr A agreed that it would be a very significant emotional abuse of both K and J for them to grow up believing K has been the victim of sexual abuse by her Father if that belief is false. He also confirmed that this may very well compromise the prospect of both children reaching their full potential.
The Mother’s diary note of 29 November 2004 (Exhibit 7) includes the following:-
“I am really worried at how [the Father] is going to behave towards [the children J] and [K] once proceedings are over and no-one is watching.
I strongly feel that [the Father] will become even more emotionally and psychologically abusive. Continuing counselling with Ms [PT] and Ms [A] is very important so that [J] and [K] have a safe area to discuss.”
It will be recalled that in her oral evidence at trial, the Mother confirmed that she had been told by Ms L that it is likely that the children will make further disclosures as they get older and that through counselling they would be likely to disclose more.
As a consequence of the allegations of sexual abuse and the Mother’s involvement in all of the critical events which followed, the children, and K in particular, have endured the following:
(a)The children’s contact with the Father has been seriously curtailed by supervision over an extended period;
(b)J and K have been subjected to interviews by Police Officers and Officers of the Department of Child Safety;
(c)K has been repeatedly taken to Ms H and Ms L in particular;
(d)The pressure on K was such that from the happy, cheerful and talkative child in early October seen by the authorities, and indeed as she presents in the tape recording episode by Ms L on 13 October, K descends to the level that by 18 October she is so distressed that she is incapable of even coming to the telephone to speak to Ms L and on that day Dr C prescribes Zoloft;
(e)K is subjected to the statements made by Dr C on 18 October 2004 as alleged by the Mother;
(f)On 31 October 2004 K leaves two “suicide notes” in the car for the Mother;
(g)On 17 November 2004 K tells Ms H that she wants to kill herself with a knife when it gets too hard.
In this context, perhaps the clearest evidence of the extent of the Mother’s influence over K and the capacity for that to distress her is revealed by her presentation on 20 October 2004 when K and J are again interviewed by Ms N and other Departmental officers. Ms N’s clear evidence is that on the occasion of that interview K presented in precisely the same manner as at 8 October, that is, as happy, cheerful and talkative. This is just two days after her presentation as described by Dr C when he prescribed Zoloft.
The Children’s Representative informed the Court that she is unable to formulate any proposal that both preserves the children continuing to reside in the primary residential care of the Mother and adequately guards against the prospect of the children being denied any relationship with the Father as a consequence of the Mother’s influence.
In any review of the children’s involvement with all of the personnel identified in these Reasons, including the many experts as well as Police and Departmental Officers, the Mother has, at best, allowed each of them to become inappropriately embroiled in the whole process. At worst, the Mother has deliberately manipulated such involvement to limit the children’s contact with their Father and, in turn, undermine their relationship with him.
Their inappropriate involvement includes the writing of notes to some of the professionals, at least one of which allegedly written by the child J, the Mother conceded in cross-examination that he was unlikely to have done so given his age and his level of learning difficulties. That involvement also includes late night phone calls to some of the witnesses including to Dr C on the eve of his giving evidence in these proceedings.
The extent to which the Mother was prepared to advance her contention that the children’s behaviour deteriorated upon their return from contact is highlighted by the inclusion in her diary notes, the notes marked “14.10.04 after return from contact”.
As I have outlined earlier in these Reasons, it became clear during the course of her cross-examination, that these notes were wrong. The Father had not had contact with the child since 25^th September. No attempt was made by the Mother to explain why she made the entry alleged when she knew it to be false. In considering her evidence it is relevant to observe that at no stage did the Mother attempt to suggest that the date was incorrect. The issue was not addressed in re-examination. As I have found earlier in these Reasons, I am satisfied that the Mother attempted to fabricate this evidence.
I am satisfied that the Mother’s actions in taking the children to various professionals is further evidence of emotional abuse and demonstrates the incapacity of the Mother to meet the ongoing emotional needs of the children. Whilst the children’s attendance on certain professionals was required, others, including Ms B and Ms H, were only engaged to promote the Mother’s interests in the present proceedings. Over the last three years the children have been taken by the Mother to:
(a)Ms G;
(b)Ms B;
(c)Ms H;
(d)Ms L on at least 19 occasions (see Mother’s Affidavit filed December 2004);
(e)Innumerable times attending upon Dr C.

The children have additionally had many interviews or attendances upon Mr A, the Court appointed expert. In addition they have attended upon:-
(a)DoCS workers;
(b)Police Officers;
(c)Mr F, Court Counsellor
(d)Dr Q;

The child J has also attended upon:-
(a)A Speech Pathologist; and
(b)An Audiologist;

It is not surprising that the children are likely to have become “conditioned” to attendance on experts. It is also concerning that, despite this, the Mother has given clear evidence that she will continue with professional involvement, expects ongoing emotional and psychological abuse from the Father (which she expects will be disclosed during the course of ongoing professional counselling), and intends to return to Court in the event she has comments made to her by the children indicating that they have been suffering in the Father’s care.

(h)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

As Mr A has observed, both parents must bear responsibility for the level of conflict between them has continued unabated throughout these children’s lives since separation. He was rightly concerned that unless their conduct in this regard ceased, that the children’s long term development will be impaired.
In this respect I note the evidence of Dr D’s affidavit filed 29 January 2003, who undertook a psychiatric assessment of both parties and who concluded her Report with the following observation:-
“As I have not seen the children I cannot comment on the likelihood of them having problems with contact with their Father. However, reading the material makes it obvious that the children are experiencing considerable anxiety and are aware of the conflict between their parents. In my view this awareness would be sufficient to produce the types of symptoms described, namely somatic complaints and enuresis in [J] and school refusal in [K]. The likelihood is that the children are aware of the Mother’s disapproval of the Father and have experienced anxiety as a consequence. Frequently children ally themselves with the custodial parent in an attempt to minimise this anxiety and it may also be a possibility that [J] may seek to obtain the approval of his Mother by Reporting negative aspects of his time with his Father.”

(k)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.

Having regard to the complexities of this case and the history of litigation between the parties, it may be that there is no order which is least likely to lead to further proceedings.
That stated, there must be a limit to the resources of these parties. The Father’s evidence was to the effect that he will have spent approximately $200,000.00 by the conclusion of this trial. Assuming similar expenditure by the Mother, one has to wonder about the capacity of these parties to pursue even further litigation.
If the children were to continue residing in the Mother’s residential care, the history compels the conclusion that if contact orders are not made which precisely meet the Mother’s desires, the children will continue to be exposed to the Mother’s anxieties and negative attitudes, and will be influenced by them. Both children progressed to showing significant signs of parental alienation by the time of Mr A’s second Report.
Moreover, as noted above, it is the Mother’s expectation that the Father will in the future be “even more” emotionally and psychologically abusive to the children and that they will likely make further disclosures.
For the reasons advanced by Mr A and Mr S, continued supervision of the Father’s contact delivers to the children, in effect, the message that they need to be protected from their Father. Given also the evidence concerning the potential emotional damage to them of growing up believing false allegations about their Father, it is untenable that an order for supervised contact be made.
As the Mother has made it clear that she will not be satisfied with anything less than reduced/supervised contact, it appears obvious that orders for the children to reside in the Mother’s care with overnight/unsupervised contact to the Father will have a limited lifespan and carry the certainty that the children will continue to experience their Mother’s negative influence about contact with their Father.
The Mother’s attitude in this regard is confirmed by paragraphs 317 and 319 of her written submissions which are as follows:
“317.The Mother’s evidence was that in the event that she was unsuccessful at Trial in these proceedings, she would proceed with the lodgement of an appeal. There is no doubt that the competing interests of these parents require Court intervention to limit any further litigation if this is possible.”
“319.If the children were to be relocated to reside with the Father, there is no doubt the Mother would litigate in an appeal to overturn the decision.”
The Mother’s proposal so far as this factor is concerned is set out in paragraph 318:
“318.The Mother would support an Order under section 68L whereby Court intervention could limit the ability of the parents to engage expert therapists involving the children. This process would thereby remove the conflict from the parents’ ability to engage in disputing the use of therapists for the children’s needs.”
Conversely, there are reservations about the Father’s capacity to promote the Mother if he is granted a residence order. However, I am satisfied, based on his conduct in the past, that he will at least facilitate the Mother’s contact to the children.

CONCLUSION

The level of acrimony, hostility and conflict which has permeated the parties’ relationship since their separation has impacted on the children’s lives to such an extent that each of them has suffered the difficulties discussed at length during the course of the trial.
Sadly, the consequences which the children are likely to suffer in the event of their residing with either the Mother or the Father are such that I have found reaching this decision to be extremely difficult and complex.
I am satisfied that the Mother is not likely to ever promote and foster the children’s relationship with the Father.
In fact, I am satisfied that her loathing of and hostility towards the Father is at such an extreme level that she is determined to eliminate the Father from the children’s lives if she is able to do so.
I was hopeful that, in view of the Mother’s high level of intelligence and her genuine love for her children, that her attitude may have ameliorated after hearing all of the evidence. Sadly, that has not been the case. It is clear from the submissions which were drawn by her solicitor on her “strict instructions” that she maintains her position and that she will continue to pursue her objective if the orders which she seeks are not made.
I have scrutinised the Mother’s actions and conduct very carefully from the time she arranged for Ms B’s re-involvement in the family in late 2001. Moreover, I am satisfied that she has, from that time, carefully cultivated support for her position and managed the events which flowed from the time that she became aware that Ms B was of the view that the children’s contact with the Father should be curtailed. As I have found none of the experts upon which she relied (Ms B, Ms H, Dr C and Ms L) were ever made aware of the extent of her denigration and constant criticism of the Father to which the children had been subjected for a period of at least 4 years. As I have also found, anyone who did not support her contention that the sole cause of the difficulties which the children were experiencing arose from their having contact with their Father was either dismissed, vilified, threatened or subjected to complaints (Ms G, Mr A, Mr DH the school Principal, Ms W-B, Mrs P, Ms N and Detective O).
As I have made clear in these Reasons, I have substantial reservations about the Father’s capacity to provide for all aspects of the children’s welfare. I have no doubt that if the Mother had the capacity to facilitate regular contact of the children with the Father, that their best interests would be served by their remaining in her care as she has been their primary care giver since birth and both of the children are strongly attached and bonded to her.
However, as I have found, the Mother does not have the capacity nor the will to facilitate such contact. As I have also found, I am satisfied that not only will she not do so, but will proactively undermine the children having any relationship with their Father. If the Mother was to obtain a residence order in her favour, the likely consequences will be that the children will not have the opportunity to maintain a relationship with their Father. There is little doubt that the children’s long term welfare and emotional and psychological development will be substantially impaired by their being alienated from their Father.
Furthermore, I am satisfied that should the children remain in the Mother’s care, that she will continue to involve them inappropriately in the dispute between the parties until she achieves her objective of significantly curtailing or terminating the children’s contact with their Father as she has attempted to do since consulting Ms B in early 2002.
It is clear from the evidence that each of the children are struggling to cope with the pressures to which they have been subjected since that time. There is no dispute as to the evidence that each of them are currently experiencing considerable difficulties which has required medical intervention. A review of the chronology (Exhibit 22) reveals the lengths to which the Mother is prepared to subject the children in order to achieve her objective. In particular her involvement of the child K in the events which transpired during September and October 2004 is very disturbing and of considerable concern.
Regrettably, from the children’s perspective, I have come to the conclusion that the Mother’s intense loathing of the Father is at such a level that she will continue to involve the children to their substantial developmental detriment, should they remain with her.
On the other hand, I am very conscious of the fact that, in view of my findings about the Father, that there is a very real risk that he may be unable to cope with the behavioural problems which the children will inevitably experience as a result of a change in residence. I have no doubt that those problems will be exacerbated by the Mother’s reaction to such a change.
On a more positive note, as I have already found, I am satisfied that the Father is likely to facilitate the children’s relationship with the Mother.
I have come to the conclusion that it is in the children’s best interest to place them in the care of their Father.
I have had careful regard to the Orders proposed by the Children’s Representative.
The Father’s Counsel supports the orders sought, save for the proposed amendments to paragraphs 4(a) and (b), as set out in his submissions.
Unfortunately, I do not regard the regime proposed by the Children’s Representative in those paragraphs as being in the children’s best interests. The proposal will provide the Mother with ample opportunity to continue to undermine the children’s relationship with the Father, and, in turn, will exacerbate even further the difficulties which are likely to occur as a result of the change in residence. I intend to adopt the Father’s Counsel’s submission so far as these paragraphs are concerned.
The remaining orders, which include the appointment of Mr U to provide the children with confidential counselling, the undertaking of the Mother not to consult Ms B, Ms H, and Ms L with respect to the children, and the proposed s.65L order will hopefully provide a regime which will protect the children from continuing to be embroiled in their parent’s dispute.

My formal orders are as follows:

IT IS ORDERED

That the children [J] born [in] October 1993 and [K] born [in] September 1997 live with the Father.
That each party have sole responsibility for the day to day care, welfare and development of the children during any period that they are living with them.
That the parties have joint responsibility for decisions concerning the long term care, welfare and development of the children including but not limited to the education of the children.
That the Mother have contact with the children at all times as may be agreed between the parties, to include as follows:
(a)    Each alternate weekend from after school Thursday to the commencement of school Monday, with such contact to commence on Thursday 14 July 2005;
(b)   That during Queensland gazetted school holiday periods, the weekend contact provided for in paragraph 4(a) above be suspended, and the Mother have contact for one half of each such holiday period, for the second half of each school holiday period which commences in 2005 and likewise in each alternate year thereafter, and for the first half of each such school holiday period which commences in 2006 and likewise in each alternate year thereafter, with changeovers for such holiday contact to take place at McDonalds …, with each such holiday period deemed to commence at 9.00am on the day after the last school day of term and deemed to conclude at 5.00pm on the last day before commencement of the next school term;
(c)    From 5.00pm Christmas Eve until 2.00pm Christmas Day in 2005 and each alternate year thereafter, and from 2.00pm Christmas Day until 2.00pm Boxing Day in 2006 and each alternate year thereafter;
(d)   On the Children’s birthdays as follows:-
(i)In the event that either child’s birthday falls on a school day or during a non contact period during the children’s holidays, the Mother shall have contact with the children from 6.00pm until before school or 9.00am the following day, whichever is relevant; or
(ii)In the event that either child’s birthday falls on a non contact weekend, the Mother shall have contact with the children from 1.00pm until 5.00pm on that day;
(iii)For the purpose of this birthday contact, the Mother shall be responsible for the collection and delivery of children to and from the Father’s residence at the commencement and conclusion of contact;
(e)    In the event that Mother’s Day falls on a non contact weekend, the children shall have contact with the Mother on that weekend in lieu of the following weekend at the same times as set out in paragraph 4(a) above.
In the event that Father’s Day falls on a contact weekend, the children shall not have contact with the Mother on that weekend, but in substitution will have contact with the Mother on the following weekend at the same times as set out in paragraph 4(a) above.
That the Father provide to the Mother in a timely manner, copies of all notices received from the children’s school and details of all functions, parent and teacher nights and other activities to which the parents are invited.
That the Father provide to the Mother in a timely manner after they are received, copies of all school reports, any other reports on school progress and behavioural issues in relation to the children.
That the Mother and the Father each be restrained from:-
(a) Denigrating the other party or members of the party’s family, in the presence of or within the hearing of the children; and
(b) Making audio or video recordings of the children for use as evidence, directly or indirectly for any future Court proceedings.
Except in urgent and emergency situations, the Mother and the Father have joint responsibility for decisions about medical treatment, dental treatment, speech therapy, physiotherapy, any specialist treatment and any alternative medical treatment for the children.
That the parties do all acts and things reasonably necessary, as a condition of the parenting Orders, to ensure that the children attend for confidential counselling with Mr. [T] and that the parties be jointly responsible for the costs of such counselling.
That the Children’s Representative provide a copy of the Reasons for Judgment to Mr [T] together with the Orders for the purpose of Mr. [T] explaining to the children, and counselling them with respect to, the outcome of these proceedings.
That pursuant to s.65L of the Family Law Act 1975, the compliance with these Orders, as far as practicable, by the parties is to be supervised by a counsellor nominated by the Manager of Mediation, Brisbane Registry.
That such counsellor shall give either party to these parenting Orders such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of, the parenting Order.
Each party be responsible for maintaining a Communication Book in which is recorded (and the information be confined to) essential information concerning either child’s current or forthcoming activities, school events, sporting or social arrangements and the like with each party to ensure the Communication Book is included with the children’s effects on contact changeovers.
Each party have liberty of apply.

I certify that the preceding 79 pages
are a true copy of the Reasons for Judgment
herein of the Honourable Justice Buckley.

………………………………….
Associate Date: 10 June 2005

[2005] FamCA 481

10 June 2005

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