Verni & Verni
[2024] FedCFamC2F 907
•18 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Verni & Verni [2024] FedCFamC2F 907
File number(s): MLC 888 of 2021 Judgment of: JUDGE STEWART Date of judgment: 18 July 2024 Catchwords: FAMILY LAW – PARENTING – Property matters settled by consent during trial – High conflict relationship – Significant history of family violence – Children rejecting Father – Extensive family therapy ineffective – Whether children reacting to own lived experience – Consideration of how to interpret video recordings – Father seeks change of residence – Eldest child self-harming at suggestion of time with Father – Further efforts to repair children’s relationship with Father unlikely to succeed, likely to be distressing to children – Forced change of residence unlikely to succeed, likely to be distressing to children – Importance of finality – No time between children and Father – Children live with Mother – Cards, gifts and letters Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 60CC(2), 60CC(3), 61DA, 61DA(2), 67Z, 69ZW; Part VII Cases cited: Adamson & Adamson [2014] FamCAFC 232; [2014] FLC 93-622
Hall & Hall [1979] FamCA 73; [1979] FLC 90-713; (1979) 5 Fam LR 609
In the Marriage of Harris Fam LN No 33; (1977) 29 FLR 285; [1977] FLC 90-276
In the Marriage of Wood (1976) 2 Fam LR 11,182; 11 ALR 657; [1976] FLC 90-098 at 75,447
Jones v Dunkel [1959] HCA 8; [1959] ALR 367; (1959) 101 CLR 298; (1959) 32 ALJR 395
Division: Division 2 Family Law Number of paragraphs: 337 Date of hearing: 30 January 2023 to 1 February 2023;
7-9 August 2023;
28 August 2023Place: Melbourne Counsel for the Applicant: Mr Kanarev Solicitor for the Applicant: Le Brun & Associates Counsel for the Respondent: Ms McCreadie Solicitor for the Respondent: Aitken Partners Pty Ltd Counsel for the Independent Children's Lawyer: Ms Paull Solicitor for the Independent Children's Lawyer: Danielle Webb Lawyer ORDERS
MLC 888 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VERNI
Applicant
AND: MS VERNI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STEWART
DATE OF ORDER:
18 JULY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders for the children X born in 2013 and Y born in 2017 ("the children") be and are hereby discharged.
2.The Mother have sole parental responsibility for the children.
3.The children live with the Mother.
4.The children spend no time with the Father, unless the Mother agrees for them to do so (which agreement shall be considered in light of any recommendations made by the children's (or either of their) medical professionals at any point in time).
5.The Father be at liberty to send the children letters, cards and gifts for the children's birthdays and special days, which shall be provided to the children by the Mother PROVIDED ALWAYS THAT the content is appropriate.
6.Within 28 days of the date of these orders, the Mother nominate to the Father a post office box address where the Father may send the children's letters, cards and gifts in accordance with order 5 hereof.
7.The Mother provide to the Father, by email, unredacted copies of the children's school reports.
8.The Mother advise the Father of any serious medical conditions suffered by the children or either of them.
9.The Mother keep the Father advised of any treating psychological and/or counselling health professionals for the children or either of them.
10.The Father be at liberty to provide his contact details to any treating psychological and/or counselling health professionals for the children or either of them, to enable the children to make contact with the Father should the children wish to do so.
11.The parties be at liberty to provide a copy of these reasons and orders to any treating medical professional for themselves or the children.
12.The parties be at liberty to provide a copy of these reasons and orders to the Magistrates' Court of any state or territory in which relevant proceedings occur.
13.The parties be at liberty to provide a copy of these reasons and orders to the Children's Court of Victoria.
14.Within seven days of the date of these orders (or such other period as agreed between the Independent Children's Lawyer and the Mother's solicitor), the Independent Children's Lawyer meet with the children to explain this decision to them.
15.The Mother do all things necessary to facilitate the meeting between the Independent Children's Lawyer and the children in accordance with order 14 hereof.
16.Upon conclusion of the meeting with the children in accordance with order 14 hereof, the appointment of the Independent Children's Lawyer be discharged.
17.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the fact sheet attached hereto and these particulars are included in these orders.
18.All extant parenting applications are dismissed and the matter removed from the list of pending cases maintained by the Court.
AND THE COURT NOTES THAT:
A.The ability of the children to contact the Father pursuant to order 10 hereof is subject to the Mother’s consent.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STEWART
INTRODUCTION
These proceedings concern two children, X (born in 2013) and Y (born in 2017) (collectively "the children"). Y and X were born in Australia. Father was born in Country B, and the Mother was born in Australia. The parents met in Country B in 2004 while the Mother was travelling. They married in Country B in 2005, and stayed there for seven years, before moving to Australia in 2011, two years before X was born. The parents separated on a final basis in September 2020, following a violent incident. The children currently live with the Mother and spend no time with the Father.
These proceedings have been lengthy, complex and bitterly contested. Originally, the proceedings were for both property and parenting orders. Final property orders were made by consent on 1 February 2023. Interim parenting orders were then also made by consent, and the Final Hearing was adjourned part-heard, to see if interim parenting orders could provide a basis for on-going co-parenting. The interim orders proved unworkable. The proceedings were relisted to conclude the Final Hearing. In total, seven days of hearing were required.
ISSUES IN DISPUTE
The parties' proposals evolved over the course of the trial as events unfolded. That was appropriate. The children's presentations progressively changed, as did each party's perception of the risks the other posed. Each party's most recent proposal is as follows.
On 12 July 2023, the Father lodged a Further Further Amended Initiating Application, seeking in summary:-
(a)long-term decisions about the children's care be discussed between parties, with formal consultation obligations, but in the event of dispute the Father have the final say;
(b)the children live with the Father;
(c)the children initially spend only time with the Mother as agreed between the parties, and subject to supervision;
(d)if supervised time between the Mother and the children goes well, then the time progress to graduated unsupervised time, culminating in the children spending alternate weekends with the Mother from 5.00pm on Friday until 5.00pm on Sunday;
(e)the parties engage in "non-traditional individual and family therapy… to address the resist/refuse dynamic with the family";
(f)additionally, the Mother "engage separately with a treating clinician… to address the resist/refuse dynamic with the family";
(g)the Father "arrange for the children to be assisted in specific individual and family counselling to address the exclusion issues and for them to gain understanding regarding… their situation"; and
(h)there be a central clinician (who is not a treating clinician for any family member) "to assist and manage the case in a parent-coordinator type role", and the parents follow all reasonable directions and/or recommendations by that clinician.
Although the Father's application was not expressed as seeking sole parental responsibility, it would have that effect. Additionally, the proposed orders also appear to give the Father discretion to delay or prevent the Mother commencing supervised time with the children.
During the Final Hearing, Counsel for the Father encouraged the Court to adopt the recommendations of the Family Report Writer, Dr C, which would mean that:-
(a)the Mother would spend no time with the children until:-
(i)the children fully accept their forced relocation to live the Father;
(ii)the children no longer reject the Father out of a belief he had abused them; and
(iii)in any case for at least six months;
(b)the Mother's time with the children would be supervised until relevant treating clinicians and/or parenting co-ordinators were persuaded the Mother would not attempt to communicate to the children her belief that the Father had abused the children; and
(c)it might never be possible for the Mother to spend unsupervised time with the children.
The Independent Children's Lawyer supported the Father's position, including adopting Dr C's recommendations.
On 21 July 2023, the Mother filed a Further Further Amended Response to Initiating Application, seeking in summary:-
(a)the Mother have sole parental responsibility for the children;
(b)the children live with the Mother;
(c)there be no order for time between the children and the Father or, failing that, the children spend graduated time with the Father culminating in them spending each alternate weekend with the Father from after school on Friday until 5:00pm on Sunday (plus holiday and special day time); and
(d)if the Court orders the children to spend time with the Father, such time occur subject to the direction of Dr D (a child psychologist and family consultant).
Counsel for the Independent Children's Lawyer sought to make much of the difference between the parents' proposals, arguing that the Father supported the children's relationship with the Mother, whereas the Mother's proposal cut the Father out of the children's lives. I agree with that characterisation of the Mother's proposal, but I am not persuaded the Father's proposal would promote an ongoing meaningful relationship between the children and the Mother.
The gravamen of the Father's case is that the Mother has created a false narrative in the children's minds that they have been abused by the Father, and that this false narrative is so harmful that the children must be quarantined away from the Mother until they accept that no abuse occurred. Reintroducing the Mother to the children's lives would be contingent on the Mother agreeing to abandon her allegedly false narrative. Yet, the Father's case was also that the Mother sincerely believes the Father presents an overwhelming threat to the children (including because the Mother unwaveringly believes that the Father sexually abused the children), and that the Mother has an obsessive, anxious, and fixated personality. If I accept the Father's latter argument, it is unlikely the Mother could relinquish her beliefs about the Father. I therefore suspect that the Father's proposal would not permit the Mother's reintroduction to the children's lives, save through brief, controlled, supervised visits, during which the Mother would feel she was being monitored for any misstep. That would be antithetical to a meaningful relationship between Mother and children.
The gravamen of the Mother's case is that the Father perpetrated family violence against her and against the children, causing the children to fear and reject the Father. The Mother maintains the Father presents an unacceptable risk to the children, and that even supervised time distresses the children such that X self-harms. Thus, even if the Court considered the Father presented as a manageable risk, the children are not psychologically ready to engage with the Father. She says further family therapy would also be so destructive to the children's psychological well-being that it should not be attempted.
I therefore consider the issues for determination are:-
(a)what were the family violence dynamics in the pre-separation relationship?
(b)does the Father pose an on-going risk of physical and/or psychological harm to the children, and if so is that risk unacceptable?
(c)to what extent is the children's rejection of the Father due to their experience of him engaging in family violence, versus them being influenced by the Mother?
(d)if the children are materially or entirely influenced by the Mother, what level of harm is likely to result, and does the Mother's behaviour constitute abuse?
(e)if the children remain with the Mother, can the children have a relationship with the Father?
(f)if the children are relocated to the Father's care:-
(i)how would that be practically achieved?
(ii)how harmful would the relocation process be, and would the children recover?
(iii)would it be realistically possible to reintroduce the Mother to the children's lives, and if so how?
(g)if both parents present risks to the children, how should those risks be weighed and/or mitigated?
(h)if the children were relocated to the Father's care, and that relocation failed, how would that impact the children?
For the reasons that follow, I find:-
(a)the Father was physically, verbally, and emotionally violent to the Mother and to the children during the relationship;
(b)the Mother was emotionally and verbally (and potentially on occasions physically) violent towards the Father, although the Father was the primary aggressor;
(c)the Mother was not physically violent towards the children, but likely shouted at the children on occasions;
(d)the Father continues to deny he was violent towards the Mother and the children, even when confronted with direct evidence;
(e)the Father minimises his role in the children's rejection of him and externalises blame;
(f)in rejecting the Father, X is likely reacting to her memory of the Father's violence, both before and after the parents separated (although X's views are likely also influenced by the Mother);
(g)the children have been materially influenced by the Mother's opinion of the Father, and are emotionally enmeshed with the Mother;
(h)the Mother has not consciously set out to 'poison' or 'alienate' the children against the Father;
(i)the children's rejection of the Father, especially X's, now reflects their own subjective opinions;
(j)Y's rejection of the Father, and her reported memories of abuse, may be disproportionate to her lived experience. It is likely that Y's memories do not arise wholly independently but been at least in part conveyed to her by X, and possibly the Mother;
(k)there is no realistic way to continue the children's relationship with the Father while in the Mother's care. Family therapy has been ineffective, and further attempts will likely distress and harm the children;
(l)there is a potential for psychological harm to the children from the Father's absence from their lives, due to not having a relationship with the Father and potentially developing rigid, black-and-white world views; and
(m)any attempt at forcibly relocating the children to the Father's care would cause them emotional distress and present significant practical problems that are not surmountable. Psychological harm would occur, linger and prove traumatic, especially for X.
The issues set out above are a summary of my findings after considering all the evidence. The orders I will make will provide for the children to live with the Mother and spend no time with the Father. I consider that this case has become an assessment of what outcome will do the children the least harm.
NARRATIVE
To understand what has likely led to the girls rejecting the Father, and in turn consider whether relocating them to the Father's care is in their best interests, it is necessary to understand: what occurred in the family home before separation; what occurred for the children after separation; and how those matters have impacted the children's presentation. That assessment requires examining each parent's behaviour, insight, and influence over the children.
The parties' initial meeting strikes as romantic and exciting. The Mother, a young woman of 22 years, travels to Europe and lands in Country B. She meets the Husband, falls in love with him and all things Country B. She briefly returns to Australia to pack her belongings and quit her job, then lives in Country B from late 2004. Although not entirely clear, it seems she started living with the Father in early 2005. The Mother identifies some initial financial and personal shortcomings of the Father (which are denied by him). Having married in 2005 (shortly after the Mother's return to Country B), the parties lived in various apartments, some provided by the Father's family and later they bought their own apartment. They stayed in Country B another six years until 2011, when the Mother returned, and the Father immigrated to Australia. Upon return to Australia, the parties quickly purchased their Suburb E home. X was born two years later (2013), followed by Y four years after that (2017).
The parents each refer to the other being violent towards them during their marriage. These issues shall be examined in more detail later in these reasons, but are briefly set out here. There are numerous visual recordings taken by each party related to these incidents. I will deal with the content of those visual recordings later in these reasons as they go directly to my assessment of the truthfulness of the parties surrounding violence issues. In the Mother's case the visual recordings arose as a form of family violence diary which she had been advised to maintain following the Father's discovery of a previous physical diary. The Mother alleges, and the Father denies, that following the Father's discovery of that diary he threatened her and was violent but the nature of the alleged violence is unparticularised. The parties' focus on the following key events is not said to be the totality of alleged family violence within the home, but rather is representative of their respective assertions that family violence was a consistent part of the marriage, to which the children were exposed. The Mother alleges ongoing physical, verbal and emotional abuse. The Father makes the same allegations against the Mother. Each party alleges the other would physically lash out at the children.
The Father’s account of pre-separation violence
The Father describes an incident in 2014, when family friends visited from Country B (the 2014 Pinching Incident). The Father says that, during a trip to Town G with the visiting friends, it became clear X needed to return to the house to sleep. The Father says it was decided that the women would return home and look after X, while the men went out. The Father says he subsequently discovered (at an unknown time) that the Mother did not approve of this, and had pinched X hard on the leg to make her cry to manipulate the Father into not going out. The Father does not state how he discovered this.
The Father describes an incident in late 2017, when the family attended a park with Y's godparents ("the Park Incident"). Later, the family went to a barbeque at a relative’s home where the Mother allegedly swung a bag containing water bottles into the Father's face causing a cut on his lip and tongue and a nose-bleed. The Father reported this incident to the police, but not until late 2020 (three months after the date of final separation). The Father says there were witnesses to the event, but none are on affidavit.
The Father describes an incident in mid-2019, when the family attended a park in Suburb H ("the Playground Incident"). X was bumped by another child while playing and injured herself. The Mother became extremely agitated and blamed the Father for the incident, using obscene language and calling him a "fucking idiot" in front of the children. The Father said the Mother became enraged at ambulance staff who suggested X attend hospital. The Mother continued verbally abusing the Father, and while she was driving she lashed out at the Father with a closed fist, punching his hand and knocking his phone out of his hand, resulting in bruising. The Father reported this incident to police, again in late 2020. The Father has tendered a video of this incident.
The Father describes an incident in early 2020, when the Mother hit him on the arm with a broom in a fit of rage triggered by the Father not replacing the broom in the correct spot ("the Broom Incident"). The Father reported this incident to police in late 2020.
Finally, the Father provided an undated video of a kitchen argument between himself and the Mother, which occurred in front of the children. The Father asserts the video shows the Mother abusing him around the children. I note that the Father repeats the relevant words back, in a calm tone, in front of the children. I accept the parents swore at each other around the children. Otherwise, this video does not appear to speak to particular risks to the children.
The Mother’s response to the Father’s pre-separation allegations
Regarding the 2014 Pinching Incident, the Mother denies the allegation.
Regarding the Park Incident, the Mother says an incident occurred prior to arriving at their friend's home and there were no adult witnesses to the event. She alleges the Father was shaking X like a rag doll and she went to X's defence. She agrees she swung a bag at the Father to stop him abusing X, but caused no injuries. The Mother asserts that the Father's injuries were self‑inflicted and that the Husband had previously threatened to tell everyone she was crazy if she attempted to take the children.
Regarding the Playground Incident, the Mother says the incident did not involve X, but rather two‑year-old Y. The Mother says she was helping X on the play equipment and told the Father to get Y away from the older children, in case she got hurt. The Mother asked the Father to be careful, and he told her to shut up. The Mother said the Father was inattentive to Y's welfare, was engrossed on his phone, and was not watching Y. Rather than being bumped by another child, the Mother describes Y being "catapulted" from the play equipment, falling face down to the ground onto her hands and knees. The Mother says that when Y tried to stand, her knee buckled and she was hurt. The Mother agrees that the family consulted an ambulance service, who suggested attending hospital. The Father kept saying it was not a big deal. The Mother says it was raining, she was trying to get Y into the car, and the Father was yelling at her. On the way to the hospital, the Father told the Mother that she nagged him. The Mother agrees that she was angry with the Father. She said that once the children were loaded into the car and she was ready to start driving to the hospital, the Father shoved his phone in her face to film her while she was angry, and specifically while she was trying to reverse the car. She agrees she said "Get the fucking phone off me" and says the Father then pretended to be calm, saying "You just hurt me". The Mother noted in cross-examination that the phone was obstructing her vision while she was attempting to reverse the car, creating real danger.
Regarding the Broom Incident, the Mother says this allegation was fabricated by the Father. The Mother acknowledges she was criminally charged in relation to this incident, but notes that a number of charges were withdrawn by the police, and the remaining charges were struck out in the Magistrates' Court of Victoria.
The Mother’s account of pre-separation violence
The Mother describes an incident in early 2020, when the Father struck X with her pyjamas across her face and ear ("the early 2020 X Incident"). The Mother says it left a red mark over the area struck, and X said "it feels like fire and it's all red". The Mother asked X what had caused the incident, and X replied "I was trying to stop his behaviour", which the Mother says was a reference the Father having earlier yelled and sworn at the Mother. The Mother has tendered a recording of this incident.
The Mother describes an incident in mid-2020 where, during an argument about a Chores List the Mother had written, the Husband pushed her with two hands to the chest so hard that she travelled two metres to fall on a kitchen table and then to the floor. The Husband then kicked her thigh ("the Chores List Incident"). The Mother describes X running from upstairs upon hearing the argument, saying to the Father "Don't you hurt my mummy", then getting ice for the Mother. The Mother threatened to call the police and the Father responded, "Don't call the police, it will end badly for both of us". The parents were separated for the rest of the night and the Mother telephoned a girlfriend to describe what happened. The Mother sent photographs to the girlfriend of injuries she sustained during the argument, notably an injury that later required surgery. The Mother says she deleted the photographs from her own phone for fear the Father would find them, but retrieved the photographs from her girlfriend and provided them to the police shortly after separation. The Mother has exhibited those same photographs in these proceedings.
The Mother describes an incident in mid-2020 in which X became distressed and screamed at the Father ("the first July 2020 X Incident"). When the Mother intervened, X told her the Father was making her upset. X and the Father continued arguing and the Father swore at X saying "You don't deserve crap from me today. You been nothing but rude". When the Mother attempted further intervention, the parents had a verbal argument to which X was exposed. The Mother has tendered a video of this incident.
The Mother describes an incident in mid-2020 after the children had gone to bed ("the mid‑2020 Kitchen Incident"). The Mother says she asked the Father to stop banging things in the kitchen, to which he replied "shut the fuck up" and called the Mother a "selfish, lowlife piece of shit, going to call the police, ha", which the Mother says was because she had earlier that evening threatened to call the police due to earlier verbal family violence in front of the children. The Mother has tendered a video of this incident.
The Mother describes an incident in mid-2020 again initially between the Father and X ("the second mid-2020 X Incident"). The Mother could hear X telling her Father to go away and heard the Father yelling at X. The Mother intervened, and the Father said X had thrown a cushion at him to which the Mother responded that X wanted the Father out of her room. X started screaming and the Father responded directly to X "I'll smack your fucking face, [X]!". The Mother told him to stop because he was scaring X, at which point the Father (again directly to X) said "I hope to fucking scare you. Stupid bitch! Call me that another time and you'll see what's going to happen!". The Mother threatened to call the police and the Father left the room yelling about X swearing. X was present throughout, and afterward told the Mother "my heart's going too fast". The Mother has tendered a video of this incident.
The Mother describes another incident later in the evening in mid-2020 when the Mother observed Y (then aged three years), pulling on the Father's trousers to pull him away from X, who was on the floor ("the mid-2020 X and Y Incident"). The Father told the Mother that X had thrown herself on the floor, after X had punched him and he had tapped her on the shoulder in retaliation. X then said to the Mother "papa he got me and did that to me", demonstrating how she had been pushed on the shoulder by the Father. X then said of the Father "he's really strong". The Mother then told X that the Father should not be pushing her, upon which X explained "I fell back. I slid back because I didn't want him hurting me again". Later again that evening, the Mother asked X what the Father had done. X disclosed that the Father had hit Y because she was naughty. Y then said to the Mother "him very hurt me". The Mother has tendered two videos of this incident.
The Mother describes an incident in mid-2020, where X turned away from the television in embarrassment when two people were kissing ("the August 2020 X Incident"). The Father asked X in a mean and sarcastic manner what she was doing, as she was not the one being kissed. X reacted poorly and went to her room crying. The Mother told the Father to change his tone with X and to go upstairs and see her, which the Father began doing. However, X screamed as he attempted to see her. About half an hour later, the Father smacked X and said to her "smiling now little shit?". The Mother told the Father not to call X that. The Father grabbed X by the arm, and the Mother told him to let her go. The Father then smacked X on the arm, who shouted "you stupid arsehole. You little bitch". The Father started yelling at X to stop hurting him. The Mother told the Father that X did not like being hit on the arm and asked the Father to leave the home. The Father's response was to exclaim "for fuck's sake, she hurt me!". The Mother told the Father to stop swearing in front of the children, asking him to leave as he was scaring the children. The Father said to X "learn, learn, you'll learn". The Father smacked X's hand and it hit a kitchen cupboard. The Father's justification was X had pinched him. The Mother told the Father to stop using his hands on the children and told X not to touch the Father. The Mother has tendered a video of this incident.
The Mother describes an incident in late 2020 when the Husband hit X on the head while she was doing home schooling with the Mother, causing X to scream and cry ("the late 2020 X Incident"). When asked why, the Father responded that X had called him a "fucking idiot". The Father walked out and slammed the door. The Mother asked X why she was swearing at her Father. X said, "because I don't want him near me and I'm going to defend myself". The Mother has tendered a video of this incident.
The Mother describes an incident in September 2020, which became the date of final separation ("the September 2020 Incident"). On this day, the whole family was at home. In the late afternoon, the Father was doing online exercises with X. The Mother was in an adjacent room. A female work colleague of the Father called his mobile telephone and the Mother picked up the call, walking into the room where the Father was. The Father grabbed the phone from the Mother, hung up, and told the Mother he did not know why his colleague called. The female colleague called again. A scuffle between the parents ensued, with the Mother grabbing the phone to answer it, holding it outstretched in her right hand as the Father grabbed her left arm. The Mother broke free, ran to another room, and answered the phone. The Father followed and attempted to grab the phone. He pushed the Mother in the chest causing her to fall backwards onto a bed. The Father continued to wrestle for the phone but the Mother would not let go, and was calling for help towards the now-answered phone call. The Father continued to try to get the phone (now with both hands), putting his full bodyweight on the Mother, pinning her to the bed. As they struggled, the Mother bit into the Father's arm until he let go. The Mother describes the mêlée as lasting around a minute, with her breathing obstructed once she was pinned to the bed. The Father eventually retrieved the phone and presumably released the Mother, since she ran from the room. X, who had witnessed at least the start of the argument, had run outside to call for help and for the police, but she did not know how to place the call. At this point, the Father followed the Mother downstairs. The Mother said she would call the police and the Father told her not to as it was going to end badly. The Mother told the Father to leave the house, because X would not come in while he was inside. He exited the house and the Mother locked him out. The police were called. They spoke to the Mother and X, and applied for an Interim Intervention Order naming the Mother and the children as protected persons and the Father as the Respondent. The Interim Intervention Order has been tendered. The Mother also made a police statement that same day, which has also been tendered.
The Father’s response to the Mother’s pre-separation allegations
Regarding the early 2020 X Incident, the first July 2020 X Incident, the mid-2020 Kitchen Incident, the second July 2020 X Incident, the mid-2020 X and Y Incident, the August 2020 X Incident, and the September 2020 X Incident, the Father's affidavit in reply (filed 2 August 2023) says in total:-
In respect of [those incidents], I say the recordings and videos by the Respondent Wife has been made by her and are not in context and are selective. The segments in the videos are limited and carefully selected by the Respondent Wife and not reflective of the whole context of conversation relating to each date. This was referred to in [Dr C]’s Report as the Respondent Wife sought to forward to him, all of the videos that she had collated. I have also compiled videos in relation to my interaction with the children as well as being assaulted by the Respondent Wife.
(errors in original)
Regarding the Chores List Incident, the Father asserts a different version of events, alleging the Mother was the perpetrator of violence towards him on that occasion. He says the Mother called him "useless and a piece of shit", then hit him in the face with a an object, injuring him, then threw herself on the ground and falsely exclaiming that the Husband had pushed her even though he had not touched her. He agrees that X came running into the room. He says the Mother subsequently apologized to him for her behaviour and the assault. He took photographs of his injuries and provided those to the police.
Regarding the September 2020 Incident, the Father describes the Mother provoking him, in that she decided to access his phone and then confronted him in front of X accusing him of cheating on her and calling him names such as "pig" and "fucking idiot". He says X pleaded with the Mother to stop shouting at the Father, but the Mother continued abusing him. He says the Mother let him access his phone but then tried to take the phone from him. The Father alleges that the Mother pushed him and bit into his arm causing injury. The Father asserts that the Mother then proceeded to push him down a set of stairs, injuring himself and leading to an ongoing medical condition. The Father says he also called the police and the Mother tried to lock him out of the home. I note the Father subsequently entered a plea of guilty to an unlawful assault charge against the Mother regarding this incident.
Events post-separation
Initial steps
In September 2020 (three days later), Victoria Police applied for and obtained an Interim Intervention Order against the Father, naming the Mother and the children as affected family members. An initial hearing occurred in September 2020, where the Father contested the allegations that he had committed family violence. A further hearing occurred in early 2021, which the Father failed to attend, resulting in a Final Intervention Order against him (expiring early 2023). The Father has not explained his non-attendance. A copy of the Interim Intervention Order was attached to the Father's affidavit of 21 December 2022, but the Final Intervention Order does not appear to be in evidence. The Interim Intervention Order excluded the Father from the family home.
In late 2020 the Father made an application for an Intervention Order against the Maternal Grandfather naming himself and the two children as affected family members. In his application, the Father alleged that the Maternal Grandfather was trying to contact third parties telling them that the Father "is a woman and a child beater". This application was also heard and struck out in early 2021 due to the Father's absence.
In late 2021, Y made multiple separate and spontaneous disclosures to staff at her childcare that the Father had committed physical violence against the Mother and both children. Y specifically mentioned the Father pulling X's hair and smacking Y's hands and feet. These disclosures were the subject of mandatory reports to Department of Families, Fairness and Housing ("DFFH").
In late 2020, the Father was charged with multiple counts of assault on the Mother, arising out of the Chores List Incident (mid-2020) and the September 2020 Incident. In late 2020, the charges were downgraded to two charges of assault, one arising from each incident. In mid‑2022, the Father entered a plea of guilty to those charges, and was fined with no conviction recorded.
At the same time as the negotiations over supervision of time between the Father and the children, the parties were in bitter dispute regarding financial issues, with each alleging financial abuse by the other. In late 2020, the Mother complained to police that the Father had breached the Intervention Order by unilaterally cancelling her car and home-and-contents insurances, and had received the refunds on those policies at a time when he had funds in his account of around $12,000. Victoria Police appear not to have taken that matter any further. On the Father's part, he alleges that the Mother's actions in removing funds from the parties' bank accounts to cover necessary expenses was a form of financial abuse by the Mother.
In late 2020, the Father attended the Suburb E Police Station, and made complaints about alleged historical incidents of family violence by the Mother, dating back to 2017. Victoria Police applied for a cross-intervention order on the Father's behalf against the Mother, and charged the Mother with multiple charges. The supervised contact service report (see below) indicates the Father was very aware that the Mother had recently become aware of the charges laid or to be laid against her, as he informed the supervisor "that the Mother was going to have criminal charges against her and he was concerned about the visits as the mother stopped the visits in the past." Some of the charges were subsequently withdrawn and the other charges were struck out by the Magistrates Court in late 2021.
Supervised time
The Father did not see the children from September 2020 to 24 October 2020. On 21 September 2020, the Father's solicitors forwarded a letter seeking alternate weekend time with the children, as well as an evening meal, and school holiday and special day time. The Mother's solicitors responded on 1 October 2020 proposing two hours per week under paid supervision. Reluctantly, the Father agreed to the Mother's proposal nominating J Contact Centre as the supervising agency. Time commenced on 24 October 2020, but somewhere between that date and 9 November 2020 the Mother unilaterally cancelled J Contact Centre services as she was not comfortable with their supervision. In a letter of 9 November 2020, the Father's solicitors asked the Mother to reconsider, to no avail. Accordingly, the Mother's new suggested service was retained to supervise time. A report from that Family Contact Service dated 10 April 2021 reveals that 12 supervised sessions occurred from December 2020 to April 2021, with two scheduled sessions not undertaken.
The first supervised visit occurred in December 2020. Despite X being initially standoffish, the girls interacted well with the Father. Subsequent sessions appeared to go well. The children seemed pleased to see their Father, affectionate towards him, involved in activities, and happy. The children seemed to like the supervisors and were comfortable with the arrangements. The Mother outwardly supported the time, certainly delivering the girls in a timely and encouraging fashion and being supportive of their reports of enjoying the time upon their return. Nevertheless, by mid-February 2021 the Mother's querulent nature emerged.
Following supervised time in February 2021, the Mother forwarded a long text message to the contact service's manager complaining that the Father did not wear his mask correctly or at all, exposing the children to risk of Covid-19, and that he knowingly parked close to the Mother to intimidate her. She concluded her message by saying:-
Please give me a call anytime to discuss but this is going on for weeks regarding the handover process when at the start he was called to come into the vicinity when I would leave as kids would be left with you then he comes later so there is no risk of being near him or having to see him then all of a sudden it changed weeks ago and he turned up first with me having to see his car, him inside McDonald’s and when driving off see him with kids & its extremely traumatic & intimidating. Why did the process change when it was fine at the beginning when I would leave kids with you he would be called to arrive when I have left!”
In late February 2021, following supervised time the day before, the Mother sent the supervisor another long text message late in the evening. That message is too long to reproduce here (it can be read at pages 19-21 of the supervision report) but its implication and intent are clear. The Mother was increasingly dissatisfied with how supervised time was progressing. The Mother had formed a view that:-
(a)X was struggling with supervised time;
(b)X could not rely on the supervisor for support;
(c)the supervisor was failing to report significant matters that occurred during supervised time; and
(d)the supervisor had breached X's trust by telling the Father X had told the supervisor the Father was being "fake, as he was not like this at home".
The next visit was scheduled for March 2021. The day before, the Mother requested it occur indoors as both children were unwell. In accordance with the Contact Service Covid-19 protocol, the service sought a medical certificate and a Covid-19 test before the visit could occur. The Mother declined ("I will not subject them to covid testing"). There was some back and forth between the service's manager and the Mother, but ultimately no medical certificate was provided (and presumably no Covid-19 testing). The visit did not proceed. The manager sent a lengthy email to the legal practitioners setting out what occurred around this visit, which concluded with a pointed admonishment towards the Mother regarding the late evening messages to the supervisor (which the manager considered inappropriate). That admonishment was hardly subtle and was unlikely to have been interpreted favourably by the Mother, given her anxieties and personality style. Nevertheless, the next visit (mid-March 2021) proceeded. Y was friendly and loving towards the Father. X was moderately friendly, but both girls declined a photograph with the Father. X's behaviour deteriorated after the Father reprimanded her for pushing Y over. X challenged the Father with angry and sarcastic backchat. Y began to cry and ask for her Mother. There does not seem anything inappropriate in the way the Father dealt with the children. The supervisor noted the Mother appeared upset with her at changeover and did not acknowledge the supervisor's presence.
The next visit (mid-March 2021) saw the girls having fun with the Father at first, although X told the supervisor she wanted to go home after the Father reprimanded her for rough play with Y. Nevertheless, their departure was friendly and concluded affectionately.
Both children met the following visit (late March 2021) with great enthusiasm. It was around a special event, and they received presents from the Father. Despite X initially refusing, the Father was able to have a photo taken with the children. Y told the Father "let's go home", which was understood as a request to go to his home. This seems to have been a lovely, enjoyable day for the children and the Father.
The next scheduled visit (Good Friday) was cancelled, as the Father could not afford public holiday rates for supervision. Therefore, time next occurred in April 2021. The Father arrived with Easter gifts. At the commencement changeover, X was upset and did not want to attend. She was cajoled into attending, and appeared happy to receive her gifts and engaged well with the Father. Y was also happy. The Mother messaged the supervisor during the session, seeking reassurance the girls were okay. The Mother told the supervisor the girls were nervous on Fridays, and their behaviour changed. The Mother also referenced her view that the children's ages made it inappropriate for the Father to assist with toileting. Despite the Mother's concerns, this visit appears to have been happy and joyous. At the conclusion changeover, the Mother appeared stressed and was crying, seemingly about to whether she would receive a copy of the contact service report (the children were in the car by that stage). The supervisor could not tell the Mother whether she would receive the report, but reassured the Mother she would find out. Afterwards, the supervisor received a message from the Mother asking whether Y had dug her nails into the Father's leg and pinched and slapped him, as X had told her (Y had done so, but it was in play and accompanied by laughter).
The report's final summary records, amongst other things, that:-
(a)the children have looked forward to seeing the Father, and remained settled during visits. However there have been times where the Mother and the supervisor have had to encourage and reassure them;
(b)both children have appeared to share a loving and familiar bond with the Father, accepting and reciprocating physical affection without signs of fear;
(c)despite the above, in February 2021, X made concerning comments, telling the supervisor that the Father tried to harm the Mother, and she did not trust him. She told the supervisor the Father used to pull her hair and ears. The supervisor (Ms K) was unsure whether X's disclosures were her own recollection of events or an account from the Mother (I was surprised to read this, as the narrative for the next visit merely states X told the supervisor she was getting a tummy ache and was concerned the Father would hurt Y);
(d)it has been clear X's loyalties lie with the Mother, and at times she has presented as possibly under duress, whereby her behaviour towards the Father has not looked like fear but rather anger. X has also reported things to the Mother that were not observed by the supervisor, which the manager speculated was to appease the Mother;
(e)the Father attended visits punctually and was focused and loving towards the children;
(f)there were no significant concerns regarding the Father's behaviour during visits;
(g)the Father has been compliant overall, and taken directions on board (particularly around expectations of the visits and handover), however that occurred after much discussion with the supervisor and explanation by the manager;
(h)the Mother has been cooperative overall, delivering the children to visits;
(i)the manager has been concerned the Mother tried to involve the supervisor in wider issues outside the visits, and messaged at times the manager considered inappropriate;
(j)the Mother has reported the children (especially X) have been distressed and not wanting to attend visits, despite visits been noted as positive overall. The Mother has asked the supervisor if certain details were documented, accused the supervisor of breaking the children's trust by disclosing private matters to the Father (which the supervisor denies), and continues to engage the supervisor in conversations outside of visits. The manager speculated the Mother tried to coerce or influence the supervisor;
(k)the parents continue to make allegations against each other. The Mother maintains her fear of the Father, expressing concerns for her and the children's safety, and reporting the Father having perpetrated family violence. The Father maintains the Mother was the perpetrator and advises she was subsequently charged. The manager considered these issues needed to be brought to the Court's attention.
All parties, including the Independent Children's Lawyer, accepted the report into evidence notwithstanding no party sought that either the report's author (the contact service manager) or the supervisor give evidence. The report is useful insofar as it describes the children's interactions with the Father and their presentation, but I can place no weight on the conclusions drawn by the manager in the report's final summary. I consider those conclusions well beyond the role of a contact service. Although I have ultimately drawn similar conclusions on some issues after considering all of the evidence (e.g. X's loyalties and the Mother's anxiety and fear), I have not done so based on this report writer's opinion.
Commencement of proceedings and unsupervised time
On 29 January 2021 the Father issued these proceedings. In his Initiating Application, the Father sought orders (in summary) for:-
(a)equal shared parental responsibility;
(b)a week-about living arrangement for the children; and
(c)the children to spend half school holidays and special days with him.
As noted, there were also property issues in dispute.
The Mother responded by seeking:-
(a)sole parental responsibility;
(b)the children live with her; and
(c)to be excused from particularising spend time arrangements pending expert assessment.
The Mother sought additional orders regarding information sharing, non-denigration and notably that neither party engage in the use of physical discipline of the children.
The proceedings first came before the Court on 13 April 2021. At that time, the Mother agreed to orders that the children spend Saturdays with the Father (unsupervised) and speak with him by telephone on Tuesdays. Orders were also made for a Family Report by Mr L.
Unsupervised time first occurred on 17 April 2021, with changeover at McDonalds Suburb M. Issues promptly arose. The Mother complained the Father had no car booster seat, and when X asked about its absence the Father replied, "my car, my rules". The Father complained X wore a children's smart watch with GPS tracking. He alleged this breached the Intervention Order against the Maternal Grandfather (although I struggle to see how that could be). The Father saw the smart watch as surveillance. From the Mother's perspective, the watch was purchased because X refused to attend without it, and it provided reassurance. During the visit, the Mother sent X an emoji message and says the Father refused to allow X to reply (which the Father's complaint suggests is likely). The Father felt the Mother was demanding and controlling, trying to direct how his time with the children should happen. He complained the Mother had pre‑arranged activities for the children and even told him when he should stay for an activity and when to simply drop the child off, interfering with his time. I understand that such interference included when the children had been invited to birthday parties.
The smart watch was again a sore point on the second unsupervised visit in late April 2021. The Father took the children to his home, and Y was upset. X messaged the Mother saying Y needed her, and the Mother told X to comfort Y with a soft toy and that Y could call her. The Mother was then told (I do not know by whom) that the watch had been turned off. The Mother messaged X again, then messaged the Father to check on the children's welfare. Later, X told the Mother that the Father said she cannot call the Mother during his time, and the Mother observed X to be visibly distressed when conveying that information (contrary to this, the Father told the Mother X had turned the watch off, which X later confirmed, saying she turned off the watch to save the battery in case the Father "hurts or shakes me").
Further grievances the Mother had during these early visits included:-
(a)the Father had a friend and her children present, which upset Y who screamed for them to go away; and
(b)on a subsequent trip, the Father held Y on his lap while driving.
The Husband agrees that his friend and her children were present but says Y was not upset and had fun with the other children. He denies holding Y on his lap while driving and says that is “a further fabricated allegation by the Respondent Wife”.
I have gone into considerable detail as to the progression of unsupervised time because it is apparent that, notwithstanding the parties' (especially the Mother's) consent, with the benefit of hindsight the foundation for a successful transition to unsupervised time was not there. The Mother's anxieties and fear for the children's welfare were such that she could not accept that the children were safe with the Father. The children were reporting to the Mother any perceived malfeasance by the Father during visits. The children were also exhibiting reluctance to attend, and from the Mother's perspective needed reassurance that they could contact her. Again, with the benefit of hindsight, it seems that the children were able to engage with the Father in circumstances where they and the Mother felt protected, but there was latent and persistent insecurity surrounding their safety with the Father. As I will explain in my family violence findings, for at least the Mother and X, that insecurity had a realistic basis in their prior experiences of the Father.
I am also satisfied there was a well-evolved dynamic whereby the children would express to the Mother their reluctance to spend time with the Father, feeding into the Mother's anxiety. I am satisfied that, upon return, the children would readily tell the Mother their alleged concerns, validating the Mother's fears. The Mother was a receptive audience for complaints. Given the close bond between the Mother and the children, I am satisfied the children were well-aware that the Mother would support them in their complaints and saw her as their protector from the Father. I am also satisfied that when the children complained, the Mother would jump to the worst possible conclusion and she was incapable of applying rational or objective consideration to the complaints and whether the complaints were correct.
For the Father's part, he also jumps to the worst possible conclusions about the Mother. Consideration of both his viva voce evidence and affidavit material reveals a pervading negativity about the Mother and her intentions. For example, I am not satisfied the Mother providing X a smart watch was borne out of a desire to keep the Father under surveillance, nor am I satisfied the Mother's directions to the Father as to events the girls were to attend were efforts to control the Father's time with the children. The Father externalises blame for the children's rejection of him with little insight or acceptance of his contribution to the problems facing the family. I accept that the girls were happy in his care during the early visits, and the Father has exhibited recordings of the girls playing and dancing happily in his care. Equally, I accept that the children (especially X), display distress, resistance and anxiety about the Father when with the Mother. The two scenarios are not mutually exclusive.
Mid-2021
I turn now to the last time the Father saw the children outside a counselling environment – mid‑2021 ("the Carpark Incident"). The Father says he and the girls had a good day overall but that Y made a comment that he was "nasty" "because you hurt mummy and she called the police on you, you are a nasty man". Presumably these comments were in the middle of the day as they occurred while the Father drove Y home from an extracurricular class. On the way to changeover at the end of time, X started speaking to the Father about the looming sale of the former matrimonial home (part of the property dispute between the parents). X blamed the Father for the sale, saying it was unfair to the Mother and that the Mother should keep the house. X also said that when she turned 16, she could choose who to stay with. The Father's conclusion about X's behaviour was that she "has clearly been brainwashed and this is clearly unacceptable but it cannot be helped as the mother will not do anything to facilitate my time". The Father describes X having a tantrum and desperately crying at around the time the Mother arrived for changeover.
The Mother describes her perceptions of that day differently. She says she was heading to changeover when she received a call from X asking the Mother to come and get her. She arrived at the restaurant (where changeover was to occur) and saw the Father standing outside the rear passenger door carrying Y while trying to open the door. The Mother could hear X screaming for help and observed Y being "yanked" as the Father pulled on the door. X was using the car's remote locking to secure herself in the car. The Mother parked her car in an adjacent space with an empty space between the two cars. When X saw the Mother arrive, she ran to her car. The Mother describes X as "terrified". The Father still had Y in his arms, who was kicking and trying to pull herself away, which she ultimately did and went to the Mother.
Surrounding this incident are three separate recordings. One of those recordings is CCTV footage from the restaurant and the remaining two are footage from the Mother's phone. The restaurant footage contains no audio. It largely accords with the Mother's description, although I would not describe the Father as "yanking" Y. It is impossible to assess whether the children or either of them were distressed but it does appear that both girls were quick to return to their Mother, and X appears to have a tug-of-war with the Father over a bag.
The Mother's apparently-first recording shows little of relevance visually, but has audio recording. As the Mother emerges, X can be heard screaming, and a male adult voice can be heard, but only indistinctly. X can be heard shouting "give it" and "just give it back". I surmise, from comparing this recording to the silent CCTV footage, that X was shouting this as she attempted to retrieve the final bag from the Father. Y cannot be identified as saying anything in particular, but the recording sounds to my ear as if one child is shouting at the same time that a separate child is audibly crying. Towards the end of the recording, the voice I identify as X's can be heard to scream "Leave! Stop even looking at me!". Immediately after, a male adult voice can again be heard, presumably in reply, but no words can be made out. The Mother urges the children into the car, before asking what had happened, and the recording ends.
The next recording has X continuing to be in distress. The recording has both audio and video, but largely the video only shows a car seat. Both X and the Mother are clearly distressed, and X alternates between anger and audible tears. X repeats at several times that the incident began with the Father "videoing" her. The Mother tries to inquire why. X says she is unsure. The Mother asks whether either child was hurt physically, and X says no. At one point, X appears to see the Father again (who I interpret as having lingered at the restaurant), and her distress immediately and audibly spikes. The Mother can be heard to drive off. Eventually, X is calm enough to explain the events leading up to her outburst. X says that the Father was filming the children, and telling them about how the Mother allegedly pushed him down a set of stairs and injured him such that he required medical attention. X recounts telling the Father that this was incorrect, and that the Father was "twisting the frick'n story". X recounts the Father mocking her and laughing at her, saying "yeah, your Mother says that!". The Mother asks if the rest of the day had been OK, and X confirms everything had been fine until that time. X also confirms, under the Mother's questioning, that X was the one who escalated the incident and lost her temper (although she appears subjectively to have felt provoked), and that X kicked the Father in the stomach. X thus decided to lock the car doors and call the Mother on her smart watch due to her distress (although X denies having felt unsafe). There are various detours and tangents during X's recounting, none of which have particular bearing on this case, and which do not appear terribly unusual in a young child attempting to tell a story while in distress.
Sequelae
Following the mid-2021 incident, the Mother decided it was not safe for the children to spend time with the Father and attended a police station to allege some form of criminal behaviour by the Father. Victoria Police found no basis to charge the Father with any crime. However, after that date, the Mother withheld the children (in breach of Court orders), asserting the children were unmanageably distressed by the incident and therefore could not be made to spend time with the Father without unacceptable emotional and psychological harm.
On 24 June 2021, the Father filed a Contravention Application. While that Application does not particularise the orders sought, I understand from the Father's supporting affidavit dated 24 June 2021 that he sought a change of residence for the children to live with him.
On 1 August 2021, Mr L released his Family Report ("the Mr L Report"), which I discuss in detail below. For now, I note Mr L expressed serious concern about the Father's behaviour in various recordings and recommended that "orders be made for [Mr Verni] to undergo a psychiatric risk assessment".
On 3 August 2021, orders were made by consent suspending the children's time with the Father, requiring the Father undergo a psychiatric risk assessment, and appointing an Independent Children's Lawyer.
On 21 September 2021, Dr N, a psychiatrist, released his psychiatric risk assessment of the Father ("the Dr N Report"). I discuss the Dr N Report in detail below.
On 15 October 2021, the Father was given leave to withdraw his Contravention Application. No orders were made for resumption of the children's time with the Father.
On 15 February 2022, consent orders were made for reportable Family Therapy with Ms O. Ms O released her report ("the Ms O Report") on 22 September 2022. I discuss the Ms O Report in detail below.
In early 2022, the Mother says that, while she was doing reading practice with Y:-
out of nowhere she [Y] just said, “papa was rough down there” and point to her vagina and said “papa hurt me very badly there when he put my night nappy on me but […] stopped it” and “he pushed his finger in my hole.” I didn’t pressure her or insinuate anything but let her talk.
164. [In early] 2022 [sic], [Y] against just started talking about the Husband hurting her private parts at the dinner table in front of me, [X] and my mum at my mum’s house.
165. [X] had validated what [Y] was saying as true as she had caught the Husband hurting [Y] and she was complaining and calling for help for Mamma but I was at work so she had told him off and stopped him and put on [Y]’s nappy.
The Mother rang P Services in mid-2022 for advice about Y’s disclosures and was advised to call Child Protection, which she did.
In mid-2022, Y spoke with the Sexual Offences and Child Abuse Investigation Team ("SOCIT"), and completed an interview (known as a "VARE"). The Mother's evidence in cross-examination was that she was advised by a police officer of SOCIT that Y did make a disclosure of sexual touching by the Father, although the Mother was not provided with a copy of the VARE tape.
In mid-2022, the Mother alleges X made a similar disclosure to her:-
174. She [X] told me that he [the Father] would come in her room and tell her he was taking her temperature down in her pyjamas inside her and she knew that a temperature wasn’t taken that way it’s the back of the hand on the forehead.
175. She said it would happen when I wasn’t at home, and I would work my night shift and it was always when I worked my night shift.
176. I did believe [X]’s comment because I caught him in her room and he said he was fixing up the sheets when I know on each occasion [X] was snuggly tucked in bed and not untucked down to her knees when I would walk in. The husband would get up early around 4:30am when he would be in there earlier, it started to make me question why he was awake earlier than he needed to me. [sic]
In mid-2022, X spoke with SOCIT and completed a VARE, but did not disclose sexual abuse by the Father.
In mid-2022, DFFH provided a response under section 69ZW of the Family Law Act 1975 (Cth) (“the Act”). It noted eight reports had been made regarding the children, all closed at intake. However, mid-2022, DFFH provided an addendum response stating they had subsequently received additional information that meant DFFH now considered further investigation and assessment were required. The nature of that information was not disclosed.
In mid-2022, Child Protection completed an interview with X at the Mother's residence. X spoke positively about the Mother, but initially refused to speak about the Father at all. Follow further questioning from Child Protection X disclosed physical violence by the Father, and stated that she had been scared for the Mother during the relationship. Child Protection completed a body safety tool with X, and she disclosed more than 10 incidents where the Father inappropriately touched her vagina. Y was also interviewed, and confirmed that the Father had been physically abusive towards the children and the Mother, including describing an incident when the Father allegedly pulled X outside by the hair, and hosed X down while she was not wearing clothes. There is no mention in the Child Protection report from that day of Y having mentioned sexual touching. Both children were clear that their views were their own and that the Father was not discussed in the Mother's house.
In late 2022, Child Protection interviewed the Father. The Father denied all allegations of having perpetrated any family violence against the Mother or the children, and stated he was "gobsmacked" at the allegations of sexual abuse. The Father accused the Mother of putting fake memories into their children's heads. The Father also advised Child Protection that he had completed a Men's Behaviour Change program.
On 26 September 2022, consent orders were made for a further Family Report by Dr C. Dr C released his report on 21 November 2022 ("the Dr C Report"). I consider the Dr C Report in detail below.
On 30 January 2023, the matter came before me for Final Hearing, scheduled for five days. On 1 February 2023, the third day of hearings, the parties settled the property proceedings on a final basis. On that same day, interim parenting orders were made by consent for reportable Family Therapy with Ms Q and for the parties to engage a parenting coordinator, Ms R. The interim consent orders also provided for a resumption of time between the Father and the children from 24 February 2023 (after the Family Therapy commenced). The matter was otherwise adjourned part-heard, to see if the interim parenting orders could provide a basis for on-going parenting arrangements, and to see if the Family Therapy would succeed in repairing the children's relationship with the Father.
On 13 February 2023, Ms Q undertook intake interviews with each parent, and on 16 February 2023 undertook intake interviews with the children. Ms Q's evidence was that both children stated they did not wish to spend time with the Father, though they were prepared to discuss the kinds of activities they would like to undertake with a "good dad". X in particular was not at all open to spending time with the Father. Y was more open, and slightly curious, although still expressing not wanting to see the Father.
In February 2023, Ms Q met with the Father and his new partner Ms S to plan how initial time between the Father and the children could occur successfully.
On 24 February 2023, the children had originally been scheduled to spend time with the Father, supervised by Ms Q. However, that time did not occur because Ms Q assessed that further sessions were needed before the children would be ready for time with the Father.
On 27 February 2023, Ms Q had a further session with the Mother, who said X was self‑harming due to distress at the thought of spending time with the Father. The Mother said X was emotionally dysregulated, shouting, and banging her head against a wall.
On 2 March 2023, the children spent time with the Father and Ms S (this was their first time meeting Ms S), supervised by Ms Q. Time had been scheduled to start at 4pm, but due to a traffic accident the Mother arrived at 5:30pm. The Mother had messaged Ms Q to keep her updated and advised of progress in getting to the appointment. Understandably, both the Mother and the children were flustered. Y was initially overwhelmed by the situation and attempted to leave the room, but both children were persuaded to enter the room and engage with the process by Ms Q. X remained aggressive throughout the session - rejecting the cake offered by the Father and declaring that she only eats healthy food. Ms Q's evidence was that the Father and Ms S remained patient and calmly sought to engage the children. Both children eventually joined the Father in playing a game recommended by Ms Q, but X in particular did not at any time become at ease.
On 14 March 2023, the children spent time with Ms Q and the Father again. The Father brought fresh fruit and healthy home-made treats, responding to X having said she only ate healthy food. X was very determined that she did not wish to engage or even enter the room, and had to be coaxed in by Ms Q. Even on entering the room, X faced the whiteboard and just wrote on it that she did not want to spend time with the Father or live with him. The Father attempted to engage with X and she continued to refuse engagement. Y was prepared to engage with the Father and play the same game as the previous visit. Ms Q said she felt the Father displayed appropriate parenting skills, and did not seek to dismiss the children's emotions.
The Mother had advised Ms Q that X's self-harming and aggression had continued to escalate in the lead up to the second meeting with the Father. The Mother reported that, at one point, X had been threatening the people around her with a weapon, including Y. On other occasions, X had hit Y. Ms Q spoke with X about seeing a child psychologist, which Ms Q felt was a matter of urgency. X was initially reluctant to speak with yet another expert because she had already seen many professionals during the proceedings. However, X also told Ms Q that she did not want to feel that way anymore, and she did not want to be mean to people, and on that basis was willing to see a psychologist.
On 21 March 2023, Ms Q spoke with the Independent Children's Lawyer about X self-harming, but still recommended that it was worth trialling unsupervised time between the Father and the children. Ms Q felt the Father had behaved appropriately in the sessions to date, and that further supervised sessions were unlikely to produce different outcomes than had already been observed.
On 1 April 2023, unsupervised time was attempted. Changeover was to occur at a half-way point between the parents' houses, with a friend of the Mother (Ms T) and Ms S conducting the changeover while each parent waited in their respective cars. Changeover was wholly unsuccessful. Y refused to leave the car. X got out of the car, but only to shout and swear at Ms S and tell Ms S that she did not want to spend any time with the Father. After nearly an hour trying to get the children to agree to changeover, with enduring patience shown by Ms S, changeover was abandoned.
A further final effort at changeover for unsupervised time was attempted some short time later at a supervised contact centre called U Contact Centre, although Ms Q was not involved in that effort. To try to ease the changeover, the Mother had taken the children to U Contact Centre on a previous occasion to become familiar with the environment and the staff, which strikes as an appropriate, sensible, and genuine effort by the Mother at facilitating changeover. However changeover was once again wholly unsuccessful, and the U Contact Centre staff eventually advised it should be abandoned.
In mid-2023, Child Protection received a report about Y inserting her finger into X's vagina. That was subsequently clarified in a meeting between Child Protection and the Mother that Y was poking X in the vagina and bottom over the top of X's clothing. X complained about this behaviour, and the Mother told Y to stop. The Mother advised Child Protection that Y said she was doing what the Father had done to her. Child Protection then interviewed the children separately in mid-2023. X disclosed physical abuse by the Father, including the hose spraying incident previously mentioned to Child Protection by Y. Regarding possible sexual abuse, X only disclosed that the Father had hit her on the bottom, and that on one occasion she woke up to find the Father's hand on her thigh, and that afterwards she developed a red rash around her genitals. There is no mention in the Child Protection report of Y having made sexual abuse disclosures.
The matter returned before me on 7 August 2023 for the resumption of the part-heard Final Hearing, scheduled for a further three days. At the end of the third day (9 August 2023), evidence had concluded, but there had not been time for closing addresses.
The Father was subsequently interviewed by Child Protection in mid-2023, and denied any sexual abuse of the children or ever having used physical discipline on the children. I note that, by the Father's mid-2023 interview, evidence had concluded in the proceedings, and only final addresses remained. Video footage played during the trial included the Father using physical discipline on the children, and verbally acknowledging he had done so.
Finally, for completeness, in late 2023 (after final submissions, but before this judgment was delivered), the Mother filed an Enforcement Application regarding the 1 February 2023 property consent orders. The Mother alleged the Father failed to indemnify her as required for on-going costs associated with the parties' property in Country B. That application has been before me several times. It is clear that the Mother is still being pursued by Country B creditors, although the Father asserts that is a by-product of Country B legal intricacies. It is also clear that the Father has failed to reimburse costs the Mother has incurred, citing apparent penury. The issue is on-going and has focused on concluding the parties' financial dealings. It has not yet been necessary or possible to make findings regarding fault. I therefore have not considered the Enforcement Application in making my decision in these parenting proceedings.
WITNESSES AND EXPERT REPORTS
The Father relied on his own evidence and the evidence of Ms S, his new partner. Both were cross-examined.
The Mother relied on her own evidence and was cross-examined. The Mother also provided affidavits from:-
(a)Ms V (the Maternal Grandmother);
(b)Mr W (the Maternal Grandfather);
(c)Ms Z; and
(d)Ms T.
The Mother’s additional witnesses were not required for cross-examination.
The following reports were in evidence:-
(a)a 12 April 2021 observational report on supervised time between the Father and the children, from Ms AA (the manager of Family Contact Service);
(b)a Family Report dated 1 August 2021, from Mr L;
(c)a forensic psychiatric report on the Father dated 21 September 2022, from Dr N;
(d)a report dated 22 September 2022 on initial family therapy, from Ms O;
(e)a Family Report dated 21 November 2022, from Dr C;
(f)a section 67Z response from the Victorian Department of Families, Fairness and Housing ("DFFH") dated 24 February 2021;
(g)a further section 67Z response from DFFH dated 4 May 2021;
(h)a section 69ZW report from DFFH dated 19 July 2022;
(i)a section 69ZW addendum report from DFFH dated 22 July 2022;
(j)a series of emails from DFFH dated 28 August 2023 providing an update on their previous section 67Z and section 69ZW responses;
(k)a section 69ZW response from Victoria Police dated early 2023; and
(l)various academic papers and reports on parental exclusion to which I was pointed by the parties and Dr C.
Dr C was cross-examined.
Finally, Ms Q (who provided reportable family therapy) gave evidence and was cross‑examined, although no written report was tendered.
Witness Credibility
The Court generally avoids making adverse findings regarding credit if a case can be decided another way: see Adamson & Adamson (2014) FLC 93-622 at [89]-[90]. Here, credit findings cannot be avoided. The parents' accounts of the pre-separation relationship cannot be reconciled as mere differences in perception. Each insists only the other committed family violence, and that dispute is central to understanding the children's rejection of the Father.
The need to make family violence and credit findings was highlighted by Dr C's evidence. Dr C agreed that his expectation that the children would cease rejecting the Father if removed from the Mother's care depended on the children having no 'genuine' basis for their rejection. That is, it depended on the children not having experienced an enduring impact from family violence by the Father against both them and the Mother. Dr C conceded that the children would be far less likely to accept forcible relocation to the Father's care if they had in fact been impacted by family violence from the Father.
The Father
The Father was not a persuasive witness. The Father's initial presentation was calm and conversational. At times he became more heated, but not exceptionally so. My impression was that the Father can be very charismatic when he wishes to be, and he had ready answers for all questions from Counsel. The substance of those answers was unconvincing. The Father made bald declarations that did not appear to correspond to the documentary evidence. He also presented implausible denials of factual matters, even when direct evidence was put to him.
A useful example of both issues in the Father's evidence was his response to questions from Counsel for the Mother regarding the video recordings of various incidents of family violence in the parents' pre-separation relationship. Regarding the recordings, the Father stated:-
I’m aware of your recordings. I’m aware of the videos and as professionals said as well, I think [Dr C] said on the report if I’m not wrong, those videos are clearly manipulated.
Dr C's report quite properly does not say that. Such a comment would suggest Dr C made judgments about the accuracy and completeness of evidence in this matter, beyond the role of a Family Report Writer. Instead, regarding the videos, Dr C stated:-
180. I have observed video recordings included in the mother’s documents. The video recordings show difficulties between the parents in dealing with the younger child, swearing at each other, but in particular the father swearing at the mother.
181. The video recording of [mid]-2020 shows the father angry and scaring the child. The videos also show the mother asking questions with the younger child speaking about smacks from the father. The video of [mid]-2020 shows conflict between the children and the father and the mother and the father. [In late] 2020 there is a situation where it is reported that the father hit the child. [In mid]-2021 there is the account of the child in the car. The car videos suggest significant distress from the children.
and later:-
192. The following is relevant as commentary in relation to the video material provided:
1. The video material was provided by the mother, father presented as not aware of video recordings occurring
2. The fact that one parent was aware of the video ongoing is likely to have influenced the content of the videos.
3. The videos have been likely self-selected by the mother as representing the events that she wished to describe
4. The videos raise concerns about the negative interactions between both parents.
5. The videos highlight the fact that the children are markedly exposed to parental conflict and are caught between the parents in their arguments.
6. The children present as empowered in relation to the father.
7. Videos show the father responding negatively and times aggressively to the children’s aggression towards him.
8. The videos show the father being reactive to the children’s aggression to him.
9. The videos do not show the father instigating aggression to the children or the mother, but rather reacting in a negative fashion, with one reported incident of the father hitting one child on the head.
10. The videos show the mother to be reactive in relation to the father and the father reactive to the mother.
11. The videos show the mother and the children engaging in communication with the children and father, which suggests the existence of an exclusion process.
12. Videos do not show the father unilaterally perpetrating family violence or the mother unilaterally perpetrating family violence.
13. The videos show complex family interactions, significant parental conflict, exclusion of the father, aggression from the children to the father, the children caught between the parents’ antipathy and divergent allegations against each other.
I have set out the parents' competing accounts of these events above. Here, the Father makes a direct denial of the Mother's account, and offers a full account of how he says this incident occurred. As with the Chores List Incident, the Father was charged in relation to this incident, and subsequently pleaded guilty to one count of unlawful assault. That guilty plea means I reject at least those parts of the Father's account that say he committed no violence.
That said, rejecting parts of the Father's account of a lengthy and complex incident does not mean I automatically accept the Mother's account in full. The Mother's account presents her attempts to answer the Father's mobile phone as an innocent and neutral action. I do not accept that. Even on her own account, the Mother presents as inexplicably determined to answer the phone call, notwithstanding it was not her own phone and that the Father was aware of the call and had decided not to answer it. I consider that the most plausible explanation is that the Mother either believed or suspected that the Father was having an affair (whether the Mother was correct in that respect is not relevant to this case), and was determined to confront him over it. The Father's recording of the Park Incident has also demonstrated that the Mother is willing to swear at the Father in front of the children. I accept that the Mother may well have barged into the room in aggressive fashion and potentially swearing, seeking to confront the Father.
It appeared to be common ground that the contest over the phone led to the parents wrestling on the bed. It is common ground that at one point the Mother bit the Father's arm. I find that the Father most likely did chase the Mother, did push her onto the bed, and did pin her onto the bed with his bodyweight.
On the bite, the Mother asserted this was self-defence, as she was being strangled. Counsel for the Father put to the Mother that it was impossible for her to be strangled while biting the Father, as the mechanics of having an arm across her face were inconsistent with an arm or hands around her throat. I consider Counsel has focused on too-narrow and stereotypical a view of strangulation. The mechanics articulated by the Mother in affidavits, statements, and evidence, have been consistent. The Mother has asserted an inability to breathe properly due to face-smothering and weight on her body. The Mother has not asserted an arm or hands around her throat. I acknowledge that the most obvious form of strangling is direct constriction of the throat. I am prepared to take that word broadly, however, as encompassing other forms of asphyxiation.
One of the themes of Counsel for the Father's questions to the Mother was her tendency to catastrophise, and to use key words and phrases that Counsel suggested were carefully chosen to elicit strong reactions from the Mother's audience. In particular, the Mother had previously spoken about not wanting to be "a statistic". The Mother's efforts to reframe those statements (and in some cases walk them back) were not persuasive. The Mother clearly has an awareness of common narrative of family violence, and of the kinds of matters that are often taken as 'red flags' for elevated violence and lethality risks. That is unsurprising, given the Mother's anxious nature. In that context, I am well-satisfied that the Mother latched onto the word 'strangle' either consciously or unconsciously as emblematic of her heightened fears regarding the Father. I accept that the Mother describing smothering as strangling was consciously or otherwise driven by the status of strangulation as a 'red flag'.
Notwithstanding that I accept the Mother experienced this incident as asphyxiation, in a context where the parents were focused heavily on the phone, I am not prepared to find that the Father intentionally sought to smother, strangle, or otherwise asphyxiate the Mother. I do not consider I have evidence that would establish such an intent, because the Father could readily have merely been pinning the Mother down to acquire the phone, and been oblivious to the effect of his arm over the Mother's face, and the weight of his body. I am not prepared to make a finding that this incident suggests the kind of 'red flag' risk elevation that would be associated with deliberate asphyxiation of the Mother. On the evidence before me, I take this incident as an example of violence between the parents, not as an indication of particular risk to the children, save for their obvious exposure to the event.
Mid-2021 (the “Carpark Incident”)
I have discussed this incident in considerable detail above. X's disclosures to the Mother in the aftermath impressed as authentic, and consistent with her and the Father's prior relationship. The Father's body language in the CCTV footage also appears confrontational towards X, although I am cautious about drawing inferences there as the footage is not fully clear and lacks sound. I am prepared to take X's account at face value. I also am not willing to criticise the Mother asking X what had occurred. That is a reasonable response to a distressed and hysterical child. Nevertheless, the nature of the Mother’s questioning of X did little to de-escalate X’s fear and insecurity surrounding the Father. For example, when X’s recounting of the incident reached the point where X called the Mother, the Mother interjected “I know you called me darling, yeah, I was – see, I’m shaking – are you alright?”. I suspect this was an effort by the Mother to validate X’s lived experience, and avoid minimising and/or dismissing her distress. However, the actual effect appears to have been to reinforce X’s fear and distress, which is evident in X’s presentation rapidly spiralling downwards as she continues her account.
This incident is serious not primarily because of violence alleged between X and the Father, but because of what it indicates about the Father's capacity to respond supportively and appropriately to X if I relocate the children to his care. On X's account, the Father sought to discuss Court matters with the children, in what seems likely to have been an effort to film them agreeing with his account of a key event. That is inappropriate and contrary to Court orders. X's account indicates a deliberate, conscious decision by the Father to engage in harmful behaviour for his own advantage.
The Carpark Incident occurred after a series of unsupervised sessions between the Father and the children. By all accounts, those visits were successful and positive, and could have been a good basis to begin repairing the children's relationship with the Father. Yet, having begun to rebuild trust, the Father lacked insight recognise how destructive his actions were likely to be (and were). That speaks to the heart of the risk assessment of violence in this matter: the Father has demonstrated he can at times parent sensitively and effectively; he has also demonstrated that he often chooses not to.
The incident also speaks to the Mother’s capacity to support the children’s relationship with the Father. The nature and style of the Mother’s interaction with X provides little confidence that the Mother could ever engage with the children in a way that engendered a sense of security surrounding their relationship with the Father, especially if the Mother felt that the Father had engaged inappropriately with the children (as was the case here). This combined with the Mother’s propensity to see the worst in the Father, is a potent cocktail which points to the inevitable conclusion that the Mother cannot support a relationship between the children and the Father, and it is unlikely she will ever resile from that position.
Conclusions Regarding Family Violence
There was verbal, emotional, and physical family violence during the relationship, and emotional violence in the lead up to the Carpark Incident. Both parents engaged in violence, but the evidence before me indicates that the Father was more often the primary perpetrator. Having said that, the Mother was undoubtedly argumentative and querulous with the Father in their own interactions, and was strident and abusive towards the Father in her efforts to protect the children. There is no equivalent evidence for violence by the Mother towards the children.
The Father has alleged that the Mother was the true perpetrator of family violence in the relationship. For the reasons set out above, I do not accept that argument. The Father has presented himself as wholly blameless in the relationship, yet pleaded guilty to two counts of unlawful assault against the Mother. By contrast, charges against the Mother were struck out, after she successfully defended herself in a criminal proceeding.
Since I find that the Father has committed physical, verbal and emotional violence against at least X, unless I am persuaded that the Father has materially changed his attitude to parenting such that I can be confident such violence will not recur, I would need to find that the Father presents an unacceptable risk to the children. A risk does not necessarily mean a risk that cannot be mitigated. However, it does mean that before I could consider placing the children with the Father, I would need to be satisfied that the risk mitigations were likely to succeed, and I would need to consider the long-term sustainability of those mitigations.
The Father has been recorded not merely committing violence against the children, but admitting to it and stating he hopes the children were scared by the violence. Yet, even after he viewed those recordings in the trial, when subsequently speaking with DFFH the Father made a blanket denial of even using physical discipline against the children. I do not accept that the Father exhibits any true remorse for his actions or considers his actions were in any way inappropriate. While I accept and take at face value the evidence of Ms S that she has never witnessed the Father display any such violence, the Father's behaviour and denial is the better evidence of his actual attitude. I therefore consider there is an unacceptable risk the Father's physical violence against the children will recur, if they are in his control and isolated from their Mother, who has historically been their protector.
The risk of violence is exacerbated by the likelihood that, if placed in the Father's care, X will be aggressive and violent towards the Father. I also consider X would likely engage in further self-harm, and I consider there is a real chance X may attempt to run away. The Father demonstrated little insight that a forced relocation would be emotionally extraordinarily difficult for the children, and that they would likely display challenging behaviours for a period of time thereafter. The available evidence does not reassure me that the Father will cope with those behaviours.
I have considered the observations of Ms Q, and of the various staff who supervised the Father's time with the children in 2021, that the Father displayed appropriate parenting behaviours towards the children, even when the children (especially X) were rude and aggressive towards him. However, I must also consider X's repeated statements that the Father is very different when there are people to watch him. I note that Dr C assessed the Father as engaging in positive impression management. I accept and take at face value the evidence of Ms S that the Father told her the videos of his abuse of the children were fabricated. No evidence was led in trial to suggest the videos were fabricated, and I do not accept that the Mother would have had that capability. I note the affidavit of the Maternal Grandfather, in which he described the Father as deceitful, behaving charmingly towards people he met and then mocking and denigrating them as soon as they left the room. I take the affidavit as reflecting the Maternal Grandfather's honest opinion and experience of the Father. When I consider that evidence in combination with the Father's persistent denial of plain truth whenever he was not being directly confronted with the evidence of his abuse, the conclusion I reach is that the Father is either habitually deceptive, and skilful at it, or shows a considerable lack of insight into the nature of his behaviour and how others perceive his behaviour. I accept that the Father has demonstrated being highly motivated to appear to be a good parent, but his behaviour is not consistent with him having actually revised his opinion of what constitutes appropriate parenting.
I therefore find that the Father presents an unacceptable risk of further physical and psychological harm to the children. In such circumstances, a relocation of the children’s care from the Mother to the Father:-
(a)is not in the children’s best interests;
(b)will place the children (and particularly X) in the care of the parent who has been violent towards them;
(c)will be emotionally stressful for the children, with a real potential for long-term psychological harm;
(d)is directly at odds with the children’s views and desires; and
(e)cannot be supported.
Therefore, the orders I will make will largely adopt the Mother's proposal for sole parental care and no time between the children and the Father.
An order for sole parental responsibility to the Mother inevitably flows in this case as a result. My findings regarding family violence mean that the presumption of equal shared parental responsibility is rebutted. More significantly, these parents have no capacity to adopt the co‑operative and consultative approach that an equal shared parental responsibility order contemplates. Having regard to the children’s presentation, especially X’s, it is likely that serious issues will arise for their care moving forward, especially with regards to X’s on-going need for therapeutic intervention. Aside from the Mother’s anxiety around the Father, and her resultant incapacity to promote a relationship between the children and the Father, the Mother has proved herself to be a competent and caring Mother. She has the demonstrated capacity to make appropriate, caring and considered choices for the children moving forward.
In making my findings, I acknowledge the evidence from Dr C about the effect on children of not having a relationship with one of their parents. Dr C pointed to literature on such children often showing anxious patterns and black-and-white views of the world. I reject Dr C's finding that the Mother's behaviour displayed the conscious, malicious intent to place the Mother's needs above the children's needs that would render the exclusion of the Father an emotional abuse of the children. I also accept the submission from Counsel for the Mother that the children's own experience of the Father's physical abuse has contributed to the children's negative views of the Father. However, I accept that the available research indicates the 'Cluster B' personality traits can develop even where the exclusion is driven by a genuinely protective motivation. The potential for whole-of-life changes in attitude, outlook, and thinking patterns must be taken seriously. It is a real harm.
That same real harm is also, however, clearly associated with physical abuse. Ms Q's evidence reflected that physical abuse often produces trauma, and trauma leads to marked changes in personality presentation and behaviour. Physical abuse is also, self-evidently, a direct and severe harm in its own right regardless of future ramifications. Therefore, while I agree there is a real cost to children from not having a relationship with one of their parents, that cost is not commensurate to the unacceptable risk of physical abuse that I have found the Father presents.
Accusations of Sexual Abuse
Counsel for the Mother confirmed at the start of the trial that the Mother was not running a case that there had been actual sexual abuse of the children by the Father. However, Counsel for the Father demonstrated effectively and without difficulty that the Mother still unshakeably believes that the children have been sexually abused by the Father. When pressed on why, the Mother repeated, through increasing distress and tears, "I believe my children". I do not consider that display to be artificial.
If I considered that the Mother had invented the sexual abuse narrative, I would be deeply concerned about allowing the children to remain in her care. In this case, I do not believe the Mother is the source of the narrative, although she displays a consistent willingness to believe the worst about the Father in all things.
The forensic decision not to run a case grounded on sexual abuse was appropriate. Y's disclosures have not been consistent, and her initial disclosures also referred to being poked by a boy at her childcare. That creates too much uncertainty for me to make such a grave finding against the Father. Likewise, I cannot discount the potential for X to have echoed Y's disclosures out of a desire to support her Mother and her sister in rejecting the Father, especially given the inconsistencies in X's disclosures as well.
That said, an inability to prove sexual abuse does not automatically make it wrong for the Mother to, as she said, believe her children. Inconsistency in disclosures is hardly unheard of in survivors of abuse, especially children. It is not clear to me what the genesis of Y's original disclosures were, what the role of the boy at her childcare was, and I was not provided with a transcript or summary of Y's VARE, beyond the Mother's report of what she was told by SOCIT. I am reasonably satisfied that the Mother did not put the idea into the children's head, that the Mother genuinely believes that the abuse occurred, and that the Mother's belief is driven by her believing her children. When a child makes a disclosure of that nature, parents often believe them, even where Courts cannot make the same finding. The Father appropriately conceded under cross-examination that he would have reacted the same way had the children made equivalent disclosures to him.
The Children’s Expressed Views
X has expressed an unyielding opposition to on-going contact with the Father. Y has expressed curiosity towards the Father, and as noted below if I were considering Y alone, I might well be inclined to a view that there were prospects for repair of the relationship. However, currently, Y appears to follow her sister, and thus to echo her sister's opposition.
I agree with Counsel for the Father that the children have unquestionably taken the Mother's side, and have clearly been influenced by her negative opinion of the Father. However, in my view, the evidence in this matter generally supports Ms Q's rejection of 'parentification' of the children. Y has, seemingly happily, engaged with the various experts, even where the Mother was extremely anxious about the expert assessment. Y has also been persuadable to engage with the Father. That is not consistent with Y being primarily driven by a desire to protect the Mother. X's statement to Ms O about wanting to see the Father "just once, not twice" was followed up by X noting that, while the Mother would not be happy about any further interactions between the children and the Father, it would be X's choice. That suggests X was taking her own views as the starting point, and was not censoring her opinions in an effort to defer to the Mother's wishes.
I have also reached the conclusion that it would be emotionally and psychologically damaging to the children to continue attempting to repair their relationship with the Father through family therapy. Each successive effort at family therapy and/or time with the Father has produced worse outcomes. I accept that a significant component of that is likely to have been the Mother's anxiety. However, since I consider it would be an unacceptable risk to relocate the children from the Mother's care to the Father's, the children's alignment with the Mother must be recognised as being likely to be an enduring feature of this family. Given the duration and severity of the children's opposition to spending time with the Father (especially X), I consider that is now the children's genuinely held position.
I am concerned by the evidence of X engaging in self-harm and violence towards others around the time of the family therapy with Ms Q. X said to Ms Q that she did not want to keep feeling that way, and she did not want to keep hurting others. I consider that cogent evidence that X truly was displaying those behaviours, and was experiencing severe distress. I consider it likely that self-harm, distress, and aggression towards others would re-emerge if family therapy were attempted again, and I simply do not accept that there is any real likelihood the family therapy would be more successful this time around. Family therapy was appropriate to attempt in February 2023. It is no longer a justifiable risk.
The Children’s Relationship with the Parents and Others
I have dealt with the nature of the children's relationships with the parents and others. For completeness, I note that the Father claims he had a strong bond and relationship with both children before the parents separated (though the Mother disputes this). Even if I accept that this may have been the case, Mr L, Ms O, Dr C, and Ms Q have unanimously agreed that the children's relationship with the Father has now broken down. I have also dealt with family violence. In doing so, it should be clear that I have considered the children's expressed views, and my analysis below gives express consideration to the limits of the children's capacity - particularly X's lack of resilience. The Father would dearly love to participate in the children's lives, and he cannot be criticised in that regard. I am, however, critical of his failure to acknowledge the harm he has done to them, and that non-acknowledgement is a barrier to his being involved in the children's lives from now on.
The Children’s and Parents’ Capacity
I consider X does not have the capacity or resilience to sustain a relationship with the Father. I note Ms O made comments to that effect, and she considered the children were not ready even for family therapy. X feels very close to her Mother, does not feel fond of her Father, remembers being a victim of violence herself, and was exposed to violence between the parents, during the relationship.
X's lack of capacity is highlighted in the Mother's report to Ms Q of X self-harming. I take that report at face value. Ms Q spoke directly to X, who said she did not want to be mean to people, or feel that way anymore. That strikes me as an authentic response, indicative of a child who is distressed both at their situation and at being so out of control they no longer know how to regulate themselves. It is also inwardly-focused and self-blaming by X. That is not the kind of attitude or assignment of blame I would expect if the Mother and X were inventing stories of self-harm. Counsel for the Father and for the Independent Children's Lawyer submitted at various points in the trial that I should be sceptical about the Mother's reports of the children's distress. On at least this occasion, I do not consider scepticism is warranted. I accept that X was distressed during the period in which Ms Q was conducting family therapy.
Noting that Y is still very young, I am cautious about treating the children as a single collective unit. That said, I accept that the evidence throughout the trial has demonstrated a strong bond between the children, and that Y (unsurprisingly) tends to follow X's lead, and therefore if X refuses family therapy it seems unlikely such therapy would be successful for Y. If Y were being considered separately from X, I would consider Y had potential capacity to sustain a relationship with the Father.
Moving onto parental capacity, barring Dr C's declaration that the Mother was abusing the children by not engaging with the Father, Dr C conceded in cross-examination that the Mother otherwise appeared to be an excellent parent. While the Father has alleged the Mother engaged in physical violence towards the children, the available evidence does not support that, and the children have consistently had nothing to criticise about the Mother when speaking with various experts in these proceedings. The children's school has noted that the Mother is highly involved in the children's schooling, and that she presents as anxious, but the school has consistently advised DFFH that it has no concerns about the Mother's parenting. The Father has also displayed that he certainly can use appropriate parenting strategies, even when the children reject him or are aggressive towards him, as evidenced in the various periods of supervised time and family therapy he has spent with them. My concerns regarding his capacity are about whether he actually accepts that his past, well-documented, behaviours were inappropriate and harmful, and whether he will return to those patterns once no longer subject to scrutiny. I consider that the risk of return to previous patterns is unacceptable, given the consequences of such violence following a relocation.
I am sceptical of the Father’s capacity to appropriately support the children moving into his care, in the circumstances. In my view, he has underestimated the enormity of that move and how the children might react. Given my findings regarding the Father’s level of insight and lack of sensitivity, it is unlikely he has the personal resources to deal with the children’s emotional distress. This has the potential for emotional and psychological harm for the children.
The Mother plainly does not have capacity to support a relationship between the children and the Father. The anxiety and distress any contact with the Father causes her are extreme, and have been well-understood by the children. The Mother has most likely made genuine efforts to support that relationship, but her undisguisable distress (coupled with the children's own memories of violence) have undermined those efforts.
I consider that the Father would in theory be capable of supporting a relationship between the children and the Mother. However, the terms on which he has proposed that relationship should occur mean that I do not consider the relationship would in fact eventuate.
Practical Difficulties and the Impact of Any Potential Change of Circumstances
The children have not spent substantial time with the Father since mid-2021. The orders that I will make will not afford any practical change in the children's circumstances, though the children's estrangement from the Father will be cemented. That said, if I were disposed to make orders for time, there would not be any significant logistical difficulties in facilitating time. The parties live roughly one and a half hours away from each other, and both drive. The Father's evidence is that he is able to access sufficiently flexible work arrangements to enable him to undertake care for the children. There is a restaurant with appropriate cameras at approximately the half-way mark between the parents' houses, which was used in the failed changeover during April 2023. Neither parent is so impecunious that the travel costs will be a significant barrier. The major practical impediment to time is the children's stated and demonstrated vehement opposition, with ensuing psychological distress.
Practical difficulties would arise if I were minded to order that the children live with the Father. No-one has been able to explain to me how that could be achieved except by force and with considerable emotional harm to the children. Additionally, if the Father's violence recurred following a relocation, the children would be in a state of heightened vulnerability. There would be a written judgment to the effect that the children's allegations of violence were wrong, or at least seriously exaggerated, and there would be orders in place forbidding any contact with the person otherwise best placed to assist them – the Mother.
The Need for Finality
The final factor that has weighed in my assessment is the need for the proceedings to be concluded. The children clearly have an awareness of the on-going proceedings, and the evidence before me indicates both parents have involved the children in matters related to the proceedings. The on-going uncertainty appears to be causing the children (especially X) distress, making a final end to litigation strongly in the children's interests. It is frankly implausible that the Father's proposal for a forced relocation would proceed without incident, and virtually certain that the Court would be required to resolve:-
(a)the children refusing to go with the Father and leave the Mother's care;
(b)refusals by one or both children to engage in the "non-traditional family therapy" recommended by Dr C;
(c)likely efforts by the children to contact the Mother or return to her care; and
(d)likely breaches by the Mother of any orders I would make that she not discuss historical violence by the Father, once she is reintroduced to the children's lives.
Most significantly, I consider there is a high chance the relocation would fail entirely, and the children would not be able to be persuaded to accept the Father. That would effectively force a re-hearing of the parenting issues in full, at a time when the children would be even more traumatised and emotionally dysregulated, and when the Mother might well have psychologically de-compensated due to her distress at the children's removal. The need to avoid further litigation therefore weighs against the forced relocation the Father seeks.
CONCLUSION
X and Y will not have a meaningful relationship with the Father as a result of the orders I will make. That consideration must give way to the need to protect them from harm from being exposed to abuse, neglect or family violence, and the need for peace in their lives.
The children have been impacted by the Father's behaviour through witnessing his behaviour, experiencing the aftermath of his behaviour through its impacts on the Mother, and being direct victims of his behaviour. The children's exposure to the Father's behaviour will reverberate throughout their lives and will deprive them of their relationship with the Father. There is also a real chance that the children's connection to their Country B heritage may be disrupted until such time as they are able to separate their cultural connection from the harm the Father has done them (although I note in that respect the Mother speaks Country B Language fluently and appears to have well supported the children having a connection to Country B culture).
These will therefore be final orders, and that is in the children's interest. The Father should be able to send cards and presents to the children, and I hope that will promote at least some happy memories for the children surrounding the Father, which may cause them to contact him at some stage in the future. I have also considered whether the Father should be permitted to receive copies of X and Y's school reports. I see a benefit to X and Y's sense of self-worth if, should they contact the Father in the future, he has enough information about their lives for there to be a sense of connection. I also do not consider there is any apparent risk in allowing the father to have that information.
As I said at the commencement of these reasons, neither of the parents were able to present an optimal outcome of the children, and my consideration is very much an assessment of what outcome will be the least harmful.
For all the foregoing reasons, I make the orders that are set out at the commencement of these reasons, and I am satisfied that the orders are in X and Y's best interests in their unique family circumstances.
I certify that the preceding three hundred and thirty-seven (337) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Stewart. Associate:
Dated: 18 July 2024
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