Yagin & Harstad
[2024] FedCFamC1F 202
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Yagin & Harstad [2024] FedCFamC1F 202
File number: WOC 15 of 2020 Judgment of: ALDRIDGE J Date of judgment: 27 March 2024 Catchwords: FAMILY LAW – CHILDREN – Final parenting orders – Mutual allegations of family violence – Parties’ relationship was toxic and volatile – Not satisfied the father poses a risk of harm to the children – Objective evidence of the mother’s dysregulated behaviour including her behaviour at hearing – General consensus that the mother has a psychological disorder marked by emotional dysregulation – Final hearing was adjourned for two months with consent orders for family therapy and supervised time with the mother – Family therapy did not proceed – Final hearing was adjourned for a further 12 months with consent orders for the mother to undertake behaviour therapy – Mother did not seek therapy and consequently did not spend time with the children – Children would benefit from meaningful relationship with both parents if that could be safely achieved – Mother poses an unacceptable risk of psychological and emotional harm to the children – Best interests of the children require that they live with the father – Father to have sole parental responsibility for the children.
FAMILY LAW – PRACTICE AND PROCEDURE – Application for further adjournment following 12 month adjournment and additional three month adjournment – Where the mother became self-represented and had been refused legal aid – Appeal against refusal of legal aid was unsuccessful – Mother asserted investigations were ongoing but provided no supporting documents – Proceedings on foot for four years – Further delay not in the best interests of the children – Adjournment refused.
FAMILY LAW – PRACTICE AND PROCEDURE – Application for removal of the father’s solicitor – Solicitor emailed court documents to an email address obtained from the mother’s workplace’s website – Solicitor communicated unprofessionally with court staff on one occasion – No basis for finding there was any other communication with court staff as suggested by the mother – Inherent jurisdiction of the court over its officers is exceptional in nature – Solicitor’s removal not justified – Application refused.
FAMILY LAW – PRACTICE AND PROCEDURE – Mother objected to three exhibits tendered by the father on the basis they were illegally or improperly obtained – Exhibits are video and audio recordings taken by the father – Consideration of the Surveillance Devices Act 2007 (NSW) and the Evidence Act 1995 (NSW) – Significant purpose of the recordings was evidence gathering – Recordings were not reasonably necessary for the protection of the father’s lawful rights – Recordings bear upon significant issues in the proceedings – Desirability of admitting the recordings outweighed undesirability of admitting them.
Legislation: Evidence Act 1995 (NSW) s 138
Family Law Act 1975 (Cth) s 60CC
Mental Health Act 2007 (NSW) s 22
Surveillance Devices Act 2007 (NSW) s 7
Cases cited: Giunta & Giunta (No 2) [2020] FamCA 1045
Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181
Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63; [2018] SASC 116
Osferatu & Osferatu (2015) FLC 93-666; [2015] FamCAFC 177
Rathswohl v Court [2020] NSWSC 1490
Division: Division 1 First Instance Number of paragraphs: 158 Date of hearing: 11–15 July 2022, 9 September 2022, 12 September 2022, 9 November 2023 and 4 March 2024 Place: Sydney Counsel for the Applicant: Ms Carter (11–15 July 2022, 9 September 2022 and 12 September 2022) Solicitor for the Applicant: Melea Mullard Lawyers (11–15 July 2022), Z Lawyers (9 September 2022 and 12 September 2022), Litigant in person (9 November 2023 and 4 March 2024) Counsel for the Respondent: Mr Fantin (11–15 July 2022, 9 September 2022 and 12 September 2022) Solicitor for the Respondent: W Lawyers Counsel for the Independent Children’s Lawyer: Mr Cook Solicitor for the Independent Children’s Lawyer: Bowral Legal ORDERS
WOC 15 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YAGIN
Applicant
AND: MR HARSTAD
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
27 MARCH 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The father shall have sole parental responsibility for the children X born 2016 and Y born 2017.
3.The children live with the father.
4.The father shall send the mother an email once per month with any updates regarding the children including information regarding any medical matters for either child, school information such as awards or achievements and a recent photo of the children.
5.The father shall keep the mother informed of the children’s residence and school/pre‑school attended by either child.
6.Any outstanding application is dismissed.
7.I direct the principal registrar to forward a copy of these reasons and the relevant correspondence between the father’s solicitor and the Court to the Law Society of New South Wales.
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 Yagin & Harstad has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
THE PROCEEDINGS
These are parenting proceedings between Ms Yagin (“the mother”) and Mr Harstad (“the father”) concerning their two children, X born 2016 and Y born 2017.
At the time of the commencement of the final parenting hearing on 11 July 2022 the children were living with the father pursuant to interim orders made by Judge Altobelli (as his Honour was then) on 14 May 2020. The orders also provided for the father to have sole parental responsibility for the children. They were to spend supervised time with the mother for three hours each Sunday and on special days. The mother was otherwise restrained from approaching within 100 metres of the children.
The father suspended the supervised time on 11 February 2022 although the children continued to communicate with the mother via Skype.
On 15 July 2022 consent orders were made for the engagement of a family therapist to provide that therapy to the family and to supervise the children’s time with the mother, pending the resumption of the hearing in September 2022. The orders provided for a phased re-introduction of the children to the mother. The hope was that this course would enable the family to move towards a more conventional set of orders.
As to be discussed shortly, the family therapy did not go at all well and, essentially, did not proceed.
At the conclusion of the evidence on 12 September 2022 the parties and the Independent Children’s Lawyer (“the ICL”) asked the Court to make a set of interim orders, which were largely, but not entirely, agreed, and to adjourn the hearing for 12 months. The purpose was for the mother to undertake behaviour therapy, as recommended by the single expert psychologist, to assist her to regulate her behaviour, and to spend time with the children supervised by a contact centre.
The hearing was stood over for 12 months to see how things progressed.
The mother did not seek therapy. Consequentially, she did not spend any time with the children.
Neither the ICL nor the mother sought to relist the matter.
The matter returned to court for directions on 4 September 2023 and orders were made for the final hearing to recommence for two days on 9 and 10 November 2023. On 9 November 2023, the mother was not in a position to proceed because she and her lawyers had recently parted company, legal aid had been refused and an appeal against that refusal had been lodged. No evidence dealing with the past year had been filed by the mother.
The hearing was adjourned to commence on 4 March 2024.
On 28 February 2024, the mother filed an Application in a Proceeding seeking a further adjournment of the hearing, the removal of the solicitor for the father and the ICL and that the proceedings be listed before another judge. The mother also sought interim parenting orders that would see the children immediately returned to her care with them spending only three hours of supervised time with the father per fortnight.
On 4 March 2024, after hearing submissions from the parties, I indicated that I was not prepared to grant the adjournment or remove the ICL or the father’s solicitor. The mother then left the court. I shall refer to her behaviour within the court shortly.
Refusal of the further adjournment March 2024
The mother sought the further adjournment for the following reasons (as best as can be distilled from her affidavit filed 28 February 2024 in support of the application):
·The mother’s grant of legal aid is subject to further appeals and investigation.
·The father’s solicitor should be removed.
·The ICL should be removed.
·If the matter proceeds and the orders that the father seeks “are set in place it proves that our justice system is not set up to cope with family and domestic violence” (paragraph 5).
·“Being gaslit by a judge to tell the mother that the abuse didn’t happen is mental abuse” (paragraph 6).
·A report of Dr N, a psychiatrist, shows that the father did abuse the mother.
Only the first of these points is a reason for adjourning the hearing on the mother’s application.
At some time, the date apparently having been redacted from the annexure, Legal Aid New South Wales wrote to the mother seeking the date of the next court event and asking what had occurred at the last hearing date. This information was said to be for the assistance of the Legal Aid Review Committee. The answers were requested to be given by 1 December 2023.
On 30 November 2023, the Legal Aid Review Committee informed the mother that her appeal against the refusal of legal aid was unsuccessful. In doing so, it noted that the requested information had been provided by the mother on 28 November 2023 in a phone conversation. The appeal failed for a number of reasons including the merits of the mother’s case and her failure to disclose requested information about her financial circumstances.
Nonetheless, the mother asserted that some impropriety had occurred in the Committee determining the appeal which, in a way I did not understand, apparently involved the father’s solicitor and the ICL. The mother said that she had complained and an investigation was underway but provided no documents to support those assertions.
The Legal Aid Review Committee is the last means of challenging the refusal of a grant of legal aid. The practical outcome is that for the foreseeable future there will be no grant of aid.
The mother had three months to prepare herself for the hearing including preparation of an affidavit. She had not done so.
Nonetheless, the solicitor for the father and counsel for the ICL agreed that the affidavit in support of her application, including the annexures, one of which is the Report of Dr N, should be taken into account as part of the evidence in the final hearing.
The proceedings have been on foot for four years with the final hearing having commenced one year and eight months ago. Further delay was not in the best interests of the children.
The father has prepared twice for the resumption of the final hearing and paid for lawyers. A further adjournment would be unfair on him.
Taking all these mattes into account I was not persuaded that a further adjournment should be granted.
The removal of the father’s solicitor
The mother seeks the removal of the solicitor for the father on two grounds.
The first, according to the mother, is that the solicitor released “sensitive and private Family Court documents, emails and evidence to a third party without permission” (mother’s affidavit filed 28 February 2024, paragraph 4).
There is no evidence of this complaint (the mother asserted she had it on her phone) so the following is gleaned from the submissions made by both the mother and the solicitor for the father.
Apparently, after receiving no replies to some emails sent to the mother, the father’s solicitor became concerned that they were not being received. Being aware that the mother was working at a particular business, she searched for the mother on the business’s website. There she found an email address associated with the mother and sent at least one email to that address enclosing court documents. I do not know what these documents were.
The presumption that the discovered email address was that only of the mother was wrong – it was allegedly a generic firm address.
It seems clear enough that the course followed by the solicitor was not the wisest. At the very least the privacy of the address could have been checked before sending any material to it. This was a mistake. There is, however, no evidence that this was done deliberately to “purposely [push] the mothers trigger points as a victim of Complax [sic] PTSD due to the abuse perpetrated against [her]” (mother’s affidavit filed 28 February 2024, paragraph 4).
Even so, the course followed had the unfortunate effect of disclosing to others what should not have been disclosed.
The second ground was that the solicitor for the father communicated with “judges and associates across Sydney” (mother’s affidavit filed 28 February 2024, paragraph 3).
The father’s solicitor sent a LinkedIn message to my associate in October 2023 in the following terms:
[Solicitor for the father] (She/Her) 10:29am
Hi
I only just realised who is in the back of your profile pic….
Hey, if you hadn’t already had the joy of seeing the Amber Heard and Johnny Depp trial last year….Here’s the highlight….It’s your homework in prep for WOC15/2020…. (You can judge if I can successfully pull off the Camille VASQUEZ role [fingers crossed emoji]).
The similarities between heard and the mother are uncanny.
You handled her well the other day. I predict similar on the 9th she will be emailing you saying she’s in the court building but can’t get up to level 7 or something cray cray [tongue out emoji]
My associate then immediately referred the correspondence to a senior judicial registrar of the Court and did not reply to or acknowledge the solicitor’s message. My associate has had no prior communication with the solicitor before this communication, nor any communication since.
A senior judicial registrar of the Court then sent the following email to the solicitor via the registrar’s associate:
…
Your message refers to the matter of WOC15/2020 which is currently part heard before his Honour.
It is highly inappropriate to communicate directly with Chamber’s staff regarding matters pending before the Court by any means, including through personal social media accounts. Any correspondence with Chambers in relation to any matter should of course be sent to the relevant Associate inbox and copied to all parties as a matter of procedural fairness.
The Senior Judicial Registrar understands from his Honour’s Associate that this is the first time you have communicated with her via LinkedIn in relation to this or any other matter. Further, the Associate has not responded to your message and will not be responding.
A copy of this email will be provided to the other party and the Independent Children’s Lawyer in the proceeding.
The registrar then forwarded a copy of the correspondence to all parties.
The father’s solicitor then replied in the following terms:
I sincerely apologise and I should have known better.
I accept the condemnation in regards to my actions.
I really have nothing more I can say, because I’m embarrassed for being so foolish.
Please apologise to the Associate that I put her in that position also. I mean that sincerely.
Please let me know if you require anything further from me.
I apologise again, I am my own worst enemy at times but it isn’t good enough.
[Solicitor for the father].
The LinkedIn message was, sadly, unprofessional, particularly in a part heard case. It was a communication to a member of court staff about a court matter which should never have occurred. There is, however, no basis for finding that there was any other communication with judges or other associates as the mother suggested.
In Osferatu & Osferatu (2015) FLC 93-666, the Full Court pointed out that there were three well-established categories in which a solicitor may be restrained from acting for their client or against their former client being breach of confidence, breach of fiduciary duty and the inherent jurisdiction of a court over its officers and to control its process (at [20]).
Only the third category is relevant here.
After a thorough consideration of existing authority, Brereton J (as his Honour then was) identified the following propositions in relation to the inherent power of the court (Kallinicos v Hunt (2005) 64 NSWLR 561 at [76]):
•The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice (Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications).
•The jurisdiction is to be regarded as exceptional and is to be exercised with caution (Black v Taylor; Grimwade v Meagher; Bowen v Stott).
•Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause (Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott).
Having regard to the exceptional nature of the jurisdiction I am not satisfied that the two matters raised by the mother justify the solicitor’s removal. Whilst unwise, the solicitor’s actions do not impinge upon the integrity of the trial process itself or impact the fairness of the hearing.
It is for these reasons that I refused to remove the solicitor for the father.
Having said that, I am of the view that the conduct of the solicitor for the father should be the subject of further consideration and I will direct the principal registrar to forward the relevant papers to the Law Society of New South Wales.
The balance of the Application in a Proceeding filed 28 February 2024 was not heard because the mother left the courtroom before prosecuting it.
Evidentiary ruling
The mother objected to three exhibits tendered by the father on the basis that the evidence was illegally or improperly obtained and that, further, any probative value was outweighed by their prejudicial effect. These are my reasons for admitting them into evidence.
Exhibits “R4” and “R5” are video recordings taken by the father and Annexure “L” is an audio recording. These recordings, along with others, were attached to the father’s affidavit filed 6 July 2022.
The first video taken in August 2019, records the mother loudly screaming “I will force feed you, eat!” The father’s evidence is that these words were directed at Y, who was refusing to eat her food.
The second is a longer video taken in August 2019. The father says that he returned home and saw the mother kick X. The father says he then started recording. The recording indicates, among other things, that the mother accepted that she had kicked the child.
The audio recording was made in December 2019 and records the mother loudly swearing at the father. The father is heard to say “Don’t hit me, don’t hit me, stop hitting me”.
Section 7 of the Surveillance Devices Act 2007 (NSW) (“Surveillance Act”) prohibits the use of a listening device to record a private conversation to which the person is a party unless the provisions of subsection 3 apply. It states:
(3)Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if—
(a)all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b)a principal party to the conversation consents to the listening device being so used and the recording of the conversation—
(i)is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii)is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
The father submits that the recordings were reasonably necessary for the protection of his lawful interests. That concept has been the subject of much discussion in decided cases. In Rathswohl v Court [2020] NSWSC 1490, Rees J helpfully collected a number of authorities on this issue (at [9]–[34]). At [35] her Honour said:
35.The following considerations may indicate whether recording a private conversation without consent may be “reasonably necessary for the protection of the lawful interests” of the person making the recording.
(a)Whether the purpose of the conversation was to obtain admissions in support of a legitimate purpose. The contentious subject matter of the conversation, or the characteristics of the person being recorded, may indicate that it was necessary to make the recording in order to secure the admission. Recording a conversation for the purpose of extracting money, inducing further improper conduct or to blackmail the recorded party will indicate to the contrary.
(b)Whether it was important to protect oneself from being accused of fabricating a conversation and recording the conversation was the only practical means of refuting such an allegation. This is more likely to be the case where the conversation concerns a serious criminal matter or the principal party has a genuine concern for their safety or that of their children.
(c)Whether there were other practical means of recording the conversation, for example, reporting the matter to police or making a contemporaneous file note.
(d)Whether there was a serious dispute on foot between the parties, including where determination of the dispute would vitally depend upon oral evidence and thus, one person’s word against another. Recordings of conversations ‘just in case’ there is a dispute, or for the sake of making an accurate record of what was said, is not enough.
In Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd (2018) 132 SASR 63 at [104], Doyle J said:
104.In summary, while a threat to a person’s physical safety, or the desire to uncover a crime or resist an allegation of crime, will often give rise to a lawful interest that would warrant protection through the use of a listening device, not every commercial or legal interest, or dispute in relation to such an interest, will suffice to establish a lawful interest for the purposes of the legislation.
At the time the recordings were made the parties had not yet separated and no parenting proceedings were in contemplation. The father said that from about late 2019 he was thinking of and planning to leave the mother.
It is a fair inference from the context of the recordings that, at the least, a significant, if not primary, purpose of them was evidence gathering. The father made the recordings instead of attending to the care of the children, who were clearly distressed (as can be heard in some of the recordings), or were likely to be so. At times, the father is clearly seeking admissions from the mother (“Did you kick him across the room?”, “Did he deserve to be kicked?” in Exhibit “R5”). In Annexure “L”, the father said, “Stop hitting me” and “I’ve gotten used to you hitting me, aye?”.
I do not accept that the father has a fear of being physically harmed by the mother. At the time of the recordings she weighed under 50 kilograms and was, according to the father, not well nourished.
Taking these matters into account, I am not satisfied that, at the time the recordings were made, they were reasonably necessary for the protection of the father’s lawful rights.
Section 138 of the Evidence Act 1995 (NSW) provides that evidence that was obtained improperly or in contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way it was. The discretion is to be exercised by taking into account the considerations listed in subsection 3, together with any other relevant matter.
The recordings bear upon a number of significant issues in the parenting proceedings; the mother’s mental health, family violence, the ability and attitude of the parties as parents, and whether any party poses a risk of harm to the children. The evidence is thus probative and significant.
The contravention of the Surveillance Act by the father was deliberate (for example, Annexure “L” was recorded after the father deliberately hid his phone so it could not be seen. It begins by him saying “testing, testing”).
I also bear in mind the undesirability of encouraging improper or illegal recordings which can, of itself, be stalking and harassment (per McClelland DCJ in Giunta & Giunta (No 2) [2020] FamCA 1045 at [7]).
Taking all these matters into account, I was satisfied that the desirability of admitting the recordings outweighed the undesirability of admitting them, having regard to the manner in which they were obtained.
BACKGROUND
A real conundrum in this matter is that the mother has the care of four children from an earlier relationship. Whilst the quality of that care was not explored in evidence in any detail at all, there is no suggestion that the mother is an inadequate or inappropriate carer of them.
The particular difficulties that have arisen in this matter, therefore, appear to have arisen from what was, on all accounts, a deeply unpleasant and toxic relationship between the parties.
Between 2006 and 2011, the mother was in a relationship with Mr B. They had four children together who are now in the care of the mother. That relationship was marked by family violence.
The parties commenced a relationship at some stage in 2013.
The father said that in mid-2014 he attended a sports game in which one of Mr B’s children was playing. There the mother got into an argument with Mr B which became so abusive that the game had to be halted.
The mother then moved to reside in a women’s refuge, saying she was in fear of Mr B, before moving in mid-2014.
The parties commenced living together in late 2014. They separated in late 2019.
The mother said that the father was verbally abusive from the outset and, after X was born, became physically abusive as well. He would yell and scream and grab the children by the throat.
In addition to continued verbal abuse, the mother’s affidavit (filed 24 June 2022) alleged that the father:
·Made the mother shower with the door open so he could watch her.
·Washed her to ensure that she had not cheated on him.
·Urinated on her.
·Made her go to the toilet with the door open making sure the mother did not have her phone with her.
·Pushed the mother violently to the ground on more than one occasion.
·On one occasion, hit the mother across the thighs and buttocks with a cheeseboard four times.
·Hit the mother on the thighs with a belt on at least two occasions.
·Bit the mother at various times.
·Distributed intimate pictures of the mother to others (the father was charged with an offence to that effect and was later acquitted).
Furthermore, the mother said that the father was frequently “gaslighting” her. For example, he would tell the mother she had said she was suicidal when she had not (mother’s affidavit filed 24 June 2022, paragraph 29).
It was also alleged that the father was extremely financially controlling.
The father denies the allegations and asserts that the volatility during the relationship was caused by a combination of drug use, mental instability, and unregulated behaviour on the part of the mother.
It is then necessary to weigh the mother’s evidence against the other evidence in the matter. I give particular weight to some specific pieces of objective evidence.
In mid-2019, the mother was taken to a hospital emergency department by ambulance and police pursuant to s 22 of the Mental Health Act 2007 (NSW). The police described her behaviour as “highly agitated, irrational and dilusional [sic]” (Exhibit 2, p.8).
The following day a psychiatry registrar found that the mother was presenting with a “situational crisis in the context of ongoing marital disharmony” (Exhibit 2, p.4). She was not suicidal or psychotic but demonstrated cluster B personality traits. The mother was discharged home.
The mother said that this demonstrated that she had no mental issues and that this demonstrated both gaslighting by the father and his misrepresentation to authorities.
There are a number of video and audio recordings in evidence taken by the father.
One of these is of X saying he had been smacked in the face by the mother (Exhibit “R8” to the father’s affidavit filed 6 July 2022). Another is of X and Y saying the mother had smacked Y on the face (Exhibit “R9” to the father’s affidavit filed 6 July 2022).
That is concerning but it is a short video taken in a car, apparently just after a changeover. Whilst the father’s questions do not appear to be leading, at least at first, it is not known what happened before and how it was that the children happened to be being filmed at that time.
Another video is of a changeover in mid-2020 when the children are crying loudly in the mother’s car when being returned to the father. A person is obviously talking to the police describing what had occurred. According to that voice, the mother is saying to the children, “I know you don’t want to go back to daddy, you hate it” (Exhibit “R7” to the father’s affidavit filed 6 July 2022).
Changeovers are often stressful for children, especially when the parents are in conflict. These young children had also just been driven from the mother’s home some three hours away.
For those reasons and because the mother’s voice cannot be heard I give this video little weight.
The remaining recordings are more concerning. A couple record the mother screaming at the children hysterically. In one she accepts that she had just kicked X (Exhibit “R5” to the father’s affidavit filed 6 July 2022).
The remainder record the mother screaming at the father, with a suggestion in one that the mother has hit and damaged a wall and was hitting the father (Annexure “L” to the father’s affidavit filed 6 July 2022). Some care must be taken with this as it was the father saying words to the effect of “look what you just did to the wall” and “don’t hit me, stop hitting me”. During this recording he was following the mother between rooms. The recording was also clearly pre‑meditated as the words “testing, testing” occur at the outset.
However, even with these caveats, the videos do record the mother’s extreme dysregulated behaviour, especially, when aggravated by the father.
Apart from the general comment that the father grabbed the children by the throat, which is a very serious and worrying matter if it occurred, the specific instances of violence toward the children in the mother’s affidavit were of the father shouting abusively at them and hitting them; they were frequently said to be bruised.
The mother relied heavily upon four letters each dated early 2021 and concerning the four Mr B children authored by the local health department counselling service. In each of these letters there is a reference to the father being violent. One example will suffice. The letter in relation to O contained:
[O] has shared incidents of physical and psychological abuse perpetrated against him by [the father]. He has also described being witness to abuse perpetrated against his siblings and you. [O] has reported ongoing difficulties in concentrating at school, recurrent memories of abuse and episodes of insomnia.
(Annexure “E” to the mother’s affidavit filed 28 February 2024, p.17)
Whilst these letters support the mother’s case, care must be given to the weight to be afforded to them. The statements are hearsay. They are also summaries or impressions of what was said, rather than repetition of the children’s actual words. There is no description of the actual behaviour or when it occurred.
Taking all these matters into account and the medical evidence to be discussed next, I am satisfied that the relationship between the parties was indeed toxic, volatile and marked by the mother’s dysregulated behaviour. In her submissions on 4 March 2024 the mother appeared to accept that her behaviour was as such at certain times but that was entirely the fault of the father.
It is much more probable than not that the father and the mother were involved in heated exchanges which may have involved pushing and shoving. Beyond that, the mother’s dysregulation and propensity for exaggeration of allegations (that the father is capable of murdering the children or that he has sexually assaulted Y (to be discussed shortly)), including those against the father’s solicitor, and blatant misrepresentation of matters which are in fact not supportive of her case (for example the mother is of the view that the mental health assessment in mid-2019 by Dr N shows she does not have a mental disorder but ignores the other findings) gives me pause in accepting her evidence. I am not satisfied that the balance of the mother’s allegations have been established.
Whilst the children were no doubt caught up in the goings-on between their parents, which would have been deeply upsetting to them, I am not persuaded that the father was directly violent to them.
As recorded elsewhere, the children are presently happy, contented and seem to be doing well in the father’s care now that the relationship has ended. I am not satisfied that he poses any risk of harm to the children.
The mother
It is necessary to consider the mental stability of the mother. The point is not so much to identify a diagnosis, although that could be of assistance in determining treatment. Rather, the focus is on the behaviour of the mother and the impact of that on the children.
Dr P records a comprehensive psychological history of the mother in the single expert report which I will not traverse in detail, but instead will refer to some recent matters which attract considerable weight.
In mid-2019 the mother was seen by Dr J, a consultant psychiatrist at a community mental health unit. His notes recorded a history of childhood sexual abuse, bullying at school and domestic violence by Mr B.
Dr J formed the impression that the mother’s diagnoses were depression and a personality disorder. He recommended therapy. When he started to discuss medication options, the mother stormed out of the room.
On or about mid-2019 security were called to a supermarket as the mother was irate, unreasonable and verbally threatening as there was not an appropriate trolley available to her. Prior to this, in late 2018, the mother had been barred from attending the children’s school due to her irrational behaviour.
I have already referred to the hospital admission in mid-2019.
In late 2019 the mother’s general practitioner referred her to a mental health unit for assessment. The mother had presented with symptoms of post-traumatic stress disorder (flashbacks, nightmares, hypervigilance from previous domestic violence) as well as symptoms of a personality disorder.
In late 2019 a mental health clinician made a report to New South Wales Department of Family and Community Services (“FACS”) because the children were being exposed to emotional and psychological abuse due to the mother’s volatile outbursts, suicidal ideations and deliberate self-harm.
The mother was assessed by a child, adolescent and family psychiatrist on two occasions in mid-2020 as part of a Whole of Family Team Assessment. The provisional diagnosis was “possible complex post-traumatic stress disorder/[…] personality disorder” (Single Expert Report of Dr P dated 4 May 2021, p.19). It was recommended that the mother continue with counselling as well as continuing to see her psychologist to assist in mental health and emotional stabilisation and coping skills (Single Expert Report of Dr P dated mid-2021, p.19–20).
In early 2021 the children spent three hours with the mother, the Mr B children and the maternal grandparents at a park in Sydney.
With the children to transition into the father’s care at Suburb M Police Station, the entire family (the mother, the grandparents, X, Y and the four Mr B children) went to Suburb M Police Station and reported that Y had said “Dad’s been touching me on the wee wee and it hurts” (Exhibit “R1” to the father’s affidavit filed 6 July 2021, p.3 of the COPS entry dated mid-2021).
Detectives were called and Y and X were interviewed by them.
The entire family stayed at the Police Station despite the suggestion by police that the Mr B children appeared bored and hungry, that there was a fast-food restaurant nearby and it would be more appropriate for them to be elsewhere (Exhibit “R1” to the father’s affidavit filed 6 July 2021, p.4–5 of the COPS entry dated mid-2021).
The police informed the mother that the children had made no disclosures to them and they could not take the matter further. The mother insisted on showing the police many photos of bruising on the children. At one stage, the mother rushed back into a secure area to show detectives the photos, which they regarded as being of no concern as it appeared to be normal for young active children (Exhibit “R1” to the father’s affidavit filed 6 July 2021, p.4 of the COPS entry dated mid-2021).
The mother began to describe the father as a child abuser and twice attempted to grab a detective’s neck to show where the children had allegedly been hurt. The mother said that Y had told her that she had told the police everything. When it was pointed out that Y had not and that the children would be returned to the father in accordance with existing orders, the situation deteriorated.
The entry on the police record states:
…
The entire family began yelling at Police, were highly emotional, crying and even abusive. The [maternal grandfather] began yelling at Detectives, accusing the Police of “not caring”. [The mother, the maternal grandmother] and even all four of the eldest boys followed suite and began yelling at Police, alleging Police don’t care and were sending the children back to a child abuser. The three adults were advised on multiple occasions that they needed to calm down as their yelling and behaviour was unsettling the children, however this continued.
The older boys were all in tears, then began ridiculing Police and their ‘inaction’ and this was encouraged by the adults.
[Redacted]
…
[The mother] and her parents prolonged the situation which was visibly highly distressing for all children involved. [The maternal grandmother] told [Y] and [X] to “Go around to everyone and give everyone a hug to say goodbye”. [The mother] kept grabbing at [Y] and [X] and embracing them tightly whilst crying loudly, “I’m sorry I can’t protect you!” Police had to request a number of times for the family to finish up and leave, as this was causing the children distress. [X] and [Y] appeared to be in shock and were walking around not knowing where to turn as they were surrounded by the family yelling.
Police were finally able to take [Y] and [X] into the secure area of the Police Station and minded them for a short time, after requesting that [the mother] and her family leave. [The father] was contacted and he attended the Police Station immediately in the company of his sister. [The father] presented very well, spoke very well and calmly and the children were extremely pleased and excited to see their father and aunty.
(Exhibit “R1” to the father’s affidavit filed 6 July 2021, p.5–6 of the COPS entry dated mid-2021)
Dr P conducted a mental assessment of the parties. His conclusion as to the mother was:
[The mother] was identified as having a complex trauma presentation as evidenced by her intermittent emotional dysregulation, maladaptive coping strategies to manage overwhelming distress and marked fear of rejection by others or injustice, particularly in the context of interpersonal difficulties. [The mother] meets criteria for the diagnosis of [a] personality disorder; individuals with this disorder demonstrate a pervasive pattern of instability of interpersonal relationships, self-image and mood, and marked impulsivity, and frequently have a history of significant trauma. It seems likely that [the mother] developed depression in the period following [Y’s] birth and in the context of reported increasingly frequent family violence. However, [the mother] does not currently meet criteria for the diagnosis of depression.
Exposure to [the mother’s] emotional dysregulation is likely to have a negative effect on the psychological wellbeing of the children. However, it seems that separation from the [father] has reportedly resulted in an improvement in [the mother’s] ability to regulate her mood and it is hoped that she will receive the necessary support within her therapy sessions to be able to manage the dysregulation more appropriately in the future.
…
It is noted that [the mother] is attending regular therapy with [Ms R] although the modality of the therapy received is not known. It is respectfully recommended that [the mother] receive […] behavioural therapy […], an evidenced-based, skills-based intervention that addresses the problems associated with [the] personality disorder. This may be done with [Ms R] on an individual basis (if [Ms R] does offer [this therapy]) or [the mother] may prefer attending a [therapy] group.
(Single Expert Report of Dr P dated 4 May 2021, p.52–54)
As to the effect of this on the children Dr P said:
Exposure to [the mother’s] emotional dysregulation will be a form of harm to the children. There [are] numerous examples of [the mother] becoming quite distressed and dysregulated, particularly in the context of interpersonal conflict or the subjective experience of her perceived needs not being met. Separation from the father has reportedly resulted in [the mother] being much more emotionally regulated within the home and it is hoped that she will receive the necessary support within her therapy sessions to be able to manage the dysregulation more appropriately in the future.
(Single Expert Report of Dr P dated 4 May 2021, p.48)
The mother relied on a report from Dr N, a consultant psychiatrist, who provided a report dated 3 April 2023. Dr N described the mother as seeking clarification and treatment recommendations from a psychiatrist as ordered by the court.
Dr N opined:
I think the diagnosis is complex post-traumatic stress disorder characterised by emotional dysregulation, difficulty maintaining healthy relationships with others and low self-esteem. I understand that she was labelled with [a] personality disorder, but I do not think she meets full diagnostic criteria for [that disorder]. She may have traits, however this should be understood under the umbrella of complex PTSD.
(Annexure “F” to the mother’s affidavit filed 28 February 2024, p.2 of the report of Dr N dated 3 April 2023)
This opinion, by and large, is consistent with the opinions to which I have already referred. Dr N does not refer to any source of information other than the mother and was not cross-examined. Whether further information would cause her to adjust her opinion is therefore not known.
However, and importantly for this matter, Dr N added:
I agree that she may benefit from [a therapy] approach as part of her trauma work. I think her emotional outbursts should be understood as her fight or flight mode that is often present in those who have complex trauma background…
I think she would benefit from [the therapy] approach with an experienced psychologist one on one…
I feel it is important that [the mother] gets adequate support for emotional dysregulation.
(Annexure “F” to the mother’s affidavit filed 28 February 2024, p.2 of the report of Dr N dated 3 April 2023)
Ms R, a clinical psychologist, provided a report dated 27 July 2020 addressed to “Whom It May Concern” and prepared with the “explicit intention of supporting [the mother] in a family law matter” (Annexure “H” to the mother’s affidavit filed 24 June 2022).
She described the parents attending on her for relationship therapy in late 2019. She described the father as “agitated, paranoid and suspicious” and “guarded and provocative” (Annexure “H” to the mother’s affidavit filed 24 June 2022, p.2 of the report). He did not return for individual assessment or to take part in therapy.
Therafter Ms R provided therapy to the mother regularly. She said:
Whilst treatment had intended to initially focus on processing the interpersonal trauma experienced; particularly learning how to self-regulate, manage boundary digressions; dealing with enmeshed diagnosis and possible narcissistic behaviour in others, the course of intervention has deviated in order to support [the mother’s] adjustment in light of the current circumstances.
(Annexure “H” to the mother’s affidavit filed 24 June 2022, p.2 of the report)
There is no mention of any underlying disorder. Consequently, I give this report little weight, nor the subsequent report of 16 July 2021 which described the mother as “emotionally stable” (Annexure “Z” to the mother’s affidavit filed 24 June 2022).
The general consensus then is that the mother has a psychological disorder (complex post-traumatic stress disorder with personality traits or a personality disorder or both) which is marked by emotional dysregulation, particularly at times of stress or difficulty.
Most of the clinicians, including the psychiatrist consulted by the mother, suggested therapy to assist the mother to deal with and control her dysregulation. There is no evidence that the mother has ever sought such therapy.
There is no doubt that the mother’s dysregulation is a serious concern. Examples are given above and it is patent in some of the recordings. It could only have a very poor effect on the children, as explained by Dr P, and is a form of psychological harm to them.
The emotional dysregulation was most apparent at the hearing. On 4 March 2024 the mother was shouting loudly, hysterically at times, talking over people, often interrupting and making extreme allegations towards everyone in the courtroom for the twenty or so minutes that she was there.
As things presently stand, in the absence of any treatment, the only conclusion that can be drawn is that the mother poses an unacceptable risk of psychological harm to the children through that emotional dysregulation.
The purpose of the adjournment for a year was for the mother to have therapy. Orders were made by consent because otherwise the Court does not have power to direct a parent to undertake psychological treatment (although it can make some parenting orders conditional upon such treatment occurring). The mother did not seek treatment but instead sought an opinion from Dr N in an attempt to rebut the opinion of Dr P.
As noted, Dr N also recommended therapy. The fact that the mother has not heeded that advice indicates she is unlikely to do so in the future.
Family therapy
The order of 15 July 2022 provided for Ms S, a family therapist and counsellor, to provide family therapy. Ms S saw the father on 27 July 2022, the mother on 9 August 2022 and the children on 10 August 2022.
On 26 August 2022, Ms S wrote a report explaining why, in her opinion, family therapy was not suitable. She said:
[X] and [Y] currently live within a stable nurturing environment with their father where they appear happy, content and settled, and where there appears no significant issues raised in relation to any risks in their current environment. [X] has commenced school at the local public school for which he is very much enjoying, and [Y] is looking forward to commencing school in 2023.
[The mother] advised that her four older children, [T], [U], [O] and [V] from a previous relationship, have engaged private legal representation and will be seeking private prosecution of abuse by [the father] as a criminal matter, in 2023. When I asked [the mother] about the environment the children may be entering within her home given this pending matter, she advised me that the children would be able to have photos of their father in their rooms and that no one in the house would speak negatively of [the father]. Whilst I appreciated [the mother’s] response, I have concerns that the children will be going from a considered stable, positive and happy environment to one that could be hostile given the views that are seemingly held of [the father] in the home with [the mother]. In all instances children should maintain their loving stable environment, where they are happy, content and settled, which I am of the view they currently have with their father…, and to take them away from this stability could very well destabilise this significantly for them and therefore would not be in any of their best interests.
[The mother] is of the view that family therapy will help her learn how to handle situations when her children, [Y] and [X] return home to her and advise that they have been abused by their father…, however, there appears no evidence of this presently. To the contrary, the children appear very happy, settled and content and displayed no apparent fear or concern about their father in our time together. I would be very concerned that this would be severely destabilising for them both if they were relocated from their stable family home with their father. Further [the mother] is of the view that [the father] should then be only provided supervised visits with the children after a period with [the mother]. This would in effect be going from a considered stable, positive and nurturing environment every day with their father to a new environment that’s possibly hostile with their mother, and where suddenly there is no contact with their father. I’m of the very strong view that this would in no way be in the best interest of the children and raises some serious concerns in relation to [the mother’s] considered best interest for the children, and where perhaps her own self-regulation and emotions in relation to her past relationship with [the father] is still in conflict and will highly likely continue to impact the children.
During our consultation [the mother] was not able to provide narrative that was relative to family therapy, rather it seemed more a place for retribution of issues that don’t seemingly exist. At times the information provided by [the mother] was not balanced in the context of family therapy perspectives. I also have concerns about the inconsistency of statements provided by [the mother], for example [the mother] advised that she will do anything to see her children, then outlined how supervised visits are not necessary for her, when she’ll be available for supervised visits and that she can’t be available at all times due to her work commitments. [The mother] also advised that she was prepared to foster a relationship with the children’s father…and work towards a coparenting relationship, but then suggest the children not see their father in a natural environment, that they are used to, should they return to her, and that any contact [the father] has with the children should be supervised and on the condition that he addresses his abusive ways. I have serious concerns about [the mother’s] emotional regularity and understanding of the impact any of her suggestions may have on [X] and [Y’s] overall well-being and future emotional development.
There have been multiple mentions in reports and by [the mother] of her apparent mental and emotional well-being, however this seems to have not been determined or addressed. I have formed the view, based on my engagement with [the mother] to date and the subpoena documentation, that [the mother] should be independently reviewed, perhaps on a regular basis, with a comprehensive report that contains clear recommendations and understanding about suitability of her mental health and well-being, any diagnosis and ongoing treatment, and any future suitable contact with the children.
After my discussions with the children, [X] and [Y], I am of the strong view that the children appear to be traumatised from the experiences they have described with their mother. They have both advised to me quite strongly, and more than once, that they do not want to see their mother, with apparent fear. I am of the view that bringing the children together with their mother at this time would create great anxiety and be detrimental to the overall well-being and emotional development of the children
Given the apparent trauma and fear displayed by the children, and their request not to see their mother, I would further not recommend any supervised visitation, with their mother. I am of the view that [the mother’s] mental health, emotional stability and regularity needs to be addressed with an independent comprehensive report that contains clear recommendations and understanding about her mental health and well-being, and any ongoing suitability for contact with the children.
(Annexure “A” to the affidavit of Ms S filed 2 September 2022, p.8–9)
The report shows that the mother is still of the view that the father poses an unacceptable risk of harm to the children. Ms S recorded:
[The mother] also reported that the children had told her that their father tries to hurt them, and she wants to work on these things as needed. [The mother] wants to learn how to move forward when the children tell her about the abuse that they have received by their father and how she is to handle it. [The mother] explained that when the children return home to her that she expects [X] and [Y] to be advising her that their father has hurt them and she needs to know “what does she do when the children tell her their father has abused them, that is what I’m here to learn - how to handle this process, what response should I be giving the children, what do I do in these circumstances, how do I handle things properly and how do I nurture them when they tell me these things. What is going to happen to them when they get older, and what will be the impact of all of this on them”. [The mother] then repeated, “when is the call coming that [the father] has killed them?”.
(Annexure “A” to the affidavit of Ms S filed 2 September 2022, p.7)
There is no evidence at all suggesting that the father might kill the children.
The mother has not sought to challenge Ms S’s narrative and I accept that it is accurate.
Family therapy is therefore no longer an option to support the children spending time with the mother.
WHAT ORDERS ARE IN THE BEST INTERESTS OF THE CHILDREN?
The task is to make orders that are in the best interests of the children. In doing so, the Court is to have regard to the considerations set out in s 60CC of the Family LawAct 1975 (Cth).
Primary considerations
Dr P observed “a warm, close and loving bond between [the mother] and each of the children and they were at ease in one another’s company” (Single Expert Report of Dr P dated 4 May 2021, p.29). Things had obviously cooled a bit by the time the children saw Ms S, but that is unlikely to preclude a resumption of a loving relationship through family therapy.
Ms S observed that the children “spoke fondly of their father and displayed a loving and close relationship in their family dynamic” (Annexure “A” to the affidavit of Ms S filed 2 September 2022, p.8).
The children would benefit from a meaningful relationship with both parents if that could be safely achieved.
I have found that the father does not pose a risk of harm to the children, but that the mother poses an unacceptable risk of psychological and emotional harm to the children.
The incident at Suburb M Police Station is a graphic example of the dysregulation of the mother and the effects of it on her children, including, in that case, the Mr B children.
The mother’s view of the father has not changed, indeed it has hardened, as evidenced by the comments she made to Ms S and in court. It is inevitable that she will question the children to see what harm has befallen them if given the opportunity. Supervision will be no answer to that because the mother was entirely uncontrollable in court on 4 March 2024 and would likely act in an unfettered manner even in a supervised environment. The mother did not apologise for her behaviour, instead saying it was justifiable and caused entirely by the father.
The aim of therapy was to assist the mother to ameliorate her unregulated behaviour. It did not occur and there is no evidence that it is likely to occur.
The purpose of the adjournment and the associated therapies was to reintroduce the children to the mother safely and securely. It is implicit in the mother’s consent to those orders that, at least at the time, she considered that they were in the children’s best interest and that that interest was served by the family therapy and the mother’s therapy.
That was a view I shared but, unfortunately, the interventions did not occur. There is nothing to suggest that the mother’s emotional dysregulation has eased – if anything, from my experience of seeing her in court, it has got worse.
The options available to deal with that dysregulation have failed. The only way, therefore, and sadly, to protect the children is for them to spend no time with the mother.
Additional considerations
The views of the children
The views of the children, as most recently expressed, are that they are scared of the mother, but I am inclined to place little weight on that having regard to Dr P’s observations.
The extent to which each parent has taken the opportunity to participate in making decisions about major long-term issues, spend time with and communicate with the children
The mother has played no part in the children’s lives for the past two years, but not for want of desire to be involved.
The likely effect of any change in the children’s circumstances
A change in the children’s circumstances such as moving primary care to the mother would have the deleterious consequences noted by Dr P. Even a move to limited supervised time would expose the children to an unacceptable risk of harm.
The practical difficulty and expense of the children spending time with and communicating with either parent
Although I have already found that supervised time is not in the best interests of the children, there is further difficulty about them spending time with the mother. She lives some hours’ drive from the father and has the care of the four Mr B children. Contact would require travel of several hours for the mother and the children if it is overnight, which is not very practical but not insurmountable. An additional difficulty is that changeover directly between the parents should be avoided but it would be difficult to avoid given the travel involved because changeovers could not occur before and after school.
The capacity of each of the parents
At the time the children moved into the primary care of the father, X had significant dental problems with delayed speech which was not appropriate for his age. Predictably, each parent blamed the other. Importantly, those issues have been attended to by the father and the children seem to be doing well in his care.
Save for the emotional dysregulation of the mother, both parents have the capacity to adequately care for the children.
WHAT ORDERS SHOULD BE MADE?
Taking these matters into account, the best interests of the children require that they live with the father and spend no time with the mother, there being no other viable option to protect them from the harmful aspects of her dysregulated behaviour and her view of the father.
It follows then that the father should have sole parental responsibility for the children. That position is also supported by the conflict between the parties. Given the view the mother has of the father and her dysregulation, it cannot be envisaged that it is likely that there would be any cooperation or agreement about major decisions concerning the children.
Protective orders
Both the ICL and the father proposed further orders to the effect that the children spend no time with the mother and that she be restrained from approaching them, the father, their school or their home.
Such orders should not be made unless there is a sound evidentiary basis for them.
Whilst there is evidence of the mother’s behaviour during the relationship of her inappropriately attending the children’s school, there is no evidence that since separation she has done so or sought to approach the children or father at all.
It follows that I am not persuaded that these orders should be made.
COSTS
Counsel for the ICL, as he was obliged to do, sought an order for payment of his client’s costs. However, most appropriately, he accepted that such an order was likely to work some hardship on the parents, each of whom is supporting a family.
Accordingly, no order for costs will be made.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 27 March 2024
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