ZIEGLER & ZIEGLER
[2019] FCCA 636
•15 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZIEGLER & ZIEGLER | [2019] FCCA 636 |
| Catchwords: FAMILY LAW – Interim arrangements for parenting of children aged 7 & 4 – allegations of abuse – assessment of risk – application of unacceptable risk test in context of interim hearing – nature of interim hearing – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB; 4(1)(C); 11F; 60B; 60CA; 60CC; 68L |
| Cases cited: Deiter & Deiter [2011] FamCAFC 82 |
| Applicant: | MS ZIEGLER |
| Respondent: | MR ZIEGLER |
| File Number: | DGC 3311 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 6 March 2019 |
| Date of Last Submission: | 6 March 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 15 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Charman |
| Solicitors for the Applicant: | Adelta Legal |
| Counsel for the Respondent: | Ms Read |
| Solicitors for the Respondent: | Chloe Legal |
| Counsel for the Independent Children's Lawyer: | Ms Olsson |
| Solicitors for the Independent Children's Lawyer: | Silkwoods |
ORDERS
Until further or other order
The children X born … 2011 and Y born … 2014 live with the mother.
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of an urgent family report, such report to be released by 30 April 2019.
The family assessment to deal with the following matters:
a.to include interviews with the parties, the child and relevant family members;
b.observed interaction between the child and the parties;
c.any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
d.the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
e.any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:
a.a Children’s Court;
b.a child protection authority;
c.a State or Territory legal aid authority; and
d.a convener of any legal dispute resolution conference
NOTING:
A. At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B. Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
Further consideration of this matter is adjourned to 14 May 2019 at 10:00am.
IT IS NOTED that publication of this judgment under the pseudonym Ziegler & Ziegler is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
DGC 3311 of 2018
| MS ZIEGLER |
Applicant
And
| MR ZIEGLER |
Respondent
REASONS FOR JUDGMENT
Introduction
All cases involving allegations of physical and emotional abuse of young and inarticulate children are difficult and confronting. Those arising at the interim stage are particularly difficult given the limited and untested nature of the evidence available at this stage and the paucity of independent and objective expert analysis of the family concerned.
Ms Ziegler “the mother” and Mr Ziegler “the father” are the parents of X born … 2011 and Y born … 2014. The parties married, in Country O, on … 2009, two months after they met.
The father was born in Country O but has lived the majority of his life in Australia, where he has extensive family connections, particularly in the form of his parents. The mother was also born in Country O but came to Australia after the marriage, which was arranged. She has little family support in Australia.
The parties separated, in suburban Adelaide, in late August of 2018. Since that time, arrangements for the care of X and Y have been chaotic and marked by significant conflict and disputation, with each parent asserting that the other is disqualified from playing a significant role in the care of the children, at this stage, because of a variety of serious anti-social behaviours.
The mother’s position is that, prior to separation, she was the children’s main provider of care. She alleges that, at separation, the father ejected her from the parties’ family home in Adelaide and assumed control of the children, forcing her to move to Melbourne.
Thereafter, the mother alleges that the father has manufactured allegations that she has seriously abused both children by drugging them; assaulting them; verbally abusing them; and subjecting them to cruel and humiliating punishments. She asserts he has done so in an attempt to remove her from having any proper role in the children’s lives because of his controlling personality and dismissive attitude towards her.
More significantly, she alleges that the father has co-opted X and to a more limited extent Y to his cause and has pursued active attempts to alienate the children from her by taking them to a variety of health and allied professionals, where they are coerced into making false allegations against her.
It is thus her case that this conduct represents psychological abuse of the most serious kind of the children and accordingly the court must take urgent steps to remove them from Mr Ziegler and place them in her care. She further alleges that she was the victim of serious and concerted family violence during the parties’ relationship and Mr Ziegler is utilising the children, in this abusive fashion, in order to further coerce and control her.
On the other hand, the father alleges that the mother has serious and largely undiagnosed psychiatric issues, which render her an extremely violent and un-insightful person and parent. As a consequence of her dangerous and labile personality, he alleges that she has regularly been physically violent with the children to the extent that each, but particularly X, are now terrified of their mother.
He further alleges that she has dangerously medicated the children, with over-the-counter analgesics, in order to sedate them so that she can partake in regular social activities in the evenings. Essentially, the picture he portrays of the mother is of a shallow and selfish person, who is ill equipped to parent young and vulnerable children such as X and Y. Accordingly, on any view, the evidence of the parties concerned is completely at odds and the prospect of reconciling their contradictory views close to impossible.
The father and mother are not the only parties to these proceedings. Due to the extremely serious but diametrically opposing allegations of the parties and in recognition of their cultural background, it has been ordered that the children be independently represented in the proceedings before the court pursuant to the provisions of s68L of the Family Law Act 1975.
The children’s representative is Ms Jennifer Olsson, an experienced Adelaide family law practitioner, with particular experience in the area of child protection. Pursuant to s68LA of the Act, Ms Olsson is required to form an independent view based on the evidence available to her of what she considers to be in the best interests of the children whom she represents. At this stage, Ms Olsson submits that it would be in the children’s best interests to be returned to their mother’s care.
The mother’s case in more detail
The mother commenced the proceedings, in the Dandenong registry of the court, on 1 October 2018. She utilised Melbourne solicitors to do so and sought a recovery order in respect of X and Y.
As previously indicated, the parties separated on 28 August 2018, when the mother left the former family home in Suburb B. It is her case that the father booked her a ticket to go to Melbourne but refused to allow her to take the children with her.
Thereafter, she asserts that the father removed X from his normal primary school and Y from her pre-school and moved out of the Suburb B home, without prior reference to her. She asserts that he did not inform her of the change in the children’s educational arrangements or indicate to her where they were living in order to frustrate her on-going relationship with the children.
Her application was originally made returnable on 22 October 2018. Her then solicitor forwarded the necessary documents by pre-paid post, to the Suburb B property. A process server retained by the mother’s solicitor failed to serve the documents on Mr Ziegler. It is implicit from the mother’s evidence that she believes that the father was actively trying to evade involvement in the parenting proceedings and was intent on frustrating her interacting in any meaningful way with the children.
On 22 October 2018, Judge Burchardt, in the absence of the father, made orders that neither children be permitted to leave Australia. He was disinclined to make an ex parte recovery order, which I can readily understand. The case was then transferred to Adelaide and given an urgent listing, before me, on 14 November 2018.
Section 67Z & 67ZBA of the Family Law Act mandate all relevant individuals, who make allegations of the exposure of a child to both family violence and abuse, to provide details of those allegations in a notice of risk document to be filed with any initiating application in the court.
In the mother’s case, in her notice of risk, she alleged that the children had suffered psychological harm as a result of being exposed to incidents of family violence committed by their father against her. In addition, she alleged that Y and X to be suffering ongoing psychological harm as a consequence of their father preventing them from engaging with her following the parties’ separation. The father had filed his own notice of risk document on 16 November 2018, outlining various allegations of assault and neglect of the children.
In the case of each notice of risk and other allegations of abuse made to it, the Department for Child Protection, the South Australian government instrumentality charged with the protection of children in South Australia has elected not to take any active investigatory action, in respect of approximately six notifications of abuse. In each case, the Department has assessed the risk as being of notifier only concern and, as such, not to meet the statutory threshold for intervention.
In her affidavit, in support of her application for a recovery order, the mother deposed that the children were distressed, when she left the Suburb B home. Thereafter, she tried to telephone the children but no one answered her calls. It was her case that she had provided for both children’s physical needs, since the dates of their respective births and the father was not greatly interested in them. She further alleged that the father criticised and belittled X regularly.
In addition, in her affidavit, the mother set out what she asserted was incidents of extreme coercive and controlling family violence, during the parties’ relationship. These including the following:
·Sexual assault;
·Monitoring of her mobile phone calls and text messages;
·Subjecting her to verbal abuse and denigration;
·Socially isolating her by preventing her from making friends or engaging in social activities outside of the home;
·Financial control.
In her affidavit, the mother asserts that, with hindsight, she now realises that the father was intent on controlling her both before and after the parties’ separation. She asserts that he engineered her travel to Melbourne and afterwards has left her financially destitute, homeless and childless.
She went to Melbourne because her only relative in Australia, her uncle, lives in suburban Melbourne. However, she now realises that the father did not intend her to stay in Melbourne on a temporary basis but wished to remove her from the children’s lives as permanently as possible.
In her affidavit, the mother deposed as follows:
“The Respondent actions and behaviour towards me during the Marriage were all about power and control. The Respondent was able to control my actions, feelings and thoughts because he knew I had to rely on him for everything. I had no one else to provide me with my basic needs. This is why I had to go along with whatever he said otherwise the consequences were dire.
I say again, I was the Primary Caregiver and provider for the children throughout the Marriage. The Respondent did not take an active role in their upbringing or attend to their daily needs. He was reluctant to take any responsibility for them or help me with things like; feeding, bathing, changing nappies, school pickup & drop-offs.”
…
In hindsight, I realise that the Respondent had strategically planned for me to be in the dire situation I am in now. He booked the ticket for me to come to Melbourne and made me believe it would serve as a good break for me, so that I was “out of the picture”. Then it could appear that I walked away from the Marriage, the children and the former matrimonial home. But I did not. The Respondent put himself in a strong position as he got possession and control of everything.”
As at 14 November 2018, the mother had not seen either X or Y for approximately 11 weeks. It was a significant period of time. Notwithstanding the effluxion of time, the father had not been in a position to file any answering affidavit material. Through his solicitor, he maintained that the mother had been abusing the children and each was frightened of her.
In these extremely difficult and challenging circumstances, I elected to take evidence from each of the parties to see if I could ascertain, if at all possible, where the truth lay by making my own assessment of their respective veracity. Necessarily, this was a stop gap intervention but it was the best available to me at the time.
In her oral evidence, Ms Ziegler indicated that she had few friends in Adelaide and no family in Australia apart from her uncle, who lived in Melbourne. She refuted any suggestion that her health was anything other than good. She indicated to me that she loved the children and had taken care of each of them since the date of their respective births. She described herself “a very active” parent.
The father, in his evidence, indicated that he worked as a contract tradesman and his hours were usually between 9:00am and 2:30pm. In these circumstances, he conceded that he had not been available to care for the children, during his periods of work and these duties had fallen to the mother, whom he described as “not a good mother” because she “abused the children”. He described this abuse as consisting of the children being smacked and beaten to the ground.
Mr Ziegler was not able to produce any specific dates of any of these incidents or indicate what specific action he had taken in respect of them. Although, I concede that dishonest and manipulative individuals may make compelling witnesses and honest ones, particularly those who are not particularly well educated or articulate, may present poorly. However, of the two witnesses, at this stage, the mother’s evidence rang truer for me.
At this stage, it was also the father’s evidence that he anticipated that neither child would want to interact with their mother because of their previous experience of her. He also indicated that his sister Ms A had previously got on well with the mother and she (Ms A) had the confidence of the children.
In these circumstances, I elected to make the following orders:
1. The father’s sister, Ms A deliver the children X born … 2011 and Y born … 2014 to the mother at the Family Law Courts Building, Childcare area, level 2, 3 Angas Street, Adelaide at 8:45am tomorrow, 15 November 2018 and thereafter the children spend time with the mother until 3:00pm.
2. The mother return the children to Ms A within the foyer of the Suburb P Street Police Station at 3:00pm on 15 November 2018 or such other location as agreed between Ms A and Ms Ziegler.
3. The father is restrained and an injunction issue restraining him from being present at either of the handovers on 15 November 2018.
4. The handover at 8:45am on 15 November 2018 is to be subject to the supervision of either Family Consultant Ms C or Dr D and that pursuant to section 65L of the Family Law Act 1975 the consultant is to report back as to what happened at the handover.
Ms C’s report
Section 65L authorises the court to engage a family consultant to oversee any parenting order made by it. In the circumstances of this case, particularly given the father’s evidence that he would not be able to ensure that X spent time with his mother, if it was ordered by the court, I determined that it would be in his best interests to engage a family consultant to oversee such a process and then to report back to the court. Ms C was the family consultant charged with this task.
It is clear from Ms C’s report that on the evening of … 2018 X had been taken to the Women’s and Children’s Hospital as a consequence of suffering an alleged panic attack, which had necessitated an Ambulance being called.
The precipitating factor for this incident appears to have been the news he would be required to spend time, with his mother, the following day. In these difficult circumstances, Family Consultant Ms C described the interactions she observed between the mother and the children as follows:
·When the mother entered Childcare after the father’s sister had left, X immediately disappeared into the dolls’ house leaving a startled and confused Y to respond to her mother’s emotional greetings, and request for a hug, to which Y responded by giving her mother a hug, and then asking her mother if she too could go into the dolls’ house. The mother wholehearted agreed but Y soon exited the doll’s house where she declared aloud to her mother, “Uncle said to us to say no to you for all our presents”. [It was Y’s birthday]
·When X finally emerged from the dolls’ house, to give his mother a hug, the mother gave each child a toy which, when pressed, was a recording of the mother’s voice telling them she loved them.
·Y told her mother that her mother is ‘not going to be rude anymore or punch them’, and X was overheard saying to Y not to tell their father that he had hugged his mother.
·Y asked the writer to come over into a corner because she had “a secret” to tell the writer. Y whispered, “I’m going to tell Ms Ziegler that I’m not going to go with her because she’s a bad person”. When the writer told Y that the Judge believes her mother to be a good person and had arranged for her to spend the day with her, Y said excitedly, “I’m going to spend the day with Ms Ziegler because she’s a good person”, before running off happily to play dress ups with her mother.
·The mother needed some reassurance and guidance about how to manage the children’s comments, which included X telling his sister not to tell their father or uncle that they were enjoying their time with their mother.
Ms C observed positive interactions, between the mother and the children, at the designated 3:00pm handover. She reported as follows:
·Both children did not want their mother to leave. Indeed, X ran into the toddler’s room and hid under the cot but finally emerged when he realised that everyone was soon leaving and he would be left alone.
·Both children sought reassurances from their mother that they would be seeing her again.
·Both urgently drew cards with love hearts all over, to give to their mother before she left, having already laden her with paintings they had made for her earlier.
·X repeatedly asked for yet another hug, as his emotional mother inched her way to the door.
·Both children chorused that ‘it was the best day ever’. The mother seemed overwhelmed by emotion.
·After the mother left, the father’s sister was brought into Childcare and both children regaled her with comments about their day with their mother, and what a great day it had been.
The father’s case in more detail
The proceedings had been adjourned to 16 November 2018. On this date, the father filed his answering affidavit material. He confirmed that his marriage to the mother had been arranged between the parties’ respective families and he was under extreme pressure to marry the mother. He further confirmed that the parties had separated on one occasion prior to X’s birth.
In his affidavit, Mr Ziegler denied ever having behaved violently towards the mother. To the contrary, he deposed that she was regularly verbally abusive towards him, without any provocation. Further, he described her as being financially prodigal. In respect of the children, he alleged that the mother would abuse them in the following ways:
·Severely physically disciplining them, if they dropped food;
·If she was out socialising and they interrupted her, she would grab the children and drag them by their arms or ears to the car;
·She would administer analgesics to the children to calm them down so as not to disrupt her evening social activities;
·On 10 April 2017, at the shopping centre, when X had wanted to go to the toilet, she had hit him so hard that he had fallen back onto the bench in the toilet and cut his head open. The precipitating factor for this incident being that the child had wet himself.
In addition, the father alleged that the mother had attempted suicide on multiple occasions. Each of these suicide attempts had been made in the presence of the children. He further alleged that as a consequence of these matters the mother had been hospitalised twice and her wounds stitched by her general practitioner.
It was further the father’s evidence that, in order to provide essential and necessary emotional support for the mother, he had arranged for her mother and sister to come to Australia, on several occasions. In addition, in 2017, the family had gone to Country O for a holiday. However, during this holiday, the mother’s father had threatened him that he would not allow the children to leave Country O, unless his (the father’s) family paid a ransom $20,000.00.
In support of his position that the mother was a violent and dangerous person, he pointed to the fact that the Suburb E Magistrates Court had granted him an ex-parte Intervention Order on 15 October 2018. In his evidence to the court on this occasion, he described the mother as being very abusive to the children and hitting them until they’ve pooed their pants.
He reiterated his allegation that she had cut herself in front of the children. In this context he indicated that he had videos of the mother’s behaviour. As far as I am aware, none of these videos has been made available in these proceedings. He further reiterated to the stipendiary magistrate concerned that the children were terrified of their mother, who didn’t love them. In my view, this description is not congruent of Ms C’s experience of either child.
The mother’s solicitor had flown to Adelaide, from Melbourne, to represent Ms Ziegler at the court hearings scheduled for 14 and 16 November 2018. With the greatest respect to the lawyer, it readily became apparent that Ms Ziegler would be better served by having a solicitor who practiced in Adelaide and who was able to provide more objective advice to her.
In the difficult circumstances prevailing, on 16 November 2018, Mr Bowler an experienced family law barrister, volunteered to assist Ms Ziegler regarding the next step in the proceedings. Interestingly, at this stage, Mr Ziegler himself indicated an acceptance that the children had enjoyed their time with their mother and had not come to any harm during it.
In these circumstances, Mr Bowler and the father’s solicitor were able to negotiate arrangements for the care of the children for the forth coming Christmas period. The consent orders were as follows:
“1. The children X born … 2011 and Y born … 2014 live with the mother and the father do deliver the children to the mother at 6:00pm on this day inside the Adelaide Police Station.
2. The children spend time with their father as follows:
a. During school terms:
i. On alternate weekends from 3:30pm Friday to 8:30am Monday to commence on 30 November 2018; and
ii. During the intervening week from 3:30pm Thursday to 8:30am Friday to commence on 23 November 2018.
b. On a week about basis during the Christmas school holidays with handovers to occur at 5:00pm on Fridays and with the father’s time to commence on 14 December 2018;
c. From 5:00pm on 24 December 2018 until 12:00pm on 25 December 2018.
3. All handovers occur inside the Suburb Q Police Station.
4. The parties be restrained from:
a. Physically disciplining the children;
b. Exposing the children to family violence;
c. Denigrating or criticising each other to or in the presence of the children or allowing any other person to do so.”
5. The father do all things to facilitate delivery to the mother the children’s clothes, belongings and personal effects to the Adelaide Police Station at 6:00pm today.
6. The father provide the mother with a motor vehicle for her personal use within 14 days.
7. Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 19 February 2019 at 9:30am, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.
8. Further consideration of the matter is adjourned to 27 February 2019 at 9:30am for directions.”
Compliance with the orders of 16 November 2018
On 21 January 2019, the mother’s solicitor filed an urgent application seeking the recovery of the two children. She asserted that the father had failed to make the children available to her from 14 January 2019 onwards alleging that X was not in good mental health.
In addition, in correspondence dated 17 January 2019, from his solicitor, the father alleged that the child X had made disclosures as follows:
·As a punishment, the mother locked X in cupboards;
·The child had been denied food for several days;
·The mother had locked the child in a bathroom, with no clothes;
·The mother had physically abused X by kicking and punching him.
It was not readily apparent whether these were new allegations or pre-dated the orders of 16 November, to which Mr Ziegler had consented. In any event, he did not bring any proceedings before the court but rather relied on the mother to bring an application. When the mother’s application was listed (29 January 2019) the father had only recently filed an affidavit in which he detailed his reasons for withholding the children. Ms Ziegler had not had an opportunity to formally respond to these allegations.
The father’s more recent allegations of physical abuse
The father’s further allegations of abuse can be summarised as follows:
·On 30 November 2018, on collecting X from the Suburb Q Police Station, he found a bruise on the child’s neck. The child subsequently disclosed to him that his mother had slapped him in her car, causing his head to hit the dashboard, because he had left his jumper at school;
·On 6 December 2018, on collection, both children were extremely unwell as a consequence of suffering dehydration and vomiting. On being taken to a doctor, the children disclosed being abused and neglected by their mother;
·On 15 December 2018, X was referred to the Women’s and Children’s Hospital by a general medical practitioner, as a consequence of displaying paranoid behaviour exhibited by hiding and having nightmares;
·As a consequence of his attendance at the Women’s and Children’s Hospital, X had been referred to the Child and Adolescent Mental Health Service “CAMHS”, where he had been assessed by clinical psychologist, Ms F and been provided with counselling;
·On 11 December 2018, whilst he was in his mother’s care, X sent a text message to him, utilising his mother’s telephone, saying “Dad help she is scaring punching me help”.
In the context of the escalating difficulties between the parties, the father has apparently made a complaint to police that the mother assaulted him prior to the parties’ separation in August of 2018. Each party has obtained an ex parte family violence order against the other. As such, there has been no formal finding of family violence and no active canvassing of evidence.
As a consequence of these various allegations, the father’s solicitor has directed subpoenae to CAMHS. In addition, he has provided some medical records in respect of X’s attendance on:
·a general medical practitioner on 30 November 2018;
·on the GP who referred him to the Women’s and Children’s Hospital;
·at the Women’s and Children’s Hospital; and
·at CAMHS.
Accordingly, it remains the father’s position that X, in particular, remains a highly disturbed child as a consequence of being subjected to continuing serious episodes of abuse emanating from his mother.
In these circumstances, in my view, his current attitude does not sit easily with his apparent acquiescence to the orders of 16 November 2018, at which stage he indicated his view that the children were content to return to their mother’s care.
It was against this difficult background that, on 29 January 2019, the order was made for the children to be independently represented, as a matter of urgency. In addition, as indicated above, the mother had not had an opportunity to respond to the father’s serious allegations of abuse, which he asserted were supported by independent professional sources.
In these circumstances, the case was adjourned for a short period of time in order to allow the mother to respond formally. Given the gravity of the allegations, which were said to have been substantiated at least on a provisional basis, I suspended the mother’s time, with the children, pending further investigation.
In addition, I referred the parties to a child dispute resolution conference, pursuant to the provisions of section 11F of the Family Law Act. This section authorises the court to obtain advice from a family consultant regarding the dynamic of any relevant parenting relationship. In this case, the family consultant concerned was Family Consultant Dr D.
Family Consultant Dr D’s report
To Dr D, each party repeated their respective criticisms of the other. For her part, the mother alleged that she had been the subject of coercive controlling violence from the father and was socially and emotionally isolated in Australia by him; whilst the father asserted that the mother had been physically abusive towards him and the children. He claimed as follows:
“I’m the one who suffered. No one is understanding this…everyone believes her because she is a woman…I’ve been bashed by her many times she used to slap, slap, slap me.”
In Dr D’s assessment, the mother presented as child focussed. She denied any mental health issue or that she had been suicidal. She further indicated her concern that the father continued to brainwash the children, in which context, she described the father’s family and friends as being alike the mafia.
Dr D provided the following summary of her interview with the father:
“At interview Mr Ziegler made strong allegations of significant violence against him and the children by the mother, however, he could not provide information that supported his claims. His narrative tended to be expansive when casting allegations, but somewhat confused when asked to elaborate on the allegations. While he claimed to be protective of the children, when asked what he had done to protect the children from the alleged chronic abuse during the marriage, he was unable to provide an answer except to say that there were reports from psychologists and doctors. Seemingly, these reports were from doctors and the CAMHS worker that the father had taken the children to see after the orders of 16 November 2018, in which the children were ordered to return to the mother’s care. The father claimed that there were “people” and “witnesses” to the children being abused by the mother, but he could not identify the people or witnesses, nor could he verify that the people and the witnesses were third party independent witnesses. By way of further evidence of the mother’s alleged volatility, the father alleged the mother had been arrested for breach of Intervention Order, whereas he had not. The father said the mother was not interested in the children as evidenced by the fact that she had not organised to spent supervised time with the children.”
In regards to the future management of the case, Dr D noted that the evidence raised significant issues of where power and control lay in the parties parenting relationship. In this context, she indicated that the father’s presentation and narrative to her created suspicions that he had some form of agenda in the case.
Dr D noted with concern the father’s allegations of physical and psychological abuse raised by the father. However, in this context, she noted that there was no child protection history prior to the parties’ separation and the father’s description of the children’s behaviour were not congruent with that reported by Family Consultant Ms C, particularly at the conclusion of the time the children had spent with their mother. In my view, it is significant that this time did not get off to an auspicious start but seems to have ended extremely positively.
Dr D characterised the allegation, raised by the mother, regarding the children having been alienated from her as being a serious form of psychological abuse. In all these circumstances Dr D recommended that the court commission a family report as a matter of urgency.
Accordingly, the evidence advanced by both parties, as yet untested by the court, creates a significant dilemma. If the father’s evidence is preferred, the mother is almost sociopathic in her abuse and neglect of the children and, as such, she should have only rigorously supervised time with them, until such time as she has established she does not represent a risk to them.
On the other hand, if the mother’s evidence is preferred, the father is equally pathological in his disregard for the emotional integrity of the children, particularly in respect of their entitlement to have a warm and loving relationship with their mother. Essentially, he is prepared to manipulate and coerce them into mouthing falsehoods about their mother, whom they love, in order to damage Ms Ziegler and to secure advantage over her in these proceedings. In short, he is prepared to emotionally damage the children because of his malicious motivation towards the mother.
In these circumstances, in my view, the court is compelled to act and to act decisively, regardless of the provisional nature of the evidence. In my view, this is not the sort of case where the risk could be managed by the children spending equal periods of time with each of their parents, pending further inquiry. Rather, this extreme level of dichotomy dictates that the court must act expeditiously, given the dangers potentially arising for the children.
Essentially, what the court must do, in difficult and disputed circumstances, is assess the level of risk which arises for the children from each of the outcomes proposed by the parties in this case. Given the absence of a family report, this is obviously a task not without its dangers and challenges.
The mother’s evidence in respect of the father’s most recent allegations
The mother denies hitting X on 30 November 2018. She doubts she had access to a car on that date. She is unaware of the child having suffered a bruise to his neck. No complaint has been made to her that X suffered an injury, whilst at school, by any of his teachers or other school authorities. She does not recall any issue regarding his jumper.
The mother agrees that the father told her that X was unwell on 6 October 2018. However, she is unaware of the nature of any conversation either X, Y or the father had with the doctor consulted by Mr Ziegler. She denies that she has ever mistreated in the manner allegedly described by the doctor concerned, as alleged by the father. She deposes that she gave X the medication provided to her by the father but he (X) indicated that he preferred to go to school rather than come home.
In regards to the specific allegations that she has ever locked the children in a bathroom or forced X to sleep naked on the bathroom floor, she denies the allegations. She further denies giving the children rotten food to take to school. In this context, she points to the fact that she has never received any complaints, from the school authorities, that she has provided the children with inappropriate or rotten food to eat.
It is the mother’s evidence that X has displayed unsettling behaviour, when in her care, prior to his scheduled return to the father, which is manifested by him being clingy and hiding his face, the nearer he was to the police station. She has further deposed that when she asked X why he was behaving in this unusual way, he replied that he was not allowed to show her any affection. The mother has further deposed that the father has not informed her of the involvement of CAMHS or any other psychologist with the children.
The mother concedes that she has been charged with assaulting the father but denies the allegation. She is also apparently been charged with breaching the father’s Intervention Order by sending him text messages. In this context, she asserts that the father (or someone associated with her) has manufactured the offending texts, which do not emanate from her. In addition, so far as the text attributed to X is concerned, she asserts that the spelling in the text is beyond X’s capability, as such, she believes that this text to is a fabrication.
Other documentary evidence
The father has provided a plethora of official documents. These documents have been compiled to serve the bureaucratic needs of the organisations concerned, not to provide evidence directly to the court. As such, the authors of the various entries concerned have not provided direct evidence as to what is meant by the various entries in question.
Necessarily, in respect of their interpretation, much must turn on the context in which the entries were made. As such, this evidence is not necessarily determinative of the complex issues, which arise in this case. However, given their import in the current proceedings it is necessary for me to analyse them as best I can. I will approach the various documents, in question, by categorising them as follows:
a. Clinical Report of Dr G dated 30 November 2018
Dr G was the locum doctor called by the father, to attend upon X, in respect of the injury allegedly sustained by X, to his neck, the previous day. The history provided to Dr G originally came from Mr Ziegler, was of the child having his neck struck several times resulting in his forehead hitting the dashboard. X apparently provided a collateral history in similar terms.
Dr G could find no injury to the child’s forehead but located a small haematoma on the posterior neck midline of the child’s neck, resulting in moderate erythema. X was noted not to be distraught, scared nor anxious during the examination. In his treatment, Dr G took pains to explain to Mr Ziegler that his interview was not forensic in nature.
In the absence of any obvious severe trauma to the child, it appears to me to be an inescapable conclusion that Mr Ziegler called the doctor to his home in order to gather evidence against the mother. I reached this conclusion because X required no specific treatment.
I am also troubled by the fact that there was no evidence of the child sustaining injury to his forehead and the initial history was provided by the father rather than X. It is also relevant that the doctor concerned took the trouble to write his consultation was not forensic or fact finding in nature.
b. Referral to the Women’s and Children’s Hospital of 15 December 2018
Mr Ziegler has not provided any documentary evidence in respect of his attendance on Dr H on 6 December 2018, when X and Y were allegedly seriously unwell and X made disclosures of abuse to the doctor concerned.
Mr Ziegler has however submitted a referral to the Women’s and Children’s Hospital, in respect of X, dated 15 December 2018, from Dr J. The reason for the attendance is that X is alleged to be acting in a paranoid and suspicious fashion, since returning from his mother’s care.
It is unclear, who provided this history to the doctor concerned. X is reported as being hard to examine as he was hiding under the chair during consultation. Mr Ziegler indicated that he had raised issues about the child with both the police and the child protection unit a few times. This is similar behaviour as noted by Ms C in the supervised handover.
The discharge summary from the Women’s and Children’s Hospital indicates that the child was found to be largely unremarkable on physical examination and to be well nourished. Again, X hid under the furniture and refused to engage or be touched. The Women’s and Children’s Hospital doctor was of the view that no further investigations were required and X was discharged without any treatment.
c. The CAMHS records
Mr Charman, counsel for the mother, points to the fact that the initial contact between CAMHS and X is made on 27 November 2018, only a few days after the consent order, which saw X returning to the care of his mother. The person making the referral is identified as Mr N, who describes himself as X’s godfather. He reiterates the allegations of abuse, previously raised by the father, regarding the children being assaulted by their mother and exposed to her suicidal behaviour.
As a consequence of this contact, arrangements were made for both children to consult with Ms F, a clinical psychologist. Ms F has not interviewed the mother. It is also apparent from the copious notes produced by CAMHS that she did not interview either children in the absence of their father and that her involvement with the family was not forensic in nature.
It is however clear that, as at the Women’s and Children’s Hospital and with the other medical practitioners concerned, X’s presentation was unusual, being marked by an apparent anxiety and a need to conceal himself. The behaviour is obviously concerning and, as yet, its precise aetiology is unknown.
On 14 December 2018 Ms F wrote as follows, in respect of the initial consultation (IC), held on 14 December 2018;
“The IC ended up being a forum for a series of allegations made against mother by the children and father, despite clinicians being clear at the beginning and the end of the session that CAMHS is a mental health service and we do not get involved in family court. Father reported that all the “mental health” issues only came up after he separated from mother in Aug 2018.
X’s very unusual behavioural presentation (refusing to enter consult room until father took a video showing mother’s absence, huddling in the corner and under the table however spoke coherently and adamantly about not want to go back to mother’s; he was also noted to speak normally when recounting what his experiences were but would sound verbally distressed when saying “I don’t want to go back to Ms Ziegler”) was in contrast to Y’s presentation (she was settled, confident, bubbly). While there appears to be some truth behind the allegations, it was unclear if they were to the severity that was described in the session.”[2]
[2] See affidavit of Mr Ziegler filed 26 February 2019 at [20]
The next consultation occurred on 17 December 2018. At this stage, Mr Ziegler apparently indicated that his lawyer wanted a letter from CAMHS confirming that there were concerns raised in the therapeutic sessions concluded. In this context, Ms F noted the following:
“Explained that CAMHS will not make a decision about where the children live as we do not get involved in family court proceedings but I can write a letter stating the allegations that were made by the children and him in the session. (Consulted manager Mr K, who said that given the safety concerns, we can write a letter but it needs to be very clear that we are noting down what was said. As we have only seen the family on the one occasion, the assessment is not complete).[3]
[3] Ibid at [27]
In this context, it is to be noted that Mr Ziegler commenced the interim proceedings to suspend the mother’s time on 21 January 2019, five weeks after this consultation. In support of his application, he provided a letter, from Ms F, dated 17 December 2018, in which Ms F outlined the various allegations raised by the father, in his affidavit material. The letter concludes with the following statement:
“Based on the information provided, it is strongly recommended that a thorough child protection and safety assessment be conducted and that Mr Ziegler and Ms Ziegler receive support with co-parenting via Relationships Australia or a similar service should this current arrangement continue.”
The letter does not contain any detail regarding Y’s presentation – settled, confident, bubbly – nor that Ms F had some doubts regarding the severity of the abuse contained in the allegations. The history contained in the letter does include allegations regarding the mother’s self-harm and the alleged bruise to X’s neck, which the father described as being huge but Ms F herself did not observe.
d. The medical records regarding the mother’s alleged suicide attempts
The father relies on notes of a surgery consultation, with a general practitioner, with the mother, which occurred on 25 March 2017. The mother presented at the surgery in respect of multiple lacerations to her left forearm. The history provided was that she had suffered the lacerations in a fall, whilst trying to pick lemons, which resulted on her landing on some nails. Ms Ziegler denied that the injuries were self-inflicted.
The father also relies on an inpatient consultation, at the L Hospital, on 17 June 2018, involving the mother. This is described as a suicidal attempt involving an impulsive paracetamol overdose, following an argument with husband. After observation, the mother was discharged without treatment.
Two things strike me about these records. Firstly, despite the mother’s denials, there is at least some evidence, arising from the L Hospital record, of some form of suicidal ideation. However, on the other hand, the father’s evidence in respect of these matters appears, at the very least, to be somewhat exaggerated and there is no evidence to indicate that the children have been exposed to this behaviour.
e. The records of Mr M
After the order was made suspending X and Y living with their mother, the father proposed that the children should spend time with her subject to the supervision of a professional person, Mr M. In this context, arrangements were made for X and Y to interact with their mother, in the presence of Mr M on 8 February; 1 March; and 4 March 2019; in the presence of Mr M. None of these visits eventuated.
At the initial intake, the father described the mother as being very cunning and generally manipulative to Mr M. Mr M was concerned that the intake process, involving the children took place in the presence of the father and Mr N, which he did not consider would be supportive of any seamless process of Mr M introducing himself to the children, so they could spend time with their mother.
At the second intake interview, which was rescheduled for 1 March 2019, the father and six of his relatives were present. In these circumstances, the children both expressed a view that they did not want to spend time with their mother.
Mr M proposed utilising a play cafe on 4 March 2019, to see if this might assist in the children spending time with their mother. The venue was not available and the visit did not take place, although the mother attended. The mother expressed her concern to Mr M that the father was emotionally manipulating the children.
It is the submission of Mr Charman that Mr M’s notes indicate that Mr Ziegler was not supportive of the children interacting with their mother under the supervision of Mr M and took steps to passively disrupt the process, which included arranging for the children’s extended paternal family to be present during the intake process. Apart from Mr M, the father has no proposals for the children to spend time with their mother.
The legal principles applicable
The central issue, in this case, at this interim stage, centres on child protection issues. What is the level of risk, arising for X and Y, if they are directed to either live with the mother or spend substantial and significant periods of time, in her care, due to the allegations that she has directed violent and abusive behaviour towards the children, including the allegations of drug administration and exposure to suicidal behaviour?
On the other hand, what level of risk arises for X and Y, if they remain in the care of the father and it is subsequently established that he is intent on alienating the children from their mother to satisfy his own need to control and coerce Ms Ziegler and otherwise satisfy his own emotional needs, rather than those of the children. In addition, what are the risks for the children of being placed in the care of a person, who has quite possibly exposed the children’s mother to significant family violence?
In the absence of any detailed family assessment, involving some form of observed interaction between the children and each of their parents, these are difficult issues to resolve, on the basis of the hastily prepared and unwieldy affidavit material currently before the court, which includes prolix administrative documents, which have not been interpreted by their various authors to the court.
However, notwithstanding these evidentiary difficulties, the court must still, nonetheless, make a decision and put in place the orders, which it considers will best regulate and preserve the interests and safety of the two children concerned, according to the relevant principles contained in the Family Law Act 1975.
Ultimately, this task is fundamentally concerned with the assessment of risk. Risk exists everywhere in this case, given the dichotomy in the respective positions of the parties concerned. If Ms Ziegler does regularly assault the children and humiliate them in the ways described, it would be horrifying for the court to place the children in her care.
In my view, it would be equally horrifying, if the children were allowed to remain in the care of a parent, in the form of Mr Ziegler, who knowingly is prepared to distort the truth and manipulate the children because of his contempt for their mother.
As indicated earlier, in my view, this is not a case where issues of risk can be easily compromised or balanced. As such, in my assessment, it is either one parent or the other, who should provide the full time care of the children, pending the provision of an expert report.
Relevant authority of the Full Court make it clear that the court is required to consider child protection issues, in all of its decision making processes, including at the interim stage, and should not defer its responsibility, in this regard, because of deficiency in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues.
In Deiter & Deiter[4] the Full Court said as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
[4] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[5] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
“Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
[5] See SS v AH [2010] FamCAFC 13 at [100]
In Eaby & Speelman[6] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.” In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.
[6] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]
It is to be noted that although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
There are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
If the court accedes to the father’s position, in this case, it is clear that the children will not enjoy any meaningful level of relationship with their mother. It is Ms Ziegler’s evidence that she has been X and Y’s primary provider of care since the date of their respective births.
In this context, it would represent a significant and potentially detrimental outcome, for the children, if they were to be deprived of this relationship and it was subsequently found that this had occurred on the basis of either uncertain or fabricated allegations.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
As indicated above, in Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, the risk of a child being exposed to a person’s sexual behaviour or the child being sexually assaulted or used as an object of sexual gratification.
In M & M,[7] the High Court formulated a test, which has since been referred to as the “unacceptable risk test” as means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent.
[7] See M & M (1988) FLC 91-979 at page 77,081
Essentially the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk suffering some form of harm or abuse. The standard of proof applicable to the assessment of risk, in this context, is the ordinary civil standard.[8]
[8] See B & B (1988) FLC 91- 957 at 76,935
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [9]
[9] Slater & Light [2013] FamCAFC 4 at [37]
Abuse, in respect of a child, is defined by section 4(1) of the Family Law Act. It means:
“(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person ) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.”
Clearly, if the father’s evidence is ultimately accepted, it will be the case that the children have been abused by their mother. In my view, this will also be the case if, on the other hand the mother’s evidence is ultimately accepted.
In the context of this case, I consider that, if X, in particular, is being subject to emotional manipulation, this has the potential to amount to serious psychological harm within the parameters envisaged by s4(1)(c). In addition, if the motivation for this manipulation is to coerce and control Ms Ziegler, I accept that it is also conduct which falls within the rubrick of family violence.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
“violent, threatening or other behaviour by a person that coerces or controls a member of the persons family, or causes the family member to be fearful.”
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. Both parties have made allegations, against the other, which fall within the examples listed in sub-section (2).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. Again, in section 4AB(4) the legislature has included examples of conduct which may amount to such exposure, which include:
·overhearing threats;
·seeing or hearing an assault;
·comforting or providing assistance to a member of the child’s family, following an assault;
·cleaning up after property has been damaged; and
·being present when police attend an incident involving an assault.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms. Family violence, by its nature, is something that frequently occurs behind closed doors in the private confines of a family home.
Accordingly, it is very often difficult if not impossible for there to be independent verification that it has occurred. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.”[10]
[10] See Eaby & Speelman (2015) FLC 93-654 at 80,322 [21] per Ryan J
In this case, both the father and the mother have asserted that each of them has been the victim of the others violent behaviour. There is no corroborating evidence to support either such allegation. The mother’s allegations arise in the context of her being deprived of familial support and being socially isolated in a societal setting, which is not congruent with her own background.
In my view, it would be imprudent of me to discount the mother’s allegations on the basis of a lack of independent supporting evidence alone. Her case is that she was not in a position to raise concerns about her situation with anyone because she was isolated in her marriage and separated from her family. On the other hand, I must also guard against making stereotypical assumptions about the prevalence of male initiated violence.
In addition, I must also be aware that family violence is not homogenous in its qualities and can arise in a variety of contexts. It is also well recognised, including by the legislature through the provisions of the Family Law Act, that family violence is prevalent in all works of Australian society and represents a great threat to the wellbeing of children.
Family violence can place children at actual physical risk of being hurt. It also has the potential to do them emotional harm, if they are subjected to exposure to a well-loved family member being hurt or frightened. For obvious reasons, individuals who use force to coerce or control another person are not appropriate role models for children. This is the mother’s case so far as X is concerned.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate arising from a clear power imbalance between the parties concerned. Obviously, the latter type of behaviour is more damaging, so far as children are concerned. But not all incidents of family violence will be damaging for a child.
In this case, it is clearly the mother’s case that the father’s conduct towards her, both before and after the parties separated, was intended to coerce and control her. As such, if these allegations are substantiated, it represents, in my view, serious family violence, which cannot be categorised as being responsive to a difficult or emotionally challenging situation, such as relationship breakdown.
As I indicated at the outset, cases involving the alleged abuse of young children propose particular difficulties for the court. In this case, X is 7 years of age and Y is 4. As such, their verbal and cognitive skills are not fully developed. As a consequence, each of them, but particularly Y, are likely to have difficulty in presenting a clear chronological account of what has happened to them over an extended period of time.
In addition, given their tender years, it cannot be definitively ruled out that there are no factors of external influence shaping their apparent disclosures of mistreatment to the various individuals, who are set to have received them. Although it is unpalatable to consider it, parents who are locked in bitter struggles with one another, over the possession of their children do either consciously or unconsciously influence them.
More significantly, in many cases of abuse, including the current matter, there is a lack of corroborating physical evidence. The only witnesses to the alleged abuse are the child victims and the alleged perpetrator concerned. As such, it may not be possible for the court to make a definitive finding, one way or another, whether abuse did or did not occur. This is a case largely of physical abuse. Apart from the minor haematoma observed on X, there is no concrete physical evidence to support the allegations of abuse of either child, who have been described as healthy and well nourished. However, I must also recognise that abuse of children does occur.
Notwithstanding these difficulties, the court must attempt to analyse as best it can, all the available evidence, because the consequences of getting the case wrong, as I am at pains to point out, are potentially horrifying. On the one hand, the potential detriment to a child of being subjected to physical abuse must represent a severe exploitation of the child, who’s long and short terms effects may well be devastating. It represents:
“…the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, in both the short and long term, can be devastating.” [11]
[11] Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 at [94]
Overlying these concerns is the fact that allegations of abuse and responding allegations that some manipulation of the child concerned has occurred in order to secure a damaging disclosure about the conduct of a parent, frequently occur in the aftermath of relationship breakdown where the parents concerned communicate poorly, if at all, because of antipathy and suspicion.
For obvious reasons, such circumstances provide fertile ground in which words or actions can be misconceived, misunderstood or indeed be manipulated. Regrettably, it is also not unknown for allegations of abuse to be made for tactical or mischievous reasons. It may be difficult to differentiate between these various scenarios and in some cases there may be a conflation of them.
In the context of sexual abuse, Fogerty J pointed out as follows:
“…courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”[12]
[12] See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W (supra) at [95]
In my view, these comments are apposite to the current matter. The court is required, in assessing risk, to subject the various allegations concerned to some level of careful scrutiny, bearing in mind the consequences of making a wrong assessment.
W & W [abuse allegations; unacceptable risk] the Full Court summarised a number of authorities dealing with abuse allegations and provided guidelines to the assessment of unacceptable risk, which can be summarised as follows:
·The unacceptable risk test requires the court to give real and substantial consideration to the facts of the case concerned in determining whether there is or is not an unacceptable risk of harm befalling a child;
·In so doing, the sorts of questions, which the court should pose for itself, in respect of the allegations concerned, included the following:
oWhat is the nature of the events alleged to have taken place?
oWho has made the allegations?
oTo whom have the allegations been made?
oWhat level of detail do they involve?
oOver what period of time have the events alleged to have occurred?
oOver what period of time are the events alleged to have occurred?
oWhat are the effects exhibited by the child?
oWhat is the basis of the allegations?
oAre the allegations reasonably based?
oAre the allegations genuinely believed by the person making them?
oWhat expert evidence has been provided?
oAre there satisfactory explanations for the allegations apart from abuse?
oWhat are the likely future effects on the child concerned?
·The weight to be attached to the answers arising from these questions will vary from case to case.
Consideration
The central issue which arises in these interim proceeding is what is the nature of the risk surrounding X and Y and how should that risk be managed and contained. It is an issue which is incapable of definitive resolution at this stage but one of great moment so far as the emotional integrity and physical wellbeing of the two children is concerned.
Essentially, the court must assess, on the one hand, whether Ms Ziegler is the close to sociopathic parent depicted by Mr Ziegler. One who is capable of drugging her children so she can socialise and who subjects young children to horrific punishments because she is incapable of controlling her temper.
On the other hand, the court must consider the consequences of depriving the children of having their primary source of physical and emotional nurture removed from their lives on the basis of largely uncorroborated allegations in circumstances in which the mother alleges the father is consciously manipulating the children, but particularly X.
On any view, this is a high stakes issue in terms of both the physical safety of the children and their emotional integrity. As previously indicated both such scenarios constitute abuse as defined by the Act. The polarisation of the parties’ respective positions in the case render it problematic in the extreme. The possibility that the parties have an honest but mistaken view of the evidence in the case, although a potentiality, appears improbable at this juncture. In this regard, the submission of the independent children’s lawyer, favouring the mother’s position, is significant.
I am required to give real and significant consideration to the allegations of abuse made in the case. In particular, I must look at who has made the allegations and what is the context in which they have arisen. At the same time, I am not in a position to ignore the possibly seriously detrimental consequences, for the children concerned, of losing their entitlement to benefit from having a meaningful level of relationship with their mother.
The evidence is relatively clear that, during the parties’ relationship, they divided their family responsibilities under conventional lines – the father was the family’s breadwinner; whilst the mother remained in the home. In this context, the mother asserts that she has been historically the children’s primary provider of care since the dates of their births.
It is her case that she did so with little support from the father and no complaint from him about how she discharged her responsibilities. In this context, in my view, it is significant that the allegations raised by the father, extremely serious in nature and said to have occurred during the course of the parties’ marriage, are not supported by any external sources of evidence and have arisen only after the parties have separated.
All the notifications to the Child Protection Department post-date the parties’ separation; there are no historical complaints to police; the children have not been examined by any medical practitioner or referred for any independent assessment; until after the mother has instituted these proceedings.
In my view, it is highly significant that the complaints raised by the father against the mother, emanate from him alone and arise only after she has been excluded from the children’s lives by the father’s unilateral actions in the difficult circumstances following the parties’ separation. Accordingly, in my view, the allegations have not been made by a person, who can be regarded as being either neutral or necessarily objective.
Although the allegations have been made post separation, they include serious matters of parental misconduct, which predate the separation by a significant period of time. In this context, in my view, it is significant that there is no independent evidence to corroborate any of these allegations. In addition, the father has not called any evidence from any lay witness to support his allegations regarding the mother’s labile personality.
In my assessment, the medical evidence marshalled by the father to support his case is not strong. Dr G reported a small haematoma, which has not been noted by any other medical person. In addition, I agree with Mr Charman’s submission that such an injury is not necessarily consistent with the allegation that the child’s head was struck several times against the dashboard of the mother’s motor vehicle.
The father’s case is that the mother is demonstratively unstable in a psychiatric sense. True it is that the mother’s unequivocal denial of any incidents of suicide is not made out. The L Hospital record does indicate an admission as a consequence of ingestion of medication but that record is not necessarily indicative of any long standing psychiatric issue and may also be consistent with the mother being subject to other situational stresses, which is her case.
In all of these circumstances, in my view, the only compelling evidence, which supports the allegations of abuse made by the father himself resides in the concerning behaviour of X, which has been noted by several independent professional persons, particularly Ms F.
However, her notes indicate that she was at pains to point out to the father that her involvement was not forensic in nature, although it seems to be the case that Mr Ziegler was particularly demanding that she provide some documentary evidence to support his allegations of abuse. In these circumstances, an explanation for the child’s attendance on both Dr G and CAMHS was that the father was seeking evidence to support his case against the mother.
In addition, the presentation of Y is not congruent with that of her brother. She does not seem to exhibit the same indicia of emotional dysregulation and discomfort as her brother. In this context, it is to be noted that she is younger than her brother.
In my view, in the absence of any forensic examination of the children, I must approach their various disclosures with some degree of caution. Ms F seems to have taken a similar approach as is apparent from her notes that the complaints, made by the children, may not be as serious as the father asserts.
In addition, in my view, it is also significant that all of the allegations concerned arose whilst the father was present. As a consequence, I do not know how the issue of abuse was broached – did X or Y spontaneously disclose these allegations or did Mr Ziegler open the topic in the context of X’s unusual behaviour.
In these circumstances, it is difficult to know whether it was Mr Ziegler who initiated the allegations and thereafter introduced the children to them or whether the allegations in question arose spontaneously from the children themselves. There is no indication of the direct speech of the children or the overall structure of who said what and when in the CAMHS material. What is clear, however, is that Ms F was not conducting a forensic interview with the children and only provided her letter, after consulting with her superior and on the request of the father.
In all these circumstances, in my view, it is incumbent upon the court to ask itself whether there are other explanations available to indicate why X has behaved in the upsetting manner, in which he has, other than that he has been exposed to his mother’s abusive behaviour towards him. Certainly, in my view, the possibility that he is responding to either the explicit or tacit prompts of his father cannot be definitively ruled out.
In this context, in my assessment, the evidence of Ms C is likely to be central. She is both an independent and expert person. Unlike Ms F and the other medical personal engaged by Mr Ziegler, she had the opportunity to observe the children with each of their parents before and after the children’s interaction with those parents. Unlike Ms F, she had the opportunity to assess what sort of person Ms Ziegler is in the context of her interaction with the children. In my view, this must be regarded as highly significant.
Like Ms F, Ms C observed X to attempt to conceal himself at the prospect of interacting with his mother. She also observed signs of emotional confusion, in both children, after they had left their father’s care, which included the children making negative comments about their mother. The children were clearly emotionally over wrought.
The central issue in the case is why was this the case? The father would have it that the children, particularly X, were terrified of their mother. If so, why had they not previously been so terrified such that other agencies had not been previously engaged to deal with such unusual and aberrant behaviour? Their apprehension arose after they had not interacted with their mother for several weeks. Is this more congruent with the children’s behaviour having been influenced, in some way, of the parent with whom they have been more recently?
The contrast in behaviour, observed by Ms C, after the children had spent the day with their mother, is marked and therefore highly significant in my view. They returned happy and contented and were each able to express their love for their mother, which is consistent with Ms Ziegler’s position that she has historically been the children’s main provider of care.
In all these circumstances, in my view, it seems possible that there exists two possible hypotheses to explain X’s unusual behaviour – either he has been abused by his mother and is therefore frightened of her; or he has been prompted or manipulated to behave in this way for some other reason not related to his mother’s conduct towards him. In my view, Ms C’s evidence is more supportive of the latter hypothesis.
Given this assumption, in my view, it is now necessary for the court to consider the implications, in terms of the welfare of X and Y, of accepting uncritically the hypothesis advocated by the father. If accepted, albeit provisionally, it will necessarily result in the children’s relationship with their mother being artificially truncated, if not severed, in circumstances in which it is apparent that she has previously had a central role in providing their care.
I do not consider that such an outcome would be in the children’s best interests at this interim stage, notwithstanding the potential gravity of the father’s complaints. In my view, preventing the children from having a meaningful level of relationship with their mother, given the preponderance of evidence indicates that she has been their primary carer, would be a graver outcome so far as the psychological functioning of the children is concerned.
After the 16 November consent order, the father expressed himself content with the children living predominantly with their mother and having regular time with him. This arrangement broke down in the context of the father engaging various professional persons to gather evidence against the mother which was in similar terms to his earlier complaints against her, which had been significantly undermined by the involvement of Ms C.
In these circumstances, I have concerns regarding the father’s capacity to support the children maintaining any level of relationship with their mother. In this context, it is telling that the engagement of Mr M has been singularly unsuccessful. In my view, the only viable manner in which the mother can maintain any relationship with X and Y is if the children live with her.
I am not persuaded that the allegations of abuse raised by Mr Ziegler are of such moment to justify the total suspension of the children’s relationship with their mother, which must be regarded as being central to their future development. In my view, there are sufficient doubts about these allegations, which render the expediency of the children’s relationship with their mother being curtailed unwarranted when set against the other primary consideration notwithstanding the primacy of protective concerns.
Given the manner in which the proceedings have been conducted to date, marked as they have been by the father unilaterally withholding the children, in my view, it is not workable that orders be made that see the children spending significant and substantial time with each parent in the expectation that this will be both sufficiently protective and supportive of X and Y maintaining a meaningful level of relationship with each parent until further evidence is gathered. In such a scenario, I am fearful that this will only lead to the children being exposed to further disruption.
In my assessment, a proportionate response to the risk arising in the case is that proposed by Family Consultant Dr D, namely an expedited family report. Such a report is unlikely to determine definitively whether the mother has abused the children in the consistent manner detailed by the father – systematic drugging; physical assaults; and verbal abuse; - given the absence of independent sources of corroboration, confirmation may be impossible, given the nature of the allegations involved.
However, such a report will examine the nature of the relationship which the children enjoy with each parent and perhaps throw some light on why X has been behaving in the manner in which he has whilst presented to professional persons by his father. Such an examination will be significant in assessing the likely benefits accruing to the children of maintaining meaningful parental relationship in the context of allegations of abuse which are likely to be difficult to resolve definitively.
Both parties have made significant allegations of family violence. Each has obtained a family violence order against the other. In this context, I note that each such order has been made on an ex parte basis and no definitive findings of fact have been made after a canvassing of relevant evidence, including cross-examination [see section 60CC(3)(k)].
The application of other of the additional considerations, particularly the level of parental capacity and insight, are difficult, if not impossible to assess, in the context of these heated interim proceedings, which have necessarily focussed on protective concerns. A family report is likely to be illuminative in respect of these important matters, particularly given the mother’s case that she has hitherto been X and Y’s primary attachment figure and has provided the vast majority of their nurture to date.
The application of the presumption of equal shared parental responsibility is not appropriate in this case and is rebutted by the significant allegations of abuse and exposure of the children to family violence.
Having determined that the children’s best interests, in the short to medium term, will be served by the children living with their mother, an equally difficult question arises as to what time, if any, the children should spend with their father and other members of their paternal family and if so what conditions should attach to such time.
The concern is that the situation which arose following the 16 November orders will recur and the father will once again unilaterally withhold the children whilst seeking evidence to buttress his position. In my view, this is a significant risk, given the heat and acrimony exhibited by these proceedings.
In these circumstances, in my assessment, a proportionate response to this treat, which I assess as real, is to not make any orders for time pending the production of an urgent family report, which I hope can be compiled within six weeks of the date of these order or by mid-May of 2019 at the latest.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eighty-six paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 15 March 2019
[1] See affidavit of Ms Ziegler filed 1 October 2018 at [35]-[36] & [39]
Key Legal Topics
Areas of Law
-
Family Law
-
Evidence
Legal Concepts
-
Procedural Fairness
-
Natural Justice
-
Remedies
-
Standing
0
4
2