Victor & Martin & Anor
[2012] FMCAfam 78
•31 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VICTOR & MARTIN & ANOR | [2012] FMCAfam 78 |
| FAMILY LAW – Children – contested residence dispute over children aged 8 and 5 between Mother and biological sister – Father in the proceedings is biological parent of only one child – biological parent of older child not participating in proceedings at this time – allegations that Mother has a personality dysfunction which presents a risk to the children – Mother has been primary carer – interim order in December 2010 changing the children’s residence to sister – 18 year old sister moving from support for older sister to Mother – post change of residence, allegations of sexual abuse by Father arise – Mother videos children’s disclosures – DHS maintain extensive involvement of family – three family reports issue – psychiatric and neuropsychological evidence produced as to the functioning of parents – generational conflict and allegations Mother maintains a lifestyle and behaviour which represents an emotional and psychological risk to the children. Final order made for children to live with sister and to spend time unsupervised with Father – further submissions required before Court can determine whether Mother’s supervised time with children occur by an interim order or by final order with a “sunset clause” – submissions as to form of “sunset clause” required. |
| Family Law Act 1975, ss.60CC, 65L |
| Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407 Rice & Asplund [1979] FLC 90-725 |
| Applicant: | MR VICTOR |
| First Respondent: | MS A MARTIN |
| Second Respondent: | MS C MARTIN |
| File Number: | MLC 7550 of 2009 |
| Judgment of: | Baumann FM |
| Hearing dates: | 4-8 July 2011 |
| Date of Last Submission: | 12 July 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 31 January 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dosanjh |
| Solicitors for the Applicant: | Hartleys Lawyers |
| Counsel for the First Respondent: | Ms Carter |
| Solicitors for the First Respondent: | Pearce Webster Dugdale |
| Counsel for the Second Respondent: | Ms Theoharopoulous |
| Solicitors for the Second Respondent: | Lampe Family Law |
| Counsel for the Independent Children’s Lawyer: | Ms Glaister |
| Solicitors for the Independent Children’s Lawyer: | Septimus Jones & Lee |
ORDERS
That subject to paragraph 16 hereof all previous parenting orders be discharge.
The children [X] born [in] 2003 (“[X]”) and [Y] born [in] 2007 (“[Y]”) live with the Second Respondent MS C MARTIN (“Ms C Martin”).
That Ms C Martin have sole parental responsibility for making long term decisions with respect to the children.
The children spend time and communicate with the Applicant Father as follows:-
(a)During school term periods from the conclusion of school of 3.30pm Friday until the commencement of school or 9.00am Monday on each alternate weekend commencing 10 February 2012 with such fortnightly periods to be suspended during school holidays.
(b)For one week of the school term holidays at times to be agreed between the Applicant Father and Ms C Martin and in default of agreement for the first half.
(c)For one half of the long summer vacation at times to be agreed between the Applicant Father and Ms C Martin and in default of agreement on an alternating week basis with the children to have the first week of the holidays with the Applicant Father.
(d)For two hours on the children’s birthdays if the day is a school day and for 4 hours if the day is non school day at times to be agreed and if no agreement, at times nominated by Ms C Martin.
(e)For time to be agreed at Christmas and in default of agreement for 4 hours on either Christmas Eve or on Boxing Day such times to be nominated by Ms C Martin.
(f)On Father’s Day between 9.00am and 5.00pm if not already a day the children are spending time with the Applicant Father.
(g)As further or otherwise agreed between Ms C Martin and the Applicant Father.
That the Applicant Father and Respondent Mother keep Ms C Martin advised of their residential address and telephone number.
That the Respondent Mother be permitted to send the children cards and presents on significant days such as their birthdays and Christmas.
Ms C Martin shall advise the Respondent Mother of any serious illness or injury to the children.
Ms C Martin shall keep the Applicant Father advised of any illness or injury to the children and the Applicant Father shall advise Ms C Martin of any injury or medical treatment to the children during periods that the children are in his care.
The Applicant Father and Ms C Martin shall consult with respect to educational matters concerning [Y] and in the event the parties disagree with respect to educational matters, then Ms C Martin shall make the decision and keep the Applicant Father advised of the name of the school [Y] is attending.
That Ms C Martin shall ensure the children are enrolled in and attend school or kindergarten.
The Applicant Father and Ms C Martin be permitted to participate in the children’s school/kindergarten activities, including but not limited to parent teacher interviews and school events to which parents are normally invited by the school to attend.
The parties shall not attend the children at school/kindergarten during school hours unless in the case of an emergency or if they are participating in a school activity or event at which the school has invited parent participation.
That Ms C Martin shall forthwith provide a copy of this Order to any school/kindergarten attended by the children.
That Respondent Mother continue to attend Mr L or his nominee and abide his lawful directions with respect to treatment and medication.
That all parties be and are hereby restrained from denigrating the other party within the hearing and or presence of the children and use their best endeavours to ensure other adults in the presence of the children do likewise.
The Airport watchlist order made 29 November 2010 Orders 5, 6 and 7 of the Orders made that day shall remain in full force and effect.
The ICL be authorised to provide a copy of these reasons for judgment to Mr H.
That the further hearing of the applications, limited to the time the children spend with the Mother and whether a final order on an interim basis is in the children’s best interests, shall be held on a date to be fixed.
Notation
A.It is noted that the Second Respondent has agreed to facilitate the children attending CAMHS for counselling when the family becomes eligible to attend, such counselling for the children is to assist them in dealing with the transition of the children to her care.
B.That [X]’s biological father Mr H was aware of these proceedings and did not to participate in same at this time so that the core issue of where [X] should live was not delayed. The Court and the parties are aware it is likely Mr H will pursue an application in due course.
IT IS NOTED that publication of this judgment under the pseudonym Victor & Martin & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7550 of 2009
| MR VICTOR |
Applicant
And
| MS A MARTIN |
First Respondent
| MS C MARTIN |
Second Respondent
REASONS FOR JUDGMENT
Introduction
[X] and [Y] have been living with their older sister Ms C Martin since December 2010, when the Court, on an interim basis, altered residence from their Mother, Ms A Martin, who had been their primary carer for their life.
Prior to the changed, and subsequently, the proceedings involved three family reports, extensive involvement by the Department of Human Services (DHS); allegations of sexual abuse directed against the Father of [Y], Mr Victor and neglect by Ms C Martin.
The Independent Children’s Lawyer (“ICL”) helpfully secured independent assessments from a psychiatrist and neuropsychologist, the result of which was an opinion, vehemently contested by the Mother, that the Mother suffers a personality dysfunction.
The core issue was whether the children should live with the Mother or Ms C Martin. Of course, other issues such as the time other parties spend with the children and whether time should be supervised, arise for determination.
This was a complex matter requiring five days of evidence and a further period for submissions. The reasons which follow explain why, in the Court’s view, on the evidence, the best interests of [X] and [Y] are served by the order it proposed to make.
The Court expresses its regret to the parties in on delivering these reasons more quickly.
Competing proposals
As the brief introduction identifies, by the time of final submissions delivered orally by the parties’ respective counsel on 12 July 2011, the Father and Ms C Martin were largely adopting the position articulated by the ICL, which I record to be as follows:
“1.That subject to paragraph 20 hereof all previous parenting orders be discharge.
2.The children [X] born [in] 2003 (“[X]”) and [Y] born [in] 2007 (sic) (“[Y]”) live with the Second Respondent MS C MARTIN (“Ms C Martin”).
3.That Ms C Martin have sole parental responsibility for making long term decisions with respect to the children.
4.The children spend time and communicate with the Applicant Father as follows:-
a) During school term periods from the conclusion of school of 3.30PM Friday until the commencement of school or 9AM Monday on each alternate weekend commencing…………… with such fortnightly periods to be suspended during school holidays.
b) For one week of the school term holidays at times to be agreed between the Applicant Father and Ms C Martin and in default of agreement for the first half.
c) For one half of the long summer vacation at times to be agreed between the Applicant Father and Ms C Martin and in default of agreement on an alternating week basis with the children to have the first week of the holidays with the Applicant Father.
d) For two hours on the children’s birthdays if the day is a school day and for 4 hours if the day is non school day at times to be agreed and if no agreement at times nominated by Ms C Martin.
e) For time to be agreed at Christmas and in default of agreement for 4 hours on either Christmas Eve or on Boxing Day such times to be nominated by Ms C Martin.
f) On Father’s Day between 9am and 5pm if not already a day the children are spending time with the Applicant Father.
g) As further or otherwise agreed between Ms C Martin and the Applicant Father.
5.That within 14 days of the making of the orders each of the parties submit to [C] Contact Centre applications for inclusion into the supervised contact programme, to enable contact to take place between the children and the Respondent Mother, and when requested to do so each of the parties attend [C] Contact Centre for intake interviews to enable supervised contact to take place.
6.That on a date convenient to [C] but no earlier than 11/1/2012, the children spend time and communicate with the Respondent Mother as follows:-
a) For 2 hours each alternate week or at other times as nominated by the Director of the contact centre, such time to be supervised by the Centre;
b) The Respondent Mother’s time shall occur during periods of time the children are spending in the care of the Applicant Father and if necessary the times the children are in the Applicant Father’s care shall be varied to enable him to make the children available to spend time with the Respondent Mother.
c) The family shall participate in any programme recommended by the Director of the Contact Centre, save that Ms C Martin be excused from attending programme which she does not wish to attend.
7.In the event the family are not able to utilise the services of the [C] Contact Centre then on an agreed date after 11/2/2012 the Respondent Mother have contact time supervised by Aiders and Carers or like organisation and such time be no more frequent than 4 hours per month with the Respondent Mother to meet the costs of the supervision.
8.That the Applicant Father and Respondent Mother keep
Ms C Martin advised of their residential address and telephone number.
9.That the Respondent Mother be permitted to send the children cards and presents on significant days such as their birthdays and Christmas.
10.Ms C Martin shall advise the Respondent Mother of any serious illness or injury to the children.
11.Ms C Martin shall keep the Applicant Father advised of any illness or injury to the children and the Applicant Father shall advise the Ms C Martin of any injury or medical treatment to the children during periods that the children are in his care.
12.The Applicant Father and Ms C Martin shall consult with respect to educational matters concerning [Y] and in the event the parties disagree with respect to educational matters then Ms C Martin shall make the decision and keep the Applicant Father advised of the name of the school [Y] is attending.
13.That Ms C Martin shall ensure the children are enrolled in and attend school or kindergarten.
14.The Applicant Father and Ms C Martin be permitted to participate in the children’s school/kindergarten activities, including but not limited to parent teacher interviews and school events to which parents are normally invited by the school to attend.
15.The parties shall not attend the children at school/kindergarten during school hours unless in the case of an emergency or if they are participating in a school activity or event at which the school has invited parent participation.
16.That Ms C Martin shall forthwith provide a copy of this Order to any school/kindergarten attended by the children.
17.That pursuant to section 65L of the Family Law Act 1975, compliance with these orders be supervised, as far as practicable for a period not exceeding 12 months by a Family Consultant nominated by the Manager of Child Dispute Services of this Registry of the Court, and that such Consultant may report back to the Court from time to time at discretion.
18.That Respondent Mother continue to attend Mr L or his nominee and abide his lawful directions with respect to treatment and medication.
19.All parties be and are hereby restrained from denigrating the other party within the hearing and or presence of the children.
20.The Airport watchlist order made 29/11/2010 Orders 5, 6 and 7 of the Orders made that day shall remain in full force and effect.
21.That the appointment of the Independent Children’s Lawyer be discharged.
22.Certify for advocacy.
23.Pursuant to s.65DA(2) and s.62B, the particular of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Notation
1) It is noted that the Second Respondent has agreed to facilitate the children attending CAMHS for counselling when the family becomes eligible to attend, Such counselling for the children is to assist them in dealing with the transition of the children to her care.
2) That [X]’s biological father Mr H was aware of these proceedings and chose not to participate in same.”
Some minor variations to the form of orders were contended for by
Ms C Martin (which I refer to later in these reasons), however, essentially all parties other than the Mother submitted it was in the best interests of these children that:-
a)They live with Ms C Martin and that she have sole parental responsibility.
b)The children spend time with the Father each alternate weekend from Friday to Monday and half of the school holidays.
c)After a period of six months where the children spend no time with the Mother, the children begin (by 1 January 2012), to again spend time with the Mother at a Contact Centre fully supervised, for two hours each alternate week, with such time to occur when the children would otherwise be spending time with the Father. In short, it is proposed the Father would facilitate attendance by the children.
Whilst these were the final positions take by the ICL, Ms C Martin and the Father, they were not the initial positions set out in the parties’ case outlines with the major difference being that during the course of the hearing, the Father no longer proposed (temporarily or otherwise), that the children live with him. His counsel made it clear that he supports Ms C Martin being the primary carer of her siblings.
The Mother’s position was starkly different, and her counsel Ms Carter, by final submissions informed the Court that the Mother still maintained that the order she sought at the commencement of the trial (as set out in her case outline), is the order the Mother contends to be in the best interests of [X] and [Y]. I record in full that proposed order as follows:-
“1.That all previous parenting orders with respect to the children [X] born [in] 2003 (“[X]”) and [Y] born [in] 2007 (“[Y]”) (“the children”) be discharged, save for the [watch] List orders contained in paragraphs 5, 6 and 7 of the Orders dated 27 November 2010.
2.That the Applicant Husband and Respondent Wife have equal shared parental responsibility for the child of the marriage; [Y] born [in] 2007.
3.That the Respondent Wife and Mr H have equal shared responsibility for the child, [X] born [in] 2003.
4.That the children live with the Respondent Wife.
5.That the children live with the Applicant Husband as follows:
6.During school term:
a) Each alternate weekend from the conclusion of school on Friday until 3:00pm Saturday.
b) Such further or other times as agreed.
7.During school holidays at the same times as during school term set out in paragraph 5a) above, save that time pursuant to paragraph 5a)i) commence at 9:00am on each alternate Friday.
8.On Fathers’ Day from 9:00 to 3:00 pm on Fathers’ Day.
9.On the Applicant Husband’s birthday (21 September) as follows:
a) In the event that the birthday falls on a weekend or non-school day, for a period of four hours at times to be agreed between the parties and in default of agreement from 3:30 pm to 7:30 pm.
b) In the event that the birthday falls on a school day, for a period of two hours at time to be agreed between the parties and in default of agreement from 5:30 pm to 7:30 pm.
10.At Christmas as follows:
a) From 3:00 m on 24 December to 3:00 pm on 25 December 2011 and each alternate year thereafter;
b) From 3:00 pm on 25 December to 3:00 pm on 26 December 2012 and each alternate year thereafter.
11.Such further and other times as may be agreed between the parties.
12.That the children spend time with the Second Respondent Ms C Martin as such dates and times to be agreed with the Husband and/or the Wife during their respective times with the children.
13.That for the purposes of the Applicant Husband’s time with the children in accordance with these Orders, the Husband collect the children from the school/chid care/kindergarten, as the case may be, and return the children to the school at the conclusion thereof. IF changeover does not occur on a school day, the children are to be collected and returned to the car park of [omitted].
14.That the parties communicate with one another in relation to arrangements for the children by email or Communication Book.
15.That the Applicant Husband, Respondent Wife and Second Respondent keep each other advised in writing of their current postal address, email address, landline and mobile telephone numbers.
16.That the Applicant Husband and Respondent Wife keep each other advised in writing of:
a) Name, telephone number and address of the children’s treating medical, dental and other practitioners, and each party will ensure that the other parties are listed as parents/guardians of the children.
b) Of any emergency, significant accident, or injury sustained by the child which requires medical treatment.
17.That the Applicant Husband and the Respondent Wife do all acts and things necessary and sign all documents as may be required to enrol the children to attend [N] School and [L] Early Learning Centre respectively.
18.That the Respondent Wife be permitted to reintroduce [X]’s father Mr H into [X]’s life during the times that [X] spends with the Respondent Wife pursuant to a parenting plan or other arrangements made by the Respondent Wife and
Mr H.
19.That the Applicant Husband and Respondent Wife (and
Mr H with respect to [X]) each be at liberty to attend any school function of [Y]’s or [X]’s ordinarily attended by parents.
20.That each party do all things necessary to authorise any school, child care or kindergarten attended by [Y] and/or [X] to provided a copy of any school report, newsletter, notices and photographs to the husband, the wife (and Mr H with respect to [X]) at their own expense and request.
21.That the director of the Court’s counselling services appoint:
a) A counsellor pursuant to s65L to supervise the orders herein;
b) Be requested to advise the parties of appropriate family counselling.
22.The parties attend and participate in family counselling as advised by the director of the Court’s counselling service.
23.The Respondent wife continue to attend her current psychologist Mr L or his nominee and abide his lawful directions.
24.The parties are hereby restrained from:
a) Denigrating the other parties in these proceedings.
b) Discussing these proceedings with the children.
25.The parties will ensure that adults do not bathe or shower with the child [X].
26.That each party be at liberty to send the children cards, letters and parcels to another parties address and the receiving party will ensure that the children receive such correspondence.”
For reasons which I understand, the Mother found it difficult to contemplate any orders being made which were not founded on the children living with her. Furthermore, if the Court was to make her proposed orders, the Mother opposed any specific time being ordered for the children to spend time with Ms C Martin. It is apparent from the Mother’s proposal, that her position at trial was for the Father to spend time with both [X] and [Y] that was unsupervised and to occur one overnight each alternate weekend extended slightly during school holidays.
The Court pressed Ms Carter to identify a proposal for her client’s time, should the children be ordered to remain living with Ms C Martin. Reluctantly, the Mother gave instructions that her time should be unsupervised “on alternate weekends”. I would infer that additionally the Mother would seek time over school holidays and special occasions.
FM Burchardt noted in the order made 16 December 2010 that:-
“Mr H consents to these orders and does not intend to take further part in these proceedings but does intend at an appropriate time to seek appropriate advice about introducing himself into [X]’s life and these orders are not intended to in any way preclude him from making any application in the future”.
Mr H did not file an application during these proceedings, however he filed an affidavit on 14 June 2011 in which he provided details (amongst other assertions) of a “proposed parenting plan” between himself and the Mother reached with the assistance of the [G] Relationship Centre.
In circumstances where this already complex family dispute had been on foot nearly two years and to include a further issue of how to “reunite” [X] with her biological Father would inevitably cause delay, sensibly Mr H decided to await the decision of the Court on where [X] should live, before he would pursue arrangements to spend time with her. In my view, this was a child focused approach. I regret that the delays in providing these reasons have probably delayed, as well, some more formal arrangements for his relationship with [X] being put in place. In circumstances where Mr H did not then participate in the hearing and his affidavit was not relied upon by either party (and therefore he was not the subject of cross-examination), I have had no regard to the evidence of Mr H in this decision.
Procedural history
In this case it is helpful to set out briefly the procedural history in this Court as follows:-
a)In August 2009, the Father filed an application (as an unrepresented litigant) to spend time with the children.
b)On 27 October 2009, FM Phipps made interim orders appointing an ICL; providing for the child to live with the Mother and for the Father to have supervised time and subsequently in December 2009, a family report was ordered and the matter listed for hearing in April 2010.
c)Mr O, a family consultant, prepared his first report dated 18 December 2010 arising from interviews and observations made on 19 March 2010. The recommendations were that:-
i)The parents be assessed by a psychiatrist;
ii)The parties continue with the current order;
iii)“that it may well be in the children’s best interest that Mr Victor not be deported at this stage”.
The last recommendation was a curious recommendation for a family consultant to make.
d)On 23 April 2010, FM Burchardt again made an order for the appointment of an ICL (apparently because the earlier order made had not be activated as a consequence of the ‘quota’ system then operating in Victoria).
No variations to the earlier interim orders made, save for a s.91B order and an order for the ICL to facilitate preparation of psychiatric assessments.
e)On 20 May 2010, the Court adjourned the matter for mention to 13 September 2010 and for a two day hearing on 29 November 2010.
f)On 12 August 2010, Dr K (psychiatrist) interviewed the Mother and completed a report dated 16 August 2010. I address the evidence of Dr K below.
g)On 13 September 2010, FM Burchardt ordered a further family report by Mr O, and by consent further ordered that the Father attend on Dr K for assessment and the Mother attend again for a “reassessment”. It is clear from the order that the issue of “home schooling” had arisen. The matter was listed for hearing on 29 November 2010.
h)On 6 November 2011, Mr O conducted home visits and his report dated 29 November 2011 is more fully dealt with later in these reasons. It is not surprising that the opinions and recommendations of the family consultant significantly shaped the orders of the Court made 29 November 2010 and then 16 December 2010.
i)To add to the evidence, Dr K interviewed the Father on 11 November 2010 and reinterviewed the Mother on the same day (but of course separately), releasing a fulsome report dated 24 November 2010.
j)Although reasons for judgment of his Honour (or a transcript) were available to me (nor was it necessary to do so), it is clear that the updated family report and psychiatric assessments were pivotal in making the order on 29 November 2010, that on an interim basis:-
i)Children live with the Father “at Ms C Martin’s home and spend time with the Mother at [F] in Bendigo”.
ii)Ms C Martin was jointed as a party.
iii)Airport watch orders were made.
This must have been extremely difficult hearing for all concerned, particularly the children who I note had been placed in the Court’s child minding facility whilst the hearing was conducted and were then released to the Father.
k)Although, quite properly, his Honour expedited the hearing to 16 December 2010, further evidence then available to the Court persuaded the Court to make fresh interim orders. The orders are significant and, as a result, I record them in full:-
“BY CONSENT IT IS ORDERED
1.All previous parenting orders with respect to the children [X] born [in] 2003 (“[X]”) and [Y] born [in] 2007 (“[Y]”) be discharged, save of the Watch List orders 5, 6 and 7 of 29 November 2010.
2.The father of the child [X], Mr H be joined as Third Respondent and upon the Court making these orders be removed as a party.
3.Until further order, the wife and the Second Respondent have equal shared parental responsibility for major decisions concerning the child [X], subject to order 8 below.
4.Until further order, [X] live with the Second Respondent.
5.Until further order, [X] spend time and communicate with the wife as follows:-
a.On 25 December 2010 from 11:00 a.m. to 5:00 p.m. with the Second Respondent to deliver and collect from Ms S at [address omitted], [K] and Ms. S supervise such time.
b.Each alternate weekend from 10:00 a.m. Saturday to 5:00 p.m. Sunday commencing 8th January 2011 with Ms. S or other agreed person to collect and return from the Second Respondent until a place becomes available for changeover at [C]:
i. Until 19 February 2011 such time be supervised by Ms. S or other agreed person;
ii. From 19 February 2011 such time be unsupervised.
c.Each alternate weekend from 5:00 p.m. Friday to 5:00 p.m. Sunday commencing 19 March 2011 with changeover at [C].
d.Such further or other times as agreed.
6.Until further order, [X] spend no time and have no communication with the Third Respondent and each party be restrained from bringing [X] into contact with him until further order.
7.Until further order, [X] spend time and communicate with the husband as follows:
a.From 9:00 a.m. to 3:00 p.m. 24 December 2010;
b.Each Wednesday from 3:00 p.m. or the conclusion of school to 9:00 a.m. or the commencement of school Thursday commencing 5 January 2011;
c.Each alternate Friday from 3:00 p.m. or the conclusion of school to 3:00 p.m. Saturday7 commencing 31 December 2010;
d.Such further or other time as agreed.
8.Until further order, the Second Respondent have sole parental responsibility for decision concerning the child [X] with respect to all medical and education matters and she inform the wife and the husband of any serious illness, accident or hospitalisation of [X] and the name of the school [X] is attending.
Final Order
9.The husband, wife and Second Respondent have equal shared parental responsibility for major decisions concerning the child [Y], subject to order 15 below.
10.Until further order, [Y] live with the Second Respondent.
11.Until further order, [Y] live with the Second Respondent.
Final Order
12.[Y] spend time and communicate with the husband as follows:
a.From 9:00 a.m. to 3:00 p.m. 24 December 2010;
b.Each Wednesday from 3:00 p.m. or the conclusion of school to 9:00 a.m. or the commencement of school Thursdays commencing 5 June 2011;
c.Each alternate Friday from 3:00 p.m. or the conclusion of school to 3:00 p.m. Saturday commencing 31 December 2010;
d.Such further or other time as agree with the 2nd Respondent.
Final order
13.The husband be responsible for collecting and returning [Y] from child care, kindergarten or school, if appropriate, or from the Second Respondent and the Second Respondent advise him of the location as required.
14.Until further order, the husband be responsible for collecting and returning [X] from school, if appropriate, or from the Second Respondent.
Final Order
15.The Second Respondent have sole parental responsibility for decisions concerning the child [Y] with respect to all medical and education matters and she inform the wife and the husband of any serious illness accident or hospitalisation of [Y] and the name of any childcare, kindergarten or school [Y] is attending.
Final Order
16.The Second Respondent do all things necessary to authorise any school attended by [Y] to provide a copy of any school report, newsletter, notices and photographs to the husband and wife at his or he expense and request.
Final Order
17.The husband be at liberty to attend any school function of [Y]’s ordinarily attended by parents.
18.Until further order the Second respondent do all things necessary to authorise any school attended by [X] to provide a copy of any school report, newsletter, notices and photographs to the husband and the wife at his or her expense and request.
19.Until further order, the Second respondent facilitate [X] and [Y] telephoning the wife each Tuesday between 6:00 and 6:30 p.m.
20.Until further order, all parties be restrained from applying for passports for [X] and [Y].
21.The Second respondent shall ensure that the child [X] be enrolled in and attend school and that the child [Y] be enrolled in and attend kindergarten and when appropriate school.
22.The director of the Court’s counselling service appoint:
a.a counsellor pursuant to s65L to supervise the orders herein;
b.be requested to advise the parties of appropriate family counselling (in consultation with Mr O, author of the family reports prepared in this matter).
23.The parties attend and participate in family counselling as advised by the director of the Court’s counselling service.
24.The wife continue to attend her current psychologist Mr. L or his nominee and abide his lawful directions.
25.The parties are hereby restrained from:
a.Denigrating the other parties in these proceedings;
b.Discussing these proceedings with the children.
26.The parties will ensure that adults do not bathe or shower with the child [X].
27.The mother and the Second Respondent forthwith make application to the [C] Contact Centre for the family’s inclusion in the centre’s changeover programme.
28.The proceedings be adjourned to 9 June 2011 at 9:30 a.m.
29.Liberty to apply to all parties.
30.Certify for Advocacy.
31.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.”
The Counsel at trial noted that although some sections of the order suggest final orders were made, it was the understanding of the parties that all orders were interim such that no issue under Rice & Asplund [1979] FLC 90-725 arises. I record that the Mother says she was forced to consent to the interim orders rather than completely lose residence of the children.
The effect of the orders were to ensure that the children lived with Ms C Martin and spent unsupervised time with the Father with the Mother’s time to be supervised at all times by Ms S until 19 February 2011. The mater was otherwise adjourned to June 2011 “for mention”, although subsequently on 17 February 2011 the matter was adjourned for mention to 21 April 2011 and for final hearing on 10 October 2011 for three days.
l)On 17 February 2011, the matter was again before the Court with an appearance made on behalf of the Department of Human Services. The time the Mother was to spend with the children was maintained as supervised time (noting it had previously been ordered to graduate on 19 February 2011 to “unsupervised” time), still by Ms S between 10.00am Saturday to 5.00pm Sunday each alternate weekend. Importantly, the orders of 17 February 2011 at order 7, provided:-
“7.Save for medical emergency the Mother is until further orders restrained from taking the children to:-
a) any medical practitioner;
b) any counsellor, social worker or psychologist;
c) any hospital; and
d) any police station.
save with the express written permission of the ICL and/or the Department of Human Services and that in the event of such attendance, the Mother notify the second respondent.”
m)On 3 March 2011, Ms S and her husband Mr S filed an application in the proceedings seeking to be joined as a party so that “we can properly assist Ms Martin with negotiations with other parties” and also sought orders to review the current parenting orders and to seek that the time between the Father and the children “be supervised at a Contact Centre”. On 22 March 2011, the Court dismissed the application with costs.
n)On 12 April 2011, the Court was again persuaded it was in the best interests of the children to vary the orders again – significantly, removing Ms S as a supervisor and ordering the Mother’s time with the children be facilitated by the Department and supervised by the Department of Human Services or their nominee. On 21 April 2011, FM Burchardt disqualified himself from further hearing the matter and ordered a further family report by Mr O.
o)Mr O conducted further interviews (as detailed in his third family report) between 25 May 2011 and 4 June 2011 before completing his report dated 7 June 2011.
The hearing commenced on 4 July 2011 and concluded after five days of evidence, on 8 July 2011 with oral submissions being received by telephone on 12 July 2011. The Court expresses its regret that these reasons were not published earlier. The Court notes, in the period whilst the judgment has been reserved, no application to re-open has been made.
Principles
The orders I am asked to make are parenting order and as such the Court must:-
a)Follow the defined legislative pathway being aware of the overarching objects and underlying principles.
b)Be mindful of the requirement imposed by s.60CA that the best interests of the child or children are the paramount consideration, but not the only consideration.
c)Give proper weight to the primary considerations (s.60CC(2)) and the additional considerations (s.60CC(3)) and must also consider the evidence in light of s.60CC(4) and (4A) of the Act.
d)In certain circumstances apply a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
e)When considering whether equal time or substantial and significant time is in the best interests of the child, the Court must consider and make findings as to whether such time is reasonably practicable (see s.65DAA(1) and (2) and MRR v GR (2010 HCA 4)
Relevant history
As the trial evidence revealed, a fulsome history of every event or incident in the lives of both the parents, the older children Ms C Martin and Ms J Martin and, most relevantly, the children the subject of these proceedings [X] and [Y], would occupy many volumes and, whilst interesting to the parties, is so shaped by historical perceptions that an absolute finding would be almost impossible.
Whilst it is very sad that the Mother and her eldest daughters Ms C Martin and Ms J Martin have had, at time difficult relationships (one with the other), I regard it as largely unhelpful in deciding what is in the best interests of [X] and [Y] to attempt to distil and unravel the foundation for the generational family dysfunction.
I acknowledge that seeking to have some understanding of what may motivate or influence stated views or actions of parties (who are now all adults) can sometimes assist in predicting further behaviour. However, with the assistance of the expert evidence available to the Court (which of itself gave a history as background), my task is better achieved by focusing on the advantages and disadvantages of the respective households offered to the Court as the primary care arrangement – within the matrix of some findings about risk and via the statutory pathway illuminated by the legislation as set out above.
On this basis, I give the following limited background which is largely uncontroversial, before launching into an examination and assessment of the evidence that was available to the Court. Statements of fact hereafter, should be construed as findings of fact.
The Mother was born in 1970 and is now 41 years old. The Father was born in 1972 and is now 39 years old. He is a citizen of the United Kingdom.
Ms C Martin was born in 1989 and is now aged 22 years, and is the daughter of Ms Martin. Three years later in 1992, Ms J Martin was born. The fathers of Ms C Martin and Ms J Martin are different.
In 1994 the Mother and Ms C Martin and Ms J Martin moved to [M], before the family moved to [K] where the children were initially enrolled in the local school, before the Mother in about 1998 began to “home school” the girls (then aged nearly 9 and 6).
In 2001/2002 the Mother moved to [W] and lived in her parents’ home and the children recommenced attending the local school. In 2001, the Mother commenced a relationship with Mr H, and [X] was conceived in early 2003.
[X] was born [in] 2003, and a few months later the relationship with Mr H broke down. The Mother moved homes a couple of times, and in October 2004, at the age of 15, Ms C Martin left home in controversial circumstances. The Department of Human Services were notified.
At this time the Mother commenced an “on-line” relationship with the Father in these proceedings, Mr Victor, culminating in him coming to Australia temporarily, for three months to meet her. At that time
Mr Victor was living and working in Japan, but after leaving Australia Mr Victor returned to the United Kingdom.
After the visit to Australia, the parents committed to a relationship, and the Mother relocated to Japan in about September 2005 with Ms J Martin and [X]. The parents worked as [omitted] in Japan; married in February 2006 and continued to live in Japan until November 2006 when the family unit then moved to the United Kingdom.
The Mother says, whilst in Japan and pregnant with [Y], the Father had difficulties with Police and was arrested. She says these incidents lead to the decision to leave Japan.
[Y] was born in the United Kingdom [in] 2007. There is no doubt the family came to the attention of English child protection authorities (most likely through observations made by a local hospital) with the Mother saying the family had “ongoing difficulties with the authorities until we left the United Kingdom”.
On or about 17 February 2007 (when [Y] was only one month of age), the Mother travelled to France with the children. Although the Mother strongly rejected suggestions put to her in cross-examination that she fled England to “avoid authorities”. I am satisfied that the attention of English authorities certainly were a factor – with the Mother leaving ultimately the United Kingdom and returning to Australia in early March 2007, with the three girls. Mr Victor came to Australia about six weeks later, and although his right to permanently reside in Australia has at times been uncertain, by the time of the hearing I am satisfied he is able to lawfully remain in this country. The Mother and the children had been absent from Australia, in her case, for about 18 months.
In view, of the issues surrounding this family and their involvement with English child protection authorities the English authorities notified Australian authorities on or about 20 March 2007 of their concerns. The dealings between the family and DHS are more fully detailed later in these reasons and are significant in the assessment of all the evidence.
In December 2008, Ms J Martin (then aged 16 years) left her mother’s home. Ms C Martin alleges the Mother “ejected” Ms J Martin from the home, which the Mother denies.
Certainly by this time the relationship between the Mother and the Father had deteriorated as well, with the parents physically separating in February 2009 when the Father left the home, with little contact occurring between the Father and [X] and [Y] until orders were made by the Court as set out earlier in the “Procedural History”.
For the hearing, the four parties filed case outlines in which they identified the evidence and affidavits they relied upon. Some of the witnesses were not called or their evidence was not challenged. The transcript makes that clear and there is no need to recite those categories in these reasons.
I will make findings as to credit as I deal with the respective witnesses, however, it must be said that in this contested parenting case – as this now unfolds between the Mother and Ms C Martin – the evidence is the parties is of utmost importance. The Court’s task is to effectively compare the competing proposals for residence (shaped by the ancillary proposals for the time that the other significant persons should then spend with the children), and determine which proposal meets the best interest of [X] and [Y], now and into the future, on all the evidence.
In this regard, it is appropriate to record, that the change of residence ordered on an interim basis in December 2010 does not create a “status quo” which the Mother must disturb any more than the care arrangements before December 2010 create an insurmountable hurdle for Ms C Martin to leap.
I believe the most effective structure to develop these reasons is to deal wit the evidence as follows:-
a)Evidence of child protection authorities.
b)Evidence of psychiatrist.
c)Evidence of Applicant Father and any witnesses.
d)Evidence of Respondent Mother and any witnesses.
e)Evidence of Ms C Martin and any witnesses.
f)Evidence of family consultant.
I shall then make further findings on the evidence within the required statutory factors so as hopefully to explain to all the members of the family the reasons why I have come to the conclusions that I have reached in this complex case.
Evidence of child protection authorities
The evidence offered by officers of the Department of Human Services (DHS) and Police included:-
a)Affidavit of Ms C filed 12 April 2011. Ms C was not the subject of cross-examination, with her evidence representing a history of the file. As the actual case management was allocated to protection worker Ms P, that person was offered for cross-examination. It is clear that the evidence of Ms C was pivotal to Ms S being removed as a supervisor (see Exhibit 2).
b)Letter dated 19 May 2008 from [K] Police Station, which was a response to an FOI application lodged by the Mother on 12 May 2008.
c)
Exhibit 3, being reports to the Court dated 18 April 2011 and 28 June 2011 (the later a report of Senior Protective Worker
Ms P) in response to an order from the Court.
d)Numerous case work notes of “contact visits” between 15 April 2011 and 1 July 2011 and other interactions generally between Ms P and the Mother as well as the report writer Mr O and the access centre (see Exhibit 10).
e)Oral testimony, and cross-examination of Senior Protective Worker for the Department of Human Services Ms P.
f)Oral testimony and cross-examination of Mr R, a qualified social worker and Unit Manager in child protection for the Department of Human Services.
g)Oral testimony and cross-examination of Mr G, a case support worker for DHS and a former Police officer.
The documents tendered are voluminous and any attempt to summarise them is unhelpful, save to observe that;-
a)The report of 18 April 2011, provided a historical report of interventions dating back to 6 September 2004. On 3 October 2004 the report recorded that they investigated allegations that the Mother:-
“…was rejecting and scapegoat Ms C Martin, taking her for numerous mental health assessments believing Ms C Martin suffered a mental illness, using inappropriate discipline methods, such as sending Ms C Martin to sleep outside without appropriate bedding and not allowing Ms C Martin to attend school as punishment”.
The Mother is recorded as informing the DHS that:-
“it is good for Ms C Martin to reside with her aunt Ms M in [omitted] for the long term.”
At that time, no concerns as to [X]’s case, were observed. The report noted that the case in respect of Ms C Martin “was substantiated” on the ground that the child “was not protected from emotional or psychological harm by parents”, but was closed on 12 November 2004 as Ms C Martin continued to reside with Aunty [Ms M].
The report of 18 April 2011, records concerns emanating from the UK and, beginning it seems, from a visit by the family “at the [omitted] Hospital in London on 3 December 2007 for an antenatal appointment where [X] was reported to be in nappies at three years of age and had nappy rash. Ms J Martin (sic) was reported to present in a law mood and concerns were held for her mental health with a referral to an Adolescent Mental Health Team recommended. Ms Martin was reported to have refused for this to occur.” What followed under the heading of “UK History” was clearly a report from English authorities.
This alerted Australian authorities, who it seems conducted a “welfare check” through the [K] Police Station, of the family at 17.30 on 15 November 2007. Exhibit 2 sets out a version of what is alleged to have occurred including some statements attributed to the parents – many of which were put to them in cross-examination. On balance, I found the attempts by the Mother and Father to explain or disassociate themselves from the attributed comments made by the Police in the FOI report, as generally unconvincing. Although it is impossible to determine every aspect of the events in England leading to the quick return to Australia, I am satisfied that the Mother (in particular) panicked when English authorities began investigating her parenting and that all the actions (to France and then to return to Australia), were largely motivated by those concerns – including some (unsustained) allegations against English doctors and the English system. In particular, I think it likely, on the balance of probabilities, that Leading Senior Constable [omitted] was accused of being part of a conspiracy to “seize their children” primarily by the Mother. The Father said he felt the Mother held a fear that the children in England are “seized” and trafficked for either adoption or body parts and that her children could be targets.
The records reveal that the day after FM Burchardt made his order for the children to live with the Father, a notification was made to DHS, on 30 November 2010. It is not necessary, or helpful to record the multiple events and contacts that then occurred as set out in the report, and that of 28 June 2011. I prefer to deal with these events through the evidence of Ms P.
The frequency and nature of the reports to the Department, which I accept are accurately recorded, show a growing level of desperation by the Mother and those supporting her. I would accept to some extent this is consistent with the Mother’s continual plea that no-one is listening to her or to her concerns about the children.
As early as 9 January 2011 (by which time the children were living with Ms C Martin), allegations of sexual abuse towards [Y] by the Father were made.
It is noted, for context, that the Mother’s time with the children under the orders of 16 December 2010, was to proceed to unsupervised time on and from 19 February 2011. Events between 6 February 2011 and 17 February 2011 are set out in the report of DHS dated 18 April 2011. Both the Mother and Ms S were reporting disclosures by [Y] that her father was “hurting his bottom”.
Despite the constant involvement of the Department at this time, it is clear on all the evidence that the Mother felt the Department was “inactive”. Ms S, her friend, felt likewise. Ms S says the ICL would not respond to her concerns.
It was in this context that the video tendered to the Court must be viewed in my view. I have seen the tape – it shows, clearly in my view, a highly distressed child [X], being questioned by the Mother in a leading manner. Despite the child’s obvious distress the tape shows the Mother persisted. A transcript of the tape was provided.
Much could be said about the tape and the process the Mother adopted in evidence gathering. At best they are the actions of a highly distressed parent genuinely feeling her children had been abused. At worst, they are examples of appalling judgment, insight and child focus.
That the Mother, after all the investigations made, at the commencement of the trial took the position that she did not allege abuse by the Father of a sexual nature, relieved the Court of many hours of testimony. The real issue for me, is whether the position she has come to is a pragmatic position shaped by legal advice or a convenient retraction for the purpose of the hearing. If the position is not consistent with a genuine belief, then it points to another flaw in the Mother’s credibility in my view.
Again the later report dated 28 June 2011 chronicles further events and assessments. I regard the report as accurate, save to the extent set out below in relation to the cross-examination of relevant witnesses.
The notes comprising Exhibit 10 were explored, as deemed necessary by Counsel, in the cross-examination of Ms P and Mr G. I have read them all and broadly am satisfied they represent the observations, interactions and views of the author at the time they were written.
Ms P
Ms P has been a “protective worker” for seven years. She gave her evidence in a frank and reliable manner. She revealed an admirable combination of empathy and firmness. She confirmed when she took over the file from another worker, the Mother’s allegations of sexual abuse by the Father was constant.
Ms P does not accept, from all her discussions with the Mother, that the Mother’s position on this issue has changed. The Mother had constantly asserted that the children had “been raped, tortured and neglected and no-one was doing anything about it other than her”.
Ms P was initially reluctant to engage in further medical intervention of [X] or to reinterview her however, after a call from the child’s school and discussions with her Manager (Mr R), a further interview with [X] took place at her school but that the child “wasn’t able to give any substance to the allegations”. She wanted to get back to her class.
The intervention by Dr G did not involve a “physical investigation” because no disclosure had been made. Ms P took the view that the Mother’s behaviour at this medical appointment was inappropriate and did not assist the child. Ms P has made enquiries with the Child and Adolescent Mental Health Service (CAMHS) who believe a referral for [X] would be appropriate, and can be activated quickly.
The Mother had raised concerns with her about inappropriate diet for the children at Ms C Martin’s home, but Ms P is not able to confirm this as she attends the home less regularly than Mr G.
Ms P’s view is that the Mother is a “flight risk” because she is so passionate about the harm the children are exposed to in Ms C Martin’s care (and the lingering child sex allegations), and she could not envisage how the Mother would be able to support honestly and genuinely, the children’s relationship with their Father and Ms C Martin.
Ms P, from the Department’s perspective, holds no child safety concerns about Ms C Martin; her accommodation is suitable and she has co-operated with the Department. She has the support of the maternal grandparents.
In denying, when challenged, that she had “overstated” the Mother’s comments, Ms P asserted strongly she felt she had been fair to the Mother and had not drawn a report from Mr G’s comments alone, but had formed a view about the Mother based on her own observations and experience. I accept this.
In summary, despite competent and well directed cross-examination, she did not significantly deviate from the opinions expressed in the conclusion to her report dated 28 June 2011 that:-
“In relation to the day to day care, needs and protection for [X] and [Y] it is my assessment that Ms C Martin is consistently acting in a manner that is appropriate to ensure the needs of the children are being met. Ms C Martin is supportive of the children’s continuing a stable day program and supports the suggestion of therapeutic treatment to address the children’s emotional and psychological needs. It is assessed that [X] and [Y] are not at risk of significant harm in the care of Ms C Martin and Mr M.
In relation to Mr Victor, there is no evidence to suggest that the children are at risk of significant harm when in his care.
IN consideration of the affidavit material, family report prepared by Mr O, DoHS files, discussions with respective family members and observations it is my assessment that [X] and [Y] are assessed to be at risk of significant emotional and psychological harm when in contact with Ms A Martin, mother and therefore her access be supervised and occur at a family contact centre.
Ms A Martin has a pattern and history of fleeing with the children when brought to the attention of protective services. Ms A Martin is assessed as a flight risk and I do believe that if the children were returned to her care it would be highly unlikely that she would make the children available for contact with the maternal side of the family and Mr Victor.
During the seven months Child Protection has been involved with Ms A Martin she has not shifted in her belief regarding both [X] and [Y] being sexually abused by Mr Victor, or her belief that Ms C Martin, Mr Martin an Mrs N Martin are emotionally abusing the children.
Ms A Martin takes not responsibility for her predicament and blames external sources. I believe that if given the opportunity and the children were in Ms A Martin’s care she would revert to her previous behaviour of alleging abuse and isolating the children which would lead to further emotional harm.
In reviewing all the information regarding the allegations that [X] and [Y] have been sexually assaulted by Mr Victor and emotionally harmed by Ms C Martin and Mr and Mrs Martin, maternal grandparents. I find no conclusive evidence to support these allegations, inline with all the professional outlined in this report who have undertaken comprehensive assessments.”
Because of the experience of Ms P, the extensive interaction with this family and my impressions from her demeanour in the witness box that she was a fair, balanced and reliable witness, I give her opinions and observations some weight.
Mr R
Mr R is a qualified social worker and Unit Manger in child protection who has been employed in the DHS for over three years; He was primarily called by the ICL to provide evidence about conversations the Mother alleges she had with him. The Mother says that Mr R supported her sending videos she had taken to FM Burchardt and that Mr R indicated, after speaking with her about the sexual abuse allegations, that “something was going on”.
Although Mr R could not recall how many conversations he had with the Mother, he did recall the discussion with the Mother and Ms S, on 3 April 2011 when he listened to their two major concerns of:-
a)The Court ordered change of residence to Ms C Martin; and
b)Alleged abuse of the children and the failure of DHS to properly investigate.
At that discussion, Mr R says he believed the Mother believed that the children had been sexually abused. Before the DHS would arrange a medical examination advice was taken and it was discussed with the Mother.
Mr R said he made it clear that the DHS would not wait for the Court proceedings to be finished and if they felt action should be taken they would. He said the Mother had no reasonable basis to get an impression from his discussions that he thought that “something is going on”.
My view is that the Mother was trying to suggest that her continued fear of sexual abuse was supported by things Mr R said to her. In fact I accept that Mr R did nothing more than explain the obligations of the Department, but that the Mother chose to interpret his comments as support for her preferred view and rely upon her interpretation to maintain her position.
Mr G
Mr G made himself available for cross-examination in respect of reports he prepared as a supervisor of “contact visits”. Mr G supports the strong relationship the children are observed to have with their Mother but also the difficult emotional environment that the visits he has supervised have taken place within. I have no reason to find that Mr G observations were other than accurate. He impressed me in the witness boxes as reliable and empathetic. He accepted that the visits were difficult for the Mother. His impressions, recorded in his notes of 29 April 2011, that the “Mother appeared to worker to be trying overtly to prove herself to adults as a competent parent” is I am sure right and probably understandable when the Mother had been under attack (as she would perceive it).
The notes for 4 May 2011 reveal that the Mother’s focus on asserting allegations of possible abuse. I accept he recorded the Mother accurately when she told him:-
“I couldn’t say anything to you during access because I had [X] with me but she doesn’t want to go to [Y]’s father’s because he is the one who is abusing her. I have video’s of this and that’s why he has a sore bottom”.
Mr G told the Mother she should report his to Ms P. He says “on speaking with the children they indicated that they had no concerns in going to stay with Mr Victor” and when the children were delivered to the Father “[X] was completely composed by this time and happy to stay there”. [Y] was still distressed, clearly missing his mother.
There is evidence that not all departures were quick and the processes at times “dragged on”. Although Ms P says she raised this with the Mother (who denied it), I think it did occur but seemed to be getting less emotional (see for example the reports for 17 June, 24 June and 1 July).
I accept there were some emotional comments made by the Mother to the children early in this supervised regime and that, as evidenced by the “ointment” incident where the Mother attempted to give [X] a bottle or ointment with a view to keeping it a secret, that it is likely the Mother does feel she is the only person capable for caring properly for her children and wanted them to know that was the case.
Evidence of psychiatrist Dr K and neuropsychologist Professor B
Dr K provided two reports on the Mother (16 August 2010 and 24 November 2010) and one report on the Father (24 November 2010). His reports were in evidence before me and available to the parties and the family report writer Mr O. Dr K was not required for cross-examination. I accept the opinions he has recorded.
It is not necessary to incorporate large sections of his reports in these reasons however, to provide context, I do identify some of the opinions as follows:-
a)In his report of 16 August 2010 he opined that:-
“I have no doubt that the lady has significant personality dysfunction and considered the possibility that she may have a significant psychiatric illness – even considering the possibility of a paranoid schizophrenic illness.”
However, after expressing hesitation in making these comments because he could not “validate my concerns in this particular case”, he was not hesitant in saying:-
“…that I am concerned about the welfare of the children in this lady’s care for the reasons that I have listed.”
b)After being asked to see the Mother a second time (which he did) and being provided with more documentation, Dr K in his later report on the Mother said he was “afraid I really can’t go much beyond what I said when I first saw her”. He did however opine that:-
“…there is a lot of emphasis about illness. I couldn’t help but note her catastrophization of the child’s reaction to seeing Mr Victor and I saw her really as being fairly insightless into the ways in which parents can influence their children.”
Dr K expressed reservations about her level of function saying that:-
“I stand by my assertion that if there is a reasonable other parent to be involved, then they should be supported and encouraged.”
c)Dr K assessed the Father and whilst noting he was “really quite persuasive in his presentation” (which I must say was how he also presented in the witness box), he said for the reasons given that he was not persuaded that the Father “would be at (sic) risk to the children” and that “I can’t see him as having any continuing psychiatric or emotional disturbance at this juncture” and that the Father has “a lot to offer the children.”
I take into account the opinions of this highly experienced psychiatrist, which I accept.
Professor B was engaged, with the support of the Court but at the initiation of the ICL and DHS, to:-
“rule out an acquired brain injury from a motor vehicle accident she experienced at the age of 17 years, along with a possible personality disorder.”
Professor B detailed the documents provided to him, which included the reports of Dr K. The interview took place on 20 June 2011. Professor B was not required for cross-examination. I have no doubt that Professor B accurately recorded the history he was told by the Mother. In many ways the Mother could be excused from some inconsistencies having told her life story so many times to so many people. However, it is my view that her value laden description of her “relevant development history” reveals the continued inability of the Mother to take any responsibility for her actions and to seek to blame others. Professor B recorded that:-
“In terms of relevant developmental history (unsubstantiated) from Ms Martin’s perspective she related how her parents remained together. She is the last of 3 children by 4-5 years, born full term, and passing normal milestones. She stated that she was one of the ‘brighter children’ at school who was shy, and who enjoyed [omitted]. Ms Martin described how her mother used to psychologically abuse her to yelling her and shaking her. Ms Martin stated she suffered nightmares from an early age. She recalled that while she may have sustained some concussions as a child, she had not sustained any injuries resulting in clear loss of consciousness. She stated that she did not require treatment with medication during childhood or adolescence and that she does not have any formal psychiatric history. She stated that her eldest sister has been treated for depression, and that her 2nd sister suffers from anxiety. She felt that her father was generally avoidant in his manner of coping. She recalled how her grandmother was s bugger at times between herself and her mother. She also recalled how she was bullied during High School, triggering a change of school. She stated that she passed Year 9, and then studied [omitted]. Her longest employment involved [omitted]. It was generally difficult to elicit a concrete reflection of Ms Martin’s employment history. Currently she is supported by the NewStart Allowance. Ms Martin stated that her longest relationship lasted for 2 years. Her children all have different fathers, which she felt was due to her vulnerability for being attracted to the ‘wrong people’ because of her childhood upbringing. She felt that her parents and family belittled her generally; she felt that she was bullied into relationships by her family to facilitate their ‘control of her’. She had known Ms J Martin’s father since she was aged 9 years, and Ms J Martin was born when Ms Martin was aged 18 years. Ms C Martin was born following a ‘rebellious reaction’ as the father wanted her to terminate the pregnancy. She met [Mr Victor], father of [Y] online; she stated that he ‘trapped her’ into an overseas marriage. She stated that her youngest two children have revealed that he is emotionally abusive to them and that they have made statements to the effect that he has engaged in inappropriate sexual contact with them. When queried as to how she responded to these allegations by her children, especially when they appeared distressed at what had apparently been physically damaging, Ms Martin appeared quite odd and concrete in that she appeared to focus on how she fulfilled the process of her legal responsibilities rather than take the children immediately to a GP to seek out medical attention.”
Ultimately, after interviews and testing, Professor B said:-
a)Her profile does not support the suggestions of an acquired brain injury;
b)Ms Martin is “an intelligent lady who presents a prospective from all accounts that is at odds with many of those around her. There is evidence of over-emotionality or at worse, of paranoid ideation, with a tendency to dramatise events beyond what they likely are……”
c)That if the Mother’s reported history of childhood upbringing “have any substance, then the likelihood of her suffering a clear personality disorder becomes even stronger.” (I should indicate that this trial did not focus on the Mother’s upbringing or the alleged deficits in parenting of her own parents as the Mother claimed).
d)“While this clinician would defer to the more informed opinion of a clinical psychologist and/or psychiatrist, the overall impression is that Ms Martin does suffer significant personality features towards the paranoid end of the personality spectrum”.
Professor B ruled out a diagnosis of post traumatic stress disorder and recommended the Mother “undergo objective personality assessment to either support or rule out the need for ongoing concern”. As will be seen later in these reasons, I regard the need for such an assessment as critical before the Court could support unsupervised time between these children and the Mother.
Evidence of Applicant Father
The Father’s affidavit material was limited and the best way to understand his case at the hearing and his ultimate conclusion to support Ms C Martin’s application for residence is by considering his cross examination.
In this respect, at the commencement of the trial and in the absence of his case outline providing a clear indication of where he thought the children should live, I invited his Counsel to provide a clear minute of order. When produced (see Exhibit 1), it provided for temporary residence to be allowed to Ms C Martin until January 2012, and then the children were to live with him. This proposal was shaped by the Father’s concerns about his employment and accommodation. When the Court expressed concern about the temporary arrangements and the effect on the children, Counsel for the Father took further instructions and then indicated to the Court that he would support Ms C Martin having an order for residence now and into the future. He did not change his view that the Mother’s time with the children should be supervised.
During the course of the Father’s evidence, in view of his “starting position”, I was concerned to be alert to the prospect that the Father and Ms C Martin had some arrangement which would make him the actual primary carer, even if the Court ordered the children live with Ms C Martin. I was satisfied this is not the case and although he will support Ms C Martin. He now genuinely believes that the two children’s best interests are met by living with Ms C Martin. In the end the evidence of his witnesses, [names omitted] was not relied upon and irrelevant to the core competing proposals.
I am satisfied that the Father is genuine in his pursuit of a relationship with his biological son [Y] and the child [X] with whom he has been in a Father role for much of her life. I regarded him as a genuine, honest and frank witness, although his negativity towards the Mother was obvious.
I am not persuaded that the Father has sexually abused the children in any way.
The Mother was his first adult intimate relationship of some substance and it seems the Mother had the capacity to control – even dominate – the relationship. At times, post separation, he agreed with the Mother partly to “appease” her and partly because he wasn’t in any position to strongly oppose. The initial parenting plan is an example – and it must be noted that the Father’s initial application in August 2009 sought only orders to spend time with the children and his affidavit filed in support did not raise concern about the Mother’s behaviour, other than he believed the Mother was deliberately thwarting his attempts to maintain a healthy ongoing relationship with the children.
At the time the Father filed his application, his ability to remain in Australia because of his migration status, was uncertain. I assess the application was probably made to improve his chances or remaining in Australia (see paragraph 31 of Affidavit filed 236 August 2009). However, now that that issue is resolved he continues to be focused on developing a relationship with both children. The Father did not change his application seeking residence until November 2010 – after the first family report had been released and after home visits and interviews for the second family report by Mr O had taken place.
The Father gave further evidence including:-
a)He acknowledged the children miss their Mother and show distress when they have returned from visits – but quickly “get over it”.
b)He supports the version given that Ms J Martin was “ejected” by the Mother from the home in December 2008.
c)Although during his relationship with the Mother she did not support [X] having any relationship with her Father Mr H, at one time suggesting he “adopt” the child, I am satisfied he is prepared to support [X] developing overtime a relationship with her biological Father, Mr H.
d)The Father found it very difficult to identify any positives about the Mother spending time with the children, unless the time is supervised.
e)He feels he can speak openly to Ms C Martin and they have already arranged additional time between himself and the children.
f)His own assessment of the children since they have not been living with Ms C Martin has been positive with improvements in speech development; social skills and overall happiness and optimism. Because the Father is so negative about the Mother, the Court is cautious in accepting this assessment alone – although it is supported by Ms C Martin and other expert evidence.
g)The Father believes, if the children lived with the Mother, she would find it very difficult to support his relationship with him.
h)When the ICL put to him the reports of English authorities, and his contribution to their views, he did seem to become overly defensive and in my view demonstrated a lack of accepting any responsibility blaming the Mother (after [Y]’s birth) of putting him “under duress”. I think the most likely position is that the English authorities had cause for concern and that the Father and Mother worked together to ensure ultimately, via France, the family would return to Australia. It all happened very quickly, and although I do accept that the Mother’s years were the main reasons for these strange events, the Father passively co-operated in my view. This did him little credit.
Although, as can be seen, these are some inconsistencies in the Father’s recall of history – I have taken the view overall that he is now quite child focused. He has tertiary qualifications; is articulate; and can offer the children some benefits from his life experiences. He is however, still in a less stable environment than Ms C Martin with temporary part time employment and variable living arrangements.
He properly supports the children attending main stream school and having such counselling as may assist them to better understand and deal with the complex family dynamic which exists.
I note, totally consistent with the Mother’s stated position that she felt that the sexual abuse allegations against the Father had been thoroughly investigated by the DHS and that she gives the Father “the benefit of the doubt”, the Father was not asked any questions at all about the allegations, which he has always denied.
The Mother’s Evidence Relied Upon
It was hardly surprising that after the interim orders changing the residence of the children, that the Mother felt very much under attack. I watched her closely not only in the witness box, but also in the Court generally. For a lady so often described as emotional and dramatic (she has told the Court she is returning to her modelling and drama interests), she was very controlled and, at time, remarkably unemotional.
Without doubt the Mother’s focus apart from defending herself, had by the time of the hearing moved from a focus on the Father – to a focus on Ms C Martin. It is to be remembered that from November 2010, when the Father changed his application to seek residence, he was seen by the Mother as the primary contestant for residence, until Ms C Martin showed she was prepared to stand against both her Mother and her sister Ms J Martin in seeking residence. The true battle lines were then drawn.
Ultimately it is beyond the forensic boundaries of this case to try and reconstruct the events of 2004 when Ms C Martin left her Mothers home. Although there have been some attempts to reconcile, I assess that the hurt created by the separation of Mother and daughter in 2004; the support for Ms C Martin by her maternal family; the decision by the Mother to live overseas for 18 months and have no contact with her oldest child and finally the Mother’s view that Ms C Martin was “complicit” in attempts by the Father to remove the children from her care all combine to ensure that any future relationship between the Mother and Ms C Martin is unlikely to be achieved – unless extensive movement by both women and intensive family therapy is involved. As nice as that may be, it is unrealistic. Within that environment the evidence of the Mother must be assessed.
Arising from the Affidavit filed 22 June 2011 and the intense cross examination which followed, I distil the following issues and findings which assist the Court. It is not an “exhaustive list” – and I have considered all the evidence.
a)Although the Mother claims her relationship with Ms C Martin was fine until the Father left the house, I prefer Ms C Martin’s evidence on the true quality of the relationship. She acknowledged that she had not visited her daughter in Bendigo since 2008.
b)In respect of the supervised visits which the children were to spend with the Father after the initial orders of the Court, the Mother confirmed that of the 13 scheduled visits, [X] attended once and [Y] attending six times. A report from Mr Q, the team leader for the [F] Children’s Contact Service (run by the Salvation Army) was in evidence (exhibit 5). I have no concerns that the report does not accurately summarise the notes of supervisors. To the extent that the Mother, for example:-
i)Denied she didn’t wish the worker to speak further with [X] on 26 June 2010 when she wouldn’t get out of the car and was “unhappy receiving positive feedback in relation to Mr Victor and his interaction with [Y]”, I do not accept her evidence. Her need to explain to the workers her view of the Father’s bad character and immigration status is more likely to have occurred as recorded.
ii)After three missed visits (cancelled by the Mother due, she claimed, to illness and once “a swollen toe”), the visit on 4 September 2010 started with the Mother informing the worker “both children did not want to go”. Clearly the report reveals [Y] was, when approached by the worker happy to go and see his Father. I am satisfied the child did want to go – but may have told his Mother he did not.
iii)On 30 October 2010, the Mother chose to attend the handover at [F] with a male person, who introduced himself as [name omitted], and stated he was from Bikers United Against Child Abuse (BUACA) The Mother says she approached these people for support. I am satisfied the Mother used this occasion to tell the workers about the risk the Father presented from her view, and that as recorded, the Mother was finding it difficult to support visits and to disguise her feelings. I do not accept the Mother’s version of that visit to the contrary.
it seems remarkable, considering the strength of feeling against the Father that the Mother demonstrate as recently as October 2010; coupled with the sexual abuse allegations the Mother accept (initially at least) to have occurred, that by the time of the haring, she proposed the Father spend unsupervised time with the children overnight and other occasions. In my view this is another demonstration that the Mother’s focus had, by the trial, changed to Ms C Martin.
c)The Mother at paragraph 129 says that:-
“Ultimately, various professions have determined that [X] and [Y] have not been sexually abused, and that they are not a risk of abuse in [Mr Victor’s] care. In the circumstances, I accept that the children’s disclosures must be viewed in terms of their age, maturity and understanding”
However the Mother’s answers to Professor B were unusual. I am satisfied the Father is not a risk to these children. Despite her comments, I am not satisfied that the Mother genuinely believes what she has sworn to at paragraph 129.
d)Although the Mother says she did not contact Mr H because of the uncertainties of the current situation, the lack of time she has facilitated between [X] and her biological Father and the evidence she gave in her affidavit filed (in earlier proceedings) on 24 June 2005 (paragraphs 5,11,12,13,19 & 27 being relied upon), make it hard to conceive of any other purpose for initiating communication and subsequently, entering into an informal agreements.
e)
I have already made a finding about the Mother’s relationship with Ms C Martin. To the extent that the Mother denied that (as observed by Mr G), she has been critical of the care Ms C Martin provides and has made negative comments about what she believes is a “sugary diet” offered by Ms C Martin, I do not accept the Mother’s evidence. The Mother conceded that she did ask the police to do a welfare check of Ms C Martin’s home and may have said they were being “tortured”. I prefer Ms C Martin’s evidence about the Mother putting pressure on her around October 2009 to sign a supportive affidavit, to add to the evidence of the Mother. The Mother said because of the “mistruths” in
Ms C Martin’s affidavit she could not support Ms C Martin coming to her home – even if the children lived with her.
f)The video’s and transcript speak for themselves. The Mother’s actions were inappropriate and caused [X] in particular emotional distress. It is hard to imagine in what circumstances a caring parent could engage in the video discussion, as the Mother did, and persist with the child so distressed. I do not say that the Mother tried to influence Federal Magistrate Burchardt by sending the video to him. I am prepared, perhaps generously to accept she felt his observations in Court were an invitation to inform him. However, the emails which accompanied the video’s or at that time (comprising part of exhibit 6) are extremely troubling, including statements like:
“my children have been raped, tortured and threatened for 4 months”
“the children’s lawyer has encouraged the use of Ms C Martin as a puppet to these abusers”
These statements are without any foundation, other than the troubled thoughts of the Mother.
g)The Mother was questioned by the Counsel for the ICL about the contact that Ms C Martin and Ms J Martin had with their respective Fathers. The Mother claims she told Ms C Martin the name of her biological Father at age 10 and that although Ms J Martin saw her Father until she was about 18 months of age “She still tells me how distressing it was”. It is a little difficult to accept a 18 month old would have such a recall. In any event, the history is that the Mother cannot be seen to have facilitated time on any regular basis between the Father’s of Ms C Martin, Ms J Martin or [X] – even after orders were made for Mr H to spend time (exhibit 7).
I have come to the conclusion that the Mother is an unreliable historian who seeks to repaint history in a way that does not reflect negatively on herself. She finds it difficult to take responsibility for the consequences of her actions and does not easily accept an opinion contrary to her own. Although the Mother claimed (in an email to Ms K on 5 April 2011) that:-
“I don’t psychologically respond like most would to such deterrents as I have an IQ above 140 and knowledge of linguistics and post graduate diploma in [omitted]”
Professor B questioned the insight this lady possesses. So do I. (I also note Professor B assessed her IQ at 61st percentile or in “average” range).
I have no doubt that the Mother loves these children and firmly believes that removal from her care was wrong; is causing them distress and emotional damage and should be corrected immediately.
Ms S
Ms S is a friend and former neighbour of the parents. She is a loyal supporter of the Mother and was heavily involved in contacting the Family report writer; police; DHS and ICL when she felt it was necessary to do so.
Ms S, in her affidavit, gave details of negative or concerning comments she has heard the children make. In particular at paragraph 51, Ms S gives an account of how the video’s were taken. She was present, and although she conceded in cross examination that the questioning was “regrettable”, her statement that:-
“I am confident that Ms A Martin did not “coach” [X], try to put words in her mouth, or attempt to get [X] to make anything other than truthful statements”
is troubling.
On the whole of the evidence and on my objective assessment of the video, I strongly disagree with Ms S. She has become the advocate for the Mother, and whilst I sense she is a caring person trying to do good, my assessment is that her over reliance upon what the Mother has told her has tainted her observations and opinions.
Some brief evidence was received from Ms W, the Director of the [L] Child Care Centre where the children [X] and [Y] were enrolled from May 2010 to 29 November 2010. The Director was positive about her interaction with the Mother, describing her (from her observations) as “a very together, caring and committed Mother who looked after her children very well” . Ms W had not met the Father or Ms C Martin. I accept that the Mother presented to Ms W in the way she described.
Ms J Martin
It is hard to imagine how difficult it must be for this child of the Mother, who was 18 years old when she gave evidence, to be asked to give evidence in a dispute between her older sister Ms C Martin and her mother. I accept, as she said, she was initially avoiding being involved in the proceedings.
Although Ms J Martin said she was unwell when she spoke to Mr O for his second family report and that she did not participate in the interview as much as Ms C Martin, I am satisfied that Mr O accurately recorded in his report what he was told by Ms J Martin.
Ms J Martin’s affidavit sworn 15 December 2010 was critical of the Father but “fully supportive of Ms C Martin’s application for the children to live with her and say from my observation of the time I spent with her and the children after the orders of 29 November 2010 that she is capable of fulfilling the role of their primary carer”.
Although Ms J Martin (at paragraphs 4 to 17 of her later affidavit sworn 20 June 2011) gives a description of why she swore the earlier affidavit, the fact remains that she did so.
After the orders were made on 16 December 2011 Ms J Martin was contacted by Ms S and asked to attend a family counselling session arranged by Mr L. Mr L had two further solo sessions with her. It is not clear if Ms J Martin knew Mr L had been providing therapy to her Mother since 3 December 2011.
In view of the history of Ms J Martin’s history of care; estrangement from her Mother; support for her sister and now total alignment with her Mother and estrangement from her sister, I find it difficult to give much weight to her recent evidence either way. I am not however so reluctant to attach weight to her statements to Mr O many of which were explored in cross examination.
In particular I observe that:-
a)Ms J Martin agrees that she met secretly with Ms C Martin when she returned from Japan and that her Mother did not let her contact Ms C Martin when she was overseas. I am satisfied that because of the view the Mother took of Ms C Martin leaving home and being supported by the maternal family, she made Ms J Martin feel uncomfortable about contacting her older sister.
b)The Mother got angry with Ms J Martin when she had prior to leaving Australia, contacted her maternal grandmother.
c)The Mother seemed unaware of the isolation that Ms J Martin felt overseas and the email of 19 March 2006 was written with the Mother “standing over” Ms J Martin. The Father however supported her right/capacity to contact Ms C Martin at this time.
Ms J Martin’s history of parenting by the Mother is of concern. Mr O thought so and it largely influenced him, on balance, to support a change of residence.
I would hope Ms J Martin will be able to maintain a relationship with all those people important to her – Her Mother, her sister Ms C Martin; her younger siblings and her grandparents.
When, and whether, that will occur is uncertain. Ms J Martin has been influenced by the Mother I am sure. She now is isolated from the other members of the family as the Mother is at this time. However when Ms J Martin, in Court and on Oath, says she is not interested in having a relationship with her sister whilst she continues to have [X] and [Y] live with her, it could require some maturity and therapeutic intervention to allow Ms J Martin to feel she can have a relationship with Ms C Martin. My impression is that the Mother is unable to understand that her controlling and manipulative behaviour has severed the sibling relationship between Ms C Martin and Ms J Martin, which is both concerning and sad.
Mr L
Mr L is an experienced psychologist practising since 1985 who has been treating the Mother since 3 December 2010 for 17 sessions. He says, and I accept, that since the children were removed from her care, the Mother “has been extremely distressed, anxious, angry and confused”. She feels distressed and cheated by all sorts of people, and having read the family report of Mr O and the psychiatric report of
Dr K, he indicated his “overall impression of Ms Martin differs significantly” from the other experts.
His view is that if the children are returned to their Mother’s care they are not at risk or emotional and psychological harm.
Mr L says he hasn’t found the Mother has a problem with authority and although she at time uses “extreme terms” these have in his opinion fuelled her anger, although he sees some of her presentation as being more “reactive paranoia” rather than “delusional paranoia”.
Although I do not ignore the opinions of Mr L, I remind myself that he is in a therapeutic relationship with her; clearly accepts there is no foundation for his patient not having the children in her care; and is doing his best to assist her control her anger and distress from the loss of her role as the primary carer. As it is likely that the Mother will be distressed by the Court’s decision he has an important ongoing role in assisting her. He seems well placed and capable of doing so. however, his evidence does not persuade me to conclude that the other evidence of experts, supported in the main by findings of fact which this Court has made, is not to be accepted or preferred.
Ms C Martin’s evidence relied upon
By the time in the trial that Ms C Martin began to give evidence, a quite different picture of this 22 year old woman thrust, in difficult family circumstances into the role of the primary carer had emerged. The Father was supportive and spoke confidently of the capacity for Ms C Martin to parent.
The Mother and Ms J Martin were quite negative about Ms C Martin and critical of both her character and her parenting capacity (although it must be said the Mother has never observed it first hand). The experts from the DHS and the report writer were satisfied that Ms C Martin has an appropriate attitude and capacity to parent these children.
As a result I was anxious to closely observe Ms C Martin in the Court and in the witness box. I notice very little engagement by the Mother and Ms C Martin – even eye contact. Ms C Martin clearly found it hard to confront her mother and when she gave evidence she rarely deviated from looking to Counsel and not at her mother. I notice she seemed more interested and empathetic when Ms J Martin gave evidence.
In her first affidavit filed 23 November 2010, Ms C Martin at paragraphs 4 to 10, gave her version of the history of her relationship with the Mother. At its core is a conflict between a child who felt she was treated poorly; accused of being mentally unwell and says she finally, at age 15, “was sent to live with my Aunt [Ms M]” and that the Mother “completely cut off my siblings”.
I take into account the evidence which reveals the Mother’s relationship with Ms C Martin had broken down and she felt it was best for Ms C Martin to live with her sister. The sense of abandonment the child must have felt was real and painful – made worse, it seems to me, by the Mother’s decision to leave Australia without telling Ms C Martin; preventing contact between Ms C Martin and her sister Ms J Martin; and not even tell Ms C Martin when she had returned – with a new sibling.
I have to acknowledge with such a history, at an important time of
Ms C Martin’s development it might have been expected she might go completely “off the rails”. That was clearly not the case save for her feelings of depression which she candidly acknowledged.
After the Mother returned from Japan/UK and the meeting at the [event omitted] (orchestrated by the sisters) occurred Ms C Martin would more regularly visit the siblings. Ms C Martin made observations (after the Father left), about the Mother’s hording habits but I am unable to make any helpful findings on that issue.
I am satisfied however, that after Ms J Martin was asked to leave the Mother’s home in December 2008, with the Father shortly after, a gradual reduction in opportunities for Ms C Martin to spend time with [X] and [Y] occurred, until by October 2009 that time ceased. The Mother gave her explanation for this at paragraph 31, namely:-
“…when I refused to sign a statement of false allegations against the father, she cut me off again from their lives.”
The Mother denies this, however I prefer Ms C Martin’s evidence and accept it. She expressed her concerns for [X] and [Y] as being:-
a)They are isolated;
b)They have minimal social interaction with other people;
c)The Mother’s capacity to care for the children.
The focus of Ms C Martin’s cross-examination was understandably directed to her capacity to parent being in mind her age, maturity and lack of direct parenting experience. At one point she swore, words to the effect:-
“I am not a puppet. I have my own views and values. I have my own mind, although I am open to other opinions.”
Her statement had a ring of truth and her actions and evidence overall since December 2010 revealed a strong, determined but caring personality. I was impressed with her and felt she was honest and frank and a much more reliable historian than her Mother on disputed issues.
Of particular value in my assessment of the evidence was:-
a)Ms C Martin explained she was confident she could work with the Father so far as parenting was concerned , although Ms C Martin would be “the boss”. She is comfortable in discussing matters with him.
b)She has significant and loving support from her maternal grandparents and extended family.
c)She would prefer that her weekends with the children be uninterrupted – and as a result proposes any time the Mother’s spends with the children be structured in the Father’s time.
d)She would not support Ms J Martin being the supervisor as, at the moment, she could not contain her negative opinions. I agree but note that Ms C Martin is more willing to communicate and involve Ms J Martin with the children than Ms J Martin appears to be.
e)Ms C Martin has reduced her working hours at the local [business omitted] to two days a week, which works in well with the availability of her partner Mr M who commences his work at 7.30am (as a [omitted]).
f)Although Ms C Martin said the children were not “deeply” missing their Mother, the evidence of Mr G suggests they certainly do miss her. I can accept, once these young children are in their regime created in Ms C Martin’s home, it may be the case, as she suggests, that they do not ask constantly about their Mother.
g)The Mother did raise with the DHS (with whom she has regular support), the concern about boundaries in the Father’s home – for example having [X] sleeping in the same bedroom as the Father. I am satisfied this reveals the sort of independent mindset and awareness for child protection and developmental needs expected of a parental figure.
h)
Although Ms C Martin did not see the benefit for [X] to reunite with Mr H, she recognised it as her right. Clearly [X] sees
Mr Victor as a father figure but is also now aware of Mr H’s existence. That she says things like “I have 2 Daddy’s” is not unexpected.
i)Although Ms C Martin holds negative views about her Mother, she said the children enjoy spending time with their Mother and do love her. She gave me the strong impression that she appreciates how important this is to [X] and [Y], that they have time with the Mother and Father. She was unable to see what will change to justify unsupervised time. She does agree the Mother should have school reports but fails to see any benefit to the children for the Mother to attend their school. At this stage she would prefer not to have a relationship with the Mother (although she is described as “Mummy” in Ms C Martin’s home)/.
Ms C Martin is young. She had limited parenting experience before December 2010. However she genuinely loves her siblings and believes she is able to provide a better more stable and more balanced lifestyle for the children.
The relationship between her and Mr M began as friends and during 2010 became more intimate and more mature. Mr M impressed me as a hard working, honest and straight forward man. He confirmed he will finish his apprenticeship in April 2012. He believes he has secure employment locally.
Although he is now 22 years of age his parenting experience is also limited, but he does not seem overawed by the huge responsibilities that he shares with Ms C Martin. He said, he does not try to act as a father but more as “a friend” to the children. With Mr Victor having regular time, this is appropriate. He honestly recalls the children, after visiting their Mother, expressing a desire to live with her.
I assess this young couple as slightly vulnerable to the potential stressors that inevitably lie ahead. However, the strength of character evident in Ms C Martin and the support she gets from the extended family and her partner Mr M, make them a viable option for the primary care of the children in my view.
Family reports – Mr O
I have chosen to summarise the opinions, recommendations and observations made by Mr O at the end of the discussion on evidence because that is not only when he gave evidence, but because in many respects his third and final report (dated 8 June 2011), is the most relevant.
The earlier reports of 29 November 2010 and 22 April 2010 have been read, however each later report “built on” earlier reports and information. It is quite unusual to have a report writer complete three reports over a period of 14 months, but that longitudinal examination in this case has been helpful.
Although, of course, the evidence of a report writer is but part of the evidence to be considered, where the factual foundation for the opinions expressed is sound and, any criticisms directed through cross-examination properly met, the Court should usually be prepared to give some weight to the opinions and any expressed recommendations based on these opinions. The factual matrix ultimately is a matter for the Court and if the facts used as a base for the opinion coincide, then this adds weight to the report. The report writer brings to the assessment a quite different skill set than does a judicial officer. Furthermore, and importantly, the family report writer has the advantage of observing and speaking to the children and, in this case, also conducted home visits.
I do not propose to incorporate large portions of the three family reports in these reasons, as they are still fresh in the parties’ minds and well known to them. Rather, I gather from the reports and the cross-examination (which was fairly brief), aspects of the expert’s evidence which will help the parties discern why the evidence was of assistance to the Court in this case, as follows:-
a)The last family report of Mr O was prepared before the report from Professor B was available. Mr O said that after reading the report he is not encouraged to alter his published recommendations.
b)
Central to his final recommendations, but founded on his observations, is his opinion that the children should live with
Ms C Martin and that he identified unsupervised time with the Mother would give her an opportunity to “undermine” Ms C Martin’s parenting as the Mother would not be able to stop pursuing a situation where the children would be returned to her primary care. I accept this opinion.
c)He does not believe the Mother has genuinely “given up” on the sexual abuse allegations. On balance of all the evidence, I agree.
d)Although he acknowledged that having long term supervision is a vexed question, he has no real solutions for how a change in the future might be appropriate. His overriding concern is that, as the Mother is not at a stage where she can accept not being the primary carer, the time she spends with the children runs the real risk of emotional and psychological harm being applied to the children to support or develop reasons for a change from Ms C Martin.
e)Mr O happily conceded that the children love their Mother and did not cavil with a description put to him by the Mother’s Counsel that they are “devoted to her”. He acknowledged some of the children’s reactions at change of residence revealed it was a difficult time for them.
f)
Fundamental to his core recommendation was his view, which I accept to be well founded, that the children need a safe, stable and secure home in which to develop and not one of almost “exclusivity” as the Mother has shown a capacity and tendency to create. Whilst he accepted the Mother expressed some reasons for “excluding” her parents and family, and at different times
Ms C Martin and Ms J Martin from her life – it was behaviour in his view, beyond normal boundaries.
g)Although the Mother proposes now that the children should go to state schooling (rather than home schooling), and this was a way of reducing the children’s isolation, I got the strong impression from Mr O that this change of emphasis by the Mother occurred, not because she really considered the benefits of doing so, but rather because she assessed (correctly) that it was a criticism of her parenting she was willing to compromise on.
h)He acknowledged, for the purpose of the second family report, that he should have contacted Ms W and [L] Child Care but does not believe that the view he took of the initial change of residence (in November/December 2010) was founded on other evidence as well. He said he was not satisfied that Mr L was totally independent. When it was put to him by Counsel for the Mother, quite fairly, that his failure to speak to these sources (as well as a number of people who were supportive of the Mother) was an oversight which tainted his views, he strongly disagreed making the point that his focus was on the children – not to speak to people who knew or had dealings with the Mother. In my view, the family consultant’s “focus” was the correct one.
i)He acknowledged that managing these children was “a big ask for anyone”, but that he assessed Ms C Martin has the best interests of [X] and [Y] uppermost in her mind. Although, at one stage it looked like Ms C Martin, Ms J Martin and the Father “as a team” would care for the children, by the final report Ms C Martin is now quite comfortable in the role as primary carer.
j)The interviews with Ms C Martin and Ms J Martin for the purposes of the second family report was helpful in forming his view and he did form a very distinct view, that in terms of risk assessment, the pattern of history must be taken into account.
k)If the Court was of the view that the children should return to the care of the Mother, that not only would a change of schooling arise, but it would be important for the children to spend alternate weekend time with Ms C Martin and the Father.
l)He assessed, from observing and speaking to the children, that [X] is more vulnerable and has a quite different relationship with the Mother than does [Y]. He opined that [X] wishes to please her Mother and more easily falls into the Mother’s belief system, whilst [Y] is still too young to be so “reduced” into the Mother’s system. I accept this observation and opinion.
m)Mr O accepted that it would be beneficial for the children to have time and further nurture their relationship with their sister Ms J Martin, however she is in a “very difficult” situation at this stage and initially, if time between the children and Ms J Martin did not take place to Ms C Martin’s home, Ms J Martin is not a party to the proceedings and did not press for specific orders. I infer to shield the children from her negative thoughts about Ms C Martin. It should also be supervised. I incorporate the final evaluation by Mr O in these reasons as follows:-
“The writer completed this further assessment and came away with some clear themes/patterns:
1.Ms C Martin and Mr M have clearly stepped up and provided significant practical and emotional support for [X] and [Y]. This has been done under significant difficulty. They have been supported by extended family.
2.Mr Victor has provided some supports but not as much as had been initially planned by he, Ms J Martin and Ms C Martin. Nonetheless, he and Ms C Martin have resoled many issues and have shown again and again the capacity to work as a team in the best interests of the children. It is clear that Ms C Martin will speak up if she has concerns. This seemed positive.
3.Ms A Martin considers that the writer’s reports have skewed the thinking in this matter and believes that other professionals involved have erred in their involvement in this matter. Her belief system is at significant odds with that of others who have investigated this matter. Her concerns seemed to be genuinely held but should be seen in the context of a historical pattern.
4.It is openly acknowledged that the change in care arrangements would have been extremely difficult for Ms A Martin.
5.Since the change, Ms A Martin has made various claims that the children have been abused by many, but particularly by Mr Victor. She has involved others in this cause. She has identified that Mr Victor, her parents, Mr M and Ms C Martin still pose a threat to the children.
6.Clearly she has been actively seeking the return of the children to her carte and she views herself and those close to her (Ms J Martin, Ms S, Mr S) as the people that provide safety and security to [X] and [Y]. She would prefer that the children were in the care of one of these people of not her. She will never accept that the children are safe until this occurs. She has acknowledged that she will not rest until the children are returned and it is anticipated that she will continually undermine arrangements.”
I give significant weight to the opinions expressed by Mr O which are well founded and are derived over an extended period of observation and investigation.
Primary considerations
I rely upon but do not repeat all of the findings on the evidence I have made and recorded earlier in these reasons. In my view, having done so, the examination of the evidence within the matrix of the factors set out in s.60CC(2)(3) and (4) can be achieves in a more concise and summary form.
Meaningful relationship
By definition, the Court must consider the benefit to the children of having a meaningful relationship with both of the children’s parents (my emphasis). As a result, at this factor, a meaningful relationship with Ms C Martin is not to be considered. The dynamics of this family situation make orders for the Father’s relationship to both children easier to achieve – wherever the children shall live. I am satisfied that his relationship will continue to be meaningful and be nurtured – more if the children live with Ms C Martin than if they lived with the Mother. It is of benefit to the children that this occurs. In my view such a relationship can exist for [X], even if, in time, an interaction with her biological father Mr H can safely and appropriately be introduced and developed.
The Mother is important to the children’s history, sense of identity and future as adults. They only have one Mother. Ms C Martin can never be a mother to them in the same way, and she will always be seen as a sister. However, whilst it is of benefit for the children to have a meaningful relationship with the Mother, where the relationship is shaped by concerns for their emotional and psychological wellbeing, as arises in this case, then some adaptation to the normal regimes of parental involvement must be considered.
Protection from harm
Section 60CC(2)(b) mandates the Court to consider “the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence”. In my view, the children are not likely on the whole of the evidence to be exposed to harm (as so defined above) in the care of either Ms C Martin or the Father – save for the need for them both to shield the children from their personal views about the Mother and their perceptions of her past behaviour towards them or the children. This need to “shield” also applies in ensuring other members of the family are not permitted to make derogatory remarks about the Mother to or in the presence of the children.
The statements of Ms W, Ms S and all the supporters the Mother says she has (alluded to be Mr L), seem to me to be more directed to her observed physical care of these children. I have little doubt to a casual observer she would present as a committed, caring and vigilant parent. She is a good communicator and would easily be able to engender positive observations. Regrettably however, I had come to the conclusion that the risk to these children is more emotional and psychological in nature and stems probably from the Mother’s personality. It may be that her personality and behaviour is shaped by her own upbringing and in fact I would be surprised if that were not the case.
I am sure the Mother, who strongly disagrees with the independent assessments made of her, would like a full list of each alleged parental deficit so that she can “tick them off”, as not applying to her – however in this case it is not that simple. It is a combination of factors, both historical and more recent, that all combine with the overall assessment that this lady’s parental capacity is severely compromised. I do accept she does not accept opinions contrary to her own easily, but her reaction to adverse opinions is more the concern. Her parenting style is very much “her way”, and if you disagree, you are excluded. She has demonstrated difficulty with authority – although it must be acknowledged during the hearing she demonstrate quiet observance of the formal setting and expected behaviour. Without seeking to be exhaustive, and relying on the nuances arising from the earlier findings, some of the Mother’s parenting approach which contributes to the finding of harm to these children includes:-
a)Her attitude to home schooling and the reasons for it.
b)Her isolation and, at times, cruel abandonment of her teenage daughters Ms J Martin and Ms C Martin.
c)The substantial finding of harm by DHS against the Mother in respect of Ms C Martin in 2004.
d)The paranoid beliefs or thoughts which caused her to flee England, via France.
e)My view that she still believes the Father abused the children and that Ms C Martin is both capable of, and has, neglected the children contrary to all the evidence, I accept to be true.
f)The possible “flight” risk identified by both Ms P and Mr O.
g)The through investigations, observations and assessments of the DHS into the Mother’s behaviour.
h)The inability for the Mother to be able to accept responsibility for the consequences of her actions.
i)The independent assessments of the Mother’s “significant personality dysfunction” made by Dr K and adopted by Professor B.
j)The lack of awareness and insight she has demonstrated, not only recently but as far back as 2004, of the importance of sibship relationships and bonds.
k)The matters raised by Mr O in his report.
In my view, the risks are real and overwhelm the other factors which would otherwise support the children living primarily with their Mother.
Children’s views
The change to the children’s primary care was, necessarily, abrupt and without warning. For the children to be distressed and for some time thereafter, as the evidence reveals, to plead and request to return to their Mother’s care is understandable. I would not be surprised at all when they have been seeing their Mother that they might express, even now, similar views. However, whilst I do not ignore all these wishes, the age and maturity of these children and the risks as I have assessed them to be, means that the wishes cannot be given determinative weight.
Nature of relationships
This factor allows the Court to consider relationships other than merely those between the parents and the children – particularly in this case with Ms C Martin and the extended maternal family. I have already made findings about the child/parent relationship. In my view, over time, despite any orders I might make, the relationships which the children have with Ms C Martin and the maternal family would dissolve if the Mother was the primary carer. She really sees no benefit to the children in those relationships other than on her terms. Ms J Martin, who is currently aligned with the Mother, would have an opportunity to spend time with the children if the children lived with the Mother. I assess that with the children living with Ms C Martin, not only will she be capable of supporting the children’s relationships with the Mother (provided it is safe) and the Father and the maternal family, in time and when Ms J Martin is ready to do so, engagement with her will occur.
Facilitation and encouragement of relationships
My concerns and findings in this respect are easily seen from the earlier reasons. I should mention that the Mother’s inability to encourage [X] to see the Father at [F]; and the number of failures for [Y] to see his Father then as well, adds to the overall impression that the Mother saw little value in them having a relationship with the Father, despite the positive feedback given by workers. Since the children have been placed in Ms C Martin’s care, and despite the regrettable behaviour associated with the allegations of sexual abuse and how they were handled by the Mother, all the evidence establishes that both [X] and [Y] do get some benefits from the relationships they have and are being nurtured, with the Father and Ms C Martin. The Mother is unlikely to accept that and with her underlying suspicions (at least) about earlier abuse by the Father and/or Ms C Martin), it would be hard for her to genuinely facilitate time with them. These findings are findings for the purpose of s.60CC(4) as well.
Effect of changes
I believe, in my earlier reasons, it is clear that the Court believes the change of moving the children back to the Mother’s care carries many more disadvantages and risks to these children than benefits. I do acknowledge, if it occurred, the children would be living with their current choice of parent and I could make orders for them to attend school. However, the other aspects of the Mother’s functioning and personality are so deeply engrained, it would be only a matter of time before the other support these children get from Ms C Martin, the Father and the wider family would be excluded.
Practical difficulties with contact
I accept, at the time of the hearing, that the practical difficulties associated with the Mother having supervised time were obvious and shaped the orders created by the ICL. In circumstances where I am not satisfied either Ms S or Ms J Martin would be suitable supervisors, reliance on either community based organisations or privately funded professional supervisors, is the only option and problematic.
Added to this dilemma is the concern I raised, about how any changes to a supervised regime could be assessed, mindful of course of the remarks of the Full Court in Champness & Hanson [2009] FamCAFC 96; (2009) FLC 93-407.
It is for this reason, together with a concern that since the hearing completed, six months has elapsed, that the recommendations for a six month period of no time at all needs to be reconsidered. I will take submissions from the parties at an agreed future date as to what options, in the best interests of the children, are now available in a practical sense.
Capacity and attitude to Parenting
I do not believe I can usefully add to what I have already said about my concerns about the Mother’s capacity and attitude to parenting. I adopt the evidence of the family consultant Mr O, that Ms C Martin (although young and inexperienced) has the capacity to parent and the willingness to learn and take support. That demonstrates a healthy attitude to parenting. No concerns, in respect of the Father’s capacity and attitude, save for matters already indentified as to his negativity towards the Mother arise on the evidence. In fact his concession that it was best for the children to live with Ms C Martin is evidence of his attitude.
Family violence
Issues of family violence do not really arise in this matter.
Orders least likely to lead to institution of further proceedings
Having decided that I should make a final order in respect of the children living with Ms C Martin and orders for the Father’s time with the children, I accept the Mother will be extremely unhappy and likely distressed by my decision. It is quite likely the Mother will seek to agitate a change.
As I set out below, I am, upon careful reflection of all the evidence, considering the making of an interim order in respect of the time the children spend with the Mother because of the uncertainties about what form of supervised time (which is all I am prepared to order on the evidence at this time) can practically be arranged. It was also clear that engagement with the State based Child and Adolescent Mental Health Service (CAMHS) is indicated, but that they were unable to be engaged without first knowing where the children were to live.
As a result, accepting the strong attachment the children do have with their Mother and the wishes as expressed, I would be anxious to ensure any orders for supervised time I put in place are:-
a)Practical and capable of being put into effect; and
b)Do not run counter to any therapeutic intervention from CAMHS that deals holistically with the needs of [X] and perhaps [Y] as well; and
c)Properly identifies and sets parameters for a review of the Mother’s time from supervised to possibly a graduation to unsupervised.
I accept that the issue of an appropriate “sunset clause” was tangentially raised in final oral submissions, however, the concerns about making a final order as to the Mother’s time as proposed by the ICL, really elevated to a significant concern during the preparation of these detailed reasons.
I am satisfied it is in the best interests of the children that they live with Ms C Martin and am comfortable in making that final order.
Upon reflection, after the parties consider these published reasons, and I then receive further submissions (and in a narrow spectrum maybe some further evidence in writing from Mr O), I believe I will be in a better position to make an order for the children to spend time with the Mother which will take account of the concerns raised above and will be in their best interests. Clearly, I will not be prepared to hear submissions on the final order I will make today, as the parties remedies lie elsewhere on those orders.
Conclusion
For the reasons set out, I believe the ICL’s proposals for [X] and [Y] are far more likely to be in their best interests than the Mother’s proposals.
In my view, the presumption of equal shared parental responsibility in this case is rebutted and not in the children’s best interests. The chronic inability for the Mother and Ms C Martin to communicate, coupled with the practical realities of the children living with
Ms C Martin and therefore being required to make decisions, perhaps quickly, means that Ms C Martin ought to have sole parental responsibility. I note the Father agrees with this order.
I accept that Mr H, as the biological father, has not been heard on this order so far as [X] is concerned, however, I am satisfied that once, as seems likely, he agitates for orders in respect of [X], the issue of parental responsibility for [X] may be enlivened.
I will take submissions from the parties as to how the further conduct of these proceedings relating to the ongoing supervised time of the Mother’s time with the children can be achieved.
I certify that the preceding one-hundred and sixty-three (163) paragraphs are a true copy of the reasons for judgment of Baumann FM
Date: 31 January 2012
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