Vilner & Vilner (No 5)
[2023] FedCFamC1F 378
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vilner & Vilner (No 5) [2023] FedCFamC1F 378
File number: SYC 5017 of 2020 Judgment of: BRASCH J Date of judgment: 18 May 2023 Catchwords: FAMILY LAW – PARENTING – Where the “least worst” outcome for the children is to be identified – Where mother poses an unacceptable risk of emotional and psychological harm to children – Where father has parenting deficiencies – Where children will not have a relationship with the father or paternal family if the children remain with the mother –Where children may have a relationship with mother if residence changed to the father – Residence changed. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3)(a)-(m), 61DA, 61DA(4), 65D(1), 65DAB, 106A
Cases cited: Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Cotton & Cotton (1983) FLC 91-330
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
G & C [2006] FamCA 994
Hickson & Matthew [2022] FedCFamC1A 161
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
In the Marriage of N and S (1996) FLC-655
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69; [1988] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Vilner & Vilner [2022] FedCFamC1F 240
Vilner & Vilner (No 3) [2022] FedCFamC1F 857
Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 345 Date of hearing: 20 – 24 February 2023 Place: Sydney Counsel for the Applicant: Mr Schonell Solicitor for the Applicant: O’Sullivan Legal Counsel for the Respondent: Ms Mahony Solicitor for the Respondent: C Lawyers Counsel for the Independent Children's Lawyer: Ms Rebehy Solicitor for the Independent Children's Lawyer: Blumberg Family Lawyers ORDERS
SYC 5017 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VILNER
ApplicantAND: MR VILNER
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
BRASCH JJ
DATE OF ORDER:
18 MAY 2023
THE COURT ORDERS THAT:
1.The father has sole parental responsibility for the children, X born 2013 and Y born 2016 (“the children”) for all major long term decisions being the following:
(a)the children’s education (both current and future);
(b)the children’s religious and cultural upbringing;
(c)the children’s health;
(d)the children’s name; and
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
2.The children shall live with the father.
3.The father is restrained from changing the children’s physical attendance at their current school prior to the end of the current semester.
4.Notwithstanding Order 3, the father is permitted to take whatever administrative steps are required to enrol the children so they can commence at the start of next semester at DD School situated at EE Street, Suburb FF NSW, and to assist in that enrolment:
(a)Pursuant to s 121 of the Family Law Act 1975 (Cth), the father may provide a copy of these orders to DD School and GG School Suburb E; and
(b)That the mother and father shall do all acts and things necessary to facilitate the children’s enrolment at DD School.
5.For a period of six (6) months (commencing from the date these orders are made), the children shall spend no time with the mother.
6.Upon expiration of Order 5 herein, the children shall spend time with the mother supervised by Connecting Families supervision service (or such other community based supervision service agreed to by the parties) for a period of two hours each week, or such other period as the parties may agree in writing, for six (6) months with the costs to be borne by the mother.
7.Pursuant to s 121 of the Family Law Act 1975 (Cth), the parents may provide a copy of this order to the supervision service/s.
8.Thereafter, and upon expiration of Order 6 herein, the children shall spend time with the mother each alternate Saturday from 10.00 am to 4.00 pm, or such other period as the parties may agree in writing, commencing on the first Saturday after the expiration of Order 6 herein.
9.For the purposes of Order 6, the parties will use any changeover location nominated by the supervision service/s.
10.For the purposes of Order 8 herein, if the parties cannot agree on a changeover location, changeover shall occur at a supermarket situated in Suburb HH Shopping Centre.
11.For the purposes of Order 6 herein, the mother is restrained by injunction from speaking to the children in a language other than English.
12.The mother shall not allow Mr BB to physically discipline either or both of the children.
13.The mother and father will take all steps necessary (if any) to ensure the mother receives information that parents would normally receive from DD School and GG School Suburb E, at the mother’s expense, (if any).
14.The father shall provide to the mother within seven (7) days of receipt of same:
(a)Copies of the children’s school reports in the event the mother cannot secure reports pursuant to Order 13 above; and
(b)Copies of any reports from specialist medical practitioners and/or allied health professionals.
15.Each party shall advise the other at the earliest opportunity if:
(a)Either or both of the children are admitted to hospital; or
(b)Either or both of the children are treated by a specialist medical practitioner.
16.Within seven (7) days of the making of these orders, the mother is to advise the father of all medical / specialist practitioners the children have attended in the last 12 months.
17.Pursuant to s 121 of the Family Law Act1975 (Cth), the mother and father have leave to provide a copy of these orders to the children’s medical / special practitioners.
18.The parties are to keep the other advised of their respective mobile number, residential address, telephone number and email address and are to advise of any changes to those details within 48 hours of any change.
19.Each parent shall keep the other informed as to the children’s routine and any extracurricular activities they may attend.
20.Both parties are restrained from denigrating the other parent or a member of their household or family in the presence or hearing of the children and shall immediately remove the child or children from the presence or hearing of any third party who does so.
21.Pursuant to s 121 of the Family Law Act 1975 (Cth), the father has leave to provide:
(a)Page 18 of the transcript of Dr R’s evidence given 24 February 2023 to the children’s school counsellors (being reference to the children benefitting from supports at school); and
(b)Dr R’s report dated 1 September 2022 and the transcript of Dr R’s evidence given 24 February 2023 to any family therapist engaged by the father.
22.Save as otherwise provided in these orders, in the event that either party refuses or neglects to comply with the provisions of these orders then the Registrar of the Court exercising competent jurisdiction shall be appointed pursuant to s 106A(1) of the Family Law Act 1975 (Cth) to execute all deeds and documents in the name of the father and/or the mother and do all acts and things necessary to give validity and operation to the said Orders.
23.The parties have liberty to re-list the proceedings on matters of interpretation or implementation of these orders, on the giving of seven (7) days’ notice to the other, by email to associate (via [email protected]), copying the other party.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vilner & Vilner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
OVERVIEW
This matter concerns protecting X born 2013 and Y born 2016 (“the children”) from harm and risk, in circumstances where both parents have deficiencies in their capacities to parent and responsibilities of parenthood. For the many examples given in these Reasons, I accept Dr R’s description:
…And ultimately, I’m very critical of both households collectively, and I’m including, you know, people for not protecting these children from, you know, a terrible conflict… But it really strikes me as an incredibly immature adult conflict that set these parties off, if I could put it in those terms.
(Transcript 24 February 2023, p.4 lines 25-27 and 35-37)
Sadly, for these children, their parents’ conduct is such that I am left making parenting orders that place the children in the ‘least worst’ outcome. Dr R said this:
…So a terrible choice has to be made, in my view, to salvage, you know, a least worst outcome…
(Transcript 24 February 2023, p.23 lines 2-3)
On one hand, it is said by the mother and Independent Children’s Lawyer (“the ICL”) that the father is: largely untested as a parent; can be emotionally dysregulated; and, that he and his wife have undermined the mother - for example taking X to the doctor for a hygiene lesson implying the mother was not properly caring for her. As explained in these reasons, I accept the father is an untested parent, can be emotionally dysregulated and has undermined the mother. He readily admitted his emotional dysregulation and is taking steps to reign that in. He also admits to drug addiction problems, but the evidence before me is that that is in remission.
The father’s partner, Ms W, participated in the trip to the doctor; that too was undermining of the mother. She seemed to have been a regular at changeovers, many of which were recorded. But, she is not an untested parent and has a son born in 2011. There is no evidence before me to suggest her parenting of that child has been deficient.
On the other hand, it is said by the father that the mother is a well-tested parent, and she has truly failed that test - for example: her proven, repeat contraventions of orders for time between the children and father; her writing the paternal family out of the children’s familial narrative; inserting her new husband and his family as the children’s paternal links; and, in directing X to damage the father’s property and complimenting the child when she did (Exhibit 7). For the reasons given below, I also accept the mother is a well-tested parent as the children’s primary carer, but a parent who has said and done the things to which I have just referred. I accept that in those instances (and others to which I refer) she has failed the children in her capacity to parent.
The mother’s partner, Mr BB, also has a poor understanding of parental capacity having turned his back on his own children when Mr BB and his then wife were separating and the children supported their mother. This was reported by Dr R as:
…He said that he told his daughters that he wishes them no malice but he cannot accept them back in his life because the “trust was gone” because “they crossed a line”. He said he told his daughters, “I don’t hate you - but you live with your mum and I will have a family of my own one day”. He told me that although it has taken him many years, he now has his own family [with [Ms Vilner] and the children] and he does not wish to have contact with his daughters and they need to move on…
(Exhibit 1, p.38 lines 1044-1049)
Mr BB agreed he said things to these effects. He too attends some changeovers.
Both partners seem to be just as invested in the adult dispute as the parents. It concerns me greatly that these children find themselves the objects of an intense tug-of-war. Or, as Dr R put it, an “ideological battle” between the adults “rather than any genuine concern about the children”:
Although it seems that the parents were able to co-parent in a functional manner for several years after their separation, in late 2020 they had significant conflict about financial matters. I have formed the view that financial disagreement, and subsequent ideological battles about control, have been the genesis of the parents’ dispute, rather than any genuine concern about the children. The fact that the parents accepted the involvement of the other parent in the children’s lives and did not raise any concerns about the children’s safety until after the financial disagreement has confirmed this view in my mind.
(Exhibit 1, p.51 lines 1478-1484)
I accept Dr R’s opinion. It accords with the evidence before me and findings I make in these Reasons.
Orders sought
The father says the mother poses an unacceptable risk of psychological/emotional harm to the children. He therefore seeks orders that the children live with him, have a six month moratorium on time with the mother, then supervised time with her, and eventually, unsupervised time each alternate Saturday from 10.00 am to 4.00 pm.
The mother is certainly very critical of the father. She gave evidence the children do not love the father. She maintained that the children were in fear of the father, scared of him, hated him, and did not like him. She believed the father’s partner Ms W had taken naked videos and photos of X. She said the father was a risk to the children.
Yet there was a disconnect between many of the mother’s answers in cross-examination and the orders she sought. That is, at the start of trial the mother proposed orders that after four weeks of therapy, the children’s time with the father be unsupervised, culminating in alternate weekends for the children with the father (Friday to Monday) and half holidays for the three shorter holiday periods and a two week block in the December-January period. On that proposal, the mother cannot be saying the father poses an unacceptable risk to the children.
By the end of trial, the mother adopted the ICL’s proposal that the children spend time with the father as agreed between the mother and father, or failing agreement, for up to five hours on one occasion during each school holiday period (with such time to be supervised for the first four visits), and, for dinner on the last Friday of each month for three hours with the father and paternal family. Even on that proposal, it is hard to see how either the ICL or the mother could assert the father was an unacceptable risk to the children, being “good enough” to quickly move to unsupervised time, albeit of short duration, each month and during holidays.
Indeed, neither the ICL nor the mother submitted the father posed an unacceptable risk of harm to the children. Their submissions focused on what a change of residence would mean to the children. Nevertheless, I will assess the harm which the father may pose to the children under my consideration of s 60CC(2)(b) and the relevant s 60CC(3) factors.
Background
The father, Mr Vilner, was born in 1976 (“the father”). The mother, Ms Vilner, was born in 1985 (“the mother”) (“the parties”) (“the parents”). Both were born in Country XX. The parties married in early 2009 in Country XX.
In December 2018 or January 2019, the father said the parties separated under one roof. The mother said the date of separation was 20 April 2019. The father agreed they physically separated in April 2019. I do not need to resolve the specific date of separation. No one asked me to, but when I refer to separation or post-separation I am referring to the physical separation.
At the time of physical separation, the children and mother were living in Sydney and the children were attending a religious school and religious early learning centre.
For a time post separation, all went along well enough, with the parties and their new partners engaging with each other. For example, the mother said once the father moved out in April 2019 there was no particular arrangements; rather, the father would just come over “when he wanted”. This was attributed to the mother in Dr R’s report at line 356:
[Ms Vilner] agreed that after separation there were several years when they were coparenting successfully. She said that she had a good relationship with [Mr Vilner] and with [Ms W] and would cook for them and have them over to her home…
(Exhibit 1, p.17 lines 356-358)
In cross-examination, the mother agreed the children spent time with the father on the weekends and throughout 2020 would have block holidays with the father. The mother also accepted that there was a time the parties, their partners and the children would share dinner.
In this post-separation period, Mr BB said they were “all best friends” at the time and that the children would see the father every second weekend and every few days when he came to their house (Exhibit 1, p.38 line 1064). In cross-examination he preferred “good friends” but accepted the frequency of children-father time.
Accordingly, I accept that in this post-separation period, the parents did co-parent.
The father and paternal grandmother paid the mother’s rent at a Suburb JJ unit when the mother moved there in mid-2019 up to the end of 2020. However, in late 2020, the paternal grandmother emailed the mother that she would not be paying the mother’s rent from December 2020. This is the financial dispute Dr R referred to as being the catalyst for subsequent troubles. The mother also told Dr R that “things hit a turning point when the paternal family gave her no notice to vacate the home” (Exhibit 1, p.17 lines 363-364). I agree. It is clear that the email about rent started the conflict between the two camps, which is now intractable. The children find themselves in the middle.
In late 2020, unbeknown to the father, the mother then enrolled the children at Mr BB’s alma matter, a Christian school at Suburb E and nominated a Suburb E General Practitioner on the school form. There was no mention of the father on the enrolment form. Mr BB’s mother was nominated as an alternate contact. The mother put both children down as Christian, even though they are of a different faith. Mr BB is Christian and the mother has converted to that faith. The father was not even mentioned in the section labelled “details of parent with whom the child does not reside”. It was the mother and her partner Mr BB who met the principal at the Suburb E school. The father was not advised of the meeting, or the enrolment at the time.
By letter of 22 December 2020 (Exhibit 6), the mother advised the father she and children were residing at a specific address in Suburb KK. Yet, the very next day, 23 December 2020, the mother, Mr BB and children moved to Suburb E. The mother did not tell the father about the Suburb E school until January 2021 (Mother’s affidavit filed 6 February 2023, paragraph 66 and Exhibit 4, p.7-8).
The parenting proceedings
On 25 July 2020, the mother filed proceedings. Initially she applied for property orders and subsequently added Child Support. On 30 January 2021, the father joined parenting to the proceedings.
On 11 March 2021, final property orders were made.
On 24 May 2021, interim orders were made by consent that, in summary, the children: live with the mother; spend six months of supervised time with the father along with a range of drug tests requirements; and, upon six months of negative tests, the children’s time with the father be unsupervised from Friday to Sunday in alternate weeks and half of school holidays at the end of Terms 1, 2 and 3. Orders were also made for specific issues and communications.
On 16 June 2021, interim orders were made by consent for specific school holiday time and special occasion time. The mother was also restrained from bringing up the children in any faith other than the faith of the father and restrained from enrolling the children into any other school.
I repeat the background from the ex tempore reasons in Vilner & Vilner (No 3) [2022] FedCFamC1F 857 (“the Contravention Reasons”) at [13] – [21]:
On 6 July 2021, the mother suspended the children’s time with the father. On 16 November 2021 and then on 3 December 2021, the father filed two contravention applications. The first alleged the mother:
(a) Breached time orders on two occasions (5 October 2021 and 29 October 2021);
(b)Breached communication orders on two occasions, once in relation to [Y] on 27 October 2021 and once in relation to [X] on 3 November 2021; and
(c)Breached parental responsibility orders on 8 October 2021 by not advising the father of a non-urgent medical or health appointment for [X].
The second contravention application alleged the mother had breached time orders on 12 November 2021. [X] did not attend school. Changeover was to occur therefore at McDonald’s.
Both contravention applications were listed for hearing before [a Senior Judicial Registrar] on 6 April 2022 and judgment was handed down on 29 April 2022. I will set out the outcomes as part of this chronology. Suffice to say, the Court found that the mother did not have a reasonable excuse for five of the six contraventions alleged and found that she had, in fact, contravened those five orders.
On 1 September 2021 - that was before [the Senior Judicial Registrar’s] hearing - there was a contested interim before [another Senior Judicial Registrar].
On 8 October 2021, [the Senior Judicial Registrar] handed down his reasons and orders. They were in summary:
(a)The Children live with the mother;
(b)There be a short period of supervised time between the children and the father, with the father to submit to urinalysis;
(c)Upon compliance with the testing, time would move to unsupervised time two nights, then three nights a fortnight;
(d)Provision was made for half holidays for school holidays that fell at the end of Terms 1, 2 and 3;
(e)Communication and various specific issues were made; and
(f)An order was made for Reportable Family therapy. I have in evidence before me the Report of [Ms Q].
…
On 6 April 2022, both contravention applications were heard before [a Senior Judicial Registrar]; she reserved her decision.
On 29 April 2022, [the Senior Judicial Registrar] found the mother contravened five of the six contraventions alleged, without reasonable excuse. The Court found that the mother had a reasonable excuse in relation to the failure to notify the father of [X’s] medical appointment. [The Senior Judicial Registrar] ordered, again, in summary:
(a)The parties (and the children) to attend the Registry for the Child Court Expert to explain the orders to the children, assist the parents with handover, and assist the mother with suggestions as to how best to encourage [X] to spend time with her father;
(b)For the children to spend time with the father from the conclusion of that s 11F appointment with Child Court Services;
(c)Restrained the mother from collecting the children from school on days they are meant to spend time with the father, unless the children are ill or need to be collected early and the father had advised the mother he was unable to collect the children; and
(d)Order 17 of Orders made 8 October 2021 be varied so that each party advise the other in no more than three hours if either child is hospitalised, attends a medical practitioner, or is seriously injured or ill whilst in their care.
The s 11F appointment was the first time [X] had spent time with her father since July 2021.
The next events of substance are as follows in the Contravention Reasons at [25] – [40]:
The mother said that [in] May 2022, [X] told her that her father made threats, twice, to kill the mother and on one occasion, her step father. Several days later, […], the mother caused her solicitors to write about that to the father (Mother’s affidavit filed 10 October 2022, paragraph 19).
[In mid] 2022, some 11 days after the mother was told what she said she was told, the mother took [X] to the police where she reported that […] at a school pick up, the father threatened to kill the mother in [J Language], and, again threatened to kill the mother [the next day]. The police took a recorded statement and applied for a provisional ADVO with the condition that the father not approach or contact [X] unless through a lawyer. It does not seem that that ADVO was actually applied for on or around that date.
I was asked to and I have listened to and watched the video of the child’s interview with the police [in mid] 2022; it is marked Exhibit 1. I observed the mother to tell the police, in front of the child, that the child did not want to go to her father’s home, that she had to go because of the court order, and when he picked her up (that is, when the father picked up [X]) he (the father) told her (the child) that he (the father) was going to do something, but the audio quality is such that I cannot make out if the mother used the word ‘kill’.
The child then told the police in a rather matter of a fact way that the father said he would kill mummy and her step father [Mr BB], and then on a second time said he would kill mummy. This was all said in [J Language]. However, the child earlier confirmed she “sort of” understood [J Language]. During the interview, even though the child said she was scared and a bit worried, she was also smiling at times.
Why the mother waited 11 days to make a report of something so serious is a mystery. I see in correspondence she said she sought support from family. But this does not make sense when seen in light of what the mother told [Dr R] about this at line 232 and following:
the mother said she felt that this was a credible threat. “I know that he is capable of killing me”. She said that [Mr Vilner] is friends with bikies, has a friend in jail and has associates who are involved in organised crime.
(Report of Dr R dated 1 September 2022, lines 232-235)
In submissions, I was told without contradiction, that the mother has never sworn to any such serious things. It is hard to accept that the mother, if truly worried that this was a credible threat and concerned about bikies and organised crime, that she would have waited 11 days to go to the police. Whilst I cannot make findings today one way or the other about this, I can express my concern about the apparent inconsistency between the mother’s words and belated actions.
The chronology continues. On 14 June 2022, the father filed an application to change the parenting orders on an interim basis. On 15 June 2022, [a Senior Judicial Registrar] made orders that:
(1)The mother enter into a bond to be of good behaviour without surety and without security for 24 months; and
(2)A Costs order of $34,408.55 in the father’s favour arising out of the father’s contravention application, to be paid within 30 days.
As at the date of hearing [the contravention hearing on 24 October 2022], the costs order had not been complied with (see also the Father’s affidavit filed 15 Oct 2022, paragraph 9).
…
[In mid] 2022, a provisional ADVO was made arising out of the alleged threats to kill [approximately a month earlier]. But the mother swore in her affidavit that she did not know who was covered by it…
…
[In mid] 2022, a mere nine days after the bond and costs order, the mother again stopped time – this resulted in the contravention that was before me. On 8 July 2022, the father filed an application with respect to the contravention of the bond; that was also before me. At the hearing before me, the mother conceded she had breached the bond.
…
On 15 July 2022, the father filed a contravention application with respect to time and that was before me too. At the hearing before me, the mother conceded, appropriately, she had contravened the relevant orders without reasonable excuse.
On 19 October 2022, the father filed what I will call the enforcement of costs application. That will have to be determined on another day [the costs were subsequently paid]. […] the Police withdrew the ADVO and the application was dismissed (Father’s affidavit filed 20 October, paragraph 8).
The Contravention Reasons continue from [48] – [50]:
By the time of hearing, the mother conceded, as I said, she had contravened the Order and without reasonable excuse. She also accepted that put the contravention as more serious.
…
…By the time of hearing, the mother appropriately conceded she had breached the good behaviour bond.
On 1 November 2022, and amended on 8 November 2022, I relevantly ordered:
1.The mother, without reasonable excuse, failed to facilitate the children [X] born […] 2013 and Y born […] 2016 spending time with
herthe father on 26 June 2022, in breach of Order 7(b) and 9 of the Order made 8 October 2021.2.The mother has, without reasonable excuse, failed to comply with the bond she entered into with the court pursuant to Order 1 of the Orders of 15 June 2022.
The mother was required to enter into a new bond with a surety of $50,000. In the event the mother failed to lodge the surety, then, orders were made restraining the mother from selling, transferring, further encumbering or otherwise dealing with her interest in a house for a period of 24 months. The mother agreed to a separate order that she pay 10 penalty units for her breach of the original bond.
In terms of the competing parenting applications, some orders of minor consequence were varied and the following time orders made:
12.In addition to time with Orders already in force, the children shall spend time with the Father:
(a)During the end of Term 4 2022 school holiday period for the first two weeks, starting when school finishes, and for the last two weeks of the school holiday period, concluding when school returns; and
(b)During the short school holiday periods in 2023, being the end of Terms 1, 2 and 3, overnights for the first 10 days starting from the day when school finishes.
(Order 12 of the orders made 1 November 2022 and amended 8 November 2022)
Subsequently, on 15 December 2022 the father filed an Application in a Proceeding asking that the matter be listed on an urgent basis, expedition of the final hearing, a suspension of his own time with the children, suspension of communication orders and orders relating to counselling for both the children and the father.
The father’s application arose in circumstances where the father alleged the time was causing the children distress and they were under the impression the father and Ms W wanted to kill them. The father also deposed to the children making threats against himself and Ms W.
When that Application in a Proceeding came before me on 9 January 2023, the suspension of time and communication orders were made by consent. I also offered the parties trial dates commencing on 20 February 2023, to which all parties agreed.
Material
All parties filed Case Outlines.
The father relied upon:
·Affidavit of Mr Vilner filed 6 February 2023;
·Affidavit of Ms W filed 6 February 2023 – to avoid confusing this Ms Vilner with the mother or the paternal grandmother, I will refer to her by her previous last name, being Ms W. I mean no disrespect in doing so;
·Affidavit of the paternal grandmother Ms LL filed 8 February 2023;
·Affidavit of Mr BB’s ex-wife Ms NN filed 6 February 2023; and
·Affidavit of Mr BB’s daughter Ms MM filed 7 February 2023.
The father’s Further Amended Initiating Application was filed on 14 March 2021.
The mother relied upon:
·Affidavit of Ms Vilner filed 6 February 2023; and
·Affidavit of Mr BB filed 6 February 2023.
The mother’s Further Further Amended Response to Initiating Application was filed 26 August 2021.
The ICL relied upon:
·Report of Dr R dated 1 September 2022 (Exhibit 1); and
·Report of Ms Q dated 24 March 2022 (Exhibit 2).
During the course of the trial 30 Exhibits came into evidence.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge to refer to every piece of evidence or argument presented during the trial in reaching a decision. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
LEGAL PRINCIPLES
Parenting proceedings – Legal principles.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 65D(1) of the Act provides that this court may make such parenting orders as it thinks proper, subject to ss 61DA (equal shared parental responsibility) and 65DAB (re parenting plans and irrelevant here). Section 60B of the Act sets out the objects and principles of Part VII as follows:
The objects are to ensure that the best interests of children are met by:
•ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
•protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
•ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
•ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
In Masson v Parsons (2019) 266 CLR 554, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted at [8] that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.
Parental responsibility
Both parties sought an order for sole parental responsibility in their favour. The ICL supported making a sole parental responsibility order in the mother’s favour.
The presumption of equal shared parental responsibility in s 61DA of the Act may be rebutted “by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”; s 61DA(4).
I am satisfied the presumption is rebutted because of the parents’ “immature adult conflict”, “ideological tug of war” (citing Dr R’s evidence), complete lack of trust in the other, and, their inability to communicate. These parents could not share anything, much less major long term decisions concerning the children. For example, after the father and Ms W took X to the doctor to examine some spots and for a hygiene lesson in early 2021, he then bought a bottle of QV wash. At the next changeover, the father tried to give it to the mother. That turned into conflict between the two camps, with the mother ultimately throwing the cream on the ground. The parties disagree whether the children saw this. The children were there. Even if they were in the car and did not see the father undermining the mother, and, the immature petulance of the mother, they would have heard and at least felt the conflict.
The idea of these parents sharing major long-term decision making is fanciful. I therefore make a sole parental responsibility order in favour of the father; I do so because the children will live with the father for the great majority of their time.
Having determined the issue of sole parental responsibility to the father, I am not required to engage with s 65DAA which would have required I consider the children spending equal time, or significant and substantial time with the parents.
Best interests of the child
Section 60CA of the Act provides that “[i]n deciding whether to make a particular parenting order in relation to the children, a court must regard the best interests of the children as the paramount consideration”.
The best interests of a child are determined by an examination of the considerations set out in s 60CC of the Act. In Tibb & Sheean (2018) 58 Fam LR 351 at [74]–[78], the Full Court made clear that while the court must consider each of the primary and additional considerations in s 60CC, express discussion is not necessary. The relevant considerations are determined by the way in which the parties presented their cases.
The primary considerations set out in s 60CC(2) of the Act are as follows:
•the benefit to the child of having a meaningful relationship with both of the child’s parents; and
•the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court give greater weight to s 60CC(2)(b).
Section 60CC(2)(a): a meaningful relationship
In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169]:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
In Loddington Cronin J further added at [173] that an assessment of the benefit to the child must be made according to “the peculiar facts of what the parents are offering”.
In Cotton & Cotton (1983) FLC 91-330 (“Cotton”), Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
… that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In McCall & Clark (2009) FLC 93-405 (“McCall”) at 83,476, the Full Court said at [122]:
…No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent, if this would not be in the child’s best interests.
In McCall at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a ‘prospective’ one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents will be of advantage to a child”. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
On both parties’ cases, the children will have a limited relationship with the other parent.
Dr R was of the view that the children may well lose their relationship with the father if they remain residing with the mother. For the many reasons I give under the next heading, I have no confidence that the mother will psychologically or emotionally support the children having a relationship with the father or the wider paternal network, let alone a meaningful one. Her actions and inactions belie her words that she has and she will.
It was also Dr R’s opinion that if the children resided with the father, then they may well lose their relationship with the mother. I am not persuaded by that. Unlike the mother, the father has a plan for supporting the children should residence change and included in that is professional help and “working hard” to get the mother back in the children’s lives.
Section 60CC(2)(b): protection from harm
The second primary consideration in determining a child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Appeal Division of the Court in Isles & Nelissen (2022) FLC 94-092 (“Isles”) summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Appeal Division said that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The five judges of the Isles Court also said of the decision in In the Marriage of N and S (1996) FLC-655 at [12]:
Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child (at 82,713-82,714) and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm (at 82,714)...
The Isles Court at [35] went on to quote Tree J in Bant v Clayton (2015) 53 Fam LR 621:
171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
The Isles Court agreed with and adopted Austin J’s judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
In Hickson & Matthew [2022] FedCFamC1A 161, Deputy Chief Justice McClelland said this of Justice Austin’s analysis at [39]:
Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A[1998] FamCA 25; (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page[2007] FamCA 1235; (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”
Analysis
I will consider and assess risk in two parts:
(a)The existence of risk posed by the mother to the children, and, if any, the magnitude of possible harm to the children; and
(b)The existence of risk posed by the father to the children, and, if any, the magnitude of possible harm to the children.
The mother: Secret signals and encouraging a child to deface the father’s wall
The mother readily admitted that when X was with the father and communicating with the mother, she (the mother) and X had a secret thumbs up and thumbs down signalling system to indicate if the father or Ms W were near the call, or were taping the communications. This was and is a secretive and undermining thing for the mother to do, propose or even agree to. It is even more concerning that when asked, the mother indicated she did not have a problem with the secret signalling and thought it was entirely appropriate.
Dr R said this of the mother’s secret signalling with X:
…it adds to my concern about the mother’s insight and her – specifically about her understanding of [X’s] need to have – be – be parented by her father and be cared for competently in that household and to not become a spy for her. I mean, it’s the same concerns I’ve had all along about the absolute inability to be a mature adult about it and to allow this poor child to be relieved from reporting back and the – be the go-between. Well, no. That’s not being – being – being a sort of secret agent on her behalf. It’s conspiratorial. It’s really poor parenting.
(Transcript 24 February 2023, p.40 lines 10-17)
The secret signalling was entirely inappropriate because it made X her mother’s spy when X was with her father. It is also utterly undermining of the father. That the mother thought it appropriate tells me she is likely to continue with such harmful conduct in the future.
Exhibit 7 is an agreed transcript summary and video of X on a FaceTime call with the mother, when X was at the father’s. The recording is from 15 October 2022, being after a Senior Judicial Registrar’s contravention judgment and orders (Vilner & Vilner [2022] FedCFamC1F 240). Plainly, the mother was able to get X to attend on her father on this occasion.
I do not know whether the mother specifically consented to that recording, but it was very clear that the mother was aware that the father was probably recording it. She had alleged that for a long time. The almost 14 minute FaceTime call warrants consideration.
First, in the 14 minutes, the mother asked the child a couple of questions about her day the day before and what she did, but it was the child who initiated the conversations with the mother. Nowhere did the child indicate she was scared or stressed being at the father’s home. She said nothing negative of her time there, the father or Ms W. She is bright, upbeat and sparky at least in that small window of time.
Second, the mother and child visibly engaged in the thumbs up and thumbs down secret signalling system to which I have already referred.
Third, the mother clearly mouthed words to the child, so others who may be listening could not hear. She readily accepted in cross-examination that she whispered to the child “are they recording? Is someone recording?”. The mother knew fair well the father and/or Ms W were probably recording; she has complained about it for some time. For the same reasons given with respect to the secret signalling, questioning the child in a whisper about recording is inappropriate too. The mother is bringing the child front and centre in to the adult dispute, by not only involving her, but also making the child the mother’s eyes and ears and to report on the father.
Fourth, toward the end of the video the child told the mother she was colouring in. The mother then made a circling movement in front of her, pointing to the colouring in material, and then very clearly pointed to the wall behind her. She did that a second time very clearly signalling to the child to take the colouring pens and draw on the father’s wall. X then went out of video vision and then turned the device around to show that she (the child) had drawn on the father’s wall. The mother says “very nice colouring”. A little later, the child’s drawing can be seen on the wall again. The mother is smiling.
The mother denied pointing at the wall. It is plain she did and is recorded on the video doing so. Encouraging the child to deface the wall and complimenting her for doing so are truly appalling things for the mother to do to X. It is harmful to the child understanding right and wrong. It is the antithesis of the mother saying she supports the children having a relationship with the father. In quite the understatement, the mother’s counsel submitted, “it was not a good look”.
Further, maintaining her denial despite the clear vision in the video and agreed summary does the mother no credit. Amongst other things, the agreed summary of the video (Exhibit 7) says this:
Video Timing Observations 11:50 Child says she is colouring doll’s hair 11:55 Mother points “around” then points to wall behind her and mouths something 11:58 Mother does pointing around and behind her 12:32 Child shows Mother wall – drawings there 12:35 Mother says “very nice colouring” 12:40 Child shows drawing on wall again
It has long been an allegation of the father that the mother encourages the children to behave badly when with him. On the strength of the video (Exhibit 7), I safely find that the mother has at least caused X to commit property damage on the father’s property and complimented her for doing so. This is not responsible parenting. It demonstrates a lack of capacity to parent too. It causes harm to the child in understanding right and wrong and acceptable societal boundaries. It shows disdain for the father which is conveyed to X.
On being told of this, Dr R said:
[FATHER’S COUNSEL]: Now, for the purposes of this next question, assume for a moment that her Honour will find that there is evidence in these proceedings that the mother has used FaceTime calls with the children once they’re in the father’s care. So the children are in the father’s care in the September ’22 holidays, have a FaceTime with their mother and that their mother is observed directing [X] to draw on the wall of her father’s home. Now, if her Honour makes that finding, what, if anything, does that do to your concerns about the mother’s behaviour towards the children in terms of their relationship with the father?---
[DR R]: Okay. If – if that – if the court makes that finding, my concern would be – to be clear, I have no confidence that the mother is supporting the children’s relationship with the father - - -
[FATHER’S COUNSEL]: Yes?--- - - -
[DR R]: irrespective of the court’s findings about whether she has explicitly directed them or not. So I don’t have any confidence that the mother – I think the mother believes that the children are better without their father and does not want them to have any contact with him. I’m very clear about that irrespective of the court’s finding - - -Court’s findings?--- - - - in this matter. If the court, however, finds that the mother has done that, explicitly directed the children to do something not just noncompliant for the father, but just a noncompliant act, remembering the sort of child that [X] is, a compliant, good little girl who doesn’t want to upset teachers, the school principal. She likes to be – to please others. If the mother has directed her to do something as sort of malicious as writing on the walls in the house, something that she knows is wrong, what it would cause me concern about is the mother’s overall parenting capacity, which is a sort of separate issue from what you’re asking me about.
[FATHER’S COUNSEL]: Yes?---
[DR R]: And it would cause me to think the mother may have – if she has explicitly done that, not just suggested and sort of given the children ammunition in subtle comments, but if she has directed them in that way, then it causes me to have concerns about whether she would do that in other contexts. So, for example, if [X] – you know, if there was a disagreement – I’m making this up, but hypothetically, you know, between [X] and a teacher in the future or another peer or another child’s parent that the mother could not stop herself or wouldn’t have the restraint or the insight to stop herself from using the child to sort of enact revenge in really basic terms and irrespective of the impact of that action on [X]. So I think it’s a – if that has happened, that would be a reprehensible sort of parenting act, and it – it causes me to have concerns about the mother’s overall parenting capacity.
(Transcript 24 February 2023, p.31 line 32 to p.32 line 20)
When told of the praise the mother gave X, Dr R said the following:
[DR R]: Sorry. I – I’m actually really quite shocked about that if that – if that has happened.
…
[FATHER’S COUNSEL]: … What, if anything, does that do to your assessment about the risks in each of the parents’ household in terms of the proposals that are being made?---
[DR R]: It – it sort of undermines my confidence in being able to say the children’s sort of other outcomes in the mother’s household are going to be okay. Sort of I’ve been operating on the premise that if they’re left in the mother’s household, then they’re likely to continue to go to school, have good peer relationships, go to their extracurricular activities, those psychological resources are likely to be preserved – intact and preserved because if that is an indicia of the mother’s lack of adult restraint and she is willing to do something as devastating to [X] as instruct her and reward her to do something that is so clearly wrong in [X’s] mind and so noncompliant and, you know, defacing a wall in a house, then it – I’m concerned that the mother – that that aspect of the mother’s personality or lack of parental restraint may operate in other contexts. I’m not talking about with the father now. I’m just talking about in general, which – I mean, that’s a pretty – it’s a fairly basic parenting task to teach your children to be good, decent people and to do the right thing even if you as a parent, you know, don’t feel the other person deserves it. It’s – it’s, you know, akin to just, you know, dispute the referee’s call if you don’t like a call. So I’m – I’m less confident about predicting that the children – that those aspects of the children’s outcomes are known and predictable.
(Transcript 24 February 2023, p.33 lines 17 and 26-44)
This is very troubling expert evidence, which concerns me greatly as to what the mother may do in the future even if the children are only spending the infrequent time with the father as proposed by the ICL and adopted by the mother. Yet, the expert opinion assists considerably in conducting the predictive exercise I am required to engage with and will do so once I have finished looking at the mother’s conduct.
It also troubles me greatly that the mother conducted herself as she did on the video after the Contravention Reasons of the Senior Judicial Registrar had been delivered where the mother was squarely told that her conduct would be under the spotlight. For example in Vilner & Vilner [2022] FedCFamC1F 240 at [96], [99], [100], [110] the Senior Judicial Registrar said:
96. Based on the evidence, I am satisfied that there is a risk of harm to the children if they remain living with their mother. The mother clearly does not think that [X] at least should be spending time with her father. There is a risk that the children will develop a negative view of their father that will impede their ability to have a positive relationship with him. There is also a risk that the mother, through her unwillingness or inability to promote a relationship between children and father, will place the children at risk by not physically enabling the children to have a relationship with their father.
...
99.Given the concerns I have about the mother’s ability to promote and foster a relationship between the children and their father, I have seriously considered the father’s application for the children to live with him. I am extremely concerned that if this situation is left unchecked there is a real risk that [X] will not have any relationship with her father. Whilst it was not the subject of any application before me, I am also concerned that [Y] may also not be being supported to have a relationship with his father in the way that he should.
100. That being said, it is a drastic step, especially on an interim basis ...
…
110.That being said, I wish to be perfectly clear that the mother has an obligation, after this initial changeover, to ensure that [X] attends time with her father as ordered. I encourage the mother to have particular regard to paragraph 64 of these reasons. The mother is required to take positive, proactive steps to ensure that [X] goes to spend time with her father. If she does not do so, a future court may have no opportunity but to conclude that the only way these children can have a positive relationship with their father is for them to live with him.
The mother submitted that after the contravention application heard by me, she complied with orders. But that is rather hollow – the orders were only in place from 1 November 2022 to 15 December 2022, and only three visits had occurred by the time the father applied to suspend time given how poorly behaved and distressed the children were when they came to him. For the reasons that follow under the next topic, I find it more probable than not that during that short period of time when the children did attend on the father’s home and engaged in communications (after my 1 November 2022 Contravention Orders), the children behaved so badly because they were either told or requested to do so by the mother, or, they knew that was expected of them by their mother.
The mother: Encouraging the children to behave poorly / telling them what to say
The father has long alleged that the mother encourages the children to behave poorly when with him. For example, the father deposed as follows with respect to a visit on 27 May 2022:
…[Y] began throwing books at [Ms W] with him saying, “I hate your […] skin… I’m going to go to the neighbours and call the Police and tell them to put you in gaol… you’re not my mum and I don’t love you”. There was further conversation. I had a conversation with [Y] whereby I explained that his behaviour is completely unacceptable. He accepted he needed to apologise to [Ms W]. [Y] and I went back to [Ms W]. [Y] said (crying), “I am sorry but mummy makes me do this to you…Mummy tells me to do karate and not listen to you.”…
(Father’s affidavit filed 6 February 2023, paragraph 197(e))
Exhibit 7 lends support to the mother encouraging X to behave poorly and given what transpired in the Family Report (below), I have no difficulty in accepting the mother has done similar to Y.
Critically, Dr R said this in her Report:
A few minutes into the interview, [Y] spontaneously said “I like you. You’re my favourite person that I have to talk to”. He then said, “mummy said you have to tell the lady all about [Ms W] and [Mr Vilner]” [the father] and that he was going to “shout and yell” at me, but he had now decided not to because I was nice…
(Exhibit 1, p.43 lines 1232-1235)
[Y] later told me that his mother had told him what to say to me [“the lady”], including telling me “all the bad things” about his father and [Ms W].
(Exhibit 1, p.58 lines 1704-1706)
These interactions led Dr R to say:
I am strongly of the view that the children, and particularly [X], have been inappropriately exposed to adult conflict and directed to express specific views. I am also of the view that [Y] was instructed [either explicitly or implicitly] to behave negatively toward his father during the observations and was told to report negative things about his father to me.
(Exhibit 1, p.52 lines 1525-1528)
…However, it was clear to me at interview that [Y] had been coached and prepared to behave in an extremely negative way towards his father.
(Exhibit 1, p.57 lines 1681-1683)
…This presentation was extremely concerning to me and suggests that the mother was prepared to manipulate a five-year-old child, without any regard to the emotional toll on him, which was clearly significant.
(Exhibit 1, p.57 lines 1690-1693)
I have no reason to doubt the accuracy of Dr R’s reporting and expression of opinions. It was not suggested to the Single Expert that she had misinterpreted what Y said.
Consistently, Ms Q said this in her report:
As tends to occur in this age-group and for which he cannot be in any way blamed, he had a bit of a problem with remembering what he was supposed to say in his first interview – this observation is not inferential but based on what he actually said, which was “I forgot what Mummy said [to] say”. He also told me that [X] would tell me the “truth, although he did not know what [X] would tell me the truth about.
(Exhibit 2, p.2)
The mother said Y just says things to change the topic. The father agreed, as a general proposition, that Y can do that. Yet, it is the mother who has demonstrated, through Exhibit 7, that she will encourage anti-social behaviour. I also find it improbable that Y would say, essentially, ‘mummy said ...’ to both Ms Q and Dr R months apart, as the way to change the topic. I much prefer Dr R’s and Ms Q’s reporting over the mother’s convenient explanation for two different events some months apart. I accept that Y reported as he was instructed by his mother, or otherwise understood what he was expected to do.
I find Dr R and Ms Q’s accounts of Y’s words and conduct described above occurred as reported and for the reasons articulated by Y. As a corollary, I therefore find, on the balance of probabilities that the mother has encouraged Y to behave poorly whilst he is with the father. I further find the mother told or suggested to the children what to say to the two experts and told Y to behave poorly when with the father and Dr R.
On the strength of Exhibit 7 and the mother’s conduct with Y described above, I therefore have no difficulties in extending these findings to include X – that the mother has encouraged X what to say and do, or if not direct encouragement, then given X the understanding of how she is to conduct herself.
I find these are further inexcusable instances of the mother using the children as swords in her fight with the father, irrespective of the impact on the children.
The mother: re-writing the children’s paternal history
I have already referred to the mother and Mr BB unilaterally completing the children’s enrolment at the Suburb E school, nominating Mr BB on the form, Mr BB’s mother as an emergency contact, excluding any mention of the father, and identifying the children as Christian. The children are of the father’s faith. The school was Mr BB’s old school.
Dr R reported the mother as follows:
She said that they both want to forget about [Mr Vilner], move on with their lives and that they are happy and content as a family unit.
(Exhibit 1, p.16 lines 325-326)
In cross-examination the mother denied saying this. Dr R was not challenged about this. I prefer and accept Dr R’s reporting. What is attributed to the mother is entirely consistent with the mother’s modus operandi in preferring Ms MM’s status in the household over the children’s truthful paternal links and narrative – the school enrolment is but one example. Other examples emerge in these Reasons including the children referring to Mr BB as dad, Mr BB’s family as their family, and Y thinking he is of Country OO heritage or speaks Country OO language. What the mother said is also consistent with Mr BB telling Dr R that they wanted to move on with their lives (Exhibit 1, p.40 lines 1108-1109).
The mother was asked whether the children have a positive relationship with the father; she said no. The mother was then asked if it was of benefit to the children to have a relationship with the father; she said yes. She was unable to articulate any specific benefits to these children of having a relationship with their father. Mr BB said the father is “mentally unstable of some sort”.
This is not the first time the mother has been asked about the benefits to the children of having a relationship with the father. Commencing at line 401, Dr R reported:
I asked [Ms Vilner] whether she thought there were any positive attributes of [Mr Vilner]. She appeared to be confounded at this line of questioning. She said she did not know or could not think of anything positive about him, but also said “I am not saying he is a bad dad”.
(Exhibit 1, p.18 lines 401-403)
In cross-examination the mother said:
[THE MOTHER]: As I said every kid needs a relationship with their parent ---
[HER HONOUR]: No you are being asked about your children ---
[THE MOTHER]: yeah any, I want my kids to have a relationship with their father and that’s it like any kid ---
[HER HONOUR]: You are being asked why is that good for them ---
[THE MOTHER]: Because you need a father figure in your life. Like it doesn’t matter if your father is a murderer, anything like at the end of the day it’s the father.
(Emphasis added)
That was an extraordinary thing to say – children should see their father even if a murderer. At another point in cross-examination the mother was asked that if the father was a risk of killing her, then, would she seek no time. The mother answered she would still propose time. It does not speak well to the mother’s protective capacities that she would propose time between the children and a person she thought capable of the most heinous of all acts; murder.
Similarly, Dr R reported the mother said “she tells the children that “[Mr Vilner] is their dad” and that “even if he is dangerous” they need to see him.” (Exhibit 1, p.19 lines 439-440). The mother denied this. I do not accept her denial. I prefer Dr R’s reporting over the mother’s evidence. First, Dr R is a professional witness. Second, Dr R was not challenged about this reporting. Third, the mother has proven herself casual with the truth; I say more on this later. Fourth, saying such a thing to the children is consistent with the mother’s view that father is, in fact, dangerous. Fifth, it is consistent with the mother having no boundaries constraining what she will say to the children.
It was completely beyond the mother to accept that the children might tell her what they thought she might like to hear. Similarly, she would not accept the children enjoyed time with their father at times. When taken to some videos and photos, she would not accept that the children might have had some fun with the father. Rather, she said she knew the “real reason” behind the apparent fun. That is, she had had a conversation with the children about their time with dad, what they did and how they felt. It does not matter who initiated such conversations because there was a sharing between mother and children (especially X) of the apparent real reason. In Exhibit 7 X shows no distress or stress and makes no complaints about the father.
The mother could not even accept the children like the dog in the father’s house even though there was vision (Annexure D to the father’s affidavit filed 6 February 2023, p.159 and p.168-170), at least at that moment in time, that they were comfortable with it. X also mentions the dog without fear or concern at the end of Exhibit 7.
Nor would the mother accept Dr R’s observations of Y and the father. The mother agreed Dr R observed Y: seeking his father’s attention; climbing onto his father’s lap; wanting to play with the father; was open and relaxed; was happy; and, that he was at ease with Ms W. The mother accepted they were some of Dr R’s descriptions. When asked how she felt about that, she replied, “[Dr R] did not observe [Y] correctly”. I prefer Dr R’s expertise in assessing the observation over the mother’s push back against the idea that there could be even a scintilla of positivity.
Keeping in mind the warring adult camps were “good friends” and the children saw the father regularly for a period of time post separation, it also did the mother no credit to maintain that X did not have a single good memory of her father. The mother was adamant that was so. That is also despite the fact that for a considerable period after separation, the father came and went from the mother’s household and the children’s time with the father was a flexible one.
The mother was equally dismissive of the paternal family and denied the children were ever close to the paternal family. The mother added that the children do not want to see the paternal family and there was nothing positive to say about them. She believed what the children told her. She believed the things said by the children to Dr R:
I asked [X] about her paternal relatives. She was able to name and describe her cousins and grandparents. She said that sometimes, when she was spending time with her father, she would sleep at her grandmother’s because she didn't want to be with her father. However, she said that was a problem because her grandmother would not allow her to go home to her mother. She said that her father and grandmother “fight on the phone all the time”. She said that she does not like her grandmother because she always cooks the same thing, and is “a bit rude”. I asked [X] more details about this, and she appeared to become very uncomfortable, and so I did not press the issue. She said that her grandmother was not so much “rude” as “bossy”, which she did not like.
With respect to her paternal cousins, [X] denied ever liking them, and said she has never got on well with them at all. She said that her cousin [PP] is older and so they are not close, and that [QQ] “always just plays with [[Ms W’s] son]” and leaves her out. She said she has not seen her aunts very much and described them as “weird”. When I asked her what she meant by this, she said it was difficult to explain and she could not give me any details. She said she also sees [Ms W’s] parents and her brother and sister.
(Exhibit 1, p.49 lines 1406-1420)
Dr R opined:
[X’s] rejection of her father has also translated to her rejection of her entire paternal family and personal history. I did note that when I was asking her questions about her paternal grandmother, she did appear to be awkward and uncomfortable, but ultimately maintained the view that she did not like her paternal grandmother, did not like her aunts and had never had a close or good relationship with her cousins.
(Exhibit 1, p.56 lines 1643-1647)
This is to be contrasted with Y’s reporting:
…There was much conversation about [Y’s] paternal relatives, and he participated animatedly in this conversation. He told me about his grandparents and said that he often asks to sleep over at “[the grandmother’s] house”, “because she spoils me”. There was lots of conversation about the sorts of special food his grandmother makes for him. I observed that [Y] appeared to be very relaxed and at ease at this point in the observation, and was spontaneously answering questions in a naturalistic manner. He did not display any anxiety or trepidation.
(Exhibit 1, p.41 lines 1154-1160)
The paternal grandmother gave evidence. Her veracity was not cast in doubt. The same cannot be said of the mother. Thus, I prefer and accept the paternal grandmother’s evidence about the children’s prior involvement with her and the wider paternal family.
I also conclude that the mother and paternal grandmother clearly had a close relationship as set out in texts between them in 2016 to 2017 (Exhibit 12). Yet, the mother sought to distance herself from any positive aspects of this history at trial including the texts messages, which plainly spoke to a warm relationship between the mother and paternal grandmother. It did the mother no credit to maintain there was a never a close relationship between her and the paternal grandmother even when taken to the warm exchanges.
Not only has the mother, by act or omission, caused the children, especially X, to recast their true paternal experiences, but she has, again by act or omission, allowed the situation to develop where X sees Mr BB’s family as her family and Y even thinks he is now of Country OO origin or speaks Country OO Language.
The mother re-enforced the message that Mr BB’s nieces and nephews are X’s cousins in the Family Report interviews, when the mother told the children they had to go and pick up “their cousin [RR]”. This is Mr BB’s nephew.
Adding to the picture, Y also told Dr R that Mr BB “‘pays everything for me’. I asked Y how he knew this, and he said ‘I don’t know’ but, ‘he pays for me, because of what mum said’” (Exhibit 1, p.44 lines 1257-1258). Mr BB confirmed Y was told this.
What all this means is that on the orders proposed by the ICL and adopted by the mother, the children’s paternal identity will not be maintained or preserved by the mother because she has demonstrated that she has no intention of doing so. Rather, the children’s true paternal identity and the roots that go with it will wither.
Dr R spoke of the long term effects on the children if their identity is re-written:
[FATHER’S COUNSEL]: Now, one of the things that you focus on in your report is the effects on the children of not having an understanding of their historical narrative – or a true understanding of their historical narrative?---
[DR R]: Yes.
[FATHER’S COUNSEL]: In weighing up the risks that you’ve identified in your evidence today, how significant in your mind from the children’s long-term needs is it for that issue to be addressed, that is, that the children do have an understanding that their historical narrative of not only their father but their extended paternal family and their heritage and culture is addressed?---
[DR R]: I think it’s really important in the long term and it’s, you know, one of these cases where there’s a lot of evidence from different areas of psychological research that individuals, people who are not told the truth about their identity, whether that’s donor conceived children, children who are adopted, children who, you know, have been through all sorts of experiences and who are either lied to about that or not explicitly told the truth of their life story – that those individuals, particularly when they hit early sort of adulthood but late adolescence, can be very disturbed. You know, that can have profound lifelong effects on them. And ironically in this, if that happened and if the mother’s household continued the narrative of, you know, “He’s – [Mr BB] is your dad. [Mr Vilner] is not your dad. You belong to this Christian family and in this cultural tradition, and those people either didn’t exist or were very bad, you know, […] people,” then when the children find out that that wasn’t the case or that they were told a fairly distorted view about what had happened, then it often is the case that it sort of backfires on the family group that have – the children then reject that parent. And so I guess the risk for the mother in this scenario is if the children come as older adolescents to understand that they had cousins over in the […] suburbs, they have been to [DD School], they have this very rich, welcoming tradition that they were part of and they have had none of that, then they become angry and rejecting of the mother in – in quite an intense way, and they haven’t then got the depth of those relationships and the attachments which would form throughout their childhood. So that’s a – a – a risk in the long term.
(Transcript 24 February 2023, p.43 line 23 to p.44 line 5)
The total estrangement of the children from their father and paternal family members is likely to contribute significantly to long-term psychological distress, challenges with identity and belonging, and a range of interpersonal relationship problems.
(Exhibit 1, p.64 lines 1899-1901)
This is very concerning evidence about the long terms risks to the children if they remain with the mother. It is evidence that I give considerable weight.
In the mother’s household: calling Mr BB Dad
This is really a flow-on from what I have said in the previous topic.
In the Report, Dr R wrote:
… [X] said that she calls [Mr BB] “dad” because she really wants him to be her father.
(Exhibit 1, p.49 line 1428)
… [Y] also told me about [Mr BB], who he referred to as “dad”.
(Exhibit 1, p.44 lines 1252-1253)
I am satisfied that occurred as Dr R reported. First, there is no suggestion the report was inaccurate. Next, it fits within the mother’s actions to replace the father with her partner Mr BB; the school enrolment forms demonstrate this.
It is also consistent with what Ms Q recorded earlier in 2022:
Thereafter, he became confused when I referred to “Dad”, asking whether I meant “[Mr BB]”. He subsequently referred to his father as “[Mr Vilner]” and said that he does not love him anymore. He became evasive and even more uncomfortable when asked whether he calls “[Mr BB]” “Dad”, eventually saying that he calls him “[Mr BB]”.
(Exhibit 2, p.3)
I again prefer the evidence of Dr R and Ms Q over the denials of the mother and Mr BB, and find that the mother, by act or omission, has encouraged or otherwise permitted the children calling Mr BB, ‘Dad’. I further find this is a part of the re-writing of the children’s actual historical narrative which would see Mr BB and his family replacing the father in the narratives of the children.
The mother: her pliable relationship with orders
I have already made orders that the children come into the Court’s counselling service so a Child Court Expert can explain my orders and reasons to them in a child focussed way. It is critical the children understand that none of this is their fault.
I am under no illusion that a change of residence will be easy. However, I am also satisfied that the father, aided by his wife and mother along with professional supports, will provide the psychological buffer to the children and support them through this change.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
No submissions were made about this. It does not arise on the parties’ respective orders.
(f) the capacity of: (i) each of the child's parents, to provide for the needs of the child, including emotional and intellectual needs; (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
As for capacity to parent, Dr R said this of the mother:
However, the mother has a significant deficit in her capacity to provide for the children’s emotional needs, to protect them from conflict between the households and to provide them with continuity in terms of their religious, family and cultural background. The mother appears to have accepted no insight into the effect on the children of removing them from their known community, school and preschool and extended family and friends, and taking them to an entirely new environment and presenting to them an alternative new family.
Whilst children can and do adapt to changes, and can successfully cope with the emotional changes in forming new step families, in this case, it appears that the mother has demanded that the children reject their former life and adopt a new life, with little apparent regard on the effect on them emotionally and psychologically.
(Exhibit 1, p.60 line 1787 to p.61 lines 1796)
Dr R said this of the father:
The question of the father’s capacity to provide for the needs of the children, including their physical, emotional and intellectual needs, is more challenging for me to accurately assess. The father has not had the full-time care of the children, and it appears that during the marriage he delegated much of the parental care and decision making to the mother.
The father’s time with the children has generally occurred over weekends and school holidays, and therefore the tasks of parenting have been necessarily limited to recreational activities rather than the more mundane tasks of daily routine.
The father had a long-term substance abuse disorder, in the form of [illicit substance] use disorder, which would have significantly impacted on his capacity to attend to the children and meet their needs. Although the father is in remission, the reality is that there is no known history of his capacity to properly attend to the tasks of parenting.
(Exhibit 1, p.61 lines 1804–1814)
I will not repeat what I have already found under the heading protection from harm. Suffice to say where I have found unacceptable risk of harm or parenting deficiencies, then neither bode well for the capacity to parent, nor do those failings meet the emotional and intellectual needs of the children.
That said, the father’s parenting deficiencies are lesser problems than the unacceptable risks presented by the mother.
To Dr R, the father said he had “absolutely not” contributed to the children’s reluctance to spend time with him. That showed a lack of insight – he has undermined the mother and been recording changeovers and communications. He had an instance of emotional dysregulation at two changeovers late last year that I have found the children likely heard, but he expressed remorse and understood the children were crying and would have been sad and felt abandoned.
I am satisfied that save for joining in the medical appointment and her recording of changeovers and communications, Ms W is a capable parent and has demonstrated the ability to meet the needs of these children.
I was impressed by the paternal grandmother as a witness and as a person capable of supporting the children as she has done so in the past.
I am not so satisfied by Mr BB. Dr R said:
…I was particularly concerned about [Mr BB’s] rather remarkable disdain for his own children in circumstances where he considers that they have sided with their own mother against him. He spoke with a great deal of contempt about his own children and appears to have an extremely rigid and black-and-white view of others. He had no insight into the pressure and stress that his own children were under, any understanding or compassion for their adolescent or young adult development or any apparent regard or concern for their life trajectories. In fact, it appears that he has utterly rejected his own children because of their behaviour around the time of their parents’ separation. He expressed no responsibility for his children. He also expressed the view that he told his children that they had made their choice, and that one day he would have his own family, which he now has. He spoke about [X] and [Y] as his own children, and I think has come to regard himself as having a different opportunity with [X] and [Y] to replace his own children and first family.
(Exhibit 1, p.59 lines 1732-1744)
In cross-examination Mr BB agreed he told Dr R that: that his children had been disloyal to him; that one of the children had tried to reach out to him and he ignored her; that he cannot accept them back in his life as the trust is gone; that he said the children should live with their mother and he will have a family of his own one day; that the day “had not made it easy for me”. At the time of his separation from his former wife, one of the children was 11 or 12 years of age and the other 16 or 17 years of age.
Mr BB also confirmed that he expects loyalty to him by those in his household. When asked about the impact on his children when he turned his back on them, he did not give an answer about the impact on the children, but rather said there is “only so much a person [that is him] can take”. When asked about his children losing a relationship with his extended paternal family, he said that that was up to them (the children). He volunteered that he had been trying to tell the children that their mother was not innocent and told his older daughter that he had seen her mother in bed with another man. That was entirely inappropriate to tell the child.
It troubles me that Mr BB may not have emotional regulation with a non-compliant child. It troubles me that people in his orbit must demonstrate loyalty to him. It troubles me that he was unable to see anything from his children’s perspective but answered questions about himself instead.
I do not share the mother’s view that he is a “respectful gentleman” (Mother’s affidavit filed 6 February 2023, paragraph 53).
I do not consider Mr BB to be a mitigating or ameliorating presence in the mother’s household.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
The children have a rich and diverse tapestry of cultures and traditions. But the children’s ability to actually enjoy all of that will be impossible due to the parental war.
The mother was born in Country XX and was of the same faith as the father but has converted to Christianity as is the faith of Mr BB. She also spoke of a Country YY background. The mother moved to Australia as part of her relationship with the father. Mr BB and his family are from Country OO.
The father was born in Country XX and by his own admission, not a terribly observant person, but religious nevertheless. He came to Australian when he was five years old, but later went back to Country XX for a year of schooling. Ms W was born in Country ZZ and her family came to Australia when she was five years old.
The mother would not accept that the father provided a link to the children’s cultural heritage. This is yet another example of the mother’s complete blind spot when it comes to any relevance the father may have in the children’s lives.
The mother maintained she kept the children imbued with their faith (Exhibit 20) and that may be so, but she unilaterally changed their schooling from one faith to a Christian one, and put their religion on the enrolment forms as Christian, even though they are of another religion.
Dr R assessed the children as unsettled in their identities, and very mixed about their religion and mixed about their language:
I asked [X] about the issue of religion. She said she considers herself both Christian and [of her father’s faith].
(Exhibit 1, p.50 lines 1444-1445)
…[Y] said, in answer to one of my questions [when I was asking him about what language/s he spoke], “I speak [OO Language]”…
(Exhibit 1, p.41 lines 1144-1145)
…I think that [Y] is showing signs that he, too, is developing distorted views about his history and heritage, noting that he told me [and his father and [Ms W]] that he is [of Country OO origin].
(Exhibit 1, p.64 lines 1896-1898)
On the ICL’s and mother’s proposals the children will have little experiential time with all that is the father’s household and family and the rich cultures that go with it. On the father’s proposal, after the moratorium of time and supervised time, the children will have more frequent experiences of the mother and her household and the rich cultures that go with it.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
Not applicable.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child's parents;
The findings already made, especially in the analysis of the risks of harm to the children carry through to this consideration. As do my findings under capacity to parent.
In short, the children will remain at an unacceptable risk of psychological harm if the children remain living with the mother. The mother does not recognise the harm she is inflicting upon them. Thus the pressures on the children from the mother will continue on her and the ICL’s proposal.
On the other hand, the father has recognised his deficits and taken steps to better himself and will be supported by wider family, especially his mother who I determine is child focused and Ms W who, apart from taping communications and changeovers and attendance at the doctor’s rooms with X, is otherwise a tested parent and child focused. For how he dealt with his own children and requirement that the household be loyal to him, I do not consider Mr BB would bring positive pressure to bear on the mother.
(j) any family violence involving the child or a member of the child's fam
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
I have already found that the mother did not make out her allegations of family violence.
Whilst there is no evidence before me that Mr BB has engaged in family violence with the mother or the children, the Department of Communities and Justice (“DCJ”) substantiated an allegation of physical abuse that he hit a daughter with a leather belt. He told Dr R that he had given the child “a whack” because she was not listening, being disrespectful and back chatting - hardly unusual for a pre-teen, as the child then was.
At trial, Mr BB said physical discipline occurred on only one occasion, where his intention was to hit his daughter with the belt but the belt ended up hitting her on top of the knee on her thigh. Mr BB said his daughter was not telling the truth in her affidavit where she said that was the way he disciplined her throughout her parents’ relationship.
In cross-examination Mr BB also accepted that he had pushed a microwave oven off the kitchen bench during that former relationship. Mr BB conceded there was an ashtray sitting on top of the microwave and when the microwave fell, the ashtray smashed. Mr BB said this behaviour was a result of his former wife’s infidelity. Provocation is no defence for violence.
Mr BB’s former wife and a now adult daughter gave evidence. They both said Mr BB hit his daughter with a belt on more than one occasion. I do not need to resolve the difference in the evidence of these two people and Mr BB as to frequency of the hitting.
Rather, on the basis of substantiated DCJ record and the father’s admission in this court, along with the father turning his back on his children for no good reason, I accept Dr R’s opinion that “there are realistic child protection concerns in the household of the mother, given the history of [Mr BB] and his first wife and child” (Exhibit 1, p.53 lines 1540-1542).
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Of course, it would be preferable to make an order that would least likely lead to the institution of further proceedings. Yet, as long as one or both of the parents maintain their immature conflict and as long as they maintain their war with each other, then the prospects of further litigation over the children looms. Similarly, if one or both of the partners remain invested in the dispute, peace (or even a truce) will not prevail.
Ultimately, I can only do what I consider to be in the best interests of the children in the knowledge that further litigation from either parent is possible.
(m) any other fact or circumstance that the court thinks is relevant.
Nothing arises here.
Mitigation
The four unacceptable risks of emotional / psychological harm posed by the mother are not ones that can be easily mitigated. That is because the mother does not recognise the harms she is doing to the children by virtue of her words and actions/inactions, which I have already described. The only realistic way the children can have a truthful paternal identity is to live with the father. Because there are no orders I can make to mitigate the mother’s harmful parenting, I then, unfortunately, need to look at recalibrating the children’s beliefs.
The moratorium proposed by the father (and supported by Dr R if I change residence) gives the children respite from the tug of war and the opportunity to see the father for who he really is. Supervision then eases the children back into time with the mother, but protecting the children from the mother’s harmful parenting. Then, moving to regular unsupervised time allows for more natural experiences, but within a period of daytime time that limits the opportunity for the mother to engage in her harmful ways. This will also be after the children have had a considerable period of time to reframe their views of the father and paternal family without the influence of the mother.
In circumstances where I have no confidence at all that the mother will even recognise the damage she has done to the children, let alone taken steps to rectify it, I can therefore have no confidence that the children’s historical narrative that they have a father and paternal family will be restored, if they remain with their mother.
I also accept Dr R’s opinion that the ICL’s and mother’s proposal (that the children spend a few hours a month with their father and some holiday time) will not ameliorate the risk that comes to the children if they remain with the mother, because the false narrative about their father and paternal family will not be rectified or corrected by her. X splitting her paternal narrative will continue, as will Y’s. The consequences of this is that the children will reject their father with all the previously identified unacceptable risks that come with it.
The ICL and mother’s proposals also do not engage with the unacceptable risk that the mother may not provide for the children’s wider needs; I have already extracted Dr R’s evidence about that and her shock about Exhibit 7 for its wider implications.
The proposal also does not engage with the risk that if the children remain with the mother then discover their true paternal narrative down the track, then one or both children may then reject their mother. On this proposal, the children could end up rejecting both parents.
It might be said the children could also reject both parents on the father’s proposal. However, unlike the mother, the father has recognised his deficiencies and is working on them. Unlike the mother, he has taken professional advice to re-focus emotions. He will also take professional advice to ease the transition. The father’s proposal allows the children to recalibrate their views of him. Even though the children know each parent has no time for the other, it was Dr R’s evidence that the “advantage the children have at the moment, [is] their mother’s good reputation has been preserved in their minds largely” (Transcript 24 February 2023, p.25 lines 26-27). It follows then, that whatever the father’s views of the mother, he has not contaminated the children’s views of their mother. All parties proposed non-denigration orders, which I will make.
Counsel for the mother submitted that despite the mother’s poor record of compliance with orders, I could be confident that she would now comply as she is currently the subject of a bond to be of good behaviour with a $50,000 surety. However, I have since had the benefit of cross‑examination in the trial and made findings that the mother does not accept her conduct is damaging. I also have no confidence that the mother will, in fact, support the children’s relationship with the father. Rather, whilst the mother may comply with the letter of any order, she will not emotionally permit the children to spend time with the father.
For example, the disastrous changeover on 9 December 2022 occurred after I made the order for the surety. True, the mother presented the children for changeover, but in such a heightened state that the father ultimately applied to suspend his interim time.
The father then asked to return the children early to the mother, but she said no. It was said the mother did not want to contravene the order. I do not accept that excuse. It could hardly be a contravention if the father asked and the mother agreed to an early return. Rather, the mother left the children with the father irrespective of the children’s distress.
Then, the father wrote to the mother that he would not be collecting the children for the next period of ordered time, but the mother took the children to the changeover anyway. Again, the mother complied with the order, but in a way that said to the children that their father did not want to see them.
The screaming phone call of 16 November 2022 (Exhibit 16) and the silent treatment of February 2023 (Exhibit 15) are further examples of the mother complying with the letter of the order, but not regulating (or being able to regulate) the children’s conduct.
Thus, if the children remain with the mother, all indications are that she will comply with orders to satisfy the surety, but do nothing to positively and emotionally support and facilitate the children’s time with the father. That will be disastrous for the children.
Frankly, I have few options in this matter. I cannot identify a way to mitigate the risk posed by the mother other than making the orders proposed by the father. Other than to leave the children with the mother (and all the unacceptable risks that go with that), no one gave me any other options.
I explored week about or separating the siblings with Dr R but they were not realistic options in the children’s best interests. With respect to the former, these parents would not be able to solve forgotten lunch boxes or missing shoes. With respect to the latter, the only consistency the siblings have, is each other.
I accept Dr R’s opinion that there are significant and substantial risks to the children if the status quo remains. I also accept her opinion that the children will remain at significant risk of psychological harm if the children remain living with the mother. I have given reasons for those conclusions. Yet, I accept that removing the children from the mother will be distressing for the children and may cause them to feel at fault and fracture their coping skills.
On the other hand though:
However, it may also be the case that the children would be relieved to be returned to the larger extended family, and be free from the burden of pressure to behave and conform in particular ways. The real advantage to this proposal, in my view, is that the children would have access to a large number of adults, including their father, [Ms W], the paternal grandparents and aunts/ uncles and [Ms W’s] parents. This network would be a significant psychological buffer and resource for both children, particularly in any transition phase.
(Exhibit 1, p.65 lines 1930 -1936)
I have no doubt that the father, paternal grandmother and Ms W will rally around the children and provide that psychological buffer and resource for both children.
I am not persuaded by the submissions that because the children, especially X, is doing well at school, this is a positive factor in the mother’s favour. Rather, Dr R explained that school performance is not the only metric of whether a child is doing well:
[DR R]: For a child to reject all of their autobiographical memories, to reject attachments to let’s say grandma, cousins, aunts, her entire heritage, that is not a metric of a child who is ‑ ‑ ‑
[ICL’S COUNSEL]: Doing well?‑‑‑ ‑ ‑ ‑
[DR R]: doing well. So on the surface it may look that she is jumping through the hoops, she’s an incredibly compliant little girl who wants to please the people around her. And actually I see a child in distress who is what she has done is the only thing she can do to survive the terrible circumstances ‑ ‑ ‑
[ICL’S COUNSEL]: Yes?‑‑‑ ‑ ‑ ‑
[DR R]: that the adults have put her in. And that is, to be frank, to do exactly what the mother’s household is demanding her to do. Because that’s where she’s living and spending the majority of her time, and that relieves her anxiety. And I think that anyone who has met her or children like her would make the same comment. It’s stark. It’s the only way she can survive this terrible situation.
(Transcript 24 February 2023, p.10 lines 34-47)
The children live in the mother’s house. It is untenable for X that her coping mechanism has been to disassociate from the father and his family as the way to escape, make sense of or survive the horrible situation in which she finds herself. Y too is showing signs of rejecting his father when he went from a loving and supported experience with the father and Ms W at Dr R’s, to giving a litany of complaints and negativity about the father but a few moments later.
Disposition
So I return to where I started. This case is about harm and risk, and the short term and long term consequences of the orders I will make. Or as Dr R put it in cross-examination:
[MOTHER’S COUNSEL]: …And that is really the ultimate risk that the court is being asked to take is take them out of mum’s hand on the wish that they’re going to work out with dad and the hope that they’re going to work out with dad?‑‑‑
[DR R]: I mean, my mind doesn’t see it that way because I think that the court is in the position of having to look at the short-term and the long-term consequences for the children and weigh up the risks in each – in each scenario. Sorry. Not in each household. So whilst moving them out of the current scenario has short-term risks, including that one that the whole thing fails and they’re flung back to their mother’s household, which would be a terrible risk for them. And the other set of risks is the long-term risk to them in remaining in this scenario and losing everything to do with their father, paternal family and history, if you like...
(Transcript 24 February 2023, p.28 lines 19 – 29)
As indicated, Dr R also said the children could be relieved if residence changed:
…If the children were put in their father’s care and they had a chance to reframe in an appropriate way their spurious ideas of him as a killer, as a dangerous criminal, as someone who was going to stalk them and come – come to school and – and that actually their dad was a kind of big, loving teddy bear or whatever they view him in their best instance, then that would be helpful to them. It would relieve some tension and – two things. It would relieve them of the anxiety that they’re going to be killed or mum is going to be killed, and, secondly, it would sort of disabuse them of a notion that is wrong and that – that undermines their own autobiographical history because somewhere underneath [X] knows that she has had really good times with her dad and somewhere in her mind she’s coupling – sort of dealing with, well, that hasn’t happened, but I also believe this kind of could happen. So there would be relief from that…
(Transcript 24 February 2023, p.25 lines 5-16)
Dr R then went on to say if the father told the children they were with him because the mother was a bad person, that would create new risks, because the children do not know the mother that way. All parties proposed non-denigration orders and I am confident the father will abide by that especially having heard this evidence from Dr R.
Later, Dr R said:
[FATHER’S COUNSEL]: Now, do you identify the father’s capacity in that regard, the things I’ve just taken you through, engagement in therapy, identify the need, articulate the techniques that he’s learning – do you accept that that is a protective factor for the children if they were to transition to him, that is, his capacity to engage and work with a treater himself?‑‑‑
[DR R]: Yes. I actually thought that the father’s affidavit material on this and – and [Ms W’s] also was quite – and – and also the paternal grandmother – one thing I thought was to their collective credit was that they had identified that the children were going to need, if this scenario was played out, a lot of support and that they talked about sort of being able to operate as a team with a – you know, a collection of adults who would be available, articulated some of the likely issues if the police or the department became involved again and also following – you know, absolutely taking on the professional advice and recommendations. So I thought it wasn’t just that he has done those things but that there had been for – a lot of thought put into, “How can we as a group, if you like, make what will be – what would be a very traumatic experience – how to help the children as much as possible?” I thought that was to his credit.
(Transcript 24 February 2023, p.34 line 45 to p.35 line 13)
On balance, I have determined that the long term unacceptable risks to the children of staying with the mother are of greater magnitude than the distress that will likely be caused to the children (but possibly relief too) if their residence is changed. In reaching that view, I take comfort from the evidence of Dr R that the father engaged with her concerns about his emotional dysregulation and is working on that, and that the father, Ms W and Ms LL have given thought to supporting the children (see extract above and see also Transcript 24 February 2023, p.17 line 46 to p.18 line 17).
There is no ideal outcome for these children. The focus is on risk reduction. I have formed the view that that requires the children’s residence to change to the father. The unacceptable risks that come with the status quo are possibly profound and life-long. I am not prepared to take those risks for these children.
Dr R supported a moratorium of time between the children and mother, in the event I changed the children’s residence to the father. However, it was Dr R’s opinion that the children will not be able to maintain a meaningful relationship with both parents on either party’s proposals. Looking at it differently, what I see is that the mother simply will not emotionally or psychologically support the children’s relationship with the father. As was said in submissions, the mother is a tested parent and in this regard, has failed the test.
With respect to the father, he is a largely untested parent. Yet, he applied to suspend the children’s time with him so as to give them respite from the distresses they were experiencing after the 9 December 2022 changeover. That showed insight and placing the children’s needs over his own wishes for time. I also put confidence in the fact that the father, along with his other family members, have a plan for the children should they come to him. He is working on himself and his emotional regulation.
On one hand, I can be sure the children will not be emotionally permitted or supported to have a meaningful relationship with the father if they remain with the mother. On the other hand, I have hope that following the moratorium and some supervised time, the children will be able to have a meaningful relationship with their mother, when living with their father.
There is no magic in the six months proposed by the father. I will adopt his six month proposal as that is how the case was run before me and the period of time about which all parties have been given notice. It is also not inconsistent with Dr R’s evidence.
Specific issue orders
I make the orders largely proposed by the father. However, I make, vary or decline to make the following orders for the reasons given.
Major long term decisions: I have set out what are major long term decisions in the orders for the sake of clarity and hope it will reduce disagreements.
Timing of a change of school: I will make an order restraining the father from changing the children’s school back to DD School until semester one of 2023 concludes. It is going to be a significant enough change the children in changing the residence. They do not also need to deal with the move back to the education facility they once attended in the middle of a school term. That may mean more travel for the children and father but that is the consequence of leaving the children with the consistency of school until the end of the semester.
Information to family therapists and school counsellors: Should the father engage in some form of family therapy or professional supports when the children come into his care, then I consider it important that person/s has a good understanding of the family dynamic. Accordingly, I will make an order that the father is at liberty to provide a copy of Dr R’s report and transcript to that person/s and only to that person/s to assist the therapeutic process.
In similar vein, page 18 of Dr R’s cross-examination may be provided to school counsellors. That extract concerns the children being supported by the watchful eyes of counsellors within their school.
Changeover location: The father had proposed changeover for supervised and unsupervised time be at a supermarket in Suburb HH Shopping Centre. I will make that order for the unsupervised time, but will not direct the supervision service to do so. The service can select the changeover location, and method for that matter.
Language during supervision: The father sought an order that the mother only speak English when having supervised time. I will make that order to support the supervisor’s ability to do their job; it is likely to be a term in the supervision contract in any event. Given the mother has acted secretly in the recent past and thought it appropriate, the order is appropriate.
Mr BB: I will make the order sought by the father that the mother not permit Mr BB to physically discipline the children. His admission in this Court about his own children indicates that is an appropriate order. I have also expressed my concerns about his demands for loyalty and ability to deal appropriately with, say, a defiant pre-teenager.
However, I will not make an associated order sought by the father that the mother not permit the children to be alone with Mr BB. The physical discipline restraint is sufficient.
School information: The father sought an order that he provide school information to the mother. Given the parents conflict, that is likely to be productive of further dispute. Instead, I will order the parties to do whatever they need to facilitate the school sending information to the mother that parents ordinarily get. That is not an invitation or opportunity for the mother to attend the school. What I envisage is that the school email information to the mother if that is what they usually do for parents, and/or she have access to the school’s parent portal (however called) if they have such a platform that allows parents to get information. If those electronic means are not available, then I will order the father to provide the information.
Information about professionals seen by the children: The father has been given little, if any, information about the children’s medical needs. The father proposed an order that the mother advise him of all medical/specialist practitioners seen by the children in the last 12 months. That was an insightful order for the father to seek. It is important the father have this information about the children. Understanding their medical needs is important. I will make that order.
Information about routine and extracurricular activities: I see this order proposed by the father as one of benefit to the mother and children because it will give the mother information about the children and give them something to talk about.
Communications: The father did not seek any communication orders. The mother and ICL proposed limited communications and that the father could send gifts. The mother has used communications to incite X to cause property damage. The father has used devices to record changeovers and communications. I will not make any orders about communications or gift giving. Communications have been fraught. My lack of order however does not preclude the parents from coming to some agreement in the future should either or both develop some maturity and take stock of their conduct.
Section 106A: I do not want the children’s schooling at DD School to be delayed because a parent will not sign a form. I will thus make a s 106A order permitting the appropriate Registrar to sign any documents if a parent declines or otherwise will not sign.
I certify that the preceding three hundred and forty-five (345) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Brasch. Associate:
Dated: 17 May 2023
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