Stone & Stone & Anor

[2015] FamCA 14

FAMILY COURT OF AUSTRALIA

STONE & STONE AND ANOR [2015] FamCA 14

FAMILY LAW – PROPERTY – Final – Where the wife is bankrupt – Where the official trustee in bankruptcy did not intervene in the proceedings – Where property adjustment issues were not a significant part of the trial – Order that the husband retain all his personal property and superannuation interests – Order that the wife indemnify the husband against any and all liability to her parents

FAMILY LAW – CHILDREN – Final – Best Interests – Where the children lived with the mother following separation – Where the mother and the maternal grandparents refused to let the children spend time with the father despite Court orders providing for contact – Where the children are at an unacceptable risk in the care of the mother and the maternal grandparents – Where interim orders were made during the course of the trial that the children live with the father and have no contact with the mother or maternal grandparents – Where the children thrived in the father’s care – Order that the children live with the father – Order that the father has sole parental responsibility for the children

Family Law Act 1975(Cth)

APPLICANT: Mr Stone

RESPONDENT: Ms Stone

INTERVENER: Ms S Stone

INDEPENDENT CHILDREN’S LAWYER: Gary Couper

FILE NUMBER: BRC 1645 of 2011

DATE DELIVERED: 22 January 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 15, 16, 17 & 18 April and 21, 22 & 23 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Umashev of Counsel
(on 15, 16, 17 & 18 April only)

SOLICITOR FOR THE APPLICANT:

JMW Legal

(on 15, 16, 17 & 18 April only)

FOR THE APPLICANT: The Applicant in Person
(on 21, 22 & 23 October only)

FOR THE RESPONDENT: The Respondent in Person
(on 15, 16, 17 & 18 April only)

COUNSEL FOR THE RESPONDENT:

Ms Wardle of Counsel

(on 21, 22 & 23 October only)

SOLICITOR FOR THE RESPONDENT:

Lynch & Associates

(on 21, 22 & 23 October only)

FOR THE INTERVENER: The Intervener in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Carmody of Counsel

THE INDEPENDENT CHILDREN’S LAWYER: Mr Couper of Couper Geysen Family & Animal Law

Orders

Parenting

1. That all previous parenting orders, save for those made by this Court on 10 December 2014 and those contained within paragraphs 5 and 6 of the Orders made by this Court on 18 April 2013, are discharged.

2. That the children, B born … 2005 and C born … 2006, (“the children”) live with the father.

3. That the father has sole parental responsibility for the children.

4. That the father shall keep the mother informed in writing on a monthly basis of the children’s health, their educational progress and their extra-curricular activities, but with the father to be at liberty to take all steps necessary not to provide any information that identifies the place of residence of the children, any school that they attend from time to time or any other place at which the children may be found from time to time.

5. That the children shall spend no time with the mother nor have any communication with her other than as provided for in these Orders.

6. That the mother is at liberty to send letters, cards and presents to the said children by posting them to the father at the post office box address provided by him from time to time with the father to be at liberty to open such letters, cards and presents prior to giving them to the children and to determine if the contents are suitable to be given to the children and if he determines that the contents are not suitable to be given to the children he shall copy or take a note of the contents and cause the letter, card or present to be returned to the mother.

7. That the children shall spend no time with either of the maternal grandparents nor have any communication with either of them other than as provided for in these Orders.

8. That the maternal grandmother is at liberty to send letters, cards and presents to the children by posting them to the father at the post office box address provided by him from time to time with the father to be at liberty to open such letters, cards and presents prior to giving them to the said children and to determine if the contents are suitable to be given to the children and if he determines that the contents are not suitable to be given to the children he shall copy or take a note of the contents and cause the letter, card or present to be returned to the maternal grandmother.

9. That should the children or either of them wish to write a letter or a card or send a present to the mother or the maternal grandparents, the father shall facilitate that by informing them they are able to do that if they want to and by causing any such letters, cards or presents that he determines are suitable to be sent to the address of the mother or the maternal grandparents that has been provided to him by the mother and the maternal grandmother.

10. It is requested that the Australian Federal Police give effect to paragraph 5 of the Orders made by this Court on 18 April 2013 by maintaining the said children’s names on the Airport Watch List for a period expiring on the 18th day of April 2019 and upon expiration of that period and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.

Property

1. That the father shall retain as his sole property absolutely all items of personal property currently in his possession or control and he shall retain as his absolutely any superannuation interest in his name.

2. That the mother shall indemnify the father against any and all liability to her parents or either of them, howsoever arising.

Other

1. That the Independent Children's Lawyer is discharged.

2. That all other outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stone and Stone and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1645 of 2011

Mr Stone

Applicant

And

Ms Stone

Respondent

And

Ms S Stone

Intervener

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

1. Two boys, B born in 2005, and his brother, C born in 2006, now live with their father and do not spend any time with their mother. That is how I ordered things to be in April 2013. They used to live with their mother and not spend any time with their father. That is not what the father wanted. He wanted to have normal father and son relationships with them and have them spend regular time with him. The boys not spending time with their father was not what the Court had determined either. Both the Federal Circuit Court and this Court had made orders for the children to spend regular time with their father. They did not because their mother wilfully chose to disobey and defy the Courts’ orders and would not let them spend time with their father.

1. The two boys came to live with the father during the course of the eventual trial of the competing parenting and property adjustment orders applications, after I had taken the extraordinary step of making orders in chambers without notice to any of the parties and without hearing submissions from any of the parties. Those orders required Federal Police officers to go to the school the boys were attending whilst the trial was underway and to bring the boys to the Court whereupon, after hearing submissions from the parties, I made interim orders for the boys to live with their father whilst I finished the trial and until I delivered my final judgment in the proceedings.

1. I have now determined that the boys will continue to live with their father and not spend any time with their mother. I have determined that they will continue to not spend any time with their maternal grandparents either. The maternal grandparents’ involvement in their lives and the life of the mother in recent years has not been conducive at all to their sound emotional development. I am satisfied that it would not be in future either.

1. As to property adjustment orders, I will make no other orders than orders that provide for the father to retain such property and superannuation as is currently in his possession and for the mother to indemnify the father against any liability to her parents. I can make no determination that any other order would be just and equitable.

1. These are my reasons for these determinations.

Some background matters

1. The father, Mr Stone, was born in 1970 and is now 44 years of age. The mother, Ms Stone, was born in 1978 and is now 36 years of age. They were both born and raised in England.

1. They began living together around 1995 when the father was around 25 and the mother was still only around 17 years of age. They married in 1999. The father was professionally employed and the mother obtained a degree in science. In 2000, the mother was involved in a motor vehicle accident in England. She was injured and suffered depression afterwards. During that time she attempted suicide by overdose of medication. The father reduced his work commitments at that time to provide some care for her. Her health improved.

1. The couple migrated to live in Australia in 2004, settling in the Sunshine Coast hinterland where they bought a home to live in and a business to run. They ran the business through corporate and discretionary family trust entities. In the years after arriving, their two sons were born. The father was engaged in driving for the business. The mother was engaged in parenting and administration of the business.

2. During the first pregnancy, the maternal grandparents visited the couple in Australia before returning to England, selling up and coming back to Australia after the birth of the second son, to help out with the running of the business. They moved into a cabin situated on the mother and the father’s property.  The father asserts that they were overly intrusive into the lives of the mother and the father. I accept that evidence.

1. Relations between the father and the mother began to deteriorate, the business began experiencing serious financial difficulty and the couple separated in May 2010 when the father left the Sunshine Coast hinterland property. The mother and her father then effectively took over the operation of the business and the father left them to it. A Deed of Company Arrangement was entered into in August 2010 but the business was unable to be saved and the company through which it was operated was put into liquidation in 2011.

1. Between separation and December 2010, the father was able to spend time with the children on an irregular basis, by agreement with the mother. He had moved from the Sunshine Coast to Logan and had obtained employment as a driver. I am satisfied that in those early months of separation, right through until the time the father commenced the Court proceedings, the mother and the father still had a level of unresolved feelings for each other and that they actually spent time together as a couple on occasions when the father was seeing the children during this time.

1. However, at the end of 2010, relations further deteriorated and the mother stopped facilitating the boys time with the father, such that he felt compelled to commence the proceedings seeking orders that the children spend some regular time with him.

1. On 20 June 2011, the mother and the father and the children were seen by the experienced Family Consultant, Ms H, and she gave oral evidence at a hearing before Federal Magistrate Jarrett (as his Honour then was). That day, his Honour made orders that the children begin spending regular overnight time with the father on alternate weekends after two day only visits on successive Sundays. No supervision of the father’s time with the boys was required.

1. On the second weekend of such visits, the father and mother stayed together with the children at a resort on the Gold Coast for a few days. The mother had made all the arrangements for that to happen. From that time on though, the mother stopped allowing the children to spend time with the father after he refused her request to be able to attend herself and spend time with them all for such visits.

1. The maternal grandparents, who were still living with the mother, were also involved in the mother’s failure to ensure that the children spent time with their father as ordered from July 2011 through to September 2011. Both of them made calls to the father and cruelly taunted him about the inability to be able to see the children. I am satisfied they made no positive efforts to ensure that the Court’s orders were complied with.

1. The father made a Contravention Application to the Court in September 2011. He was given a little compensatory time to make up for the missed weekends and changeovers were ordered to take place at a Children’s Contact Centre at Town J.

1. After that, the mother again did not comply with the orders and did not allow the children to spend time with the father. The matter was back before the Court on 24 October 2011, and again on 29 November 2011. Between those dates, interviews were undertaken by Ms D, an experienced social scientist and family report writer.  On the second of those days, whilst Ms D’s report was pending, the Court made orders for the children to spend time with the father over the pending Christmas period. Again, the mother failed to make the children available to spend time with the father pursuant to those orders.

1. The matter came back before the Court again on 2 February 2012, the day after Ms D’s report issued. It was a long and very detailed report. Her recommendations included a change of living arrangements for the boys. She recommended that consideration be given to ordering that the boys go to live with their father and that they not see their mother for a month before moving to a gradual phasing in of time, through initial supervision, conditioned on there being a number of demonstrated positive changes on the mother’s part.

1. On 2 February 2012, the mother did not appear at Court. Federal Magistrate Jarrett (as his Honour then still was) made further orders for the boys to spend time with the father from the next day, 3 February 2012. The father arranged with local police in the area where the mother and boys lived to assist him with the collection of the boys from their school. The boys were not at the school and the father and the police went to the mother’s home.  She was not there. The boys were not there. The police were told by the maternal grandmother that the boys would never be handed over to the father.

1. The matter was back before the Court on 10 February, 2012. The mother appeared that day. His Honour had the mother sworn in to give evidence. She would not tell the Court in evidence the address at which she and the boys were living or where the boys could be found. She told his Honour that he could find her to be in contempt of Court as she would not comply with any order to deliver the children to the father. She maintained that the children were in danger if they were with the father, even at risk of being killed by him. When his Honour asked the mother if she wanted the Federal Police to collect the boys, she took no umbrage at that.

1. That day, his Honour ordered that the children live with the father and he made a Recovery Order. The Independent Children’s Lawyer appointed to the case supported such orders being made. The matter was also transferred to this Court.

1. Unfortunately, the children were not produced by the mother or found by the Federal Police and several months passed by. The children were put into hiding by the mother with, I am satisfied, the assistance of her parents and kept in hiding in total defiance of his Honour’s orders. They were also kept away from school during that time, thus harming their educational development.

1. The matter came before me for the first time in a judicial duty list in late June 2012 on the hearing of an Application in a Case by the father for a Publication Order. When that came before me the mother was represented by counsel who appeared in Court whilst the mother only attended by telephone. The mother told the Court she did not know where the boys were at the time or where they were living at the time. I did not believe her or consider her answers to be honestly given. The maternal grandmother appeared that day with legal representation. I encouraged her to apply to intervene in the proceedings and to seek orders that the boys live with her pending trial. She did that and leave was granted for her to intervene and she became a respondent.

1. On 7 August 2012, I made interim orders that suspended his Honour’s February 2012 orders that the boys live with the father and provided for the boys to live with the maternal grandmother at the former family home and for the mother to do everything necessary to cause the boys to be delivered into the maternal grandmother’s care. I ordered the mother not to live at the same home as the children and the maternal grandmother. I ordered the maternal grandmother to deliver the children for a Child Inclusive Conference at the Child Dispute Services office in the Brisbane Registry of the Court on 8 August 2012 and for the children only to spend time with the mother and the father on a limited supervised basis until further order.

1. Subsequently, thankfully, the boys were delivered from hiding.

1. On 9 August 2012, after a report from Mr G, Family Consultant, I made further orders providing for the children to spend at least 2 hours a fortnight with their father supervised in the Child Dispute Services office in the Court and for up to 4 hours per fortnight at a Children’s Contact Centre at either Town L, Town K or Town J, whichever could be arranged the soonest. I discharged my previous orders that the mother could not live in the same home as the children and the maternal grandmother and that the boys could only have supervised time with her. I also ordered the preparation of a psychiatric report into the mental health of the mother and the father.

1. Mr G provided a written report to the Court on 24 September 2012. His observations and opinions were very helpful. He had supervised three 2 hour visits between the boys and their father and said each followed a similar pattern. The youngest child, C, was relaxed and readily entered the Child Dispute Services office to spend time with the father. The oldest child, B, was always initially reluctant but would comply with the Family Consultant’s directions. The father would seek to engage with the boys in conversation and play with C responding positively and B gradually warming to the interaction with his father. Both boys would engage in spontaneous physical affection with their father during the visits but refused the father’s requests for a farewell hug at the end of each visit.

1. Mr G reported that each child said things and acted in a way that made it clear that they had been “deliberately exposed to negative information about their father”. He said that the indications were that the boys had “been exposed to an ongoing campaign of denigration against [the father], and continue to be so”.

1. The last scheduled visit at the Child Dispute Services office did not take place as the maternal grandmother did not deliver the boys and made no contact to explain her failure to deliver them.

1. Mr G also documented that the scheduled visits at the Children’s Contact Centre at Town J were not all happening as required. He opined that the boys’ alleged increased resistance to those visits was “more probably due to the children and those managing them becoming more skilled at presenting in a way that prevents the visits from happening, rather than due to the children disliking or not enjoying seeing their father at all.”

1. Mr G expressed the opinion that B’s apparent reluctance to see his father, despite clearly enjoying aspects of the time he spent with him, “most likely has its basis in his understanding of and loyalty to the feelings and beliefs of his mother, grandmother and grandfather.”

1. Mr G suggested that whether it be “by poor management or deliberate manipulation” the maternal grandparents and the mother have demonstrated that they cannot, or will not, ensure that the children spend time with their father in the more positive and suitable environment of the Children’s Contact Centre. He then concluded that it “appears highly unlikely that the children will be able to maintain their relationship with their father whilst living with the mother and/or their grandparents.”

1. Mr G finished his report by saying:

If the children are not able to enjoy positive time with their father between now and when the issues of any potential risk from the father are determined the children’s relationship with him may well break down completely and either be irretrievable or only retrievable by the sudden and complete removal of the negative influences upon them by placing them with their father and isolating them from their mother.

1. On 28 September 2012, I made further orders. They included that the boys spend up to 4 hours per week with the father supervised at a Children’s Contact Centre; that the maternal grandmother and the mother use their best endeavours to ensure that the boys actually do get to spend time with the father; that the time is not avoided by either child saying to contact centre staff that they do not want to go to spend time with the father; the ICL was given liberty to provide Mr G’s written report to the staff of the contact centre the visits would take place at; and I listed the matter for final hearing before me in April 2013.

1. I also gave the mother leave to cause subpoenas to issue out of the Court to four separate doctors, including two psychiatrists, the Queensland Police Service and Relationships Australia for the production of documents she alleged were relevant to the parenting proceedings.

1. In addition, I made directions to facilitate the proper presentation of their respective property adjustment cases for the trial and I listed the matter for a compliance check on 23 January 2013.

1. Amongst the many allegations the mother had been making against the father from part way through the proceedings was one that the youngest boy, C, was not the biological son of the father but was the biological son of a man that she had now re-partnered with since separation. On 23 January 2013, I made orders that the mother and the father submit to parentage testing to determine if C is his biological child.

1. On 5 March 2013, at another compliance check before me, the Court learned that the mother had become bankrupt. Orders were made to facilitate the mother’s Trustee in Bankruptcy being made aware of the property adjustment proceedings, if not already, and to be able to intervene if considered necessary. Intervention did not occur, but the Official Trustee wrote to the Court on 11 March 2013 (a letter that became Exhibit 18 at the trial). It advised that the mother had become bankrupt on 20 December 2012 by sequestration order made in the Federal Magistrates Court (as the Federal Circuit Court was then called) in Brisbane on a petition filed by family law solicitors Jones Mitchell and that the Official Trustee is the trustee of the mother’s bankrupt estate. The mother had filed a Statement of Affairs on 29 January 2013 disclosing interests in a few bank accounts, some tools of trade, and a motor car of little value. She had not disclosed an interest in real property but the Official Trustee had discovered that she was the sole registered proprietor of the real property in the Sunshine Coast hinterland that was the former matrimonial home. That property was mortgaged to the ANZ Bank and, according to the Official Trustee, was “over- encumbered” which I understood to mean it was not worth as much as was owed to the ANZ Bank. The Official Trustee indicated that the Bank was not intending to take steps to realise its security until an investigation before the Financial Ombudsman was complete. The Official Trustee advised of no intention to seek to intervene in the proceedings and a determination to abide the orders of the Court. 

1. The matter came back before me again in the week before the trial was scheduled to begin. On Wednesday 10 April, I heard an Application in a Case arising out of the mother’s failure to properly facilitate the parentage testing for the child, C, as previously ordered. There was evidence before me, which I accepted, that the samples taken for DNA analysis had been tampered with between their collection and the delivery to the Brisbane laboratories. The evidence suggested that the mother, the maternal grandmother or even the maternal grandfather were responsible for the tampering. Accordingly, I ordered that the mother personally bring C to Brisbane the next day, Thursday 11 April, and present him to the testing laboratory and I made some other orders that I considered assured the integrity of the process.

1. Before the end of that week prior to the trial, the Court was informed that the mother was seeking to have the trial adjourned because she was not well enough to participate in the trial. The Court was informed by the mother that the father had assaulted the mother in the street outside the Court on Wednesday 10 April, after they had both left the Court that day. The parties were informed that any such adjournment application would be heard at the commencement of the trial on Monday 15 April.

1. At the commencement of the trial, a barrister appeared pro-bono for the mother and sought an adjournment on her behalf. The barrister told the Court that the mother had been assaulted by the father outside the Court on the previous Wednesday and had suffered a broken rib or ribs and a dislocated shoulder as well as mental trauma and that she could not participate in a trial.

1. I took evidence from the father and the ICL who both opposed the adjournment application. I admitted into evidence a video recording of the alleged assault, secretly made by the father using a video camera attached to his motor cycle helmet, as well as a copy of a medical discharge report from the Royal Brisbane Hospital, where the mother had been taken after the incident on the day. I considered the evidence and dismissed the application for the adjournment. I gave reasons for that decision on the day, but I consider it relevant to say more about this matter in these reasons, having heard cross-examination of the father, the mother, the maternal grandmother and the paternal grandfather during the course of the subsequent trial, as well as the father’s witness, Mr A, in respect of another incident that had taken place in June 2012, about which there was much dispute.

The alleged assault of the mother on 10 April 2013

1. The mother gave a statement to police on 15 April 2013. It was converted to writing and signed as a Statement of Witness under the Justices Act 1886 (Qld) by the mother and witnessed by a police officer.

2. Relevantly, in that statement, the mother said:

   … At about 1pm I was walking by myself along North Quay [in an easterly direction] ... I was talking on my mobile phone and saw that [the father] was walking about 200 metres in front of me. I had earlier seen him walking in front of me when we left Court but thought he had turned off.

1. She went on to say:

   After noticing [the father] 200 metres in front of me I then saw my dad ... walking on the same side of the road but a little way in front of [the father].  I then saw [the father] catch up with my dad. They were at traffic lights and waiting to cross the street. By the time that [the father] got near my dad I was about 20 metres away.  I saw [the father] walk up beside and stand to the right of my father. I could not tell or hear if anything was said. I saw [the father] turn and face towards my father and then lunge at him as if he was going to rugby tackle him.

   I’m not sure what happened but my dad fell to the ground and [the father] was leaning over the top of him. I ran up and stopped to the side of [the father]. [The father] then grabbed my arm and I think tried to throw me over his shoulder in some type of Judo move. I’m not sure what happened then but I fell to the ground and landed on my right shoulder. [The father] fell on top of me. I remember I was holding onto him. I had my arms around his upper body and neck and my legs locked around his legs. The front of my body was against the back of his body. I remember that I was shouting, “Help. Call the Police. Call the Police.” While I was holding onto [the father] he was thrashing around. He was moving his head backwards and forwards trying to head-butt me. I remember that he struck me a couple of times in the chest with his head. I don’t recall him saying anything while this was happening

2. The mother later said in the same statement:

   As a result of this assault I sustained a broken rear rib and dislocation of my right shoulder.

3. The maternal grandfather gave a statement to police as well. His was converted to writing too and is dated 16 April 2013. It was signed by him and witnessed by a police officer. Relevantly, he said:

   I saw [the mother] walking towards me, and then suddenly at about 12.00pm I thought I was going to be mugged, as a male lunged towards me at speed, with his left hand up and with a clenched fist, has come towards me very quickly (sic).  
   The male was approaching from the road crossing, which was to my quarter left.

   I immediately tried to block the fist, however my arm made contact with his arm, but he still made contact with the upper part of my right shoulder/chest area of my body.

   This caused slight discomfort, and I tried to push the male off.

   The male then forced his head forward making contact with my head on the right side.

   I immediately collapsed to the floor, and the male stooped over me.

   I think at this point I blacked out, as I appear to not be able to remember falling on the floor.

   I then came around, and I saw [the mother] with the male, the male had grabbed her right arm, and looked like he was going to bash her into a post, which was close to the pair, or throw her into the road.

   [The mother] hung onto the male and wrapped her arms around the male, she was on the right side of his back.

   The male then put force towards [the mother] and with his shoulder struck [the mother] in the chest area, which then caused her to fall to the floor, which also caused him to fall to the ground with her.

   He was on top of [the mother]. I then got up off the ground and went over to help [the mother], I could see he was trying to hit [the mother], so I put myself between the male and the face to prevent her being struck.

4. He then went on to say:

   I kept hanging on, I then realised the male was [the father], [the mother’s] ex-husband.

1. He also said:

   I then said as I was hanging on “You are not going to hurt her anymore.”

2. He also said:

   At first I did not recognise [the father] as he was scruffy in appearance and wearing a bikers type jacket.

3. The father had also given the police a statement. His was converted to a written Statement to Witness dated 10 April 2013. He signed it and it was witnessed by a police officer. He said that he activated the concealed video camera in his helmet as he was leaving this Court’s building. He said that he noticed the mother “hovering around outside on the phone.” He said he then walked down Tank Street towards North Quay and that the mother was walking in the opposite direction towards George Street. He then said:

   I just had a gut feeling that something was going to happen so I turned my helmet around as to face the camera behind me.

   I continued to walk and turned left onto North Quay as I had parked my motorcycle under Ann Street.

   Just after crossing the intersection of North Quay and Turbot Street I had a feeling someone was following me so I turned around to see [the mother] about 50 meters away, I am not sure although I think she may have also been on the phone.

   I then turned around again and continued to walk. At this time I removed my phone from my pocket with the intention of activating the phone’s voice recorder. As I was attempting to do this I was making my way towards the intersection of Ann Street.

   At this time I observed [the maternal grandfather] walking towards me from along Ann Street. I observed him to have his face down towards the ground. As he got close to me he then struck me in the upper chest or sternum area with something. I would describe the thing as being rectangular shaped, about 6 inches long, 2 inches wide and an inch and half thick. It also had two prod or probes coming from the front. My initial thought was he had a taser.

   When he hit me with it, it felt like a slab of some description as I was bracing for a shock but it never happened. He then struck me with it again almost immediately, still with no effect in terms of being shocked.

   I then heard [the mother] say something as she was behind me. I cannot exactly recall what was said. I then felt an arm come from behind and wrap around my neck in a restraint I call a neck brace. At this time [the maternal grandfather] was still standing extremely close to me however, I am unsure what exact (sic) he was doing although I do recall not being able to free my arms. It is possible he was restraining them.

   I was trying to move my helmet and camera into an angle that would capture [the mother] and [the maternal grandfather’s] actions during this time. I am unsure 1if this was captured.

1. The father went on and said:

   I recall at this time [the maternal grandfather] was also on the ground shouting and yelling abuse at me. He saying (sic) things like, “He’s attacked my daughter and How (sic) can you do this to my daughter”. While yelling these things he was also grabbing and twisting my left leg.

   My leg was twisted in a way that I thought my knee was about to pop, all the while I was still trying to release [the mother’s] arm from around my neck.

2. I have watched the video taken by the secreted camera many times. The visual and audio recording that it depicts is completely consistent with the factual matters contained within the father’s statement. It is not consistent with the critical factual matters contained within the mother’s statement and the maternal grandfather’s statement. Significantly, it shows the mother running quickly towards the father from behind him after he had stopped and was standing quite still at the lights at the corner of North Quay and Ann Street, just outside the Mercure Hotel. Only after she has started running is there sudden movement of the father’s body and that is, in my view, consistent with him being violently struck by the maternal grandfather, as he described, rather than him lunging towards that man. Indeed, the video shows the mother grab the father around the neck in a headlock just a moment after the first sign of any scuffle and shows the father being thrown to the ground. Very quickly passers-by are seen intervening and heard telling the mother to let the father go. There is a short visual of the mother, with a ferocious look on her face, exerting a vice-like grip with one of her forearms around the father’s neck. There is a visual of what appears to be the maternal grandfather involved in the efforts to restrain the father, but shortly thereafter the helmet is taken from the father’s grasp and moved by another person and set down some meters away from the struggle still taking place on the ground.

3. Although the scene is no longer in the frame, the audio recording picks up things that are being said. One of the persons at the scene is heard saying loudly “You’re choking him”. One is heard saying “Look, we’ve got him mate”. The mother is heard to scream “Call the cops”.  A person is heard to say “We’ve got both of his legs, you can let go of him now”. A person is heard loudly and fearfully exclaiming, after the father has been held in a headlock by the mother for around one minute, “Let go of his neck. Let go. You are going to kill him.” Another is heard to say “Grab this guy. Keep this guy off. She’s not going to let go.”  I consider it more probable than not that the maternal grandfather is the “guy” being referred to there.

4. About two minutes later, whilst the father is still being restrained on the ground, the maternal grandfather is heard to say “Someone must have seen him have a go at her [indecipherable]. I just legged it round the corner.” That is not consistent with his or the mother’s version of events later given to police or this Court.

5. After a while the mother is accompanied inside the Mercure Hotel and then police arrive and start speaking with the father, whilst still restrained. He quickly tells them his name and that he has been assaulted by his ex-wife and her father after Family Court proceedings and discloses immediately that he has a concealed video camera in his motorcycle helmet that should prove his innocence of any wrongdoing. I am quite satisfied that he was right and that the video does prove his innocence.

6. The mother and the maternal grandfather, in their oral evidence, maintained the stories that they had given in their police statements. I did not believe either of them. I have not found the mother to be credible in what she tells the Court either from the bar table or under oath in affidavit or in the witness box. I found the maternal grandfather even less credible. I could not believe anything he said. Indeed, I was quickly satisfied that he is a dishonest and dangerous person and that he deliberately attempts to hide behind a façade of supercilious obsequiousness.

7. The father too, in his oral evidence, maintained the story he had given to the police soon after the incident. In contrast though, I believed him completely and accept his version of the events, it being totally consistent with what he had secretly recorded.

8. I am satisfied, on the balance of probabilities, that the mother and the paternal grandfather had planned the attack on the father that day well before it happened. The mother and her father expected the father to ride his motorcycle into the city to attend Court that morning. The maternal grandfather determined, whilst the mother and father were at the Court, that the father had indeed parked his motorcycle under the Ann Street freeway on-ramp along with other motorcycles parked there. Expecting the father to return to his motorcycle after Court, the mother waited around outside the only exit from the Court in Tank Street communicating with her father and alerting him once the father emerged from the Court building and turned towards North Quay to walk to where his motorcycle was parked. The mother waited briefly and then followed behind the father, probably going through Tank Lane to get to Turbot Street and North Quay without the father seeing her, him believing that she had headed towards George Street.

9. As the father walked along the footpath and approached the intersection of Ann Street and North Quay, the maternal grandfather stealthily approached him with intent to assault him with some form of hand-held stun device, whilst the mother, seeing this, began to run towards them both with intent to join in the assault on the father by grabbing him in a choke hold around the neck.

10. It is common ground in this case that the mother has a black belt in some form of karate. Her size and appearance clearly mask her physical strength and capacity.

11. Almost simultaneously, the maternal grandfather and the mother assaulted the father and wrestled him to the ground. The maternal grandfather struck first and the mother grabbed the father around the neck from behind in a ferociously strong headlock and choke hold. Apparently, the stun device did not work or was not actually activated by the maternal grandfather. The mother was intent on doing the father harm with the choke hold and he was saved from more serious injury, or even death, by the quick actions of concerned passers-by who intervened to free him from her vice-like grip and deliver him into the custody of police who arrived soon after. I am satisfied that the maternal grandfather was able to secret the device that he struck the father with away in a bag that he had with him so that it was not seen by any other person that day. I am satisfied that he also made statements at the scene with intent to mislead the persons who had intervened, but also with a view to ascertaining what they had seen themselves as quickly as possible.

1. The mother did not suffer any broken rib in the incident. Painful rib or ribs were not even mentioned to the doctor at the hospital she was taken to. No X-rays were taken that day. No diagnosis of broken rib or dislocated shoulder was given to her by the hospital doctor.

2. The next day, Thursday, 11 April 2013, the mother saw her GP on the Sunshine Coast and told her she and her father had been assaulted by the father in Brisbane the day before. X-rays were taken that day. The x-rays revealed no broken ribs or other broken bones and did not reveal anything that supports the assertion that she had a dislocated left shoulder.  Despite this, the mother maintained to police when she gave her statement a couple of days later that she had suffered a broken rib and a dislocated shoulder. She maintained that to her barrister who she instructed to ask for an adjournment and that was maintained, without any expert evidence being adduced to support the mother’s assertion, at the adjournment application that was refused. It was a false assertion. I am satisfied that it was asserted by the mother knowing it to be false. I am satisfied that she was seeking to obtain an adjournment of the trial by false pretences, aided and abetted by her father and her mother. I am satisfied that she and her father conspired to assault the father and then to have him wrongfully charged with assault. Fortunately for the father, they apparently did not consider that he would have a concealed video camera in his helmet. Otherwise, the outcome for him could potentially have been quite different.

3. Just finally on this point, evidence was adduced during the trial that after the start of the trial on Monday, 15 April 2013, when the father’s video recording had been adduced into evidence and viewed in the Court, including by the mother and the maternal grandmother, the maternal grandfather tried to get the Sunshine Coast medical practice of the general practitioner he and the mother attended after the Brisbane incident to change the Doctor’s notes as to the version of events relayed to her by the maternal grandfather at the consultation on one of the days before the trial. This attempt was made, I am satisfied, to get that version to conform more with what was depicted in the video rather than the paternal grandfather’s original version. Creditably, the medical practice refused and noted the attempt in its records.

4. Soon after the incident, the mother and the maternal grandfather were charged with assaulting the father on 10 April 2013. Their trials are to be in the District Court at Brisbane. The Court was informed late last year, when the matter was again before me on an interlocutory issue, that those trials were yet to take place. I do not know now whether they have or they have not yet.

The incident of 22 June 2012

1. When the matter was before me in the Judicial Duty List in June 2012, I considered it appropriate, over the father’s opposition, to direct him to inform the mother of his residential address even though he was not actually seeing his boys at that time as they were still being hidden. She had complained to the Court that she did not know where the father lived and that concerned her.

2. The father was sharing a house in Suburb M with Mr A at that time. Mr A swore an affidavit on 2 August 2012 that was filed that day and relied upon by the father at the 2013 trial. He said that he was at home on Friday 22 June 2012 at around 6:45 pm (after dark) with his young son when he heard a noise outside. He went to the front door to see what it was. As he opened the front door, a man ran at him shoving the front door fully open and pushing him back inside the home. Mr A then pushed that man outside the door and noticed he had a flat blade screw driver in his right hand. He said to the man “What do you want?” and “Who are you?” He said the man asked him if he was “[the father’s given name and surname]”, to which he responded “No”. Mr A said that he made it clear to the man that he was calling the police, but said the man did not seem to care. He tried to get a photo of the man but the man turned and walked away saying “Oh no way”. Mr A told his son to stay inside the house and followed the man as he walked away from the property. Mr A grabbed a small plastic broom to carry with him as he followed with the intent of getting a car registration number if he could. Mr A said that he called 000 and told the operator what he was doing, gave a description of the man and asked if he could apprehend the man. He said that the operator told him he could but that he could only use “reasonable force”.

3. Mr A said the man told him his name was “[N]” and that he turned around as Mr A was following him and lunged at him. Mr A said that he put the broom across his own body with his arms out to protect himself as he knew the man was carrying a screwdriver. The man grabbed the broom, which bent with the force. The broom was dropped to the ground and the man lunged at Mr A again. A scuffle broke out and the man got on top of Mr A on the ground. Mr A said the man started to grab at Mr A’s genitals and eye gouge him. Mr A said that he got the man off, threw a punch at him and then decided to go back to the house to be with his young son, worried about his safety. When he got back to the house, he noticed that the security light in the garage had been unscrewed and the father’s car damaged with the front tyre being deflated.

4. Mr A’s evidence is that two days later on Sunday 24 June 2012, he and the father were working in the front yard when he looked up and noticed the same man in a car driving past. He said that he then shouted out to the father “There he is. That’s the guy that assaulted me Friday”. He said that the father told him that was the maternal grandfather, Mr F Stone. Mr A said that the maternal grandfather drove past and yelled out of his car “I’ll get you”. He said that a few minutes later the car drove past again and the maternal grandfather again yelled out abusively and was taking photographs as he passed. Mr A said that the car went past a third and a fourth time and on the final occasion it stopped. A woman jumped out of the car and shouted out “I can see you [the father’s given name], you can’t hide, I can see you”. Mr A said that the father told him that was the maternal grandmother. Mr A reported all these matters to the police.

5. Both the maternal grandparents admitted that they were outside the father’s Suburb M home on 22 and 24 June 2012. Again, in an obsequious and unbelievable manner, the maternal grandfather gave evidence that the maternal grandmother had persuaded him to take her to the father’s home so that they could dutifully return items of sentimentality and value to him that they had in boxes in the back of their car. He denied having a screw driver in his hand. He denied causing any damage to the father’s car. He denied all of the matters as asserted by Mr A and he alleged that Mr A had aggressively followed him off the property, grappled with him and struck him on the head with a piece of wood before leaving him alone and returning to the property. The maternal grandmother gave evidence supportive of the maternal grandfather’s version of the event. I did not believe the evidence of either of them.

6. In contrast, Mr A impressed me as an honest witness, doing his very best to recall accurately what must have been a traumatic event for him and his son. I could discern neither sense of fabrication nor any hint of misplaced loyalty to the father that might cause him to unlawfully assault the maternal grandfather and then lie under oath to the Court about the matter. I am quite satisfied that the maternal grandfather went to the home of Mr A and the father after learning of the address disclosed by the father at the previous Court event and did wilful damage to the father’s car and then aggressively threatened and assaulted Mr A when caught. I am quite satisfied that the maternal grandfather and the maternal grandmother lied to investigating police about the events and lied under oath to this Court about them.

7. The maternal grandfather made a complaint to the police, apparently seeking to have Mr A charged with assaulting him. Mr A has not been charged. At the time of the trial in this matter, the maternal grandfather had not been charged by police with any offence committed that evening of Friday 22 June 2012 either. That surprises me. I see no reason why he should not be.

The Evidence about Parenting

1. The evidence of Ms D and of the psychiatrist, Professor E, was very relevant. They both provided written reports and gave oral evidence.

2. Professor E concluded that neither parent suffers from any psychotic illness or “any organic state”. He observed that this means that what each party says about the other cannot be accounted for as “constituting abnormal thought content secondary to mental illness”. Early in his report, the professor said:

   This degree of conflict between the parents where there are claims and counter-claims of seriously disturbed behaviour on the part of the other is unlikely to occur in normal personalities. Thus one or other of the parents or perhaps both have seriously disturbed personality or personality disorder.

3. After considering a lot of the documentary material available in the case, Professor E then pointed out that he did not want there to be any implication that he considered that the father had a paranoid personality or any other disorder that could give rise to persecutory ideation. He did not rule out some “personality vulnerability” on the part of the father but did express the opinion that such matters “do not appear to be of an extent that could constitute disorder of personality”.

4. Professor E went on to express the opinion that “the data available” suggests the mother has “significant personality vulnerability … and this appears to be of an extent that would constitute disorder of personality.” The doctor expressed the opinion that dependent traits are very significant in the mother, with some histrionic and narcissistic traits evident as well. He said that she has “high absorptive capacity which allows her to re-create reality such that she sees things the way she wants to.” He went on to say, though:

   [P]erhaps of greater importance than the mother’s individual psychopathology is the pathological relationship she has with her parents. This is more than just dependency on her parents stemming from the fact that she is the only child. It seems that all three individuals re-construct reality including the past so they would have a particular view of issues involving the father. The situation can be likened to “folie au trois” with the important distinction that there is apparently no psychotic process involved or delusional thinking in any of the three.

5. Professor E pointed out though that he could only express that last opinion about the mother as he had not interviewed either of her parents. He went on to express the following opinion:

   The mother’s family system requires that the father be excluded from the children who are now drawn into the system with its enmeshment and exclusivity. This requires that the father be demonised and considered evil such that he is also alleged to be a threat to the lives of his children. In order to maintain this position there is deception. However this is not simple deception or simple lying but a collective of self deception so that a particular construct of events and indeed a construct of the father dominates the family thinking. It is not that the mother has been “brainwashed” by her parents as contended by the father as she is an active player in the collective family deception. The deception can be considered to be a family myth or confabulation that holds it together. In a sense it is a collective “hysteria” using an old fashion term.

6. I have already referred to Ms D’s concluding recommendations in her first report. In her second report, that was prepared just before the start of the trial in April 2013, she maintained the recommendation that the boys should live with their father with their time with their mother only starting four weeks after they transitioned to their father’s care, to be supervised for two hours per week for three months by an experienced social worker or psychologist. She recommended the time the boys spend with the mother gradually increase to five hours on a Sunday by the end of a six month period, still being supervised though by a mutually agreed supervisor. She only recommended a progression to alternative weekends of unsupervised time from Saturday morning to Sunday evening after a period of about a year and she said that should be conditional upon the mother meeting a number of onerous commitments, including not contacting the children at school and ensuring her parents do not go anywhere near the father’s home.

7. Ms D had, in her first report, expressed the opinion that the boys were experiencing painful loyalty conflicts and, despite having their own positive memories of their father, were showing total loyalty to their mother. She said that they were also experiencing the added stress of being made to feel that their love and attachment for their mother is contingent on abandoning their feelings for their father. In her oral evidence, she observed that when she saw the boys for the second report things had worsened in this regard. She said that whilst they still had some positive feelings towards their father it was becoming more painful to them, thus more difficult to maintain. She said that this sort of conflictual emotional turmoil would impact upon the boys’ ability to be able to relate with any other person as they develop.

8. When Ms D was asked whether these things were beyond repair, her response was that change had to be made “now or never” because if it was allowed to continue there would be long term harm to the boys. She did not think the mother or her parents had the capacity to change and to begin to promote the boys’ relationship with their father. Ms D said that the mother’s time with the boys needed to be supervised until she had demonstrated that she had changed and could manage the boys’ continuing relationship with their father and not before then. She also expressed the belief that the mother could put the children into hiding again if things did not go her way with the trial, but said it is more likely that the grandfather would put the boys into hiding than the mother.

My decision during the first part of the trial to change residence

1. As I have already observed, overnight between the second and the third day of the trial, I made an ex parte order for the Federal Police to go to the school the next morning and to take the boys into their custody to deliver them to the Child Dispute Services office at this Court’s Brisbane Registry. I did that because I was satisfied at that time that any order that was made for the children to go into the father’s unsupervised care would again be wilfully disobeyed by the mother, with the support and encouragement of her parents. The maternal grandfather had not come to Brisbane with the mother and the maternal grandmother for the first two days of the trial. I considered that he had stayed at home and would, as Ms D had said, be likely to take the boys into hiding again if any order was made requiring the mother or the maternal grandmother to deliver the boys to the father. He had, on the evidence, certainly been actively involved in keeping the boys hidden in 2012, having flown them back to Queensland from another State when they came back to live with the maternal grandmother pursuant to my 2012 orders.

2. Indeed, within an hour or so of the boys being delivered by the Federal Police to the Child Dispute Services office in this building, although I had made orders that the mother and her parents not go to that part of the building, the maternal grandfather attended at that place making enquiries about the boys and whether they were there. Clearly, there had, I am satisfied, been communication between the mother or the maternal grandmother and the maternal grandfather during the early days of the trial and even on the morning when it became known to the parties that the Federal Police had been to the boys’ school and secured custody of the boys. I did not believe the maternal grandfather when he said that he had not known of my order that he not go to the Child Dispute Services office at the time that he did.

3. Satisfied that there was no danger to the boys placing them in the care of their father from that afternoon onwards, and quite convinced that the boys would be hidden again by the mother and her parents if they went home with them again, I made the orders that I considered in the boys’ best interests at the end of that day and ordered that they go home with their father, not seeing their mother or maternal grandparents before they did.

4. The trial did not finish in the four days originally allocated to it. At the end of Thursday 18 April, 2013, it was adjourned, part-heard, to the first available three days. Those days were 21 - 23 October, 2013. At the end of the first four days, I ordered that the boys live with the father until further order and not spend time with, nor communicate with the mother or the maternal grandparents. I gave oral reasons for those orders at the time I made them.

5. The maternal grandmother had actually withdrawn as an Intervener actively seeking orders in her favour prior to the commencement of the trial. She, however, played an active part in the first part of the trial, with my leave, by assisting the mother with the presentation of her case. She did ask for orders that the children be allowed to see her at the end of the trial and I considered it appropriate, to make things absolutely clear, to make the order expressly excluding the boys from spending any time with the maternal grandparents or the mother at that stage of the proceedings. I gave reasons at the time.

Events in the period between the April trial dates and the October trial dates

1. The matter came back before the Court on an occasion in September 2013 on the maternal grandmother’s application to intervene again in the proceedings. I granted such leave, but limited only to an application by her for orders that the children spend time with and/or communicate with her.

2. At that hearing, there was evidence put before the Court that satisfied me that the mother had been making attempts, via the internet and via misleading communication sent out to schools where she thought the boys might be attending, to locate the whereabouts of the boys and the father. However, at that hearing she brazenly denied responsibility for such attempts, thereby simply increasing my concerns about her intentions in the event that she located them.

3. When the matter came back for the last three days of the trial, the mother was represented by counsel. The father, who had been represented by counsel during the first four days in April, had no representation on this second occasion. The maternal grandmother, a party again, did not have any legal representation either. The ICL, of course, was represented by the same barrister who had appeared for him during the first part of the trial.

4. The first witness called to give evidence at the start of the second part of the trial was Ms D. She had seen the two boys again on 16 and 17 October at the instigation of the ICL. She had not prepared a written report this time. The boys had been in their father’s sole care since April that year.  

5. Ms D gave evidence that when she saw the boys this time she had been quite shocked by the marked change in their presentation. She said they both appeared to be very happy and healthy and she was impressed by how much their speech had improved from previous occasions she had seen them. She said when she had seen them in the past they had looked so stressed but that this time they, particularly C, appeared happy and bright and animated. She reported that the boys were very pleased to tell her that they had only missed a very small amount of school since living with the father and that they were doing so well. She said that the boys identified to her that they now have friendships, they spend time with friends on the weekends and that they are engaged in extra-curricular activities that they enjoy.

1. Ms D reported that C told her that his father has never physically disciplined him and that B told her he was concerned about the lies his mother had told him about his father, including that he was going to burn their house down with them in it. She said that they did tell her that they missed their mother and that they love her very much and that they understand that they were not seeing her because she was unwell. They were reported to have said they hoped she would get well so that they could see her. She reported that the boys told her that they even have “let’s talk about mum” days where their father encourages them to talk about their mother, but that they are allowed otherwise to talk about their mother at other times as well.

2. When Ms D was asked if she had a view that the father might be influencing or coaching the boys in what to say to her, she forthrightly said “No”. She compared the way the boys spoke about matters this time with the earlier interviews and said that they were very guarded about what they said during the first interviews, but not this time. She said “this time they were very open”. Ms D went on to say that the boys “now feel safe”.

3. This time, Ms D gave evidence of her concerns about reunification with the mother. She said she had no confidence that the mother had improved sufficiently to support the reintroduction of the boys spending time with her. She said that a minimum of 6 to 12 months of time for the boys to consolidate their relationships with their father was now required without the destabilisation of spending time with their mother. She also expressed concern about supervised time taking place at a community based children’s contact centre, as she feared that the mother and the maternal grandparents might follow the father from such a place. Ms D said she thought the secure location of the Court might be the best place for any supervised visits to take place. However, Mr G had, a year earlier, expressed the view that the Court’s Child Dispute Services section is not an appropriate provider of any longer term supervision of time. I respectfully accept his view on that matter.

4. Under cross-examination, Ms D firmly asserted that these two boys have “absolutely blossomed since they have been in their father’s care”. She also pointed out that he had obtained speech therapy for the boys and other appropriate in-home care to assist him in caring for them. She said that the child B himself told her how he had gone up several levels in his reading performance since living with his father and that he was so proud of that fact. School reports admitted into evidence supported findings that both their levels of attendance at school and their academic performance had improved since living with their father.

5. When the father was cross-examined by the barrister appearing for the mother, he said that he supports the recommendations of the expert (Ms D) in respect of the children’s time with the mother. He went on to say that he agreed that the boys should eventually spend unsupervised time with the mother.

6. I got absolutely no sense in this case that the father was driven by a desire to cut the mother out of the children’s lives. When asked questions by the maternal grandmother, he politely pointed out to her that he simply did not trust her or her husband and said that it would be at least five years before he thought he might be able to trust them again.

The mother’s case

1. Not only did the mother fail to make out her case that the father presented an unacceptable risk to the physical wellbeing of the boys, as I did not believe her evidence wherever it conflicted with the father’s, but also the circumstances of the boys having spent six months in the sole care of the father and making improvements so clearly across so many measures positively disproved the mother’s case by the time the trial was concluded.

2. Whether the mother accepted that fact or not, the barrister who represented her at the concluding three days of the trial, to her credit, clearly did. On behalf of the mother, she handed to the Court at the conclusion of the evidence a draft of parenting orders that she submitted I should make in the matter on a final basis. That draft included an order that the father have sole parental responsibility for the two children subject to a process of contacting the mother to ascertain her views and taking them into account before making any “significant decisions”. However, the draft order provided that parental responsibility revert to equal shared parental responsibility upon the mother commencing unsupervised alternate weekends with the boys.

3. Whilst making her final address to the Court, the barrister for the mother conceded that paternity of C was no longer an issue and informed the Court that the mother accepted and acknowledged that C was the father’s son. The mother did not assert any disagreement with that concession made by her barrister.

4. The draft order also provided for the two boys to live with the father. I expect that was more a reflection of the mother’s acceptance of the inevitability of that outcome in all the circumstances than a belief that it was in their best interests. Nevertheless, it was what the mother, through her barrister, was presenting as the order that should be made. Accordingly, at the end of the case it became a matter of having to determine under what circumstances the two boys should see and/or communicate with the mother and their maternal grandmother.

5. The mother had sought to improve her prospects in this regard by beginning to attend upon a psychologist in the period between the first part of the trial and the concluding part. A report by that psychologist was, with leave, adduced into evidence by the mother and the psychologist, Ms O was cross-examined. She said she was engaged initially by a solicitor acting for the mother to provide therapeutic intervention for the mother and specifically to address various issues raised in Ms D’s and Professor E’s written reports. The mother had attended three sessions and missed the last one just prior to the concluding part of the trial.

6. Ms O reported that the mother maintained, across the three sessions, that she “had done everything possible to encourage the children to have a relationship with the father”. She also reportedly denied having an enmeshed relationship with her own parents. She reported the mother as saying that she had made mistakes previously because she had been misled in the past by contradictory professional advice. The mother was also reported as remarkably having said that she thought of positioning herself to draw the father back into the relationship with her, apparently expressing the belief that was still possible.

7. Ms O expressed the view that the mother tended to focus on the father’s behaviour rather than her own and Ms O agreed with Professor E’s opinion that the mother “demonstrated an external locus of control”. Significantly, Ms O said that she questions the mother’s ability to gain sufficient insight to make the changes suggested in the previous reports. Efforts to engage the mother in discussions pertaining to areas of self-responsibility seemed to leave her feeling confused, Ms O said. Interestingly, Ms O said that she had given the mother information on alienating behaviours and counter-productive parenting at her last session that she attended and encouraged the mother to come back to explore honestly “the more subtle aspects of her behaviour” during the next session that was planned. That was the session the mother did not turn up for. The mother had, Ms O said, immediately applied the description of alienating behaviours to the father’s current actions. Ms O concluded that the mother would likely continue to struggle “to veer away from her prevailing attitude regarding the father”.

8. Ms O expressed the view that it might assist the mother if she were to engage in some form of therapeutic supervision with the children, thus providing her with specific working examples of aspects of her behaviour that she could modify.

9. In cross-examination, Ms O said that she had rung the mother to ask why she had missed the last appointment to be told by the mother that she had forgotten about it. Ms O denied that the mother had called her and told her she was delayed at work and could not get there, as the mother herself had said when asked about this in cross-examination. Ms O also denied that the mother had made another appointment as the mother said she did. I accept Ms O’s evidence and note this is yet another example of the mother blatantly lying to this Court to attempt to make her position appear better than in reality it is. 

10. Ms O also agreed with the proposition that there might be a limit to the amount of insight the mother might be able to gain in the longer term. She did say that she might be better placed to give more accurate opinion about that after therapy lasting around six months as opposed to the three sessions she had had with the mother.

11. I accepted the refreshingly candid opinion evidence of Ms O who was the mother’s own therapist and witness. Clearly, it is in the mother’s interests to continue to have a therapeutic relationship with a psychologist like Ms O who actually challenges her particular way of thinking. It is hoped that she has continued to since my judgment has been reserved. I am not confident that she would have though, particularly given her failure to attend the last appointment before the trial concluded and her untruthful evidence about that.

12. The draft order submitted by counsel for the mother included provisions that provided for the children’s time with the mother to actually commence in a supervised setting as soon as the mother provides a report from her “treating psychologist… that she has demonstrating [sic] insight into the psychological harm caused by her own actions then commencing from [and a date only several months away was referred to]”. Clearly, that draft was prefaced on a view that the mother’s treating psychologist would provide such a report within that time frame. That is not a matter that, having regard to the evidence of Ms O, I could be satisfied would be likely to happen.

13. Another matter that really troubled me during the concluding part of the trial related to the mother’s relationship with her parents. Professor E had clearly stated in his report and in his oral evidence during the first part of the trial that he was sceptical that the mother would benefit from any psychotherapy unless she was to make a decision to live away from her parents and minimise her contact with them. He asserted that whilst she continues her close enmeshed relationship with her parents, reality testing in psychotherapy is likely to be overwhelmed by the family dynamics. He said that she might only benefit from psychotherapy if she is able to extricate herself from the pathological dynamics of her family of origin. He expressed a lack of optimism though and did not think that she was a good candidate for psychotherapy.

14. During the concluding part of the trial, the mother and the maternal grandparents, particularly the maternal grandfather, were at pains to try to have me accept that they did not live together anymore and did not even see each other. Again, I did not believe their evidence about that and thought they were lying again just to improve the mother’s case in circumstances where they clearly understood the dynamics of the trial and all of the evidence against the mother.

Events since the trial concluded

1. Whilst this judgment remained reserved, on 6 December 2014, I heard another Application in a Case filed by the father. Evidence was adduced that the mother and her maternal grandmother had been seen at and around the school that the boys attend. There was evidence that they had been seen together and getting out of the same motor car. Again, remarkably, both women brazenly attempted to cast doubt on and downplay that evidence and its significance. Satisfied that they were still trying to get to the two boys without the approval of the father or of this Court, I made orders restraining them from going near the school or any other place the boys might be at. It was further evidence to satisfy me that the mother has not extricated herself from the pathological relationship she has with her mother and father.

The ICL’s position at the end of the trial itself

1. The ICL’s position was very simply put. Counsel for the ICL handed up a draft order and submitted it should be made in the best interests of the boys. It provided for the boys to live with the father, for the father to have sole parental responsibility for the boys and to provide the mother with written reports on a monthly basis about the children’s health, educational progress and social activities. It provided for the children not to spend any time with the mother or the maternal grandmother and for each of them to be at liberty to send any cards, letters and presents to the children that they wish, but that they go through the father at a post office box with the father having the discretion as to whether to give those to the boys or not.

How are parenting orders proceedings to be determined?

1. Pursuant to the provisions of the Family Law Act 1975 (Cth) (“FLA”) this Court is to make such parenting orders as the Court thinks “proper”, and in doing so, the Court must regard the best interests of the subject children as the paramount consideration.

2. In determining what is in a particular child’s best interests the Court must consider an extensive list of matters.[1] Those matters include, listed as “primary considerations”, the benefit to the child of having a meaningful relationship with each of its parents, as well as the need to protect the child from physical or psychological harm. Just how broad the inquiry may be, however, is evidenced by the inclusion in the list of the consideration of “any other fact or circumstance that the court thinks is relevant”.  Additionally, in determining the proper parenting orders the Court should also be mindful of the Objects and the Principles underlying those Objects that are expressly set out at the commencement of the Part of the FLA within which the power to make parenting orders is conferred on the Court. Of course, the actual weight to be attached to the various components of all the applicable statutory provisions will vary from case to case having regard to the evidence and the Court’s factual findings. 

   [1] That list is set out in s 60CC of the Family Law Act 1975 (Cth)

3. The making of “proper” orders is also subject to the application of a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility for the children, unless there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of the child.[2] Even if there are no such reasonable grounds, the Court may still make a different parental responsibility order if persuaded, on the evidence, that the presumption should not apply.

   [2] Section 61DA(1) and s 61DA(2) of the FLA

4. In this case, as I have already observed, at the end of the trial, no party asked for an order conferring equal shared parental responsibility. Only the mother asked for that to be conferred at a time when she began having unsupervised time with the children at some unknown date in the future. I, too, am satisfied that it is not in the boys’ best interests in this case to confer parental responsibility equally on the parents to share at this time. In all the circumstances, the father could not reasonably be expected to have to negotiate with the mother and make genuine effort to reach agreement on “major long-term issues” (as that term is defined in the FLA) in respect of the boys, let alone actually having to make such decisions jointly as required by the FLA. 

5. The father should have sole parental responsibility for the children, but I consider it proper for him also to have the obligation, as submitted by the ICL, to keep the mother informed in writing on a regular basis about the boys’ development. Should he wish to discuss any matter of parental responsibility with the mother to get her input, that will be a matter for him. I will not order him to seek her input. Further, I will not be making an order that provides for the allocation of parental responsibility to change, at some currently unknown date, on a transition from supervised to unsupervised time for the children with the mother. I will not do that as I will not be making orders for a transition to unsupervised time for the children with the mother.

6. In all of the circumstances of this case, I am quite satisfied that the boys are being appropriately cared for by their father and that it is in their best interests to continue to live with him. I accept all of the expert evidence about the mother’s lack of insight into her attitudes and behaviour, including the evidence adduced from the mother’s own treating psychologist in the concluding part of the trial. The mother has not admitted her wrongdoings in this matter. Despite having said “I am sorry your Honour” so many times during the course of her appearances before me that it became unduly distracting, she never once, in my view, demonstrated genuine remorse for her insidious behaviour in respect of her co-parenting relationship with the father or for the lies she was telling the Court.

7. Without any acceptance of her wrongdoings, without any inkling of genuine remorse, without any evidence of the development of insight, to order that the boys spend any unsupervised time with the mother would simply place them at unacceptable risk of further emotional and psychological harm. I am also satisfied that the risk that the mother would put the boys into hiding again is real and completely unacceptable. I am satisfied the risk that she would again attempt to seriously influence the boys negatively against their father is, given their current ages, unacceptable. I am satisfied the risk she would attempt to fabricate some story against the father in an attempt to force change to the parenting arrangements is unacceptable.

8. I do not consider it appropriate to make orders that create a trigger point for unsupervised time with the mother to commence without the father’s agreement or without further Court order. The case is one in which I do not consider unsupervised time should commence at all without the father’s agreement or further Court order. I will not order that it does.

9. Ultimately, the most difficult determination I have had to make in this case is whether the children should spend any time with the mother at all, albeit professionally supervised.

10. Ms D’s evidence at the concluding part of the trial was that the boys wanted to see their mother. However, at that time they were only 8 and 6 years old respectively and they had some fond memories of her, so that is hardly surprising. Clearly, their wishes alone, at that age, cannot be determinative of the matter. Although the Independent Children’s Lawyer submitted that no supervised time be ordered, the father himself handed up written submissions that provided for an introduction of supervised time after a year of the mother attending counselling, but only after a report from the counsellor is considered by him and the ICL.

11. I accept the submission made by counsel for the ICL that I could not be satisfied that the mother demonstrates the necessary insight or capacity for appropriate change. I am not persuaded at this point in time that she does. As a consequence, I have determined not to order any supervised time. I consider that without that insight and demonstrated capacity for change, even with supervision, time with the mother would present these boys with an unacceptable risk of emotional and psychological harm. I also find that there is an unacceptable risk of the mother and/or the maternal grandparents assaulting, abusing, threatening or harassing the father if they are able to come into contact with him through supervised contact visits. I also find that there is an unacceptable risk of one or more of the three of them hiding and following the father from a place where supervised contact might take place and then abducting the children and taking them into hiding again. I am satisfied that the consequences of that would be far more harmful to the children than not spending any time with the mother at this point in time in their lives. I will make no order for supervised time.

1. I will make no order that allows for the children to have contact with the mother save for the mother being able to write letters and cards and send parcels, and for the boys to be able to do the same, but with all of those to go through the father before the boys either get them or send them.

2. I am satisfied that the father’s attitude to the boys’ relationships with their mother is such that if and when the mother is able to demonstrate to the father that she has changed and he is satisfied that the boys spending time with her no longer presents a risk to their wellbeing that he is not prepared to accept, he will not unreasonably prevent them from pursuing those relationships with her. If I am wrong, and the mother believes she can adduce evidence that demonstrates those things, she has the right to seek orders from this Court in the future. Of course, it will be for her to convince the Court that is so at the time.

1. The ICL also proposed that I make an order that any further application with respect to the children be listed before me in the first instance for determination as to whether the application is to proceed. I have considered that and concluded that I will not make such an order. This judgment includes, at least in my view, sufficient of the history of this matter as well as my reasons why I am specifically ordering that the children not spend any time with the mother, for any judicial officer who might have to consider an application from the mother in the future to be able to determine whether the mother demonstrates sufficient insight and change for fresh proceedings to be allowed to continue. Indeed, it is to be hoped, that the mother continues to strive towards reaching such a point, for the sake of the future of the boys’ relationships with her. However, it is clear that a great deal of psycho-therapy will be necessary to reach such a point.

The maternal grandmother’s application

1. The maternal grandmother handed a written document to the Court at the end of the concluding part of the trial. In that, she said she wanted to be able to see the boys at least monthly; she wanted to be able to communicate with the boys by telephone, letter, email, or skype; she wanted to “be assessed by a professional to proof [sic] my intentions are honourable”; she wanted to be part of the boys’ lives; she wanted all further conflict with the father to cease; she wanted mediation; she wanted pictures and updates more frequently than weekly; and she wanted the boys to be able to see their pets.  

2. As I have observed, I am quite satisfied that the maternal grandparents, including the maternal grandmother, have been significantly responsible for many of the difficulties that emerged in this case that prevented the boys having a meaningful relationship with their father for a long time. As with the mother, I am not satisfied that the maternal grandparents have demonstrated remorse for their actions or that they have the capacity to develop insight and to change. The maternal grandmother’s unwavering support of the mother and the maternal grandfather’s story about the North Quay assault on the father, even in the face of the weight of the evidence to the contrary, does her no credit. Her support for her husband’s version of the assault on Mr A in June, 2012 does her no credit. Her attempts to make contact with the boys at the school they were attending in 2013 and her brazen attempts at denying and covering that up also do her no credit.

3. It is sad if children grow up without having beneficial relationships with grandparents. If those relationships would be beneficial to their wellbeing then, of course, they are to be encouraged and, where possible, facilitated. It has been said that children cannot have too many people who love them. However, where the furtherance of relationships between children and their grandparents creates a toxic emotional environment for those children, one in which the love and attention they get from those grandparents is conditional upon them having to forego their own love for their parents or one of them, then promoting those relationships cannot be in their best interests.

4. I am satisfied that these two grandparents have significant psychological pathology and that, whilst that continues to determine their actions in life it is not in the boys’ best interests to be seeing them or having direct contact with them as a couple or, indeed, with either of them individually. It is beyond the point of this Court having to order the grandmother “to be assessed by a professional”. As with the mother, I expect a lot of very good psychotherapy from a very competent and experienced psychiatrist or psychologist would be required to make any difference to the maternal grandparents’ attitudes and behaviour. The father made it clear that it will take years before he might ever trust the maternal grandparents again. That is, in my view, a reasonable position on his part. Until then, or until the maternal grandmother and/or her husband are able to persuade this Court that they are worthy of trust and would be a beneficial influence in their grandsons’ lives, I will not be making an order for the boys to be spending any time with either of them, in any setting. I will not be making an order that provides for the boys to be communicating directly with them either.

The property adjustment proceedings

1. This was almost a forgotten part of these proceedings. Most of the trial was taken up dealing with matters pertaining to the issues necessary to determine the parenting orders dispute and very little evidence of assistance to the Court in determining the property adjustment dispute was adduced by either the mother or the father.

2. Of course, pursuant to s 79(1) of the FLA, the Court may make such orders as it considers appropriate altering the interests of the parties to the marriage in property or, as the mother was bankrupt at the time of trial and probably still is, altering the interests of the bankruptcy trustee in the vested bankruptcy property. However, the Court shall not make an order under s 79 unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

3. In this particular case, I am satisfied that the husband took with him from the marriage at separation his personal possessions and that he also took possession of two motor vehicles and a trailer that were assets of the family trust that were used for the operation of the business run by a company of the parties. I accept that he took possession of those vehicles by necessity, those vehicles having been abandoned by their drivers interstate when they broke down. I accept that he took appropriate steps to realise the value of those vehicles to be able to pay for their repair and discharge some personally guaranteed debt of the trustee company. The balance of the assets of the trust I am satisfied were retained by the mother and her parents. What became of all those items is completely unclear. I can make no findings about their existence or value. As far as the business is concerned, it seems common ground that the company that operated it was liquidated. I can make no other findings about these matters.

4. The former matrimonial home of the couple, registered in the mother’s sole name, clearly vested in the bankruptcy trustee on the mother’s bankruptcy. I am, as I have observed earlier, aware that the bankruptcy trustee considered the property to be worth less than was owed to the bank and secured by mortgage registered over the property. I expect the bank has taken steps to realize what it could from its security in the meantime, but I can make no findings about that or about any surplus or otherwise. If there was any surplus it would be part of the vested bankruptcy property. I doubt that there would have been any. In any event, I know nothing about the quantum of debt alleged to be owed by the mother to her creditors or the value of the vested bankruptcy property or what has happened to it.

5. I am aware that the maternal grandparents have made allegations that the father owes them money arising from alleged transactions during the marriage of the father and the mother. However, I am simply not satisfied from the evidence that was before me that he does or that these allegations are not mischievous and without foundation. In any event, in the circumstances of the mother and her parents retaining most of the assets of the trust that were used in the business, I am satisfied the appropriate course is for the mother to indemnify the father against all and any liability to her parents.

6. In all the circumstances, the only orders that I consider I can make that I am  satisfied are just and equitable include the father keeping as his sole property all the personal property he has in his possession and him keeping any superannuation interest he might have accumulated from employment, as well as the indemnity I just mentioned. I will make those orders and no others in respect of property.

7. Finally, I regret the fact that my judgment has been reserved for as long as it has. The responsibility of hearing and determining so many other cases in the meantime is the principal reason for this delay in delivering judgment. In expressing this regret, I acknowledge the concern that I have no doubt this delay would have caused the parties.

8. I make the orders that are set out at the commencement of these reasons.

I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 22 January 2015.

Associate: 

Date:  22 January 2015