VAUGHAN & VAUGHAN (No.2)
[2017] FCCA 43
•24 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VAUGHAN & VAUGHAN (No.2) | [2017] FCCA 43 |
| Catchwords: HELD – The Father have sole parental responsibility for the parties’ three children, the Mother’s time with the children be in the presence of an agreed person who shall remain in substantial attendance – the parties attend upon |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC(2), 60CC(2A), 60CC(3)(a) Mental Health Act 2014 (Vic), s.10 |
| Cases cited: Jackson v Goldsmith (1950) 81 CLR 446 AMS v AIF (1999) 199 CLR 160 U & U (2002) 211 CLR 238 Goode & Goode (2006) 206 FLR 212 |
| Applicant: | MS VAUGHAN |
| Respondent: | MR VAUGHAN |
| Intervener: | DEPARTMENT OF HEALTH & HUMAN SERVICES |
| File Number: | MLC 3821 of 2014 |
| Judgment of: | Judge Bender |
| Hearing dates: | 4 July 2016, 5 July 2016, 6 July 2016, 7 July 2016, 8 July 2016, 28 July 2016 29 July 2016, 2 September 2016 |
| Date of Last Submission: | 2 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Testart |
| Solicitors for the Applicant: | Trapski Family Law |
| Counsel for the Respondent: | Self-Represented |
| Solicitors for the Respondent: | Self-Represented |
| Counsel for the Intervenor: | Ms Mendes Da Costa |
| Solicitors for the Intervenor: | Department of Health and Human Services |
| Counsel for the Independent Children's Lawyer: | Ms Southey |
| Solicitors for the Independent Children's Lawyer: | Lampe Family Lawyers |
ORDERS
All previous parenting orders be discharged.
Subject to Orders 14 and 16, the Father have sole parental responsibility for X born (omitted) 2006 (“X”), Y born (omitted) 2010 (“Y”) and Z born (omitted) 2012 (“Z”).
X, Y and Z live with the Father.
X, Y and Z spend time with the Mother as follows:
(a)For no less than three hours, twice per week on days and times to be agreed and in default of agreement from 2.00pm and 5.00pm each Sunday and from after school or 3.30pm to 6.30pm each Wednesday;
(b)On Mother’s Day for five hours at times to be agreed and in default of agreement from 12.00pm to 5.00pm;
(c)On the Mother’s birthday and each of X, Y and Z’s birthday for three hours at times to be agreed and in default of agreement from after school or 3.30pm to 6.30pm if a school day and from 12.00pm to 3.00pm if a non-school day;
(d)On Christmas Day for four hours at times to be agreed and in default of agreement from 12.00pm to 4.00pm;
(e)At such further and other times as maybe agreed between the parties in writing.
The Mother’s time with X, Y and Z be in the presence of any person approved by the Independent Children’s Lawyer who shall remain in substantial attendance.
For the purpose of Order 5 herein, the Mother shall provide to the Independent Children’s Lawyer within seven days from the date of this order a list of nominated persons to be in substantial attendance when X, Y and Z are spending time with the Mother and within fourteen days thereafter the Independent Children’s Lawyer shall notify the Mother and Father in writing of the persons approved by her to be in substantial attendance (“the approved persons”).
Pending the Independent Children’s Lawyer providing the parties with the list of approved persons pursuant to Order 6 herein, the persons who are currently in substantial attendance when X, Y and Z spend time with the Mother who have been approved by the Department of Health and Human Services shall be approved persons for the purposes of these Orders.
Changeover for the purposes of the Mother’s time with X, Y and Z shall take place at (omitted) (if not at school) or as otherwise agreed.
The Mother communicate by telephone with X, Y and Z each Tuesday and Thursday between 5.00pm and 5.30pm, with the Mother to make the phone call to the Father’s mobile telephone and the Father to facilitate the communication and allow the children privacy.
The Mother shall continue to attend upon her treating psychiatrist Dr T or such other psychiatrist as recommended by Dr T and follow all lawful directions given by Dr T or such other treating psychiatrist in relation to her ongoing attendance and treatment.
The parents forthwith do all acts and sign all documents necessary to engage with Ms I or such other Family Therapist as recommended by the Independent Children’s Lawyer (“the Family Therapist”) in order to complete both individual and joint therapy, if recommended by the Family Therapist to address the following:
(a)The implementation of these Orders;
(b)How to manage any potential future disclosures made by the children or any of them;
(c)Ongoing parental communication;
(d)Any other matter deemed appropriate and necessary by the Family Therapist;
The Independent Children’s Lawyer have leave to provide the following documents to the Family Therapist:
(a)The Family Report of Ms E;
(b)The report of Dr R;
(c)The report of Dr D with respect to the Mother; and
(d)A copy of the orders made and the judgment delivered in these proceedings.
The parents be and are hereby restrained by injunction from:
(a)Insulting, belittling, degrading or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of X, Y and Z or any of them or from allowing any other person to do so;
(b)Discussing these proceedings or X, Y and Z’s living arrangements in the presence or hearing of X, Y and Z or any of them;
(c)Taking or permitting X, Y and Z or any of them to be interviewed by a member of the Police force or Department of Health and Human Services save with leave of this Honourable Court.
Each party shall advise the other of any serious illness or injury suffered by X, Y or Z as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.
The parents each keep the other informed at all times of their current contact telephone number, and notify the other within 48 hours of any change to same.
The parents be permitted by these Orders to:
(a)Participate in all usual parent/child school activities to which parents are invited;
(b)Receive or access information and documents in relation to X, Y and Z (including but not limited to reports, letters, photographs and the like);
(c)Discuss all matters pertaining to X, Y and Z’s education, health and well-being with their school and medical and like practitioners;
(d)The costs, if any, of such information shall be paid by the parent requesting the information.
Save by leave from this Honourable Court, the Mother be restrained from issuing a further application in the matter seeking to spend unsupervised and increased time with X, Y and Z prior to:
(a)A period of at least twelve months having passed; and
(b)The filing of a report by her treating psychiatrist with respect to:
(i)A history of her engagement with the psychiatrist over the preceding twelve months;
(ii)The treatment undertaken by her;
(iii)Her progress with respect to withdrawing from benzodiazepines; and
(iv)Her future prognosis regarding anxiety, benzodiazepine addiction and anorexia nervosa;
It is requested that any further applications to be issued in these proceedings be listed before Her Honour Judge Bender if practicable.
The order for the appointment of an Independent Children’s Lawyer be discharged in 60 days.
IT IS NOTED that publication of this judgment under the pseudonym Vaughan & Vaughan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3821 of 2014
| MS VAUGHAN |
Applicant
And
| MR VAUGHAN |
Respondent
| DEPARTMENT OF HEALTH AND HUMAN SERVICES |
Intervener
REASONS FOR JUDGMENT
Introduction
On 11 December 2015 after a six day final hearing I handed down a 104 page judgment that set out the parenting arrangements for the for the parties’ three children X born (omitted) 2006 (“X”), Y born (omitted) 2010 (“Y”) and Z born (omitted) 2012 (“Z”).
The orders pronounced on 11 December 2015 provided for X, Y and Z to live with the Mother and spend time with the Father for six defined periods of two nights during the 2015/2016 holidays and commencing in term 1 2016, for alternate weekends from after school Friday to Sunday evening increasing to alternate weekends from after school Thursday to before school Monday, each Thursday from after school to 7:00pm in the alternate week as well as holiday time and special occasions.
On 16 December 2015 my chambers were contacted by the solicitors for the Mother who advised that the Department of Health and Human Services (“DHHS”) had issued a Protection Application for emergency care based on the immediate and significant concerns DHHS held for X, Y and Z in the care of the Mother.
In early November 2015 Y disclosed to the Father that the Mother sucked his penis while drying him after a bath.
Upon this disclosure the Father contacted the Independent Children’s Lawyer who advised him to report the disclosure to DHHS.
The Independent Children’s Lawyer did not advise the Father who was self-represented to bring an urgent application to this Court to suspend time. Nor did the Independent Children’s Lawyer notify the Court of the disclosure. No explanation has been given by the Independent Children’s Lawyer for her failure to bring these matters to the Court’s attention prior to the judgment being handed down on 11 December 2015.
On 12 November 2015 the Father notified (omitted) Sexual Offences and Child Abuse Investigation Team (“SOCIT”) of Y’s disclosure.
Y was interviewed by SOCIT on 12 November 2015 and made no disclosures of abuse by the Mother to the Police.
On 4 December 2015 the Father notified SOCIT that whilst bathing Z she spread her legs and asked him to lick her vagina. When asked why she did that, Z is said to have told the Father that “mummy licks me here.”
Z was interviewed by SOCIT on 10 December 2015 and made no disclosures of abuse by the Mother.
On 16 December 2016 Mr G, DHHS Team Manager, interviewed Y at his school. Y told Mr G that the Mother “sucked his willy” when he was getting out of the bath. Y told Mr G that this happened in the Mother’s bathroom and that X and Z were in the bathroom when it occurred. Mr G also spoke to X at school on the same day. X corroborated Y’s disclosure. It was at this time the Protection Application was made by DHHS.
Given this Court’s recent and very lengthy involvement with the family, the matter was listed for urgent mention on 17 December 2015. DHHS were invited to attend the hearing.
On 17 December 2015 after discussion with all parties and DHHS it was agreed this matter would remain with the Federal Circuit Court of Australia and DHHS would discontinue their Protection Application that was listed in the Children’s Court on 19 December 2015. Orders were accordingly made as follows:
a)Leave granted to the Mother to make oral application for all time between the Father and X, Y and Z be suspended;
b)The matter be adjourned to 21 December 2015 for interim hearing;
c)Appointment of an Independent Children’s Lawyer and a request the previous Independent Children’s Lawyer be appointed; and
d)Pursuant to section 11F of the Family Law Act 1975 (“the Act”) the parties, X, Y and Z attend upon a Family Consultant for a Child Inclusive Conference with an oral report to be delivered on 21 December 2015.
On 21 December 2015 Mr S, Senior Family Consultant with the Federal Circuit Court of Australia delivered an oral report to the Court.
Mr S advised the Court that whilst he spoke to both parties, he made a decision not to speak to X, Y and Z as his discussions with DHHS and Victoria Police indicated they had ongoing investigations which may require X, Y and Z to again be interviewed.
It was Mr S’s evidence that given the seriousness of the allegations against the Mother and that the Police and DHHS investigations were ongoing, X, Y and Z should live with the Father and spend only professionally supervised day time with the Mother.
Mr S, having spoken to DHHS, also supported their recommendation that X, Y and Z be assessed by the (omitted) Centre Against Sexual Abuse (“ECASA”).
Orders were made on 21 December 2015 as follows:
a)The matter be adjourned to 7 April 2016 for mention;
b)
Paragraphs (1)-(7) and (13) of the final parenting orders made
11 December 2015 be suspended;
c)X, Y and Z live with the Father;
d)X, Y and Z spend time with the Mother:
i)no less than twice per week for a minimum of two hours, such time to be supervised by DHHS or their nominee; and
ii)by card each fortnight, such card to be sent to the Independent Children’s Lawyer for vetting.
e)Time between the Mother, X, Y and Z to be extended to three times per week for 4 hours with the approval of DHHS;
f)The Father undertake supervised drug screens within 48 hours of a written request to do so from the Independent Children’s Lawyer;
g)The parties follow all reasonable directions of DHHS to facilitate a referral and attendance for X, Y and Z at ECASA;
h)The Father undertake a psychiatric assessment by a psychiatrist nominated by the Independent Children’s Lawyer; and
i)A watch list order be made preventing X, Y and Z being removed from the Commonwealth of Australia.
On 7 April 2016 the Court was advised ECASA had been unable to accept a referral for X, Y and Z because of a conflict. They had previously worked with the Mother.
At the mention of this matter on 7 April 2016, the matter was listed for final hearing on 4 July 2016. Orders were made for the preparation of a family report and for the Mother to be psychiatrically assessed by Dr D, he having completed a psychiatric assessment of the Father in March 2016 pursuant to the orders made 21 December 2015.
An order was made requesting DHHS to arrange for Dr R to:
“complete an investigation and assessment of the allegations made by the Father that the Mother has sexually abused X, Y and Z and the allegations made by the Mother that the Father is manipulating the children to make such allegations and the Department provide a report setting out their investigation and findings if any to the parties and the Court no later than 4:00pm on 23 May 2016”.
Interim orders were also made that provided for X, Y and Z to spend time with the Mother three times per week for four hours on school days and eight hours on weekends, such time to be supervised by any persons approved by DHHS. Mr G was requested to provide the parties and the Independent Children’s Lawyer with a list of approved supervisors.
In closings at the conclusion of evidence at the final hearing the Mother’s Counsel did not clarify the Orders sought by the Mother. As such the Court can only conclude that the Mother is seeking Orders as set out in her Outline of Case filed 1 July 2016. The Orders the Mother seeks that set out in that document are:
a)the Mother have the sole parental responsibility for the children;
b)the Mother be at liberty to enrol and have the children attend a primary school of her choosing without requiring the Father’s written consent;
c)the Father’s time with the children be suspended for a period of 12 months and following the resumption of his time, that time be suspended at such times as determined by the Court;
d)that otherwise the Orders of 11 December 2015 be reinstated and the children be immediately returned to the Mother’s primary care;
e)that a recovery order issue and lie on the file unexecuted to await the Father’s compliance with Order (d) and the Mother be at liberty to seek an order that the said recovery order be executed at short notice upon the filing of an affidavit as to the non-compliance by the Father with Order (d).
When closing, Counsel for the Independent Children’s Lawyer put a written proposal to the Court setting out the Orders sought by the Independent Children’s Lawyer. The Father and DHHS supported the Orders proposed by the Independent Children’s Lawyer. Whilst lengthy, they are set out in full as follows:
1. “All previous parenting orders be discharged.
2. Subject to Orders 12 and 13, the Father have sole parental responsibility for X born (omitted) 2006 (“X”), Y born (omitted) 2010 (“Y”) and Z born (omitted) 2012 (“Z”).
3. X, Y and Z live with the Father.
4. X, Y and Z spend time with the Mother as follows:
a. For no less than three hours, twice per week on days and times to be agreed and in default of agreement from 2.00pm and 5.00pm each Sunday and from after school or 3.30pm to 6.30pm each Wednesday;
b. On Mother’s Day for five hours at times to be agreed and in default of agreement from 12.00pm to 5.00pm;
c. On the Mother’s birthday and each of X, Y and Z’s birthday for three hours at times to be agreed and in default of agreement from after school or 3.30pm to 6.30pm if a school day and from 12.00pm to 3.00pm if a non-school day;
d. On Christmas Day for four hours at times to be agreed and in default of agreement from 12.00pm to 4.00pm;
e. At such further and other times as maybe agreed.
5. The Mother’s time with X, Y and Z be in the presence of an agreed person who shall remain in substantial attendance.
6. Changeover for the purposes of the Mother’s time with the X, Y and Z shall take place at (omitted) (if not at school) or otherwise agreed.
7. The Mother communicate by telephone with X, Y and Z each Tuesday and Thursday between 5.00pm and 5.30pm, with the Mother to make the phone call to the Father’s mobile telephone and the Father to facilitate the communication and allow the children privacy.
8. The Mother forthwith do all acts and sign all documents necessary to engage with a psychiatrist recommended by Dr D (“the psychiatrist”) for Cognitive Behaviorial Therapy or such other therapeutic process deemed appropriate by the psychiatrist (with a view to the Mother withdrawing from benzodiazepines entirely if deemed appropriate), such psychiatrist to have experience in treating dependency to prescription medication and anxiety.
9. Mother follow all lawful instructions by the psychiatrist with respect to ongoing attendance and treatment regimes.
10. The parents forthwith do all actus and sign all documents necessary to engage with Ms I or such other Family Therapist as recommended by the Independent Children’s Lawyer in order to complete both individual and joint therapy, if recommended by Ms I to address the following:
a. The implementation of these Orders;
b. How to manage any potential future disclosures made by the children or any of them;
c. Ongoing parental communication;
d. Any other matter deemed appropriate and necessary
Ms I;11. The Independent Children’s Lawyer have leave to provide the following documents to Ms I and the Mother’s psychiatrist:
a. The Family Report of Ms E;
b. The report of Dr R;
c. The report of Dr D with respect to the Mother.
12. The parents be and are hereby restrained by injunction from:
a. Insulting, belittling, degrading or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of X, Y and Z or any of them or from allowing any other person to do so;
b. Discussing these proceedings or X, Y and Z’s living arrangements in the presence or hearing of X, Y and Z or any of them;
c. Taking or permitting X, Y and Z or any of them to be interviewed by a member of the Police force or Department of Health and Human Services save for leave of the Honourable Court.
13. The Father advise the Mother of any significant medical injury or illness affecting X, Y and Z or any of them including providing the other parent with details of any Doctor or Hospital that X, Y and Z may attend upon.
14. The parents each keep the other informed at all times of their current contact telephone number, and notify the other within 48 hours of any change to same.
15. The parents be permitted by these Orders to:
a. Participate in all usual parent/child school activities to which parents are invited;
b. Receive or access information and document in relation to the X, Y and Z (including, but not limited to, reports, letters, photographs and the like);
c. Discuss all matters pertaining to X, Y and Z’s education, health and well-being with their school and medical and like practitioners;
d. The costs, if any, of such information shall be paid by the parent requesting the information.
16. Save for leave from the Honourable Court, the Mother be restrained from issuing a further application in the matter seeking to spend unsupervised and increased time with X, Y and Z prior to undertaking the following:
a. A period of at least twelve months counselling with the psychiatrist as directed by the psychiatrist (unless deemed unnecessary by the psychiatrist);
b. The preparation of a report by the psychiatrist with respect to:
i.A history of her engagement with the psychiatrist;
ii.The treatment undertaken by her;
iii.Her progress with respect to withdrawing from benzodiazepines;
iv.Her future prognosis regarding anxiety, benzodiazepine addiction and anorexia nervosa;
v.(v) Any recommendation with respect to future treatment.
17. It is requested that any further application to be issued in these proceedings be listed before Her Honour Judge Bender if at all practicable.
18. The order for the appointment of an Independent Children’s Lawyer be discharged in 30 days.”
Background
As set out previously in this judgment a very lengthy judgment was handed down in this matter on 11 December 2015. Paragraphs (4)-(73) of that judgment set out the background of this case at that time and are repeated here:
“4. The Mother was born on (omitted) 1980 in (country omitted) and is aged 35 years. The Mother is a qualified (occupation omitted) and is currently employed on a part-time basis as a (occupation omitted) at (employer omitted). The Mother has not re-partnered.
5. The Father was born in (omitted) on (omitted) 1978 and is aged 37 years. The Father is the managing director of a business, “(business omitted)” which provides (business omitted). The Father has run this business since 2004. The Father has not re-partnered.
6. The parties met in Sydney in 2005 when the Wife was in Australia on a working holiday. They commenced cohabitation in Sydney in July 2005.
7. After the parties discovered the Mother was pregnant with X, she returned to the (country omitted). The Father followed shortly prior to X’s birth.
8. The parties lived in the (country omitted) prior to and after X’s birth for approximately eight months. They returned to Melbourne in (omitted) 2007.
9. The parties purchased the former matrimonial home in August 2007.
10. The Mother returned to work on a part-time basis as a (occupation omitted) at (employer omitted) in (omitted) 2007 whilst the Father continued to develop his business.
11. In 2008, the Mother undertook training to become a (occupation omitted) and in 2011 commenced employment on a part time basis as a (occupation omitted).
12. In mid-2011, there was an incident at the Mother’s work where (omitted). After this incident, the Mother had difficulty sleeping and began losing weight.
13. The Mother’s treating General Practitioner prescribed sleeping tablets to assist the Mother to sleep. In August 2010, the Mother was admitted to (omitted) Hospital where she was diagnosed with post-traumatic stress disorder. The Mother was prescribed further Benzodiazepine during her hospital stay.
14. In August 2011, the Mother was admitted to (omitted) Hospital Psychiatry Ward to address her ongoing dependence on Benzodiazepines and in particular Clonazepam. At this time the Mother was referred to Dr T psychiatrist who she continues to attend to this day.
15. The parties married on (omitted) 2011.
16. In July 2013 the parties and X, Y and Z travelled to the (country omitted) and (country omitted). At this time the Mother’s treating General Practitioner prescribed the Mother the Benzodiazepine, Clonazepam as the Mother was experiencing anxiety and weight loss.
17. By late 2013 and early 2014 the Mother’s mental health deteriorated significantly as she was not eating or sleeping properly. The Mother was greatly exceeding taking the prescribed amount of Clonazepam. Her treating General Practitioner was providing her with multiple repeat prescriptions via post and the Mother also had access to the drug at her work place.
18. The Mother concedes she was taking up to 100mg of Clonazepam per day. 8mg per day is considered an unsafe dosage.
19. The Mother was also losing considerable weight at this time. The Mother had previously suffered from an eating disorder in her teens after she had been sexually abused.
(20) In the lead up to and during this period the parties’ relationship became increasingly unhappy.
21. In January 2014, the Mother was admitted to (omitted) Private Hospital for nine days. At this time the Mother was formally diagnosed with Anorexia Nervosa.
22. The Mother had further brief admissions to (omitted) Hospital, the (omitted) Hospital and (omitted) Hospital in early February 2014 because of her deteriorating mental health.
23. On 14 February 2014 the Mother was admitted to (omitted) Private Hospital as a voluntary patient under the care of Dr T for four weeks for treatment of her Anorexia Nervosa and Clonazepam addiction.
24. The Mother was discharged from (omitted) Private Hospital on 13 March 2014 and returned to the former matrimonial home. The considerable tension between the parties continued after the Mother’s return to the former matrimonial home.
25. On the morning of Sunday 23 March 2014 the parties argued. X, Y and Z were present at this time. A friend of the Mother’s, Ms L, was visiting the Mother and was sufficiently concerned about the parties’ interaction that she called the police. The police attended and negotiated for the Father to leave the former matrimonial home and to take X, Y and Z to his parents’ home.
26. After the Father and children left the former matrimonial home the Mother, in anger, kicked over the Father’s motor bike which was in the garage. Petrol and oil from the motor bike spilled on the garage floor.
27. Later that afternoon, the Mother attended the home of Ms L for support as she was most upset about the day’s events. At 9.00pm, shortly after the Mother had gone home, she returned to Ms L’s home to report there were “sparks in the garage”. The Mother and Ms L returned to the former matrimonial home. The garage was on fire. Ms L called the fire brigade and put a hose on the fire until the fire brigade arrived and put the fire out. The cause of this fire was said to be the petrol from the motor bike mixing with the oil on the garage floor resulting in a chemical ignition.
28. The Mother is adamant she did not start this fire, albeit it resulted from her having kicking the motor bike over in anger.
29. At approximately 1.00am the following morning the fire brigade and police again attended the former matrimonial home as a second fire had been lit in front of the garage.
30. Whilst the Mother denies all knowledge of the second fire, the subpoenaed Victoria Police LEAP records disclose that the Mother told the Police she had started the fire.
31. After the second fire, the police took the Mother to (omitted) Hospital for assessment under s 10 of the Mental Health Act 2014 (Vic).
32. The Mother was discharged from (omitted) Hospital on
27 March 2014.
33. After the incidents on 23 March 2014, X, Y and Z remained with the Father at the paternal grandparent’s home. The Mother spent limited supervised time with the children until the Easter weekend of 19 April 2014 when the Father and the children returned to the former matrimonial home so that the parties could consider possible reconciliation.
34. It is the Father’s evidence that he has little to no memory of the 2014 Easter weekend. It is his evidence that he slept most of the weekend and had no idea there had been an Easter Egg hunt until he saw some photographs after the weekend.
35. Given how he was feeling, the Father initially had a blood test performed by a doctor who is his parents’ neighbour to see if he had been bitten by a spider. The blood test indicated this was not so. The Father became suspicious that the Mother had given him Benzodiazepines and undertook a urine drug screen which was positive for Benzodiazepines.
36. The Mother is adamant she at no time gave the Father Benzodiazepines over the 2014 Easter weekend. The only explanation the Mother can offer as to how the Father returned a positive urine test is that he may have doctored the sample (as the test was unsupervised) or took Benzodiazepines prior to the urine drug screen to incriminate her.
37. After this incident the Father refused all time between X, Y and Z and the Mother.
38. On 5 April 2014, the Mother issued an Initiating Application seeking urgent parenting orders as well as property orders.
39. On 4 June 2014, Interim Orders were made for X, Y and Z to live with the Father and spend supervised time with the Mother each Wednesday from 4.00pm to 7.00pm and each Sunday from 10.00am to 3.00pm.
40. The matter returned to Court on 19 September 2014 where further Interim Orders were made. The orders provided for X, Y and Z to spend supervised time with the Mother from 10.00am to 7.00pm each Wednesday and Sunday and for Z to spend additional time with the Mother from 10.00am to 1.00pm each Thursday.
41. Orders were also made for the Mother to attend upon Dr G for a psychiatric assessment and for the parties and X, Y and Z to attend upon Ms B for a family report.
42. The matter returned to Court on 10 December 2014 for an Interim Hearing which was subsequent to the release of Dr G’s psychiatric assessment and Ms B’s family report. Also to hand were updated reports from the Mother’s treating psychiatrist Dr T.
43. On 10 December 2014 Interim Orders were made by consent which provided for X, Y and Z to live with the Mother on an unsupervised and increasing basis culminating in them living in a shared care arrangement with both parents from the commencement of Term 1 in 2015.
44. Pursuant to the 10 December 2014 Orders, X, Y and Z were in the Mother’s care from 10.00am Friday 23 January 2015 to 7.00pm Monday 26 January 2015, the Australia Day weekend.
45. On the night of Saturday 24 January 2015 someone threw paint thinner over the Father’s motor vehicles which were parked outside his parent’s home.
46. It is the Father’s firm belief that it was the Mother who committed this act.
47. The Father has CCTV footage taken from security cameras at his parents’ home. The CCTV footage which was played to the Court shows a completely unidentifiable figure throwing something on the cars. It is the Father’s evidence that he recognises that figure as being the Mother.
48. Police have investigated the incident and confirmed they cannot identify the culprit.
49. The Mother categorically denies she damaged the Father’s cars. It is the Mother’s evidence she could not have damaged the Father’s cars as she, X, Y and Z spent the entire Australia Day weekend at (omitted) with friends and they did not return to Melbourne until Monday.
50. In support of this claim the Mother produced a text message sent by her to the Father on Saturday 24 January 2015 which shows X, Y and Z in the water at the beach.
51. It is the Father’s evidence he believes the Mother and children returned from (omitted) to the Mother’s house on Saturday night as there are text messages between the Mother and himself and the Mother and Ms L which point to the Mother, X, Y and Z returning to Melbourne on Saturday night.
52. On 11 March 2015 the Mother filed an urgent Application in a Case seeking a Recovery Order as the Father had not allowed X, Y and Z to return to her care from 2 March 2015.
53. In her Affidavit in support of her Application in a Case, the Mother deposed to the Father sending abusive text messages, making angry phone calls, threatening to over hold the children, following her, parking near her home and taking photographs of her home.
54. The Mother’s Application in a Case was listed for urgent hearing on 23 March 2015. The Father, who at that time was unrepresented, had not filed any answering documents save for a Notice of Risk.
55. On the day of the hearing the Father was permitted to make submissions from the bar table. He indicated he believed X, Y and Z were at risk in the Mother’s care. When asked to expand on what he alleged that risk to the children in the Mother’s care to be, the Father indicated the following:
·X has told him the Mother hit him in the head because he refused to mow the lawn when she asked him to do so;
·The children have told him the Mother leaves them alone;
·X has told him the Mother sent him to the shop on his own to buy bread and milk as they would not otherwise get breakfast. X told him he had never done this before. The Father googled the nearest shop to the Mother’s home and observed that X would have had to cross a railway line and other roads to get from the Mother’s home to the milk bar;
·X, when told the Mother was collecting him from school ‘lost it’ because he is, to quote the Father, ‘petrified of the Mother’; and
·The Father has CCTV footage of the Mother throwing paint thinner over his car on 25 January 2015.
56. The Mother categorically denies the Father’s allegations.
57. In response to the Father’s Notice of Risk, the Department of Health and Human Services (“DHHS”) provided a lengthy response to the Court on 22 March 2015.
58. In that document DHHS set out their detailed investigations of the parties’ concerns which included the Sexual Offences and Child Abuse Investigation Team (SOCIT) interviewing the children, discussions with Dr T and discussions with both parties.
DHHS concluded that:
“…the information and evidence does not indicate that the children are at risk of significant harm. Child Protection are of the view the main concerns are around the children not continuing to be exposed to ongoing parental conflict”.
59. On 24 March 2015, the Court held that it was satisfied that X, Y and Z’s were not at risk in the Mother’s care and it was in their best interests they immediately recommence spending unsupervised time with the Mother. The Court ordered that X, Y and Z live equally with the each of their parents on a 5/5/2/2 basis in each fortnight.
60. Orders were also made restraining the parties from physically disciplining the children, discussing the proceedings in their hearing or presence, showing the children court documents, reports or orders and from leaving the children unattended.
61. The matter proceeded to final hearing on 12 August 2015 and evidence was heard on 12 August 2015, 13 August 2015, 14 August 2015, 20 August 2015 and 21 August 2015 at which time judgment was reserved.
62. On 19 October 2015, the Father filed an urgent Application in a Case seeking that the interim orders that X, Y and Z live with the Mother for seven days each fortnight be suspended and that they live with him and spend supervised time only with the Mother.
63. In support of his Application in a Case the Father filed an affidavit sworn 15 October 2015. In that affidavit the Father deposed:
·X has told him that on 25 September 2015 the Mother left he, Y and Z alone outside a (omitted) shop whilst the Mother “stormed off” in her car. Upon her return she angrily put the children in the car and punched X to the side of his head with a closed fist;
·Later that evening two friends of the Mother attended the Mother’s home because of their concerns about the Mother’s mental health;
·Police and ambulance were called to the Mother’s house that night;
·On 26 September 2015, the Mother did not attend for changeovers on Z’s birthday as per Court Orders;
·When the Father attended the Mother’s home, the Mother was not there but a neighbour told him of her concerns about the safety of the children when with the Mother;
·On 27 September 2015, the Father attended the Mother’s home. X unlocked the front door and escaped but Y and Z remained in the home. The Father called the police who attended and persuaded the Mother to let all three children leave with the Father;
·The Mother subsequently sent the Father abusive text messages and made calls to the Father, including one call at 1.53am on 10 October 2015 which he did not answer.
64. On 21 October 2015, the Mother filed an Answering Affidavit in which she set out her concerns in relation to the Father’s care of X, Y and Z. The Mother denied the Father’s allegations and in particular deposed:
·There was no incident at the (omitted) shop and at no time were X, Y and Z left outside the shop on their own;
·The police did not attend the (omitted) shop;
·Her friends did not attend her house on 25 September 2015 out of concern for her mental health but as pre-arranged baby sitters;
·No ambulance attended her house;
·The Father had agreed Z would spend all her birthday with the Mother and accordingly she and the children had gone out for the day;
·The Father attended at 10.10am on 27 September 2015 well prior to the 12.00pm change over time. The Father was abusive to X, broke the lock on the front screen door and it was the Mother who called the police; and
·The Mother could not have made the call to the Father at 1.53am on 10 October 2015 as she was (employment omitted) at that time and mobile phones are not allowed in the (employer omitted).
65. The Father’s Application in a Case was listed on 23 October 2015.
66. Given the contradictory nature of the parties’ evidence and that there were independent witnesses to most of the incidents in dispute, the Father’s Application was adjourned to 30 October 2015. The Independent Children’s Lawyer was ordered to issue a Subpoena to Produce Documents to (omitted) Private Hospital, Ambulance Victoria and Victoria Police and to issue a Subpoena to attend Court to Ms L, Ms M and Mr G from the Department of Health and Human Services.
67. On 30 October 2015 evidence was taken from all subpoenaed witnesses as well as Dr T.
68. Whilst the evidence of these witnesses will be set out in detail in this judgment, the evidence of Ms L and Ms M is that on 23, 24, 25 September 2015 the Mother became most unwell as a result of the stress and anxiety of waiting for the decision in this case.
69. The Mother’s behaviour became so sufficiently concerning on 25 September 2015 that Ms M rang both the Mother’s counsellor Ms L and Dr T who in turn were so concerned about the deterioration of the Mother’s behaviour by Ms M and her potential risk to the children and herself that they contacted the DHHS and rang the police.
70. Dr T also asked Ms M to remain with the Mother for the entirety of the night of 25 September 2015.
71. The evidence of Dr T is this “crisis” has now passed and the Mother is now managing her stress and anxiety.
72. Since this episode the maternal grandmother has arrived from (country omitted) and is staying with the Mother until at least mid-December.
73. Given Dr T’s evidence and the maternal grandmother’s presence, Orders were made on 30 October 2015 that X, Y and Z spend day time only with the Mother over the Melbourne Cup weekend to enable them to again be comfortable with the Mother and thereafter they resume living with each of the parties in accordance with the interim orders made 23 March 2015 until such time as a final decision in this matter is made.”
Since the handing down of the judgment the Mother has re-partnered. The Mother and her partner do not cohabit.
The Mother alleges the Father has re-partnered with Ms H. The Father acknowledges Ms H as a friend but denies they are in a relationship.
Both parties continue to make allegations of stalking and inappropriate behaviour against the other. A summary of their allegations (all of which are strongly denied) are as follows:
06-Nov-2015
The Mother reports the Father to DHHS for a serious untreated burn on Z’s chest.
03-Dec-2015
The Father reports to DHHS and the police that X and Y told him “Mum said she’s going to kill you, she’s going to shoot you”.
Feb 2016
The Mother is interviewed by police regarding her alleged threats to kill the Father.
10-Feb-2016
The Mother alleges the Father’s “partner” Ms H has cut Z’s hair and cut and coloured Y’s hair.
Feb 2016
Ms H applies for an Intervention Order against the Mother, alleging in her application that the Mother is stalking her, calling her, photographing her and her children and accessing personal information about her and her children through the Mother’s work database.
30-Mar-2016
The Mother alleges the Father parked outside her home in a white car with Queensland number plates for several hours.
05-Apr-2016
The Mother finds her “wheelie” bin with “DOG” written on it and a wedding photo smashed against her front door. She believes the Father is responsible for this.
DHHS report the Police have not substantiated any of the allegations made by either party against the other.
The hearing of this matter was adjourned part-heard on 8 July 2016 to 28 July 2016.
On 28 July 2016 the Court was advised by the Father that on 24 July 2016 when he was driving X, Y and Z home from spending supervised time with the Mother, X and Y told him that during their time with the Mother , the Mother had shown them a picture of “evil Santa” on her phone and told them:
“this is the guy who has creepy eyes and is deadly, he’s going to beat the crap out of your dad into pieces and kill him out the front of the Court at the lunch break. He will be on a motor bike.”
The matter was adjourned to 29 July 2016 to enable the parties to file affidavits in relation to this incident.
It is the Father’s evidence that when X and Y told him what the Mother had done he immediately rang Senior Constable Ms D at (omitted) Police Station who spoke to he, X and Y on speaker phone.
When the Father, X and Y arrived home, it is the Father’s evidence he asked X and Y to into their bedroom and write down what occurred so they could remember what the Mother had said. It is the Father’s evidence X and Y chose to record themselves on their iPad instead.
On the evening of 24 July 2016 the Father sent an email to both Mr G and the Independent Children’s Lawyer advising them of X and Y’s disclosures of that day.
On 27 July 2016 the Father picked X and Y up from school and took them to (omitted) Police Station where they had an “informal chat” with Sergeant Mr C.
The Mother and Ms M who was supervising X, Y and Z’s time with the Mother on 24 July 2016 deny this incident occurred.
The Evidence
The Father
The Father relies on his affidavits sworn 6 April 2016, 21 June 2016 and 28 July 2016. The Father also gave viva voce evidence at the final hearing.
The Father also relies on the affidavit of his father Mr R sworn 6 April 2016.
The Father is not a good historian and in particular his evidence in relation to the timing of the disclosures by X and Y and his subsequent reporting of these events to various persons was very confusing.
However, allowing for some confusion as to precise dates the Husband’s evidence is that somewhere between 3 November 2015 and 6 November 2015 when X was showering and Y and Z were in the bath, Y said to him “Daddy do you know what happened when I was at Mummy’s house?” The Father responded “no I don’t. What happened?” It is the Father’s evidence Y then disclosed “I was in the bathroom with Mummy and she was drying me. She was bending down and she sucked my penis. She sucked my penis Daddy.”
It is the Father’s evidence that he then looked at X who nodded. It is the Father’s evidence he said “really X?” to which X replied “Yes Dad”.
It is the Father’s evidence that he then asked Y to show him what the Mother had done. It is the Father’s evidence that he put out his little finger and that Y put his mouth over his finger and sucked it.
It is the Father’s evidence that he told X and Y that it made him feel really sick, that his Mother could not do that to Y because it was really wrong and that the only one who was allowed to touch him there was Y and that nobody else is allowed to do so.
It is the Father’s evidence that once he had put the children to bed he told his parents, with whom he, X, Y and Z live, of Y’s disclosure.
It is the Father’s evidence that on 7 November 2015 he sent a text message to his former Counsel as follows:
“Emma, I need to tell you that Y told me the other day that his mother “sucked his penis”! The judge said that from now on we are not to go to DHHS but to go to her chambers! I get the feeling that judge Bender doesn’t want to hear any more stories as the other side always denies that it happens. Same with punching X in head. She alleged in court that I’ve been showing Y porn! Shocking. I don’t know why a 5 year old would make that up! Ms Vaughan’s lawyer also giving me notice that if I turn up to cricket, basketball etc on the days that Ms Vaughan has the kids that she will call the police. Can you clarify for me whether there are any orders that stop me attending the children’s sport? Happy to discuss on Monday if you prefer! Mental illness or not, this keeps going on! Mr Vaughan”
It is the Father’s evidence that he was telephoned by his former Counsel the following Monday or Tuesday and that she advised him that he needed to be careful in the way he interpreted what had been disclosed to him by the children as they were subject to a great deal of stress at that time because of the ongoing litigation between the parties. It is the Father’s evidence that his former Counsel advised him to go to the authorities who would need to investigate the allegations made.
On 11 November 2015 the Father sent the following email to the Independent Children’s Lawyer.
“Good morning Susan,
I’m currently sitting in my car down the street from Ms Vaughan’s house. This morning I received an email from Ms Vaughan trying to change the drop off time for Z. She said 10:30-11! I did not agree to this as it was very last minute and I’ve got an arrangement to take Z down to the (omitted) to see my parents.
I have told Ms Vaughan by email that I will meet her at the drop off point but she is not here. I don’t understand how she can just make up her own rules with the current court orders without discussing with me.
I am in a position where I feel like calling the police, but it is probably best to just notify you.
Secondly, and more seriously, Y told me the other night when I was giving the kids a bath that his mother sucked his penis when he was having a bath at her house! This is a serious matter and I’d have no hesitation in contacting SOCIT about this. If she has done this to Y (why would he make this up), then I have concerns that as Ms Vaughan was abused that X may have also being a victim!
Judge Bender said to notify you directly about any of my concerns!
Take care,
Mr Vaughan”
It is the Father’s evidence, confirmed by the Independent Children’s Lawyer’s file note of 11 November 2015 that was tendered into evidence, that the Independent Children’s Lawyer telephoned him in response to his email and advised him to contact SOCIT as quickly as possible in relation to the allegation as SOCIT are trained to know whether children are telling the truth or whether they are lying.
On 12 November 2015 the Father contacted Detective Senior Constable (“DSC”) Mr W at SOCIT. DSC Mr W is known to the Father as he is the officer responsible for investigating the Mother’s alleged assault of X in September 2015. The Father took Y to (omitted) Police Station on 12 November 2015 where he was interviewed by DSC Mr W. Y made no disclosures of abuse by the Mother to DSC Mr W. It is the Father’s evidence that DSC Mr W subsequently advised him that Y made no disclosures because Y did not understand the questions that were put to him.
In the subpoenaed documents from Victoria Police tendered into evidence, the documents state that the Father advised the Police that he had questioned Y at the time he made the disclosures of the Mother sucking his penis and that Y told him that it had occurred around X’s birthday which is on (omitted) 2015.
The Father was cross-examined about these notes in the Police record. It is the Father’s evidence that he has no recollection of asking Y about when the abuse was alleged to have occurred, of Y telling him that it had occurred around X’s birthday or of telling the Police of this. It is the Father’s clear evidence that he cannot remember any discussions with Y or X about when the incident is alleged to have occurred.
The Father was questioned as to why he had not contacted Judge Bender’s Chambers given the parties and the Independent Children’s Lawyer had been directed by her on 30 October 2015, when the matter was before the Court that in the event any further incidents relating to X, Y and Z occurred they were to immediately contact her Chambers. It is the Father’s evidence that as he was unrepresented, he thought it more appropriate to contact the Independent Children’s Lawyer and to leave it to her to make the necessary contact with the Judge’s Chambers.
The Father was also asked why he had not raised Y’s allegations directly with the Mother. It is the Father’s evidence that he knew she would deny the allegations and that he did not want her to be put on notice of the allegations while they were being investigated by the police and DHHS.
The Father was asked whether he believed the Mother had sucked Y’s penis. It is the Father’s evidence that he can see no reason for Y to have made up such a story and that he does believe that it occurred.
While the Father was again unsure of the exact date, noting from the records of the Police and DHHS the date would appear to be 4 December 2015, it is the Father’s evidence that whilst he was dressing Z after her bath she lay down on her bed and spread her legs and asked her Father to lick her vagina. It is the Father’s evidence then said “Mummy licks me. Mummy licks me down there.”
It is the Father’s evidence that he texted Mr G at DHHS and also contacted (omitted) SOCIT on the evening Z made this disclosure.
On 10 December 2015 the Father took Z to the Police Station where she spoke to the police. Z made no disclosures to the Police.
It is the Father’s evidence that again on a date that he could not recall, but sometime in early December 2015, that whilst driving X and Y, Y told him that the Mother was going to kill him, that she was going to shoot him and that Y then said “yeah, she’s going to get a gun. She’s going to steal a gun and shoot you.”
The Father reported these threats to the Police.
In relation to the incident on 24 July 2016, it is the Father’s evidence that when he was driving X, Y and Z home from spending time with the Mother, X and Y told him that whilst they were with the Mother they were looking at pictures on their Mother’s phone of a former neighbour. It is the Father’s evidence that X and Y then told him that the Mother said “I want to show you a picture of evil Santa”. It is the Father’s evidence that X and Y described a picture of a man with a bald head, a white beard and blue freaky eyes. The Father’s evidence as to what X and Y then said is set out in paragraph (29) of this judgment.
It is the Father’s evidence that X and Y told him after the Mother showed them “the evil Santa” and made the threats, they then went into another room where the AFL was on and closed the door where they sat watching the AFL together for a while.
Upon hearing X and Y’s disclosures, the Father immediately telephoned Senior Constable Ms D from the (omitted) Family Violence Unit on the speaker phone in the car and gave X and Y the opportunity to speak to the Police at this time.
When the Father, X, Y and Z arrived home, the Father asked X and Y to write down what their Mother had said so they would not forget it. It is the Father’s evidence that of their own volition X and Y made a recorded message on their iPad.
On the evening of 24 July 2016, the Father emailed Mr G from DHHS to advise him of what had occurred and that on 25 July 2016 he emailed the Independent Children’s Lawyer to advise her of what had occurred.
On 25 July 2016 the Father attended (omitted) Police Station and spoke to Senior Constable Mr C about what had occurred. On 27 July 2016 the Father took X and Y to the (omitted) Police Station to be interviewed by Senior Constable Mr C.
It is the Father’s unequivocal evidence that he believes that Y and Z have been sexually abused by the Mother as has been described by them.
It is also the Father’s unequivocal evidence that he believes in September 2015 X was punched in the head by the Mother whilst in her car as X has been described to the Father, DHHS and the police on multiple occasions since September 2015.
It is the Father’s evidence that he believes the Mother’s mental health has not stabilised, that she continues to struggle with Anorexia Nervosa and that she has major issues in relation to addiction to Clonazepam.
It is the Father’s firm belief that X, Y and Z are at serious risk of harm if they were to spend anything other than supervised time with the Mother because of her long history of abuse to which the children have been exposed.
The Father rejects and denies the Mother’s allegations that he has coached any of X, Y and Z to make the disclosures or allegations that have been made by them against her. It is his evidence that he believes X, Y and Z to be telling the truth and that as a loving and protective Father he has properly reported the allegations made by his children to the proper authorities so that they can be investigated and the children protected.
In relation to the Father’s evidence that he was parked out the front of the Mother’s house for several hours in his cousin’s white motor vehicle, the Father adamantly denied that this ever occurred. It is the Father’s evidence the motor vehicle never left the front of his parents’ premises until it was removed by friends of his cousin after the RACV had to be called to get the motor vehicle running.
The Father also denies any allegations of damaging the Mother’s wheelie bin or smashing a photograph at the front door.
It is the Father’s evidence that if anyone was stalking, it was the Mother who seemed to be pursuing his friend Ms H including following Ms H in her motor vehicle.
The Father was asked whether he would follow through on any requests by the Police for further interviews with X and Y. It was the Father’s response that Police are still investigating the alleged assault on X and that he would be cooperating with Police in relation to any action or charges that they might choose to make against the Mother.
However, it should be noted that in his closing, the Father indicated that if orders were made in the terms sought by himself, the Independent Children’s Lawyer and DHHS, then there would not be need for the involvement of any of the authorities as the children could continue to live safely and comfortably with him.
It is the Father’s evidence that since orders were made in December 2015 for X, Y and Z to live in his primary care and spend supervised time with the Mother they have become much happier, more settled and are thriving. It is his evidence that the difficult behaviours that X and Y were exhibiting at school in 2015 after resuming time with the Mother have now disappeared and that both boys are progressing well.
It is the Father’s evidence that Z is happy and settled in his care.
The Father intends to continue in the medium term to live with X, Y and Z, with his parents. He describes their home as being a large five-bedroom home which enables each of the children to have their own bedroom and that they are comfortable and familiar in that environment.
In relation to the Mother’s wish to change X and Y’s school, it is the Father’s evidence that X and Y are very well settled in that school and it would not be in their best interests to change schools.
The Father refutes the Mother’s allegations that the school is prejudiced against the Mother as a result of his long-standing role in the school teaching music there one day per week. He does however concede that the school holds concerns about the Mother and her behaviour but is of the view that it is as a direct result of the school’s observations of the Mother’s behaviour and parenting and not as a result of any adverse comments or information provided by him to the school in relation to the Mother.
The Father therefore seeks that Orders be made in the terms recommended by the Independent Children’s Lawyer.
Mr R
Mr R is the Paternal Grandfather.
He filed a short affidavit on 6 April 2016 and gave viva voce evidence at the final hearing.
Mr Vaughan’s affidavit evidence relates to an incident that allegedly occurred at the time of the interviews for the Child Inclusive Conference in December 2015 where, after going to the toilet, X told the Paternal Grandfather the Mother had pushed him. This is denied by the Mother.
Given the Paternal Grandfather did not see the incident his evidence in relation to this matter was not of any great assistance to the Court.
In the Mother’s affidavit sworn 28 June 2016 in paragraph 229 she described Z’s behaviour when the Paternal Grandfather arrived to collect her from the offices of DHHS on 17 December 2015 in the following terms:
“The Paternal Grandfather arrived, her behaviour escalated. She was, screaming, wrapping her legs and arms around me shouting “no no no I just want my mummy”….She ran for the doors, the doors led to the main road, so I stopped her. She hid in the corner sobbing and I comforted her…Z became more baby like and clung onto me, pleading with me not to leave her there. I was highly distressed and when walking away heard her screaming out for me begging me to come back.”
The Paternal Grandfather was asked whether he remembered picking up Z from the DHHS offices on 17 December 2016. He indicated that he did.
The various descriptions of Z’s behaviour were read out to the Paternal Grandfather. His response to all of the descriptions contained in the Mother’s affidavit set out in paragraph (85) was either “lie”, “another lie”, “lies”, “rubbish” or “I do not know what she is talking about – this is crazy.”
The Mother
The Mother relies on her trial affidavit sworn 28 June 2016 and her affidavit in reply to the allegations of the Father relating to the “evil Santa” incident sworn 28 July 2016.
The Mother also gave viva voce evidence at the final hearing.
The Mother also relies on the following affidavits:
a)Affidavit of Ms D affirmed 22 June 2016;
b)Affidavit of Dr T sworn 27 June 2016;
c)Affidavit of Ms Y sworn 28 June 2016; and
d)Affidavit of Ms M sworn 28 June 2016.
The witnesses relied upon by the Mother all gave viva voce evidence at the final hearing.
The Mother’s Evidence
The Mother vehemently denies that she has ever sexual abused any of her children in any way whatsoever. It is her evidence that she finds this allegation abhorrent, particularly given she was sexually abused in her own childhood.
It is the Mother’s belief that the Father has coached and manipulated X, Y and Z to make these false allegations against her and that this is a continuation of a pattern of behaviour by the Father since the parties’ separation that is designed to undermine her relationship with X, Y and Z and bolster his wish to have them live solely in his care.
It is the Mother’s evidence that the timing of the allegations being raised shortly after judgment being delivered on 11 December 2015 whereby X, Y and Z were placed in her primary care is no coincidence and proof of the Father’s determination to denigrate her and ensure she does not have a relationship with X, Y and Z.
It was pointed out to the Mother that the allegations were raised with the Police and DHHS some weeks prior to the decision being handed down. It is the Mother’s evidence that she believes the Father was aware that the original trial had not gone well for him and that is why the further allegations have been made.
It is the Mother’s evidence that she has a close and loving relationship with X, Y and Z and that they continue to be physically affectionate towards her and constantly question why they cannot see more of her or why there needs to be supervision of their time with her as they cannot actually do anything.
The Mother adamantly refutes the allegation that X, Y and Z are scared or fearful of her in anyway or that they are reluctant to be in her care.
In the Mother’s trial affidavit sworn 28 June 2016 she sets out in detail many of the supervised visits between herself, X, Y and Z from the time of the making of the orders on 21 December 2015 until the time of swearing her affidavit.
In that affidavit she raises concerns about comments from X, Y and Z to her that purportedly have come from matters raised by the Father with the children. Examples given by the Mother are as follows:
“60. Y then asked why we had to go to Court all the time. Y said “I don’t even want to talk. I don’t know what is true,you lie and so does dad”. Z said, “I do mum, you are beautiful”.
“91. I heard dad tell Ms H and Nannie and Papa you went crazy mum.”
“96. X said, I want to kill myself, but I won’t as I have to be here for Y and Z”. He then went on to say “I know you want us back mum, but I have to help dad, you have nice people helping you, a nice house, daddy doesn’t have anyone and I don’t want to live at nannie and papas but dad will need help to find a new house.” He then said “I hate school and everyone makes me feel sad, but I can’t really talk about it. I rip my clothes, dad gets nannie to buy them from Target or Kmart and I hate them, all my good clothes are here with you”.
“110. On 1 March 2016 Z stated numerous times that I had “smashed into daddy’s car”. I asked her when and she said “Sunday”. I told her that I was in (omitted) that day and she continued to say “daddy says you’re naughty girl smashing into his car”.
What makes the Mother’s behaviour over the period 25-27 September 2015 so important is it appears to be the turning point for X and Y in the context of their relationship with the Mother. It appears that from this time, their fear and anxiety about their mother’s behaviour started to manifest itself.
In every discussion that X and Y have had with the Police, DHHS, Ms E and their teachers since September 2015, this incident is constantly revisited by them. It continues to colour how they view their Mother and to form one of the important reasons why they express concerns about how she will behave whilst they are in her care.
It is the clear evidence of Ms E that X and Y currently find their Mother to be unpredictable and they speak of there being “good mum and bad mum.” X and Y are scared and anxious about “bad mum.”
Whilst highly critical of the Father and the extended paternal family of referring to the Mother as “crazy”, “not safe” and “sick in the head”, I am satisfied that X and Y’s description of “bad mum” is a reflection of their own experiences of her behaviour and not because of any coaching or manipulation by the Father.
The Mother’s evidence is that the Father manipulates and coaches X and Y to make ever increasing malicious, false and disturbing allegations about her abuse of them in order to undermine their relationship with her and support his application to have X, Y and Z live with him.
As has been set out in this judgment I am satisfied that the Father does not coach or manipulate X and Y to make false allegations against the Mother.
However, the Father responds to X and Y’s allegations in a grossly inappropriate way and in so doing inflates X and Y’s concerns about their Mother and her behaviour.
Ms E’s very clear evidence about the appropriate response that the Father should make to the allegations of X and Y is set out in paragraph 249 of this judgment.
On the balance of probabilities it is not open to this Court to make a finding that the Mother sucked Y’s penis.
The Court finds that the Mother did not show X and Y a picture of “evil Santa” and tell them “evil Santa” was going to kill the Father outside the front of the Court.
The criticism of the Father accepting as gospel all reports by X, Y and Z of inappropriate behaviour by the Mother in her care of them, particularly the “evil Santa” allegations when X and Y’s time was being supervised has been properly criticised at length in this judgment and is reiterated again in this conclusion.
If X and Y are making false allegations about their Mother’s behaviour or at least exaggerating those stories, the explanation for this behaviour was canvassed with Ms E. Her explanation was both obvious and incredibly disturbing.
X and Y know how their parents will respond if they tell them something and are now doing this in order to achieve their desired outcome because they are aware that their parents are incapable of making sensible decisions for them. X and Y believe this is the only way of managing their lives in circumstances where their parents have not done so. They have also, as Y so eloquently pointed out, learnt to say whatever they think their parent’s wants to hear to keep the peace.
Y and X have clearly expressed a wish to live with the Father.
Y and X have also clearly expressed a wish to see the Mother but at this time because of their anxiety and concern about how she might behave have indicated that they feel much safer and secure if that time is spent with another trusted adult in substantial attendance.
Having considered all the evidence put before me I have formed the view the orders that reflect X and Y’s wishes must be seen as the only orders that can be made in X, Y and Z’s best interests at this time.
The Independent Children’s Lawyer has placed before the Court a Minute of Proposed Orders that is supported by DHHS and the Father.
I intend to make orders in the terms proposed by the Independent Children’s Lawyer save for the proposal that the Mother be required to seek alternate treatment for her dependency on Clonazepam.
With the greatest of respect to Dr D, Ms E and the Independent Children’s Lawyer I do not accept that the Mother’s addiction is not being properly managed by Dr T.
Neither Dr D or Ms E considered the management of the Mother’s substance abuse within the context of her ongoing difficulties with anorexia nervosa. I am satisfied that the person who best understands the treatment of the totality of the Mother’s issues is Dr T and it is to her that I continue to entrust the Mother’s treatment in that regard.
I have concerns in relation to the Mother’s inability to accept that there have been elements of her behaviour over the children’s lifetime arising from her illnesses that have caused her children to have some serious issues about how she parents them when she is not well.
The Mother must be assisted to develop some insight about how her illnesses have impacted on her children and obtain assistance in how she can parent her children in such a way that their trust in her parenting is rebuilt.
It was of real concern to me that when the Father was giving his closing he made the following comment:
“The Applicant has never been held responsible or accountable for any of her serious and disturbing offences to the three children and myself. It has been bought up, the record of the fires, the vandalism, theft, physical and sexual abuse and she will continue to find a way out of it unless she has been removed from the children or there is an attendance by a supervisor…”
Throughout the entirety of all these proceedings there has been a strong element of the Father wanting the Mother to be “punished” for what he believes she has done.
It is also apparent from the manner in which he has conducted himself in these proceedings and in his parenting of X, Y and Z, that he has put his desire to have the Mother punished ahead of the best interests of his children and that he has at times, seen them as nothing more than tools to gather evidence in his vendetta to see the Mother get her just desserts.
This must stop.
It is incumbent upon the Father to be focused on nothing but the best interests of X, Y and Z. It is very apparent from the evidence given by Ms E that the Father’s vendetta and his involvement of X, Y and Z in this vendetta is causing them considerable emotional and psychological harm.
For these reasons, I will be making the order recommended by the Independent Children’s Lawyer that the parties attend upon Ms I or some other recommended specialist therapist for the purposes of assisting them to be the best parents they possibly can for X, Y and Z. They must move beyond their entrenched abhorrent relationship and focus on how they can just be X, Y and Z’s parents. If they do not, X, Y and Z’s future is very bleak an there is a genuine risk they will be permanently emotionally and psychologically damaged.
I certify that the preceding five hundred and thirty-nine (539) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 24 January 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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Costs
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Procedural Fairness
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Judicial Review
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