ZACKARY & RABASSA (No.3)
[2020] FCCA 402
•28 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZACKARY & RABASSA (No.3) | [2020] FCCA 402 |
| Catchwords: FAMILY LAW – Competing residence applications – mother has made repeated allegations that X is unsafe in his father’s care – parenting capacity – risk of psychological harm – who can best facilitate X’s relationship with the other parent. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60B(1), 60B(2), 60CA, 60CC, |
| Cases cited: Mazorski & Albright (2007) 37 Fam LR 518 |
| Applicant: | MR ZACKARY |
| Respondent: | MS RABASSA |
| File Number: | MLC 6269 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 9, 10 & 11 December 2019 |
| Date of Last Submission: | 11 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 28 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Rothschild |
| Solicitors for the Applicant: | Brendan Rothschild Legal Group |
| Counsel for the Respondent: | Mr Duffy |
| Solicitors for the Respondent: | Peter Baker & Associates |
| Counsel for the Independent Children's Lawyer: | Ms Brennan |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
That all previous parenting orders be discharged.
That the father have sole parental responsibility for the child, X born in 2016, provided that the father consult with the mother about any proposed decisions by:
(a)notifying the mother in writing of any proposed decision;
(b)giving the mother fourteen (14) days to respond before a final decision is made, except in the case of an emergency;
(c)taking into consideration any views expressed by the mother in respect of such proposed decisions; and
(d)informing the mother in writing of the decision made.
That X live with the father.
That X spend time with the mother as follows:
(a)For four consecutive Saturdays from 10:00am for up to 4 hours, such time to be supervised by G Family Services or Family Contact Services or such other supervisor as agreed between the parties;
(b)Thereafter, for two consecutive weekends from 10:00am Saturday until 5:00pm Sunday with Ms H to be in substantial attendance;
(c)Thereafter, each alternate weekend for a period of three months:
(i)In week 1 from 10:00am Friday or from the conclusion of kindergarten until 5:00pm Sunday; and
(ii)In week 2 from 10:00am Thursday or from the conclusion of kindergarten until 5:00pm Friday or until the commencement of kindergarten.
(d)Thereafter each alternate weekend:
(i)In week 1 from 10:00am or from the conclusion of kindergarten/school on Friday until 10:00am Monday or the commencement of kindergarten/school; and
(ii)In week 2 from 10:00am Wednesday or from the conclusion of kindergarten/school until 5:00pm Friday or until the commencement of kindergarten/school.
(e)Commencing the first term 2020 school holidays for one half of the term 1, 2 and 3 school holidays as agreed but failing agreement:
(i)In even numbered years the first half of each school term holidays with time to commence at the conclusion of school on the last day of term and conclude at 5:00pm on the day representing the mid-point of the holidays;
(ii)In odd numbered years the second half of each school term holidays with time to commence at 5:00pm on the day representing the mid-point of the school holidays and conclude at the commencement of school on the first day of the school term.
(f)Over 2020 - 2021 long summer school vacation on a week about basis;
(g)Commencing 2022 / 2023 and thereafter for one half of all long summer school holidays as agreed but failing agreement:
(i)In even numbered years the second half of the long summer school holidays with time to commence at 5:00pm on the day representing the mid-point of the school holidays and conclude at the commencement of school on the first day of the school term;
(ii)In odd numbered years the first half of the long summer school holidays with time to commence at the conclusion of school on the last day of term and conclude at 5:00pm on the day representing the mid-point of the holidays.
(h)Mother’s Day from 5:00pm Saturday until 5:00pm Sunday 2020, and thereafter from 5:00pm Saturday until the commencement of school Monday;
(i)From 10:00am Christmas Day until 6:00pm Boxing Day each year;
(j)For two hours each of the child’s birthday and the Mother’s birthday as agreed;
(k)As otherwise agreed.
That X spend time with the father from the conclusion of kinder/school, or 3:00pm in the event of a non kinder/school day on the day prior to Passover and Jewish New Year, until the conclusion of kinder/school, or 3:00pm in the event of a non kinder/school day on the day subsequent to Passover and Jewish New Year.
That time in paragraph 3(d) and (e) occur provided the mother moves within a 30km radius of the child’s school but should the mother fail to do so then X spend such time with the mother each alternate weekend from the conclusion of school Friday until 5.00pm Sunday.
That changeover that cannot occur at kindergarten or school occur outside of the J Police Station.
That each party be restrained from recording at changeovers.
That the mother and father attend upon a therapist at K Therapy Centre to address parenting issues and co-parenting in relation to X.
That the mother attend upon Ms L, or Ms M for ongoing counselling in particular counselling to assist her to make changes in relation to her behaviours to support X’s relationship with his father.
That the parties be permitted to provide to any therapist they or X attend upon a copy of any expert reports produced in these proceedings and the reasons for these orders.
That the Independent Children’s Lawyer be discharged in 30 days from the date of these orders.
That the father’s contravention applications filed on 15 March 2019 and 12 April 2019 are withdrawn and dismissed with the right of reinstatement.
IT IS NOTED that publication of this judgment under the pseudonym Zackary & Rabassa (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6269 of 2016
| MR ZACKARY |
Applicant
And
| MS RABASSA |
Respondent
REASONS FOR JUDGMENT
X is four years old. Both parents seek orders for X to live with them.
X was born in 2016. X has lived primarily with his mother since birth as the parties separated shortly thereafter. Neither parent has other children. The father lives with his partner Ms N and her children, O, who is 11 years old and P, who is 10 years old.
There is an extremely high level of animosity and distrust between the parties. Neither party trusts that the other is acting in the best interests of X. The continued bitterness between the parties was evident during cross examination at the final hearing.
This is the second set of proceedings. The parties entered into final consent orders at the first day of the final hearing on 27 June 2018. The father’s case is that there have been ongoing difficulties with the final orders that started within a month of them being made. He says the mother insisted on changes and that the mother has been withholding X on and off since the parties separated. The father believes she is attempting to alienate him from X’s life. He says that the mother breached the orders on numerous occasions well before the incident of withholding X in March 2019. The father also raises concerns for X’s emotional and psychological welfare when in the mother’s care. He seeks that X live primarily with him in Melbourne.
The mother disputes the father’s claims and says that there were agreements to change the arrangements and that the father is setting her up to make it look like she has contravened the orders.
She says that she has been subjected to family violence perpetrated by the father and that X has been exposed to this family violence and must be protected from that. She says X regularly returns from his father’s home with bruising and other injuries. It is her case that X continue to live primarily with her in City A.
Both refer to each other as being to blame for the orders not working. Both see the other as being obstructive and difficult, and it is reflective of what has been in issue in this case and in the previous proceedings as well, before final consent orders were made.
The Independent Children’s Lawyer (“ICL”) seeks orders for the parents to have equal shared parental responsibility.
Background
This matter has an extensive history and procedural background which I have previously set out in detail in Zackary & Rabassa [2019] FCCA 2901 and Zackary & Rabassa (No.2) [2019] FCCA 2902. Those reasons should be read with these reasons for context.
The father was born in 1975 in Country Q and is aged 44 years old. He is currently self employed as a tradesman. He lives in Melbourne with his current partner Ms N.
The mother was born in 1985 in Australia and is aged 34 years old. She is currently working as a customer service officer out of Suburb R and lives in City A, approximately two hours’ drive from Melbourne.
The parties met on a dating site in 2014. They proceeded to go on one date and then ceased contact in 2014. The parties commenced a relationship in or around late January/early February 2015.
Both parties characterise the relationship as turbulent. The father deposes to many arguments and physical violence by the mother in his material and the mother deposes to physical and emotional violence perpetrated by the father in her material.
The father states that the parties separated shortly after X’s birth in 2016 but then reconciled a week later. The parties separated again on 10 June 2016.
The mother says that the relationship re-commenced in October 2016 for a further eight months. The father says that the parties started spending time together again in December 2016. Both parties agree that the relationship broke down for a final time on 17 June 2017.
On 19 September 2019 I made orders listing this matter for an expedited final hearing on 9 December 2019, for an urgent family report to be conducted and for the parties to be appointed urgent representation under the Commonwealth Family Violence and Cross Examination of Parties Scheme (“the scheme”).
Both parties were appointed legal representation under s.102NA of the Family Law Act1975 (Cth) (“Family Law Act”), however, the preparation of this trial by the legal representatives was extremely underwhelming.
Despite my clear trial directions which only permit the parties to rely on one consolidated trial affidavit and one affidavit by any supporting witness, both parties sought to rely on many of their previous affidavits, including those filed in the previous proceedings, in their case outlines. After raising this with Counsel, the father sought to rely on his affidavits filed 27 November 2019 and 20 August 2019 and the mother sought to rely on her affidavits filed 28 December 2017 (filed in the previous proceedings) and 6 December 2019. This took some time to determine even though my Chambers had raised this issue via email the week before. The mother’s Counsel sought to rely on a 2017 affidavit from the previous proceedings that he did not even have a copy of at the final hearing and did not appear to have read.
A further issue in the preparation of the matter was the extremely late filing of material. Both parties were given an extension of time to file trial affidavits, however the father still filed an affidavit a week before the final hearing and the mother filed her affidavit the Friday evening before the final hearing began on Monday. The ICL did not file a case outline.
It was apparent from the beginning of the trial that Counsel for both parents were not familiar with the history of the proceedings and had not inspected the considerable amount of subpoenaed material which was tendered in the interim hearing, which only occurred in September 2019, and provides the context as to why this matter was listed urgently for trial. As the final hearing began, it became clear that only the ICL’s Counsel had read the interim judgments dated 19 September 2019 and 23 September 2019 and had inspected the exhibits tendered at the interim hearing.
The parties and the Court are entitled to expect better. It should not be necessary to point out basic things to lawyers including that material in previous proceedings and exhibits in interim proceedings are not in evidence unless they are tendered into evidence during the course of the trial. Fortunately, the Court was greatly assisted by Counsel for the ICL.
The position of the parties
By the end of the trial the father’s position had not changed. The mother in essence sought that the 2018 orders remain in place. The ICL supports a change in residence from the mother to the father and supports the parties retaining equal shared parental responsibility.
The father’s case
As indicated above, the father relied on his affidavits filed on 20 August 2019 and 27 November 2019 and his partner’s affidavit filed 27 November 2019.
The father seeks that X live primarily with him and that he have sole parental responsibility. He also sought that X’s time with the mother be professionally supervised for the first four occasions and then move to unsupervised day time for six months thereafter and then graduate to one overnight each weekend with a progression of time every three months thereafter.
The mother’s case
The mother relied on her affidavits filed 28 December 2017 and 6 December 2019 and the affidavit of her mother filed 28 December 2017.
The mother seeks that the parties have equal shared parental responsibility for X and for X to live primarily with her. She also seeks that X spend each alternate weekend with the father, and from the conclusion of school on Wednesday to the commencement of school on Friday in the other alternating week during school terms and also half school holidays. The mother had also stated during cross-examination that she would move to Melbourne in accordance with the June 2018 consent orders which provided for her to move on or before X’s fourth birthday. Her minute of orders handed up at the end of the trial sought an order that the parties enrol X in kindergarten in Melbourne. I do not know if that has occurred.
The ICL’s case
The ICL relied on the family report prepared by Ms S dated 15 November 2019.
The ICL after hearing all of the evidence submitted that the parties should have equal shared parental responsibility, but if the Court considered that proposal unworkable due to the high and consistent level of conflict between the parties, then the father should have sole parental responsibility. The ICL submitted that X should live primarily with the father and spend time with the mother in accordance with the recommendations of the family consultant. This recommendation also included for the first four visits of the mother to be supervised. The ICL also sought orders that the parties attend upon a therapist and that the mother attend upon an individual counsellor to assist her with making changes in her behaviour towards the father and X’s relationship.
The orders I make are largely in line with the ICL’s proposed orders for the reasons set out here.
Issues in dispute
The issues I must determine are:
a)family violence;
b)if there is a risk to X in either of the parent’s care;
c)each party’s willingness and ability to facilitate X’s relationship with the other parent;
d)which parent X should primarily live with; and
e)the risk to X’s long term emotional and psychological well-being if he remains primarily in the mother’s care.
Legal principles and their application to children’s issues
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second 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 Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3).
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the child to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the child spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the child spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time.
The father’s affidavits
The father filed a trial affidavit on 27 November 2019 which addresses many of the same issues as his previous affidavits and also replies to the mother’s previous affidavits denying her claims of family violence.
He says that X has his own bedroom at his rental property and he is able to completely meet X’s needs if he were to live with the father.
The father reiterates the issues in relation to the mother contravening the June 2018 orders and provides a further recent example. He says that on 7 November 2019 the mother threatened to have him charged for breach of the intervention order (“IVO”) when the father asked for X to see the paternal grandparents that live out of state who had come to see him. He says the June 2018 orders provided for him to have X for four days twice a year to facilitate him seeing the paternal grandparents.
The father’s November 2019 affidavit also details the contravention applications filed by him and the numerous attempts to serve the mother. The process server noted that the mother “appears to be avoiding service”.
The father says that the mother has always been obstructive and will never be able to facilitate X’s relationship with him.
The mother’s affidavits
The mother says that since separation X has lived with her and she has regularly offered the father time but he does not accept the offers as he prioritises work over seeing X. She also describes two incidents where X has returned from the father’s care with injuries. The first incident occurred on 3 March 2019 when X returned with bruising on his backside and a scratch on his eye. The mother says that X informed her that the bruises were caused by his father hitting him and the mother consequently notified police and withheld X until 23 September 2019.
The second incident occurred on 1 November 2019 when the mother says X returned from the father’s care with red eyes, wet underwear, bruises and cuts to his hip area. The mother says X also complained of being left in a hot car by the father.
The mother says in her affidavit that she does not think that it is in the best interests of X for him to be removed from her care. She further states that if X is ordered to live in Melbourne then she will have to quit her job as she will no longer have the support from her parents to look after X when she works. She will have to find other employment in the Melbourne area.
Issues arising post the June 2018 consent orders
In his affidavit filed 20 August 2019 the father predominately addresses the events that occurred post the final hearing on 27 June 2018 and the high conflict between the parties. The father annexes an email from the mother dated 31 July 2018 where she enquires about going to mediation to try and resolve some of their issues. He also refers to numerous emails over the course of the next few months where the mother requests that they attend mediation. It is not surprising that the father did not want to attend mediation so soon after the final orders.
Given the parties’ positions and the way they communicate I think it unlikely that mediation would have assisted them.
The father annexes an email from the mother dated 3 August 2018 stating that he has been “put on notice about my change of circumstances and refused mediation so it will be a matter to inform the court.” This is significant given the final consent orders were only made on 27 June 2018.
The father lists numerous emails and texts from the mother demanding various things such as sending photos of X to her, stating that the father’s partner’s children must stay away from X and that the father should not talk to the maternal grandmother at changeovers. The father says that the mother threatened to cease his access to X if he did not meet her demands.
In August 2018 the mother attempted to organise time with the father to coordinate with her holiday timetable. The father says that she did not show any concerns about X being in his care during this time. However, in a series of texts and emails after this period in late August and September 2018 the mother highlighted various complaints she had about the father’s new relationship and that this could cause X emotional distress.
The father says in his affidavit that the mother made more threats via phone in November 2018. The threats included ceasing access and that if the father filed any contravention applications that they would be at “war” again. The father provides numerous further texts and emails from the mother over the next few months where she either attempts to change the final orders or just does not agree to comply with them.
Family violence
Both parties have cross alleged family violence and as a result there are current IVOs out against both parties which are due to expire in mid-2020.
The mother alleges that the father perpetrated family violence acts against her both during the relationship and after separation and that X was exposed to the family violence. The mother’s affidavit filed 6 December 2019 is brief and I will set out her allegations in relation to family violence in full:
17. That the Applicant Father has perpetrated family violence against me both during the relationship and post separation. For example, whilst I was heavily pregnant with X the Applicant Father threw an upper cut punch towards the stomach area whilst I was walking past him. I had to seek medical attention at the T Hospital after this incident. Other examples being in or about June 2016 the Applicant Father grabbed hold of my neck and threatened to kill me and in or about 2017 the Applicant Father physically assaulted me by dragging me by the arms and knocking me into walls around the house. The Applicant Father was charged by Victoria Police in relation to this subsequent incident with various criminal offences. I verily believe that the Applicant Father was placed on the diversion program in relation to these various criminal charges.
18. X has been exposed to the family violence perpetrated by the Applicant Father against me.
19. As a result of the family violence perpetrated by the Applicant Father against me I have applied for an obtained an Intervention Order against him in favour of myself and X.
The mother’s affidavit filed 28 December 2017 goes into greater detail about alleged family violence.
It is important to note that the mother’s allegations of family violence were not squarely put by her Counsel to the father, his partner or the family report writer in the proceedings during cross examination by Counsel for the mother or the father. This is significant.
The ICL cross-examined the mother in relation to her allegations of family violence and the many police reports she has made.
The following exchange took place between the ICL and the mother with respect to the flavour of the police reports by both parties:
COUNSEL FOR THE ICL: You see, peppered throughout the LEAP records are references by the police to complaints, mainly by you, but, also, their attention to both your behaviour and the father’s. And it goes to the issue that I put to you earlier, yesterday, which was that their conclusion is that, more often than not, if not always, these are petty squabbles over the child where you both want to get one on each other. And I will read to you what they conclude. And this one is from November ’18, so it’s prior to that last one:
There have been six reports of family violence between the parties, both reporting three separate incidents at various times against the other. The most serious reports are where the AFM was assaulted. Both the respondent and AFM have current IVOs against the other. On this occasion, the respondent has attended the Town U Police Station as he felt the AFM breached the order he has on her. He has a video recording of the phone call between himself and the AFM arguing over child arrangements that have been through the Family Courts. The manner of the phone call was heated as both felt they were right. Numerous times during the four separate recordings, the AFM and respondent have both breached their relevant IVOs.
COUNSEL FOR THE ICL: Both.
Due to the respondent having a full order against him, filming conversation would constitute a breach by keeping the AFM under surveillance. The arguing between both parties is petty. Neither are able to, or want to, help the other out and have their own interests at hand.
At this point the mother kept interrupting. She disagreed with the characterisation by the police of there being petty arguments between the parents. She said that the father was threatening to file a contravention application after agreeing to visits on different days. I do not accept the mother’s evidence that the father was setting her up and agreed to changes verbally but then went to the police station to obtain statutory declarations to use against her. It is just too convenient that all of these conversations took place verbally and not once in a text or email given the level of conflict and distrust between the parties. The mother appears to have either distorted or unreasonable thinking around this. The ICL’s Counsel continued:
COUNSEL FOR THE ICL: What this document says is that these are not full and proper complaints. They are petty arguments that you are wasting the police time with, and they’re happening all the time. And that’s their reference. Six separate complaints by each of you. So do you accept, when you say it escalates, they haven’t been serious complaints? ---
MOTHER: To me, what he was saying was serious. To me, what he was saying was serious…
Exhibit 4 is the LEAP record of Victoria Police dated 8 September 2019. The record indicates that the mother was attempting to have the father’s text messages about X recorded as a breach of the IVO. She was advised that it was not a breach due to the family law orders that were in place. Importantly, the last line of the record states “it appears AFM is attempting to go to multiple police members at different stations to attempt to gain upper hand and try and breach the resp [sic]”.
The father’s criminal charges
The father faced eight criminal charges. The police withdrew all except one of the charges. The charges all related to a period prior to the final orders made. The indictable offences related to a threat to kill made on 22 May 2017, and using a carriage service in a manner which a reasonable person would regard as being harassing on 17 June 2017. The other charges relate to breaches of an IVO and an assault on the mother on 19 December 2016. The charges relate to four dates, being 19 December 2016, 22 May 2017, 17 June 2017 and 31 July 2017. All of this well pre-dates the final orders being made.
The father was found guilty in relation to one of the charges that involved him driving past the mother after changeover and coming within five metres of her. Under cross examination the father says that he did not know that the mother was there and he was attempting to take a shortcut to get to work after a changeover and that the reason that he was driving slow was because there is a childcare centre there and therefore a 10 kmph speed limit. A Diversion Plan was issued at the Suburb B Magistrates’ Court in October 2018 in relation to that offence. Diversion Plans are offered to first time offenders to avoid a criminal record.
When the mother was questioned about this by the ICL’s Counsel the mother did not wait for Counsel to finish the questions and said that the fact that charges were withdrawn does not mean they did not happen and said “there was overwhelming evidence.” Plainly, the police were not satisfied that there was overwhelming evidence. Significantly, all of those incidents occurred before the parties entered into final consent orders. There has been no further criminal charges against the father.
The father’s partner
The father’s partner Ms N filed an affidavit in support of the father’s application. She says that X and her two children get along very well. In her affidavit she raises concerns about things X said when he resumed spending time with his father after the seven-month gap.
She also has concerns about the mother’s behaviour.
A few months into her relationship with the father, in or around August 2018, the mother sent her a Facebook message which said:
Hi Ms N. My name is Ms Rabassa. I’m X’s mother. I’m aware you and Mr Zackary are residing with each other. Please call police of Mr Zackary commits family violence towards you in front of X, including screaming at you. X has an IVO against Mr Zackary, and it’s extremely important to me as a mother that you notify police and do not allow X to be subjected to family violence. I’ve worked very hard to protect him. Contact me if you need anything.
Ms N thought that was inappropriate. She said she knew the background of the mother and father’s relationship and it was not her experience of the father. She felt violated.
Ms N showed considerable insight when cross-examined by the ICL’s Counsel. Her children were young when she separated from their father. At the time their father was always talking to them about the conflict and she made a conscious decision not to do the same, as her children could judge their parents when they were adults. She said at one point her relationship with her son was precarious so she arranged counselling and they were able to work on and improve their relationship. She supports counselling as a useful tool. She also said that she does not think that the situation between X’s parents will be resolved unless they both want to resolve it and keep their issues between them and do not involve X in them. If a counsellor working with X’s parents thought that she should be involved in any aspect of the counselling she would support that.
When cross-examined she also expressed concern that someone rang the Department of Health and Human Services (“the Department”) telling them that she had been abused. She believes that was the mother.
Ms N also said that the mother sends texts on the same day which can range from complaints about bruises and sunburns and then joyful messages.
X has the benefit of different experiences in the two households. At the mother’s house X is the only child and the focus of the mother’s attention. At the father’s household he experiences a blended family and living with other children.
Mother’s cessation of the father’s time in 2019
February 2019
On 12 February 2019 the mother sent an email to the father stating that she was concerned about his stability and that she would be ceasing all further visits until the next court date due to fear over X’s safety.
When cross-examined about this cessation of time by Counsel for the ICL, the mother said that whilst she could not recall what happened in February, she has only withheld X when she has been seriously concerned about X’s welfare. She went on to say that things were escalating and the father was making threats saying that he was not going to return X. She then said there was an occasion when she withheld X for about two weeks. She says she offered make up time but was unsure when this occurred and repeated that she only withheld X when she was concerned for his welfare. The mother was vague when cross-examined about this which causes me concern about the potential for future occasions where the mother will find a pretext for withholding X.
The mother was cross-examined about a series of texts the father annexed to his August affidavit filed on 20 August 2019. The mother was asking for changes to the arrangements. During the course of those exchanges the mother said she did not believe that the father had arranged workers for Sunday (when X was due to be in his care) and would not have the father leave X with strangers when his mother was available.
The orders are clear. The mother was not entitled to impose conditions on the father’s time. The father’s responses were that he did not agree to a change unless he still had his two overnights. As the exchanges continue the mother tells the father to stop telling her what to do. This is somewhat hypocritical given her approach. The father replied that he is giving her options so as not to be in breach of the orders. The mother then replied saying she is not bringing him and does not care about his bullying and threats. Requiring the mother to comply with the orders and disagreeing with the mother’s proposals is not bullying or harassing.
In cross-examination the mother said the father cut out some text messages. The difficulty with this is that she did not produce a complete exchange in her interim affidavit in response to his affidavit and did not do so in her trial affidavit.
Their exchanges continued. On 12 February 2019 the mother asked the father to change the arrangement to a Thursday. The father responded referring to his time stipulated in the court orders and his rights to be informed about X’s progress at day care and stating that he would be at Town U Police Station the following day at 10:00am, which is the handover location in the orders.
The following exchange took place between Counsel for the ICL and the mother:
COUNSEL FOR THE ICL: 12 February. Now, you then send an email which is annexed, undated, but referring to the same issue:
“Dear Mr Zackary. I’m concerned about your stability at the moment and, therefore, X’s welfare in your care. The day care informed me that you were harassing them for information to go on the enrolment after years of X being enrolled there and to attend day care when you’re not allowed to be within five metres. I want to remind you of your IVO conditions and state that your behaviour is erratic and concerning. I was informed that the day care rejected your requests. You informed them that you would make contact with me, but you haven’t in any way attempted to co-parent with me.”
COUNSEL FOR THE ICL: Now, this is the important part:
“I’m concerned about your constant harassment and bullying of me, which affects X as well. Your breaches of IVO, recording me and keeping me under surveillance while you’re on a diversion program. I’m concerned about your threats not to return X, some of which you put in writing – “
COUNSEL FOR THE ICL: I take it you’re referring to the one where he says, “I will bring him back Monday”?
THE MOTHER: No. He did put it in an email form that he’s not going to return
COUNSEL FOR THE ICL: Not in any of these and not in anything you’ve produced, I’m afraid. But he – the one thing he does say is “I will return him on a different day”?
THE MOTHER: ‑‑‑No. No, he ‑ ‑ ‑
COUNSEL FOR THE ICL: So I assume you’re referring to that?
THE MOTHER: No.
COUNSEL FOR THE ICL: At the end of the letter, it says this:
“These issues need to be resolved in court, now, by way of my own application to request that the orders be changed. You’ve refused mediation for which I received a certificate stating such. I don’t agree to any further visits until court due to fear for X’s welfare. I do agree to visits under supervision at V Contact Centre in City A.”
THE MOTHER: Like I said, things had gotten really, really bad.
The mother’s reference to not agreeing to further visits until after court is typical of the mother’s view of the orders. She fails to appreciate that it is not a matter of her agreeing with the orders but complying with them. The mother says she then offered makeup time but does not produce any evidence with respect to this. The mother’s Counsel did not cross-examine the father about this.
3 March 2019
I referred to this incident in my interim reasons (No.2) at paragraphs 33 to 39 and noted the extensive material produced by the Department and police which I will set out here:
33. On 3 March 2019, after X was returned to the mother’s care after spending time with the father, the mother made a complaint to SOCIT and the Department after what she says is that X, after returning home, had taken off his clothes and she saw bruising on his leg near his buttocks and asked what had happened and that X told her that his daddy hit him and when she asked him why he said, his “daddy was naughty”.
34. The mother took photographs and texted the photographs to the father and asked him why he had hit X and informed the father that she was not going to make X available, given that disclosure of physical abuse. The records from both the police and the Department deal with this issue in some detail and I will not set out the contents of those documents in any length.
35. One of the things that the father points to in that material is the lack of any corroborating evidence and the failure of X to make a disclosure to anyone other than the mother. That, of course, is a very common thing in incidents of this nature and is not something that I would place any weight on. It is also not surprising, given X’s age that other disclosures were not made. That is neither here nor there with respect to that issue, but what is significant is the conclusions of SOCIT and the Department. The SOCIT records refer to after carrying out an investigation and examining all the documents in evidence, there was some doubt as to the credibility of the mother and some suspicion about whether or not she had fabricated allegations because of the current family law proceedings and her fear that the father was trying to obtain custody of X.
36. Again, both parties flagged this entry for different reasons, with the father referring to the doubt in the mother’s credibility and the mother stating that SOCIT did not contact her and that if they had she would have provided the text messages from the father confirming bruises in her care. One of the issues that is raised is some inconsistency in what the mother has said is in her statement to police. She says she was not aware of any injury to X until after X was returned to her care. But what is in the exhibits are text exchanges between the parties, where the father had sent the mother a text the day before on 2 March 2019 and also sent photographs of X playing on the beach, and told her that he had had a small accident with a bush where he scratched himself. The mother’s statement to the police, which is also part of the exhibits, is inconsistent with this and she says that the father told her about the scratch when he dropped X back to her and made no mention of the previous texts.
37. There is no suggestion that the issue of bruising on X’s legs was raised. Indeed, the father’s position is that he was not aware of them and, in the exchanges between the parties on 3 March 2019, the father denied hitting X and referred to him being an active boy who runs around and that the marks were clearly not from someone hitting him. There are colour photographs of the bruises in the exhibits before the Court. They were noted by SOCIT to be small and circular in appearance and that, given their location and presentation, it was more likely that they were accidental rather than being caused by the father deliberately.
38. SOCIT did not authorise any charges to be brought. Of course, the fact that briefs are not authorised by police does not mean that they are not matters that are properly raised as issues of concern before this court because the criminal standard of proof is quite different to the task that this court has to undertake with respect to assessment of risk. The records from the Department set out the mother’s concerns with respect to this incident and X’s disclosures that his father hurt him and hit him The Department records the mother’s concerns that, since withholding X, the father was threatening to take X away from her completely and also her fear that the father would hurt X again, if he was allowed to have unsupervised contact.
39. The Department records that there had been previous concerns about the ongoing conflict between the parties and concerns about X experiencing physical abuse whilst in the father’s care. Both parties were interviewed by SOCIT with respect to the incident. Those records, which are part of exhibit C, include two identical letters addressed to each of the parties dated 9 July 2019 stating that the matter had been fully investigated and that there was insufficient evidence to proceed with the criminal charges. The father points to this as an indication of the mother knowing that that was not proceeding, yet still not making X available to spend time with him. No doubt, that issue will be a matter for contest at trial.
The mother made other complaints to the police. She was cross-examined about a complaint she made and lodged with respect to how the police handled her reports of the incident on 3 March 2019 and how the subsequent investigation was handled. The letter referred to, after examining all the documents and evidence that “I find that there is reason to doubt the credibility of the victim, and to suspect that she has fabricated allegations. These reasons include the current family law court proceedings and her fear that the accused is trying to obtain full custody”. The mother replied that afterwards the police spoke to her on the phone and sent a letter apologising and saying that the police officer should not have written that and required further training.
The mother was cross-examined about the letter from Victoria Police responding to her complaint to the Professional Standards Commission dated 24 September 2019, which is Exhibit 1. In that letter Detective Sargent Clark acknowledged the specific aspects of her complaint. After making enquiries he acknowledged that it was “poorly worded/misrepresented”. The letter further stated that the correct conclusion was reached which was that there was insufficient evidence to support a criminal charge. The police officer who prepared the report was given workplace guidance with respect to the sensitisation of her reports and ensuring the reports are limited to the facts.
When that was read to the mother she said the police officer’s conclusions were withdrawn, that they did not have enough evidence to press charges and could not say with certainty that the father had not abused X. When the ICL’s Counsel suggested to the mother that the police said that the bruises on X did not accord with the allegations the mother made, the mother replied that the police told her the whole investigation had been gone about the wrong way and that it had been sent to a number of wrong places. When the mother was challenged about this, as the letter does not say that, the mother said they told that to her on the phone.
The ICL’s Counsel cross-examined the mother about X’s bruising. The mother said they covered most of his “butt” and that they were big for a baby. The coloured photograph of X’s bruising is included in the police brief. It shows two small bruises on the side of X’s right buttock. The mother insisted that the photograph did not show how the bruises looked in real life. The mother took the photo the night X came home. She said the police did not examine X but just saw that photo. She identified the photo as being the one she sent to police asking them to investigate.
Counsel for the ICL read out the description in the police brief:
Ms Rabassa supplied one photograph of the bruising that she observed on the victim. The two bruises depicted in the photograph are brown and circular in appearance. Due to the location and presentation of the bruises, it’s more than likely that they’re accidental and are not consistent with being caused by an open hand strike. The colour of the bruises suggests that they’re not recent, but, as is always the case, bruising cannot be aged.
Again, the mother was quick to answer and she kept interrupting before Counsel could put the question. The mother does not agree with the description. She asked how the father could not have noticed it when he changed X’s nappy. She denied telling police it was caused by a hand strike. She said X said to her “Daddy hit me”. She said she does not know what he was hit with but she believes him. She insists that the bruising was severe and “excessive force” caused it. I do not accept the mother’s evidence that the photo does not accurately reflect the extent and seriousness of the bruises. I find the mother would have taken the clearest photo she could in support of her complaint.
When Counsel for the ICL’s cross examination of the mother continued the next day, she put to the mother that the police did not find that the father caused the bruising. The mother insisted that the police referred to the investigation being carried out in the wrong way. This is overstating what the letter said. The mother has great difficulty accepting what professionals and others say when it does not align with her views.
The mother also continued to insist that she never received the letter from the police dated 9 July 2019 and claims the first time she saw it was when she was inspecting the subpoenaed material in September 2019. The mother confirmed that her correct address is on the letter. When cross-examined by the father’s Counsel about this matter the mother said she lives on a main street near a school and does not receive her mail. The mother’s evidence was not credible in this regard. I find that she was sent the letter. The mother showed consistently that she has great difficulty accepting anything that is inconsistent with her version of events or beliefs.
Family report of Ms S
The parties attended for a family report on 6 November 2019. Ms S conducted the family report interviews.
Ms S highlighted that there had been three previous reports carried out in this matter, one in November 2016 by Dr D who determined that there were no psychiatric diagnoses for either party, one in January 2017 by Mr E who recommended that the father proceed to spend time with X along with suggested guidelines, and a second report by Mr E in April 2018 that recommended that if the Court found that the mother was actively obstructing X’s time with his father then a change of residence would be required.
The father reported that he filed an initiating application as he believed that the mother did not want X to spend any time with him. The mother reported that she initially wanted X’s time spent with the father supervised as she was fearful of him. Ms S noted that the mother had reported to Dr D in November 2016 that she was no longer fearful of the father, however, when the current family report interviews were held in November 2019 the mother requested a safety plan so that she would not come into contact with the father.
The father proposed that X live with him and was not quite sure what to propose in relation to the time X would spend with his mother, however, proposed that ultimately there should be a reverse of the final orders made in June 2018. The mother proposed that X remain living with her in Suburb W and that X’s time with his father change to alternate weekends and half school holidays when he starts to attend school. Ms S noted that the mother did not seem to have considered that there may be a change of residence despite Mr E’s report and previous orders noting that if she did not attend this may occur.
This is significant as she has also been on notice of this from at least the interim hearing in September 2019. It is consistent with her inability to take on board views that do not accord with her own views and beliefs.
High conflict and capacity to facilitate each other’s relationship with X
The father was very clear in cross-examination that he has no faith that the mother will stick to any arrangement that is made. Initially he did not think that family therapy would serve any purpose in light of this. He eventually agreed that they could benefit from professional assistance.
The father says that X is likely to suffer psychological and emotional harm if he remains in the care of the mother. He says that X is very attached to him and his family and he struggles to get X to go back to his mother as evidenced in the family report. This was also observed in the s.11F report dated 26 September 2019. It occurs to me that X is insecure about when he will see his father again given the lengthy period he did not see his father. It could also be because he only had a short time to play with his father. X is very aware of the tension and conflict between his parents. Mr E identified this in his reports which are marked as Exhibit 7. In the first report he observed X moving easily between his parents, being relaxed with both and seeking comfort from both.
I quoted paragraph 4 of his first report dated 5 December 2016, in my second set of interim reasons. It is worth doing so again:
Notwithstanding the many positives in relation to this family, both Mr Zackary and Ms Rabassa agreed that their relationship was tumultuous, that conflict between them escalated quickly and that they were not able to adhere to an agreed plan in any regard. I had direct experience of this with them. Their conflict escalates in a fairly predictable manner in that they seem compelled to try to convince the other that their position in relation to any matter is not correct, and that the other should change their position and perspective in order to accommodate their own. This interactional style creates a fertile environment for the germination of chronic conflict. This was very clearly a feature of their past relationship, and is likely to be a feature of their future interaction.
In his second report dated 13 December 2017 Mr E referred to the escalating conflict between the parties. What he says at paragraph 5 is significant:
Notwithstanding the Orders, there have been difficulties. The sheer volume of email correspondence attached to the affidavits is testimony to this. I also note the escalating nature of the allegations directed at Mr Zackary, ranging from drug use, to excessive viewing of pornography, and him engaging in lewd sexual practices, all of which Ms Rabassa believes places X at risk. None of these allegations as I understand it have been proved, and even if they were found to be true, it is questionable whether Mr Zackary’s personal interests have any bearing on the time he spends with X whatsoever, other than if he was found to be impaired as a consequence of his alleged drug use as the case may be, none of which I understand has been substantiated. The affidavit material reads as a free-floating expression of Mr Zackary’s anxiety, with a tendency towards an over representation of emotional facts, that is, her fears and anxieties that have been elevated to the status of fact. I suspect had she been represented by a solicitor, that the tenor of these allegations may have been subdued.
The father raised his concerns about the mother treating orders as advice rather than as being compulsory. Paragraph 12 of Mr E’s report encapsulates the issues of concern:
The level of frustration experienced by Mr Zackary was palpable; there is no negotiation, he feels that Ms Rabassa has been empowered to make decisions unilaterally and has done so with impunity, that she chooses to not abide by the Court Orders, and refuses to accept that X when with him is safe and looked after, or that they have a warm and loving relationship together. It is worth noting that I observed X in the company of both parents, inviting him to play with one parent whilst the other watched and then reversing the roles, and that as far as I could ascertain, X approached both parents easily, confidently and comfortably. When he was greeted by his father, he immediately smiled, went to his father, lifted his arms to be picked up by him, and engaged easily and effortless with him. When observed in the company of both parents, at which time each parent was asked to interact with X for 20 minutes, whilst the other sat and observed, it was most notable, that X completely disconnected and ignored the presence of the other, he did not glide between them, but rather treated them as separate entities, relating warmly and easily with each of them, but not sitting comfortably in the middle ground between them. Experience suggests that this kind of reaction in a child of X’s age reflects something about the untenability of that middle space, the perception to do with the tension between his parents, and some understanding that together, rather than present him with a source of security, a safe base, and a secure haven in which parents are interchangeable, that when together, they instead present X with stress and uncertainty. I suspect that the transitions that have involved Mr Zackary and Ms Rabassa have been particularly difficult for X, and I also suspect that he has done significantly better when the grandparents have been involved.
There has been further escalation of the allegations made by the mother since the final consent orders which is troubling.
The mother’s common refrain when being challenged with documents that contradicted her evidence was that there was a conversation. There was differing accounts by her and the father as to whether or not they agreed to variations to the orders. When the mother was shown texts and emails that showed that the father did not agree with the proposed changes, the mother says he did this on the phone. I do not accept the mother’s evidence in this regard. I also do not accept the mother’s evidence that the father was setting her up by obtaining statutory declarations at police stations that he attended at the court ordered changeovers but the mother did not.
One of the other issues of conflict between the parties has been X’s enrolment at day care and now kindergarten, and the mother’s failure to include the father on the enrolment forms. This should have been a straightforward matter.
The details the mother entered on the day care records was another issue raised at the interim hearing. The father addressed this in his affidavit filed 20 August 2019. He refers to the subpoenaed records showing the mother as having “full access” and the father “limited access” and notes that his details are not included anywhere on the form including as a contact and that in various instances X is referred to by the mother’s surname.
He also referred to the day care centre documents recording some incidents where X has had minor falls. He is not concerned by their nature given how active X is but says it is appropriate for him to be informed and be noted as an emergency contact. He sent an email to the day care introducing himself and asking that he be informed as to X’s progress and any incidents of concern.
The father’s position is reasonable. The parents have equal shared parental responsibility pursuant to the consent orders.
The mother was then cross-examined about the police LEAP record dated 12 February 2019:
COUNSEL FOR THE ICL: Now, if I go to the LEAP records, which are the documents her Honour arranged to be subpoenaed in relation to these issues. And, interestingly enough, there’s an entry here in relation to what I’ve just taken you through. It’s the issue of the child care. It’s dated 12 February. It’s for reporting purposes only, but what it says is this:
“This incident is being recorded as the AFM –“
COUNSEL FOR THE ICL: it was you –
“attended the police station on 12 February wanting to report breaches of intervention order that the respondent has committed. The AFM wants to breach the respondent due to the respondent contacting the AFM via text message to try and organise arrangements with the child. Large amount of text message is produced depicting conversations between the AFM and the respondent, and the AFM was advised that this is not a breach due to the family law order being in place. The AFM also wanted the respondent breached because she stated that she is being harassed by him because the respondent has contacted the child care centre where the child goes and, due to him not being allowed to drop off and pick up the son, the respondent wants to be put on the emergency contact list. The AFM feels that this is him trying to get at her and harass her. Advice given to the AFM that this is not a breach and if she wants to not contact the respondent at all, she will need to get advice from a solicitor.”
The mother says the record is wrong when it refers to the father wanting to be noted as an emergency contact. She said she would not go to the police for that but he was aggressive with the day care centre. The Department records refer to the day care centre finding the father angry and difficult. I find it is likely that the father presented this way but this needs to be seen in context where I also find that it is likely that the mother gave a narrative to the day care of the father being violent and dangerous and that they should not provide information to him. It was inaccurate to describe him as having ‘limited access’. He should have been recorded as an emergency contact even though he lives some distance away.
Recording of X and the mother
Exhibit 6 is a recording the mother made of X in the car with her after a handover. The recording was played in court several times. The mother emailed the recording to the ICL on 3 December 2019. She says she told her lawyer about it straight away. The recording was made on 29 November 2019. The mother refers to the recording being in August 2019 in her email to the ICL but this is a typographical error as the father was not spending time with X in August 2019. In that email also dated 29 November 2019 the mother complains that X is being subjected to family violence. The mother tells the ICL to “do something about it”. The mother also says she has filed a report with the Department and will be making a complaint to the police.
The mother sent a further email to the ICL on 4 December 2019 attaching a copy of the recording. In that email the mother says that X has made further complaints. She claims X is scared of Ms N and that the father regularly leaves him with Ms N whilst he goes to work. She complains that no voices are raised in her household and that Ms N should not scream “especially in front of my child”. She refers to the history she and X have been through previously of “serious intimate partner violence”. She goes on to say “I cheered X up with my house full of balloons [sic] and had a family weekend. How heartbreaking for me as a mother that my son felt he needed cheering up from the psychological harm that he was subjected to”. She attached a photograph of a large bunch of balloons touching the ceiling. In the recording she refers to having a Christmas party the next day.
When cross-examined, the mother said they were having a family Christmas party that weekend. X loves balloons so she filled the house with them.
She goes on to complain in her email to the ICL about X coming back with bad sunburn on his arms and complains “it seems to be something different every week”. She wants the ICL to follow up on the mandatory report she claims her doctor made a few weeks before when she took X to her doctor after X returned from his father’s home complaining about being in a hot car, having red eyes and bruising and having wet himself.
In the recording the mother questions X and he says he was crying as Ms N was too loud. The recording refers to Ms N speaking loudly to “O”. O is Ms N’s 11 year old son. It is likely that Ms N may have been telling off her son in front of X.
The mother asks X a series of leading questions and in the course of doing so repeats his answers. She then asked X several times what he wanted her to do. He replied that he wanted her to cheer him up. She then asked X again why he was crying and he replied that Ms N was too loud. She asked him if he was scared. Then X said he was and it made him cry. The mother then said “Well that’s not good X. That’s – mummy doesn’t think that that’s good. That’s not good. And mummy’s going to cheer you up, okay?”
The mother says she usually records the changeovers and believes the father does too. This needs to stop. The parents need to focus on making transitions simple and easy for X. It is not an evidence gathering exercise. When the mother was cross-examined about this recording she said X was already in the car when he started complaining. She quickly pressed record. She says she did this as she was concerned about him and said he is usually loud and bubbly but he was very flat. She says after the recording was finished he was distraught. It is significant that the mother says this was after she stopped recording. X does not sound distraught or flat. The mother said that X has raised this occasionally since that incident.
The father’s Counsel cross-examined the mother about the recording, drawing her attention to the fact that after making the initial complaint X switched the topic and sounded happy until the mother went back to the topic. The mother said her purpose in doing that was because “I just wanted to be clear on exactly what happened. … It was disturbing for me. I wanted to be clear ….” She referred to X making a “pretty serious complaint”. She sent the email to the ICL about 40 minutes later. She said she did that because she was pretty concerned. In the email she refers to X having blood on his lips. She does not make any reference to this in the recording which I find somewhat surprising if there was in fact blood on his lip given her questioning of X. She also said she did not take a photo because it went away. She then said it was not serious. It was tiny. If that were the case why mention in the email to the ICL at all? She repeated that she did not think it was serious but she discloses everything she sees.
The mother says every week X comes home with some sort of injury. She texts the father and asks what happened. Sometimes he answers and sometimes he does not or only provides a little bit of information. The mother is on the lookout for these and ready to interpret any mark in the worst way. In doing this she is sending X the message that she does not think his father is safe. This is confusing for X as that is not his experience of him. Her actions in doing this and what she did in the recording are emotionally harmful to X. The mother lacks insight into this and is driven by her anxiety. An experienced counsellor will be able to assist the mother with this.
Counsel for the ICL cross-examined the mother in detail about the nature of the questions the mother asked X. The mother acknowledged the concern about the questions being leading and she said she probably should not have asked him about it again. However, significantly the mother also said that that is just the way she and X talk and it was obvious to her that he cried because he was scared as Ms N was too loud.
I do not accept the mother’s evidence that she was merely disclosing what she saw and not wanting to imply that something serious happened for X to have blood on his lips. It is clear from her wording in the email that she wanted to convey to the ICL that X had been subjected to serious psychological harm. She was also critical of the ICL.
The mother said she did complain to the Department and spelt out Ms N’s name so they could investigate.
The recording and the emails the mother sent to the ICL and her evidence in cross-examination raises serious concerns about the mother. As I observed in my previous reasons, there is a pattern of escalation of allegations and concerns raised by the mother. It is significant that this was shortly before the trial.
The maternal grandmother
The maternal grandmother has assisted with changeovers but has not done them recently. She says X is happy to go to his father and happy to return. She denied the allegation that the mother stopped her from seeing X for a period of time.
She claimed she was not aware of the father filing a contravention application and trying to serve the mother. She said the father was contacting her rather than the mother and that was annoying. She blocked his number. She was unsure when this was.
The maternal grandmother is willing to supervise the mother’s time. The father’s Counsel explored with her the responsibility of supervision. She said she would intervene if the mother started talking to X about inappropriate matters such as suggesting things at the father’s house are bad, but she does not believe the mother would say something like that.
She echoed the mother’s evidence about the bruising on X’s upper thigh and said she thought they were unusual and could not understand how he could have gotten them in the pool and how the father could not have noticed. She also agreed that the photo did not show serious injury.
I have some concerns as to whether the maternal grandmother would recognise the mother suggesting to X that he is unsafe at his father’s, particularly given her belief that the mother would not do this and her evidence about the bruising.
Impressions of the parties
Both parties were very keen to recite their version of events and to place responsibility for the problems between them on the other party. Both had to be regularly reminded to allow Counsel to finish asking questions before they answered and to focus on the question now being asked. It is clear that the conflict between them is entrenched and it is difficult to see how they will be able to co-parent in the future without professional assistance. Both the mother and father want X to thrive. Both at least intellectually recognise the importance of X having a meaningful relationship with the other parent.
What is concerning about the mother’s evidence is the way she selectively interprets things that fit her beliefs. She cannot accept that there are other perspectives and interpretations of events. I do not think anything will assure her that X is safe in his father’s care.
The mother’s answers were clear. She feels strongly that she has always had a good reason for withholding X. The fact that they have not been substantiated does not give her any reassurance. Rather, it is because no one has heard what X has said to her. She again talked about the father regularly threatening not to return X. She cannot see that the father’s position, borne out of frustration, is that the only way he will be able to have a meaningful relationship is if X lives with him. I am satisfied having seen the mother give evidence and from considering the whole of the evidence, that the mother has no insight into how her behaviour has worsened the conflict. She does not show an understanding that the orders are compulsory and are not suggestions. Just because the father does not agree to a change to the arrangements does not mean he is being unreasonable or unstable. It is not bullying or harassing to require the orders be complied with. It concerns me that the mother sought to make so many changes to the orders within such a short time of their being made. I am not confident that this will cease unless I change X’s living arrangements.
Contravention applications
The father’s contravention applications were adjourned to the trial because of the complaints he raises about breaches and the issues of risk raised by the mother. The focus at trial was on the risk issues and residence application, not the contraventions. The mother is on notice that if there are further breaches the father can agitate these two contravention applications as well.
I am left unclear as to whether the father seeks to formally press his contravention applications. Some of the contraventions cover the period when the police and the Department were investigating. The specific breaches were not put to the mother and no submissions were made with respect to the contravention applications. It would therefore be necessary to list the contravention applications for hearing. I will order the contravention applications be withdrawn and dismissed with the right for reinstatement in the event it is necessary for the father to bring an application for contravention with respect to future contraventions.
Submissions
Counsel for the ICL submitted that in many respects conflict between the parties in relation to the consent orders has been because the mother has been resistant to many of those orders. I accept this submission. It is significant that within weeks, the mother was seeking to mediate with the father. The mother shows a lack of appreciation for the fact that orders, regardless of whether they are made with the consent of the parties or by the court after a contested hearing, have the same force as orders of the court. Compliance is not optional. I share the ICL’s concern about the mother’s compliance with orders in the future.
The ICL’s Counsel referred to IVOs that the parties had out against each other and had extended. The parties have also sought to have each other breached with respect to these IVOs. She referred to charges against the father which related to incidents in 2016, one of which proceeded with the father placed on a Diversion Program which he has now completed.
The mother’s narrative is one of being subjected to coercive and controlling violence by the father during the relationship and continuing post-separation. The difficulty with the mother’s narrative in this regard is that she appears to equate disagreements with her proposals, insistence on compliance with orders, attempts to exercise rights with respect to those orders and the exercise of parental responsibility with respect to the kindergarten, with controlling and coercive behaviour. They are not. I have real concerns about the mother’s capacity to facilitate X’s relationship with his father.
The parties’ view of each other is unrelentingly negative which is damaging for X. If it continues it is likely to cause X long-term psychological harm. Both parents need to take some responsibility for this instead of focusing all the blame on the other.
The mother ceased the father’s time based on what she alleged was serious bruising caused by the father. The ICL points out that presumably if it was a more serious injury the mother would have taken X to a doctor or would have more photographs showing the seriousness of the injuries. The photograph she submitted to police does not support her contention. I do not accept her evidence that it was simply a case of the photograph not reflecting the reality of the injury. I find it is likely that it is a result of an accident which was not as serious as the mother alleges. The mother is on the lookout constantly for injuries and ready to think the worst. It is normal for active little children to receive regular bumps and bruises. What is of more concern is the mother’s focus on finding some sort of injury or harm and reporting it. There is a risk that X will be subjected to examinations and interviews and take on the mother’s fear of the father being unsafe and dangerous. It is fortunate that that has not occurred to date which may be because of his tender age. The mother does not accept the police findings that it is likely to have been an accidental injury.
The ICL drew attention to other incidents where the mother has alleged the father has harmed X. This includes an incident on 16 December 2017 the mother says was during the father’s time. The father told her it occurred during play. The mother insisted that X was in an altered state and called an ambulance. The ambulance officers found X to be happy and alert. He did not need treatment. The mother also reported it to the police. The police interviewed the father and were satisfied his explanation was plausible and consistent with the injury.
The mother alleges that on 31 August 2018 X had a mark on his face. She said at the time she accepted the father’s explanation but now thinks differently. I find it difficult to believe given her other allegations, that she would not have made a complaint to the police if she saw a hand mark on X’s face at that time. Her raising it now is consistent with her escalating allegations as court events near.
There has been an escalation of the allegations with the incident on 3 March 2019 leading to the father not seeing X for several months. Whilst the mother may be justified in withholding time whilst the police and the Department were investigating, I do not accept her evidence that she did not receive the letter from police in July 2019. I am also satisfied that the mother has been avoiding service of the father’s contravention applications. She did not seek to bring the matter back to court.
After the father’s time resumed in September 2019 it did not take long for the mother to raise further allegations and concerns. She went so far as to record X and send the recording to the ICL. She further alleged that her doctor had made a mandatory report and that the father is currently under investigation. She does not bring any independent evidence of that course, despite having the opportunity to do so. It is very apparent from the mother’s actions and her presentation that her anxiety has increased. Mr E described her well when he referred to the mother’s “free-floating anxiety”.
What is clear and what Mr E foreshadowed to these parties some years ago now was that the psychological space X occupies between his parents is incredibly uncomfortable as he is aware of how much his parents dislike and distrust each other and this also has the potential for long-term psychological harm as X grows older and develops his sense of identity. Older children are aware that they are made up of both their parents. It is a confusing and damaging message to them when it is clear that their parents have a disdain for each other. A child cannot help but begin to wonder whether the parents feel the same way about part of them.
With respect to parental responsibility, the ICL’s primary submission was that the parties should equally share parental responsibility. The Court is against this and the father should have sole parental responsibility with the requirement to consult the mother before making the ultimate decision. I have real concerns about the parties’ ability to exercise equal shared parental responsibility particularly as things stand at the moment. This may change in the future once the parties have received professional assistance but I cannot predict this.
My concern about the mother’s ability to care for X is not with respect to his physical or intellectual needs but his emotional needs. The recording the mother made of X is concerning, despite the mother’s eventual concession that she asked X leading questions and should not have returned to the topic. The mother strongly believes everything X says to her. She is also ready to interpret anything X says with respect to his father in the worst way possible. The mother may not be aware of this on a conscious level because of the level of anxiety and distrust of the father. The mother showed no insight into the fact that children, particularly young children, want to please their parents. This does not mean that the child is lying. It is also very common for a child to change answers to questions put to them repeatedly as they interpret this as meaning their first answer was wrong. I accept the ICL’s submission that in the witness box it was clear that the mother has not taken on board the results of the investigations of the police and the Department with some objectivity, rather, she has become increasingly concerned and is now saying that he returns every week with some sort of injury. The mother’s actions with respect to the recording and the email she sent to the ICL is troubling as the mother cannot countenance that there could be another explanation. X may well have heard raised voices in the father’s household. As X referred to someone else by the name of O it could be that Ms N was telling off another person, possibly a child. I have real concerns that the mother will continue to make similar allegations and complaints which exposes X to further psychological harm.
The ICL’s Counsel submitted that the evidence of the recording and the mother’s reports to the Department, police and the ICL with respect to it shows a clear attempt by the mother to extract evidence that she can use in the proceedings but also an attempt to influence X and have him give the response she wanted. Counsel for the ICL further submitted that the mother’s responses in cross-examination can give the Court no confidence that the mother would not do this again and for this reason, sought the orders requiring the mother to obtain professional assistance and also recommended that the parties engage in family therapy, as both parties need to address their negativity towards other and learn how to protect X from that to prevent long-term cumulative harm to X which may see him become angry and withdraw from both parents. Whilst both parents acknowledged the importance of X having a relationship with both parents, neither are able to say anything positive about the other parent and both simply said that the other parent loves X and X loves them.
The ICL submitted that the mother’s evidence to being uncertain as to what time the father spent with X in February was implausible and unconvincing.
The mother is hyper vigilant and anxious. Since the final orders were made there has been ongoing disruptions to the father’s time.
The evidence is that X has a strong bond with his father as well as his mother and this is in spite of the disruption of some seven months which is a significant period of time in a four-year-old’s life.
The mother lacked insight and is rigid and irrational in some of her views which has had a direct impact on X, interrupting his relationship with his father and that is likely to continue to occur if things are left as they are.
The father’s Counsel supported the ICL’s submissions, and went further seeking interim orders for an immediate change of residence. This application was made after it was raised that ideally I would deliver reasons before kindergarten commenced in January 2020. I made it clear to the parties that given the enormous workload and the Christmas break that it would be impossible to deliver reasons before the end of January as there were other matters requiring reasons after trial, all of which involved issues of risk to children. I was not prepared to obtain an interim application at the end of the trial. As the ICL’s Counsel pointed out, the risks identified in this case are long-term ones.
The mother’s Counsel characterised the case as being about different parenting styles with the mother being more protective and the father more laid-back. He submitted that the mother supported the parties attending the family therapy and the mother attending individual therapy.
He submitted that Ms S was unjustifiably critical of the mother and uncritical of the father and referred to paragraph 82 which I will set out here:
In relation to the parties’ locus of control, Mr Zackary did not impress as having an external locus of control. He impressed as worn down by the process of dealing with repeated alleged contraventions of Orders and the need to continually return to Court to ensure he has regular time with X. However, he also impressed as someone who is reflective and who tries to understand what might motivate Ms Rabassa, but simultaneously needing to keep very clear boundaries around communication with her. Ms Rabassa appeared to be so anxious that she was unable to reflect and consider benefits to X of the differences between herself and Mr Zackary and how he might contribute to building X’s resilience.
He complains about the family report writers’ comments about the father being insightful and the mother not. That is a reasonable observation. He also criticises the gratuitous reference to the number of the mother’s pregnancies and methods of contraception. I accept that the inclusion of those observations in the report is not helpful and is not relevant to the issues in dispute and conveyed to the mother criticisms of her not directed to the father. Certainly I accept the submission that is evidenced by the police LEAP records that both parties have engaged in petty conflicts with each other. However, this submission does not engage with the evidence which is that the conduct of the mother and her attitude goes well beyond a protective mother or even an overprotective mother.
By closing submissions the mother was seeking that the final consent orders remain in place. I do not have any confidence that those orders will work without future disruptions and conflict. The difficulty is that the mother has been on notice for some time now about the concerns with respect to her ability to facilitate the father’s relationship with X and comply with orders. She has not shown any real acknowledgement and understanding of this.
The ICL has made recommendations with respect to potential therapists and, as pointed out during the course of interactions during closing submissions, there is nothing preventing the parties from seeking that assistance prior to court orders being made. Of course I do not know if they have taken up that opportunity or not.
Conclusion
X is very young. He will benefit from both parents being involved in his life and both being able to contribute to major decisions for his welfare.
Currently the parties are unable to communicate and cooperate in a constructive way. Equal shared parental responsibility is unworkable and not in X’s best interests given the parties’ inability to communicate effectively. This may change once the parties have engaged in joint therapy and the mother has individual therapy. I have given consideration as to whether to give the father sole parental responsibility for 12 months and then have the parties share parental responsibility after that period but I do not know if things will improve by then. The father will need to seek the mother’s views before making the decisions but if they cannot agree he will make the final decision.
I find it is in X’s best interests for him to live in the father’s primary care. It is the only way X will be able to enjoy a relationship with both parents. It is hoped that with the reality of the arrangement being in place and the mother receiving individual therapeutic counselling that the mother will be able to gain some insight and take responsibility for her own actions.
This decision will be distressing and difficult for the mother to process. It is concerning that the mother has been warned about this potential outcome several times now, including by Mr E, yet she still could not countenance that it could happen. The mother’s time does need to be supervised for the first four visits while the mother adjusts, as there is a real risk that the mother will say inappropriate things to X or be unable to contain her distress if these initial visits are unsupervised. I will make the orders largely in accordance with the orders proposed by the ICL.
The father’s orders provide for a slower regime of supervision and a gradually stepped increase in time which was not canvassed during the trial. I am not satisfied that the father’s proposal for time is appropriate. It will be important that whilst the mother’s time is initially supervised then gradually increased that the parties engage in family therapy. Both parents indicated a willingness to do this.
I am satisfied that the orders set out at the beginning of these reasons are in X’s best interests.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 28 February 2020
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Remedies
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Procedural Fairness
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Expert Evidence
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Res Judicata
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