Arnold & Sandor
[2024] FedCFamC2F 1845
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arnold & Sandor [2024] FedCFamC2F 1845
File number(s): MLC 7097 of 2023 Judgment of: JUDGE GLASS Date of judgment: 19 December 2024 Catchwords: FAMILY LAW – PARENTING – where there are two children aged 7 and 6 – where the children live with the father and have spent no time with the mother since 2022 – where the mother has neglected the children and they have expressed a desire not to see her - where the mother has perpetrated family violence and repeatedly failed to produce hair follicle tests – where the mother has not taken steps as recommended by the Family Report writer Legislation: AustralianPassports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DAA, 65DAAA, 65Y
Children, Youth and Families Act 2005 (Vic) s 162
Cases cited: Adamson & Adamson (2014) FLC 93-622
Bant & Clayton (2019) FLC 93-924
Boyle & Zahur & Anor (2017) FLC 93-814
Carlson & Fluviam [2012] FamCA 32
Cizek & Mihov (2024) FLC 94-206
Eastley & Eastley (2022) FLC 94-094
Lainhart & Ellinson (2023) FLC 94-166
Oberlin & Infeld (2021) FLC 94-017
Raymond & Raymond (2024) FLC 94-180
Sahrawi & Hadrami (2018) FLC 93-857
Vigano & Desmond (2012) FLC 93-509
Division: Division 2 Family Law Number of paragraphs: 149 Date of last submission/s: 11 December 2024 Date of hearing: 9-11 December 2024 Place: Melbourne Solicitor for the Applicant: Ms Albore of Bramham Lawyers Counsel for the Respondent: Ms Paterson Solicitor for the Respondent: Westminster Lawyers Counsel for the Independent Children's Lawyer: Ms Burgess Solicitor for the Independent Children's Lawyer: Schetzer Papaleo Family Lawyers ORDERS
MLC 7097 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ARNOLD
Applicant
AND: MR SANDOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father make sole decisions for all major long-term issues relating to the children X, born in 2017 and Y, born in 2018 (the children).
3.The children live with the father.
4.The children spend no time and have no communication with the mother unless otherwise agreed between the father and the mother in writing.
5.Within 7 days of the date of these orders, the father provide the mother with an email address which she may use only for the purposes of:
(a)keeping the father advised of her email address and telephone number; and
(b)engaging in non-abusive communications with respect to arrangements for time or communication with the children pursuant to order 4 hereof, but only if such communication is instigated by the father.
6.Pursuant to section 65Y of the Family Law Act 1975 (Cth), the children be permitted to travel internationally with the father without first receiving the consent of the mother.
7.Pursuant to section 11(1)(b) of the AustralianPassports Act 2005 (Cth), the father is hereby authorised and permitted to apply for, renew and receive an Australian passport for X, born in 2017 and Y, born in 2018 (the children).
8.The father engage the children with a child psychologist to address the issues raised in the Family Report prepared by Dr B.
9.The father is at liberty to provide a copy of the Family Report of Dr B dated 12 December 2023 and a copy of these Orders to any counsellor, psychologist, mental health professional or allied health professional upon whom he or the children attend.
10.The father is at liberty to provide a sealed copy of these orders to:
(a)The Registrar of Births, Deaths and Marriages Victoria;
(b)The Australian Passports Office;
(c)Victoria Police;
(d)Australian Federal Police (if applicable);
(e)Any school the children attend; and
(f)Any professional or organisation with which the children are associated.
11.Within 7 days the Independent Children’s Lawyer be discharged.
12.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
These proceedings concern X, now seven years old, and Y, now six years old.
The children live with their father, Mr Sandor. It is agreed that they will continue to do so.
The children have not spent time with their mother, Ms Arnold, since December 2022.
Ms Arnold now proposes that the parents have “equal shared parental responsibility and decision-making authority”[1] for the children. She proposes that the children spend time with her on a gradually increasing basis over 16 weeks, commencing with day visits with her parents in substantial attendance and culminating in them spending every weekend with her from after school on Friday until 5.00 pm on Sunday in the absence of any third parties. The particulars of her application are contained in Exhibit A1.
[1] Exhibit A1, paragraph 1.
Ms Arnold relies on her affidavits filed 27 June 2023 and 1 May 2024. In support of an unsuccessful adjournment application, she also relied on an affidavit filed by her on 8 December 2024, together with the annexure thereto. She also relies on the affidavits of Mr Sandor’s former partner, Ms C, filed 1 May 2024 and her own former partner, Mr D, filed 1 May 2024. Mr D was not required for cross-examination and his evidence was accordingly unchallenged. Ms C was required for cross-examination but was unavailable. Ms Arnold did not contend that any weight should be afforded to Ms C’s evidence in those circumstances.
Mr Sandor and the Independent Children’s Lawyer propose that he make sole decisions regarding major long-term issues concerning the children, that they spend no time with Ms Arnold without his written consent, and that he be authorised to travel internationally with the children. They also propose that Mr Sandor engage the children with a child psychologist. The particulars of their application are contained in Exhibit R9.
Mr Sandor and the Independent Children’s Lawyer rely on the documents identified in their Outlines of Case.
The applications fall to be determined by reference to Part VII of the Family Law Act 1975 (Cth). I am guided by the objects of that Part.[2] The children’s best interests are the paramount consideration.[3] In determining those best interests, I am to consider the matters prescribed by section 60CC of the Act.
[2] Family Law Act 1975 (Cth), s 60B.
[3] Family Law Act 1975 (Cth), s 60CA.
Evidentiary Issues
Despite the general undesirability of making adverse credit findings, particularly in parenting cases,[4] there are a number of disputed allegations in these proceedings that cannot be otherwise resolved. Despite the propensity of such findings to “inflame passion rather than quell controversy”, credibility assessments are required when “there is no documentary, electronic, or other form of incontrovertible evidence to resolve the conflict over a material question of fact”.[5]
[4] Adamson & Adamson (2014) FLC 93-622 at [89]-[90] quoting Carlson & Fluviam [2012] FamCA 32 at [165]-[169]; Sahrawi & Hadrami (2018) FLC 93-857 at [64] per Ryan & Aldridge JJ.
[5] Cizek & Mihov (2024) FLC 94-206 (“Cizek & Mihovi”) at [42] and the case there cited.
Mr Sandor makes a number of allegations about Ms Arnold’s conduct that relate to the central issue in the proceedings, namely whether X and Y’s safety continues to require them to spend no time with Ms Arnold. Despite being permitted to rely on several affidavits, Ms Arnold’s only response to the allegations is completely lacking in specificity. She deposes as follows:
Regrettably, the narrative surrounding the locking in the bedrooms, taking photos of them in pretty dresses with their bums on show, the hot water incident and individuals coming to [E Street] has been distorted and manipulated, with blame unjustly shifted onto me, falsely implicating me in causing harm to my Children.[6]
[6] Affidavit of Ms Arnold filed 1 May 2024, paragraph 13.
Despite that evidence, and the centrality of the allegations that Ms Arnold has neglected her children, she failed to challenge Mr Sandor’s specific evidence in relation to the allegations.
There was nothing about the way in which Mr Sandor gave his oral evidence or conducted himself in the proceedings that caused me to doubt the reliability of his evidence. Ms Arnold made no submission to the contrary.
I did not form the same impression with respect to Ms Arnold’s evidence. Although she appeared to give straightforward evidence which was responsive to the questions asked of her, that evidence lacked credence in a number of ways.
As her solicitor admits, Ms Arnold’s repeated oral evidence that she is “not charged” with any criminal offences is false. On at least four occasions in cross-examination, Ms Arnold maintained that despite having driving matters returnable before the Magistrates’ Court earlier in the year, she has not been charged with any offence. Ms Arnold has a lengthy criminal record. She is currently serving a community corrections Order imposed in late 2023. There is no evidence to support Ms Arnold’s submission that she was somehow confused about whether she is in fact facing fresh driving charges. It is immaterial whether Ms Arnold intended to mislead the Court by giving false evidence, the reality is that her evidence in that respect is false.
On 8 November 2023, Ms Arnold deposed in an affidavit to the following incident:
[In] December 2019, the Respondent became increasingly erratic, was yelling at me, shouting derogatory things at me and getting close to my face. The Respondent grabbed my hair, threw me to the floor and dragged me through the baby gate, slamming my head against the kitchen couch. The force of which was so strong that I blacked out and when I came to, I had bruises all over my body and face.
Ms Arnold confirmed the accuracy of that evidence in cross-examination. She maintained that it was the truth and the whole truth. The quoted paragraph is relevantly identical to paragraph 51 of her affidavit filed 27 June 2023, which affidavit she confirmed was accurate in her evidence in chief.
The day after the alleged incident, Ms Arnold and Mr Sandor drove together to the roads authority for Ms Arnold to obtain her license after it having been suspended. Having obtained her license, she then drove the parties’ vehicle. Mr Sandor took two photographs of Ms Arnold in the drivers’ seat. Although she is wearing sunglasses, her arms are exposed and her face is clearly visible. There is a complete absence of any bruising to her face and visible limbs in the photographs taken of her in December 2019. No attempt was made by her to explain that absence. The independent evidence before me contradicts the evidence she maintained to be accurate in these proceedings.
Ms Arnold’s evidence in relation to her hospital admissions prior to the final hearing lacked consistency and coherency. She deposed as follows:
“…[In late] 2024, I was taken to [F] Hospital as I started experiencing extreme pain in my back. I was unable to walk properly. I remained at [F] Hospital for ten days until I was discharged [a week later].”[7]
[7] Affidavit of Ms Arnold filed 8 December 2024, paragraph 9.
When the chronological inconsistency in the evidence was first raised with her solicitor, she confirmed that Ms Arnold had been admitted to hospital for 10 days. Inconsistently, Ms Arnold gave oral evidence that she was in fact admitted for several weeks in late 2024. Despite giving evidence that she could have made arrangements to obtain her discharge summary from that asserted hospital admission, she did not do so. That unexplained failure warrants a conclusion that the discharge summary would not support Ms Arnold’s case.[8]
[8] Cizek & Mihov at [75] and the case there cited.
Inconsistent with Ms Arnold’s evidence that she was admitted to hospital in late 2024, the F Hospital report that Ms Arnold “attended [G Hospital] [in late] 2024” and that date was her “admission”.[9] Ms Arnold sought to explain that inconsistency by suggesting that was the date she was admitted to a “physical rehabilitation centre”. That evidence was itself inconsistent with her prior evidence that she had been admitted to “[a] Ward” of the “physiotherapy department” of G Hospital, that she had slept there every night, and that she had spent several weeks at the G Hospital physiotherapy department.
[9] Exhibit R2.
Ms Arnold deposes that she has “never been subjected to alcoholism / cigarettes / illicit drug use”.[10] Contrary to that evidence, cannabis metabolites were detected in her urine in November 2023. In early 2010, Ms Arnold drove a motor vehicle whilst exceeding the prescribed concentration of alcohol. In late 2016, Ms Arnold was detected to have a blood alcohol content over the legal limit while driving, resulting in the cancellation of her license. Ms Arnold told the Family Report writer, Dr B, that she had been addicted to prescription pain relief medication. In early 2015, Ms Arnold was charged with drug-related offences, for which no conviction was recorded after she complied with a bond or undertaking. She had accordingly illicitly obtained drugs, even if the drugs could otherwise be obtained legally. That independent evidence is inconsistent with Ms Arnold’s evidence to this Court.
[10] Affidavit of Ms Arnold filed 1 May 2024, paragraph 17.
Where there are uncorroborated conflicts between the parties’ evidence, I prefer Mr Sandor’s.
I also accept the evidence of single expert psychologist, Dr H, who was not required for cross-examination. Although Dr B was cross-examined, no effective challenge was made to the observations and opinions she expressed. I also accept her evidence.
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of X and Y and each person who has the care of the children (whether or not a person has parental responsibility for the children)
Any history of family violence, abuse or neglect involving the children or a person caring for the children (whether or not the person had parental responsibility for the children)
Ms Arnold did not challenge Mr Sandor’s evidence in relation to the neglect of the children in cross-examination. Whilst I am not compelled to accept his evidence,[11] I find no reason to reject it. No basis to do so was advanced by Ms Arnold.
[11] Raymond & Raymond (2024) FLC 94-180 at [25] and the cases there cited.
Ms Arnold’s drug use
Ms Arnold has suffered from drug dependence since the parties met in 2011. In late 2014, she was arrested for drug-related offences. In early 2016, she was admitted to J Hospital for several weeks for overuse of prescription medication and charged with drug-related offences. Ms Arnold admitted that she had been taking upwards of 25 pills each day.
In 2016, Ms Arnold began to drink alcohol to excess. She came home from work most nights heavily intoxicated, slurring her words and unable to walk straight. Having been found consuming alcohol in her office at work, her employment was terminated in late 2016. The same month she was found to have a blood alcohol concentration over the legal limit within three hours of driving or being in charge of a motor vehicle.
Between 2016 and 2019, despite being unemployed, Ms Arnold told doctors she was travelling overseas for work to obtain extended prescriptions for prescription medication. Over a period of two months in 2017, Ms Arnold saw 20 different doctors.
On 13 occasions between 2016 and 2023, Ms Arnold renewed prescriptions for medications claiming to have lost her existing medication. On at least 3 occasions in the same period, she sought renewed scripts claiming that her existing medication was stolen.
Ms Arnold often used alcohol and drugs while driving. She did so with the children in the car. X and Y have described Ms Arnold driving to remote areas within Suburb K to “blow smoke outside the window”.[12] She is not a tobacco smoker. She has consumed alcohol while using prescription medication despite having been warned by doctors not to do so.
[12] Affidavit of Mr Sandor filed 11 November 2024, paragraph 102.
Ms Arnold has had two significant vehicle collisions. In mid-2022, she drove the parties’ motor vehicle unlicensed and uninsured. She had a serious collision. In 2023, she was involved in another collision causing the vehicle she was driving to be written off. She had been involved in multiple minor incidents or accidents in prior years.
In late 2022, Mr Sandor was advised by a member of Victoria Police that Ms Arnold sounded drug and alcohol affected.
In 2023, the children reported to Mr Sandor and his then partner that while living with Ms Arnold, “men would come over and take ‘medicine’ out of the roof of the home, place the ‘medicine’ in a ‘lolly shaped glass thing’, add water to it and make it bubble.” They reported that Ms Arnold “would sometimes not wake up after she took the medicine”, and would “sometimes take the medicine while driving, and blow the smoke out the window”.[13]
[13] Affidavit of Mr Sandor filed 11 November 2024, paragraph 112.
I am satisfied that Ms Arnold has exposed X and Y to her drug abuse over an extended period of time. To drive a motor vehicle while substance affected with the children in the car, leaves them at risk of harm and neglects their needs. To consume substances to the point of being unresponsive in the presence of her young children clearly also neglects their needs.
Other mistreatment by Ms Arnold
Aside from conveying the children in a vehicle whilst drug affected, Ms Arnold has mistreated the children in other ways. She has locked the children inside her car while shopping. She was reported to have done so at various times from 2020 until late 2022. In early 2020, the children were reported to have been locked inside Ms Arnold’s car for 45 minutes while she was at a store, resulting in police attendance. Ms Arnold was criminally convicted for leaving child without supervision or care in mid-2020. In mid-2020, Ms Arnold locked the children in her car at a carpark in Town L for at least half an hour. Police were called to a carpark in Suburb K on multiple occasions after the children had been left on their own whilst in Ms Arnold’s care.
Ms Arnold has also locked the children inside the car in the garage at night. She has locked the children inside their bedrooms for extended periods, poured hot water on the children to punish them, raised the children in unsanitary conditions, failed to take them to kindergarten or daycare, neglected their diet leaving them malnourished, perpetrated family violence in their presence, threatened self-harm and suicide in front of them, and yelled at them and in their presence. She regularly failed to collect the children from childcare at the conclusion of the day, resulting in the children’s suspension from four childcare centres. She has left the children alone for entire nights.
Y sadly recalled to the children’s counsellor, Ms M, that Ms Arnold had locked her in the car. She also disclosed that she remembered being locked in the garage by her mother. X recalled to Ms M that Ms Arnold had tried to put hot water on her when she was mad. X expressed anxiety about her mother leaving her at home by herself and locking her in her room.
When Mr Sandor attended the property that had been occupied by Ms Arnold and the children in December 2022, he found the house filthy, with the fridge containing mouldy food. When he subsequently took possession of the property in March 2024, there were holes in the walls left by Ms Arnold and all the internal doors were damaged.
In around March 2023, Y told her father that she was scared to be home with Ms Arnold because “police were always banging on the door” and that Ms Arnold “did not let the children out of the house”.[14]
[14] Affidavit of Mr Sandor filed 11 November 2024, paragraph 117.
In April 2023, X reported to Victoria Police that “the police came to mum’s door and mum wouldn’t open the door”, and that Ms Arnold “poured hot water on her head”.[15] In July 2023, Y told Ms M that Ms Arnold “would lock her into a room for not doing good listening”. In August 2023, X disclosed to Ms M that Ms Arnold “tried to pour hot water on me when she was mad”. [16]
[15] Affidavit of Mr Sandor filed 11 November 2024, paragraph 113.
[16] Affidavit of Mr Sandor filed 11 November 2024, paragraph 115.
The children have told Mr Sandor that Ms Arnold locked the children in their rooms at night, and that they were scared and frightened. X does not like it when doors are closed in the house.
Dr B gave oral evidence that “my observation was the children recalled being mistreated by their mother, and were fearful of their mother.” Ms Arnold suggested to Dr B that the vivid accounts given by the children may have been the result of someone telling them those things. Dr B gave evidence that:
No, I don’t think so. The concepts that they explained and expressed to [Ms M], the therapist, are concepts that are way beyond their level of understanding, and even if someone tried to coach them to say those things, they wouldn’t have been able to grasp the concept. They were repeating things that happened to them, that they experienced, in my opinion.
Dr B’s opinions were not impugned in any way in cross-examination. In light of Mr Sandor’s unchallenged evidence and the independent evidence before the Court, I accept that the disclosures made by the children are reflective of events they have experienced in Ms Arnold’s care.
Family Violence
From approximately early 2020, Ms Arnold started making statements that she hoped to die. On one occasion, she smashed an object against the top of her head. She said “hopefully I will just die”.[17] Y was present. On another occasion, she threatened to use a weapon to kill herself in the presence of the children. She told the girls to “say goodbye” because she was going to kill herself and never see them again.[18]
[17] Affidavit of Mr Sandor filed 11 November 2024, paragraph 133.
[18] Affidavit of Mr Sandor filed 11 November 2024, paragraph 133.
In early 2020, Ms Arnold was incoherent and drug and alcohol affected. Her mother took her to J Hospital. She called Mr Sandor and told him that she would harm herself unless she could have the children.
In early 2020, Ms Arnold and Mr Sandor were involved in a heated argument. Ms Arnold grabbed and tore Mr Sandor’s shirt, slapped him across the face, and scratched his back and neck. In frustration, Mr Sandor broke the parties’ iPad. The children were asleep and apparently did not hear the argument.
In early 2022, Ms Arnold pushed Mr Sandor’s father. She abused him, grabbed his phone and threatened to destroy it. She was subsequently convicted for assaulting him.
In mid-2022, after her car accident, Ms Arnold demanded that Mr Sandor take out an insurance policy and make a claim on it. When Mr Sandor refused the demand to engage in insurance fraud, Ms Arnold lost her temper, started screaming and swearing at him. She threatened to self-harm with a weapon stating to the children words to the effect of “I’m going to kill myself, say goodbye, you won’t see me again”. She then turned to Mr Sandor and said words to the effect of “I wish you were fucking dead”.[19]
[19] Affidavit of Mr Sandor filed 11 November 2024, paragraph 154.
I accept Dr B’s unchallenged evidence that:
Witnessing parental self-harm and threats of self-harm and suicidal ideation is disturbing behaviour and harmful to children’s wellbeing and mental health. It threatens their stability and sense of security in the world.[20]
[20] Family Report, paragraph 147.
Ms Arnold makes a variety of allegations of family violence perpetrated by Mr Sandor. However, she proposes that the children remain primarily living with him. I infer that she does not contend that the children are at unacceptable risk of exposure to family violence in his care. She made no submissions that connected her current proposal with the allegations of historical family violence. I accordingly consider it unnecessary to determine those allegations.
Ms Arnold also asserted in oral evidence that Mr Sandor is a paedophile because he took pleasure from taking photographs of the children naked. Some of the photographs she relied on in support of her incredulous suggestion were sent by text message from her phone to Mr Sandor’s. Her suggestion that she found them on the parties’ shared iCloud account and sent them to Mr Sandor was fanciful. I accept Mr Sandor’s unchallenged evidence that Ms Arnold took the photographs. Other photographs relied on by Ms Arnold in support of her outrageous suggestion were taken in her presence. I find nothing inappropriate about the photographs Mr Sandor took in Ms Arnold’s presence. I reject Ms Arnold’s evidence.
Ms Arnold was unable to offer any coherent explanation for the inconsistency in her position that the children should remain living with their father and her assertion that he perpetrates family violence and is a paedophile. As the Independent Children’s Lawyer submits, her proposal is nonsensical given her allegations. I do not find, contrary to Ms Arnold’s position in these proceedings, that Mr Sandor presents an unacceptable risk of any kind to the children.
Ms Arnold’s criminal activity
Aside from her prescription offences, her drink driving offences, her assault, and her offence of leaving a child without supervision or care, Ms Arnold has engaged in other criminal activity. She was found driving whilst her authorisation was suspended on four occasions in 2017. She was found committing another driving offence in mid-2017.
In 2017, Ms Arnold stole from a shop, although no conviction was recorded for the charges after her compliance with a bond or undertaking. She was arrested for the offence at the parties’ home in late 2017, leaving X in Mr Sandor’s care.
In mid-2021, Ms Arnold was caught driving the parties’ vehicle on a suspended licence causing the car to be impounded.
In mid-2022, Ms Arnold was found to have committed a driving offence and had her licence suspended. In early 2023, Ms Arnold was again found to have committed a driving offence and again had her licence suspended.
In early 2023, Ms Arnold was cautioned for stealing items from a store.
In late 2023, Ms Arnold was convicted for driving offences. She continues to drive notwithstanding having a suspended licence.
In late 2023, Ms Arnold was convicted of several offences, including multiple contravene family violence order charges.[21]
[21] Exhibit ICL1 pages 1-3; Exhibit ICL2 pages 1-2.
Although Mr Sandor is not sure which of the contravene family violence order charges relate to him, he has reported multiple breaches of Intervention Orders protecting the children and Mr Sandor from Ms Arnold. Those reported breaches include Ms Arnold attending Mr Sandor’s residence and banging on the door, driving past his home and sticking her finger up at him.
Ms Arnold has exposed the children to her criminal activity. She has driven erratically with the children in the car crying and screaming. In early 2024, X reported to Mr Sandor that “Mum took off her number plates and put different number plates on”.[22]
[22] Affidavit of Mr Sandor filed 11 November 2024, paragraph 18(b).
X and Y’s disclosures relating to ‘bad men’
The children have reported to Mr Sandor and his then partner in 2023 that while they were living with Ms Arnold, “bad men would get into bed with them”, “bad men would touch their private parts”, “bad men would ask them to shower and then take photographs” of their private parts, “bad men would ask them to do poses while being photographed unclothed, including getting on their hands and knees while lifting their buttocks into the air, placing a foot beside their ears and doing the splits (exposing their genitals) whilst making a heart shape with their hands”, and that “women would make them ‘look pretty’ by putting makeup on them”.[23]
[23] Affidavit of Mr Sandor filed 11 November 2024, paragraph 112.
In August 2023, Y told the children’s psychologist, Ms M, words to the effect of “bad guys took photographs of her bum and that it’s my fault, mum said it was my fault.” [24]
[24] Affidavit of Mr Sandor filed 11 November 2024, paragraph 115(d).
Victoria Police investigated the disclosures and concluded there was insufficient evidence to suggest sexual offending had occurred, but concluded that it is “clear that the children has (sic) seen things beyond their years and this may have caused trauma to them.”[25]
[25] Family Report, paragraph 69.
I am not asked to make findings that the children have been involved in the production of child exploitation material or child sexual abuse whilst in Ms Arnold’s care. However, Dr B’s unchallenged evidence is that she has no doubts the children were recalling events they had experienced, and that “children don’t make up these kind of allegations”. I certainly suspect that incidents of the type described by the children occurred, which suspicion I take into account as part of the matrix of evidence relating to the unacceptable risk I find Ms Arnold to pose to the children.[26]
[26] Eastley & Eastley (2022) FLC 94-094 (“Eastley”) at [31].
Child Protection
While the children were living with Ms Arnold prior to 2022, child protection authorities protectively intervened in the children’s lives. Consistently with the conclusion I have reached in these proceedings, it is reported as follows:
Child protection assessed [Ms Arnold] as Responsible for Harm to the children under primary grounds of s162(1)(e) emotional harm and secondary grounds of 162(1)(f) neglect and 162(c) physical harm during the protective intervention phase in 2020. Themes of the reports have been in relation to historical family violence perpetrated by [Mr Sandor] towards [Ms Arnold], concerns for [Ms Arnold]’s mental health, [Ms Arnold]’s substance misuse and parental capacity of both parents. More recent reports have been in relation to concerns for emotional and possible sexual abuse that children suffered whilst in [Ms Arnold]’s care, sexualized behaviors by the children and [Ms Arnold]’s criminal offending.[27]
[27] Department of Families, Fairness and Housing 67Z Response dated 10 July 2023, page 1.
The statutory definitions referred to by child protection authorities are in the following terms:
(1)… a child is in need of protection if any of the following grounds exist:
…
(c) the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
…
(e) the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child’s emotional or intellectual development is, or is likely to be significantly damaged and the child’s parents have not protected, or are unlikely to protect, the child from harm of that type;
(f) the child’s physical development or health has been, or is likely to be, significantly harmed and the child’s parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or allow the provision of, basic care or effective medical, surgical or other remedial care.[28]
[28] Children, Youth and Families Act 2005 (Vic), s 162.
Any family violence order that applies or has applied to the children or a member of their family
In early 2020, Ms Arnold successfully applied for an interim Intervention Order against Mr Sandor. The application was subsequently withdrawn.
In early 2020, Victoria Police obtained an interim Intervention Order protecting Mr Sandor from Ms Arnold. The application was subsequently withdrawn.
In mid-2021, Ms Arnold successfully applied for an interim Intervention Order against Mr Sandor. The application was struck out in early 2022.
In early 2023, Victoria Police obtained an interim Intervention Order protecting Mr Sandor and the children from Ms Arnold.
In mid-2023, Mr Sandor was served with an interim Intervention Order obtained by Ms Arnold for her own protection.
The competing applications for Intervention Orders between the parties remain pending and have not been finally determined.
Ms Arnold has been convicted of contravening Intervention Orders on at least 15 occasions.
Ms Arnold applied for an Intervention Order against Ms C which was subsequently withdrawn.
In mid-2023, Mr Sandor’s brother, Mr N, applied for an Intervention Order against Ms Arnold. That application was discontinued and struck out in early 2024.
In mid-2024, Ms C obtained an Intervention Order against Mr Sandor. Mr Sandor consented without admission to the application.
Promoting the children’s safety
In July 2023, having established Ms Arnold caused the children emotional harm, neglect, and physical harm, child protection authorities recommended that “[g]iven [Ms Arnold]’s criminal offending and current intervention order, it is assessed that her contact should be supervised in a professional contact centre, not by paternal or maternal family members.”[29]
[29] Department of Families, Fairness and Housing 67Z Response dated 10 July 2023, page 2.
In October 2023, Dr H opined that Ms Arnold posed a high parental risk to the children. His evaluation “pointed to the likelihood at this point of [Ms Arnold] having supervised time with the children only at this point, until there is clarification regarding the allegations against the mother”.[30]
[30] Affidavit of Dr H filed 11 October 2023, page 31.
Dr H’s diagnostic conclusions were expressed as follows:
The evaluation pointed to the likelihood that [Ms Arnold] has personality [and mental health] difficulties […], secondary to family of origin issues. A conservative approach to evaluation would point to these factors representing personality problems with co-existing longstanding [Substance] Use Disorder (in treatment related remission via [medication]).[31]
[31] Affidavit of Dr H filed 11 October 2023, page 18.
Ms Arnold’s evidence about her medication treatment was fanciful. Dr H reported on 2 October 2023 that “since 2016 [Ms Arnold] has been prescribed [medication]) and remains on this ([…mg] per day).”[32] On 17 October 2023, Ms Arnold confirmed to the Court Child Expert that her “current medication” is this medication.[33] She told Dr B in March 2024 that she “remains on the [medication] currently”.[34] Nevertheless, she deposed on 1 May 2024, that she “stopped the [medication] program successfully”.[35] In oral evidence, she confirmed that she stopped taking the medication in April. She gave contradictory oral evidence when she confirmed that she was taking medication in late 2024 when discharged, against medical advice, from O Hospital. She also gave oral evidence that, at the time of the trial, she continued to take medication. Ms Arnold sought to explain the inconsistency by asserting that she did not know some medications were the same substance. She gave that evidence despite also giving evidence that she had read Dr H’s report, and that she had recently read Dr B’s Family Report which quoted the relevant evidence from Dr H. That Ms Arnold asserts she does not understand the medication she is prescribed and takes for her Substance Use Disorder raises significant concerns about her insight into her condition and its treatment.
[32] Affidavit of Dr H filed 11 October 2023, page 16.
[33] Child Impact Report of 26 October 2023, paragraph 14.
[34] Family Report, paragraph 86.
[35] Affidavit of Ms Arnold filed 1 May 2024, paragraph 18.
Dr H also opined that his “evaluation did not produce confidence in the mother’s mental health functioning, currently or historically”.[36] There was nothing about the evidence adduced by Ms Arnold in these proceedings that leads me to a different conclusion.
[36] Affidavit of Dr H filed 11 October 2023, page 18.
Dr H made three recommendations for Ms Arnold’s treatment. Firstly, he recommended that his evaluation “points to the mother requiring intensive psychological treatment to address personality difficulties over the next 2-3 years with an experienced clinician with expertise in Schema or DBT therapies.”[37] Ms Arnold gave oral evidence that she commenced attending a psychologist at P Clinic, Ms M, because that psychologist had the necessary qualifications and had four sessions with her. She also gave oral evidence that she is now waiting to see a new psychologist at the centre, Ms Q. Ms Arnold also gave oral evidence that Ms Q “has more qualifications” and is “better educated” than her previous psychologist. However, she was unable to identify what those additional qualifications were. Ms Arnold relies on no evidence from any treating psychologist. I am tolerably satisfied that she has failed to obtain the “intensive psychological treatment” recommended by Dr H by attending upon Ms Q on only four occasions.
[37] Affidavit of Dr H filed 11 October 2023, page 31.
Dr H secondly recommended that “[i]t is likely that the mother requires ongoing assistance via a psychiatrist with expertise in dealing with individuals with personality problems.”[38] Ms Arnold gave oral evidence that in May 2024, seven months after Dr H’s report, she spoke to a receptionist at R Hospital to put herself on a waitlist to see a psychiatrist. She denied having obtained a referral from a general practitioner to a psychiatrist. She initially gave evidence that she had disclosed a letter she had received three weeks ago via email. When pressed about that disclosure, she gave evidence that she had disclosed it to “no one but myself”. On any view, Ms Arnold has not attended upon a psychiatrist as recommended by Dr H. I am also not satisfied she has taken adequate and timely steps to do so.
[38] Affidavit of Dr H filed 11 October 2023, page 31.
Dr H finally recommended that “[i]t is likely that [Ms Arnold] would benefit from consulting with a pain management physician to coordinate her medications regarding pain issues as these are likely to interact with her mental health functioning and therefore her parenting.”[39] Ms Arnold gave oral evidence that she had consulted with a pain management physician while she was in hospital in late 2024, when she claims to have been an inpatient at the physiotherapy department of G Hospital. She adduced no evidence documenting any such admission, or attendance upon a pain management physician, whose surname Ms Arnold could not recall. A single attendance upon a doctor more than 12 months after Dr H’s report does not establish Ms Arnold’s compliance with Dr H’s recommendation.
[39] Affidavit of Dr H filed 11 October 2023, page 31.
Ms Arnold has accordingly failed to comply with the recommendations made by Dr H more than 12 months ago. I accept Dr H’s unchallenged evidence that Ms Arnold presents as a high risk to the children, and that any time they spend with her should be supervised.
Despite Dr H’s unchallenged evidence, no proposal is advanced for the children to spend supervised time with Ms Arnold. In any event, it is well established that final orders for long-term supervision is generally undesirable, although particular circumstances may warrant such an outcome.[40]
[40] Lainhart & Ellinson (2023) FLC 94-166 (“Lainhart & Ellinson”) at [36] and the cases there cited; Bant & Clayton (2019) FLC 93-924 at [53] and the cases there cited.
Dr B, who unlike Dr H, has met with the children, does not now support the children spending supervised time with Ms Arnold. She opines that “[n]eglect and abandonment endanger children’s lives and can be extremely damaging to children’s self esteem and feelings of self-worth and sense of security physical and cognitive development and short- and long- term mental health.”[41] Dr B also observes that “[i]t is characteristic of parents with addiction issues to sublimate the needs of their children in favour of prioritising their own needs.” [42]
[41] Family Report, paragraph 140.
[42] Family Report, paragraph 141.
Dr B considers that:
The children require physical safety from all forms of abuse and neglect and require stable and reliable caregivers that nurture and support their emotional, psychological and mental health. Currently it is not evident that the mother can provide a safe environment for the children and the writer’s recommendation to the court are based on this assessment. There is currently no evidence that if the children spent time with their mother, they would be safe from traumatising behaviour and treatment.[43]
[43] Family Report, paragraph 160.
The lack of evidence before Dr B is consistent with the lack of evidence now before the Court. I accordingly reach the same conclusion as Dr B.
Dr B opines that “there are a substantial number of steps that are recommended before [supervised contact] could occur safely.”[44] Like the recommendations of Dr H, those steps have not been undertaken. It is immaterial to the determination of the current controversy between the parties whether they will be in the future, as I must take Ms Arnold as I now find her.[45]
[44] Family Report, paragraph 161.
[45] Lainhart & Ellinson at [29].
Firstly, Dr B opines that “this would entail a long-term program of specialist counselling from a psychiatrist with expertise in the treatment of personality issues as identified and recommended by [Dr H].”[46] As has already been observed, Ms Arnold has not undertaken such a long-term program of specialist counselling.
[46] Family Report, paragraph 161.
Secondly, Dr B opines that “as recommended by [Dr H], the mother would require treatment from a specialist in pain management.”[47] A one-off appointment with a doctor in hospital does not constitute the recommended treatment directed to addressing a long-term problem Ms Arnold needs to address.
[47] Family Report, paragraph 161.
Thirdly, Dr B opines that “there would need to be significant evidence that the mother was engaged in a drug free life and that any alcohol consumption was not to excess.” [48] That evidence is unavailable.
[48] Family Report, paragraph 161.
One aspect of the significant evidence Dr B refers to is “proof from frequent clinical drug tests (both hair follicle and urine tests and blood tests) over a significant period of time”. [49] The available drug testing evidence is as follows:
·In mid-2023, apparently at a time of Ms Arnold’s choosing, she produced a hair follicle test clear of six tested substances.
·In late 2023, Ms Arnold failed to undertake a urine drug screen within 24 hours of a request from Mr Sandor’s solicitors.
·In late 2023, Ms Arnold’s urine tested positive for cannabis metabolites.
·In late 2023, Ms Arnold’s urine required further testing for some substances, which further testing was not undertaken. Ms Arnold adduces no medical evidence to explain why those substances may have been in her urine.
·Ms Arnold gave oral evidence that she undertook a hair follicle test within seven days of an Order to do so in late 2023, but that the results came back as a “misread or something”, and that there had been a “stuff up” at the laboratory. Despite giving evidence that there was an email from the laboratory to that effect, the email was not produced. That unexplained failure warrants a conclusion that the email would not support Ms Arnold’s case.[50]
·In early 2024, Ms Arnold produced a hair follicle test which was clear of six tested substances.
·Ms Arnold has failed to produce any further hair follicle tests, despite having been repeatedly asked to do so since August 2024. I do not accept her evidence that she has been unable to do so because of her hospitalisations in late 2024.
The drug testing evidence that is before me, and the absence of any drug testing at all since January 2024, does not establish, to my satisfaction, that Ms Arnold is leading a “drug free life”.
[49] Family Report, paragraph 161.
[50] Cizek & Mihov at [75] and the case there cited.
Another aspect of the significant evidence Dr B refers to is “clarity from lifestyle indicators (e.g. engagement in employment, stable housing, no engagement in criminal activity) demonstrating stability”.[51] There is also an absence of such evidence before me. Ms Arnold remains unemployed. She currently resides with her parents, although on her evidence has been admitted to hospital for approximately seven weeks since late 2024, after she fell while staying at her partner’s residence. Ms Arnold has pending criminal matters in the Magistrates’ Court of Victoria which have not been disclosed despite repeated requests to do so.
[51] Family Report, paragraph 161.
Fourthly, Dr B opines “[i]f these indicators of wellbeing were present it would be recommended that the mother engage in several parenting courses to increase her parenting skills and insight into the needs of children.”[52] Ms Arnold gave oral evidence she has attended a conflict resolution course, something she described as a “[S Program]” and “about five others I can’t remember”. When asked what she had learned from the courses, she gave evidence “I guess just better negotiation skills and how to go about certain obstacles in a different way”. I drew no confidence from her evidence that she has increased her parenting skills or insight into the needs of the children.
[52] Family Report, paragraph 161.
Finally, Dr B opines that:
If all these indicators were achieved a suitably qualified child psychologist with expertise in trauma could be engaged to assist with the reunification process and any contact between the mother and the children would need to be supervised indefinitely. The children would need to be consulted about their feelings of safety about being in the presence of their mother. It is imperative for the children’s wellbeing that they suffer no further harm or trauma.[53]
[53] Family Report, paragraph 161.
The indicators referred to have not been achieved. There is no proposal to engage a suitably qualified child psychologist to undertake any reunification process and, as has been observed, there is also no proposal for indefinite supervision.
I find Dr B’s opinions to be suitably based upon facts now established to my satisfaction. Her opinions were not successfully challenged. I accept them.
I find that the absence of necessary steps taken relating to Ms Arnold’s mental health treatment, her drug use and parenting insight, leads to a conclusion that the children’s safety requires them to continue to spend no time with her. Put another way, I am satisfied that the accumulation of the factors, to which I have referred, establishes that she poses an unacceptable risk of harm to the children.[54]
[54] Eastley at [31].
Any views expressed by the children
Dr B asked X what her wishes would be if she could have any three in the world. X told Dr B that “I don’t want to live with mum. I want to live with Dad, and I don’t know what my 3rd wish is.”[55] Dr B reports that:
[X] was asked her opinion on the best thing about Mum, and she responded with “nothing” [X] then paused and clarified “I can’t remember the best thing about mum, she doesn’t take me anywhere”. When asked her opinion about the worst thing about her mother [X] stated “She used to make us stay in the car and I didn’t like it. She didn’t let me out”. [56]
[55] Family Report, paragraph 115.
[56] Family Report, paragraph 118.
X also told Dr B that she felt angry because Ms Arnold didn’t take her anywhere and yelled at her. She said “I don’t like it, it makes me sad.” [57]
[57] Family Report, paragraph 120.
In relation to her safety, Dr B reports that:
In response to the question “what makes you feel safe” [X] responded “Dad keeps me away from Mum, so mum doesn’t get me. If Mum got me, I would cry, and Dad would come for me.”[58]
[58] Family Report, paragraph 121.
Dr B also reports that “[X] clearly expressed fear to the writer in relation to the prospect of seeing her mother again and it was clear from her narrative that she has anxiety that her mother may take her away from her father with whom she feels secure and safe.”[59]
[59] Family Report, paragraph 156.
Consistent with her reports to Dr B, X told Ms M that she does not feel sad about not seeing her mother, and that she doesn’t want to live with her “cause [sic] she is rude, mum yells at me and doesn’t take care of me.”[60]
[60] Family Report, paragraph 76.
Dr B asked Y to draw a picture of her family. She drew X and herself before stating her arm was tired. She was asked who else would be in the picture if her arm wasn’t tired. After identifying her Nanna and father, she commented without any prompt “not Mum”.[61]
[61] Family Report, paragraph 125.
In relation to her safety, Dr B reports as follows:
[Y] was asked about what makes her feel safe, and she was unable to answer that question. She offered instead “what makes me feel scared is when bad guys come over to mum’s house…the Police didn’t come. And when the Police came over and she (Mum) didn’t open the door to the Police. The bad guys didn’t go away and we hid in the bathroom where the toilet is. Mum looked at them through her phone. There were bad guys, and it makes me feel scared.” [62]
[62] Family Report, paragraph 127.
Dr B gave oral evidence that she did not observe any signs that the children were coached or influenced in the views that were expressed. In cross-examination on behalf of Ms Arnold, Dr B acknowledged that it is always possible to coach children, but that she did not observe signs in X and Y of that having occurred. I accept that evidence and find that the children’s views are their own.
I accept Dr B’s opinion that “the children’s narrative suggests that they have felt alone, abandoned, punished and constrained and fearful in their mother’s care to the extent that it is a defining feature of their narrative about their mother.”[63]
[63] Family Report, paragraph 140.
The Independent Children’s Lawyer asked Dr B what weight should be placed on the children’s views. She gave evidence that:
I think it was the intensity of the feeling and demonstration of the fear that means that even though they’re very young that their views need to be heard and respected. It was definitely a strong sense of fear, particularly expressed by [X].
…
[X] was very intensely telling me that I should listen to her and should hear what she was saying. It was quite unusual for a child to express that her first wish was to stay with her father and not see her mother. I haven’t experienced that with such intensity from such a small child before.
Despite the very young ages of the children, in light of the trauma they have been exposed to by Ms Arnold, I am satisfied that weight ought to be accorded to their views.
The developmental, psychological, emotional and cultural needs of the children
In mid-2022, the children commenced exhibiting severe anxiety or stress when they could not see Mr Sandor or the paternal grandmother after they were strapped into the car. They became hysterical when Mr Sandor put their seatbelts on. Mr Sandor attributes this behaviour to Ms Arnold having left the children on their own, strapped in their car seats, for hours at a time. His evidence was unchallenged and no alternative hypothesis for the children’s behaviour was suggested by Ms Arnold.
The children continue to suffer from anxiety, particularly X, even if its severity has reduced. They are very attached to Mr Sandor and, at times, suffer from separation anxiety. X regularly checks to make sure Mr Sandor is nearby. In March 2024, X was inconsolable when she could not find her father in the house after he had walked outside.
During the Family Report assessments, the clinic’s doorbell rang. Dr B reports that:
[X] abruptly stopped playing [a game] and turned to [Dr B] and asked ‘who’s that?’ There was an element of visible fear and concern in her expression and tone of voice.[64]
[64] Family Report, paragraph 137.
Dr B opines as follows:
The anxiety demonstrated by [X] when a doorbell sounded while visiting the writer’s office for the observation visit pointed towards a visceral connection of the sound of the doorbell with a traumatic memory. It is possible that this correlates with the children’s accounts of being required by their mother to hide from the police when they came to the door. Whether or not this is the case, [X] clearly displayed anxiety and was on high alert at the sound of the bell until she was reassured that she could relax. This is not typical behaviour for a 6-year-old.[65]
[65] Family Report, paragraph 142.
Dr B considers the children’s behaviour, as described by Mr Sandor, to be “congruent with trauma resulting from abandonment”, and “suggestive of past trauma being triggered”.[66]
[66] Family Report, paragraph 143.
I accept Dr B’s evidence that:
Both children demonstrate significant evidence of having have experienced severe and significant trauma in their early childhood years. The children have reported memories of feeling scared while being locked in and abandoned in cars by their mother, being locked in rooms in the house without food and being locked in the garage. They have also expressed fear that they had been abandoned by their mother overnight in their home.[67]
[67] Family Report, paragraph 139.
X continues to ask for her previous year’s schoolteacher to accompany her to the care of her paternal grandmother or father at the end of every school day. Dr B opines that:
It seems apparent that [X] lives with a fear of being taken away from her father’s care, by her mother. [X] perceives her mother as threat and for this reason if at any stage in the future she was reintroduced to her mother a significant amount of therapy would need to occur prior to and during the reintroduction.[68]
[68] Family Report, paragraph 156.
Despite the trauma the children have experienced in Ms Arnold’s care, they “appear to be meeting their developmental milestones and are in the process of developing a sense of security and stability in their father’s care.”[69] This is likely a result of “[Mr Sandor]’s best effort to provide [X] and [Y] with stability, routine, reassurance, love and affection”[70] as well as the mental health treatment he has facilitated for the children.
[69] Family Report, paragraph 158.
[70] Family Report, paragraph 158.
X and Y attend T School. They are progressing well and are meeting their academic standards. They have grown in confidence and happiness and have made friends at school since being in Mr Sandor’s care.
The capacity of each person who has or is proposed to have parental responsibility for the children to provide for their developmental, psychological, emotional and cultural needs
Ms Arnold has demonstrated an inability to provide for her daughters’ safety. As Dr B opined orally:
If the caregiver is not present, is not available, is not reliable, responsible, loving, caring, nurturing, and is in fact neglectful, it’s going to have a detrimental impact on the child’s development, and life trajectory.
…
Parents that engage in substance misuse are not reliable caregivers, they don’t prioritise the needs of the children. They are not available to protect the children. They regularly engage in neglect of children’s needs, be they physical needs, social needs, academic needs, and need for love and care. They prioritise their own needs ahead of their children’s needs. So I think, in terms of childhood development and life trajectory, it’s important that the children are with a loving, caring parent, who is available to meet their needs.
Ms Arnold failed to ensure the children received their scheduled medical immunisations. By contrast, Mr Sandor arranged for those vaccinations to be brought up to date.
Mr Sandor has facilitated mental health treatment for the children as recommended by Dr B. I accept Dr B’s opinion that Mr Sandor’s narrative “demonstrates his care and concern as well as emotional intelligence” and that his “parenting takes into consideration the children’s psychological need for safety and healing”.[71]
[71] Family Report, paragraph 143.
It is to Mr Sandor’s significant credit that despite the appropriate severance of the children’s relationship with Ms Arnold, he has continued to facilitate the children spending regular, approximately fortnightly, time with their maternal grandparents.
Despite the fact Mr Sandor’s current proposal would result in the children spending no time with Ms Arnold, I did not conclude from his evidence that his proposal was vindictive or in any way driven by an animus towards Ms Arnold. I accept his evidence that he considers it important for the girls to have a relationship with their mother, “when it is safe to do so”. Having myself found it to be unsafe for the children to now have a relationship with their mother, I make no criticism of Mr Sandor’s position. It accords with my own conclusions.
I accept Dr B’s oral opinion that, “in an ideal world, it is better to have two parents available, for the sense of security, stability, and love and nurturing, but in instance where one parent is not providing that, regardless of gender, then it’s better they’re not in the picture”.
Dr B was asked what the consequences would be for the children of not having a mother in their lives. She gave oral evidence that:
It’s not about whether or not there’s a mother in a child’s life, it’s about whether there is enough care and nurturing and love in the children’s life. If the mother is not a protective mother, then it’s actually beneficial to not have the mother in the children’s life. The mother will cause more harm than good if the mother is not protective of the children. So, I can’t just comment on whether it’s beneficial to have a mother in a child’s life, it’s about the quality of the mothering that’s important, not the presence of the mother per se.
Dr B was asked how a re-introduction to their mother would cause a deterioration in the children’s mental health. She gave evidence that:
Well, the children have a fear of their mother and being in their mother’s presence causes them anxiety. So, if you introduce the children to their mother while they have anxiety about being in her presence, their feelings of safety and security are threatened, and their wellbeing is threatened, and that may lead to mental health problems, including anxiety, and sadness also about not having their wishes respected.
Dr B acknowledged in cross-examination that an outcome whereby X has no contact with her mother has the potential to be damaging for her. However, she opined that “it’s more damaging to be with a mother who doesn’t provide safety”.
No effectual challenge was made to Dr B’s oral evidence and I accept it.
It is not in dispute that the children will remain living with Mr Sandor and maintain a relationship with him. I accept Dr B’s unchallenged opinion that there appears to be a “strong bond of warmth of love between the sisters and between the father and his children”,[72] and that the children “appear to have a warm and close relationship with each other and with their father”.[73]
[72] Family Report, paragraph 132.
[73] Family Report, paragraph 139.
The children have, and will retain, their close relationship with their paternal uncle, Mr N, who lives with them, as well as other extended paternal family members.
The children’s paternal grandmother is consistently involved in the children’s lives. She lives in close proximity to their home and has a “loving, close relationship with [X] and [Y]”.[74] She usually collects the children from school in the afternoon until Mr Sandor finishes work. I accept Dr B’s unchallenged opinion that the children “enjoy a close relationship with their paternal grandmother and cousins who live nearby”.[75]
[74] Affidavit of Mr Sandor filed 11 November 2024, paragraph 23.
[75] Family Report, paragraph 139.
Anything else that is relevant to the particular circumstances of X and Y
X and Y are not Aboriginal or Torres Strait Islander children.
CONCLUSIONS
Dr B was updated by the Independent Children’s Lawyer as to developments since the Family Report. She gave oral evidence that “my recommendations were for no contact unless a significant amount of work had been done in different arenas and it would seem to me that the work has not been done and is not being undertaken at the moment, so my recommendations remain.”
I am not required to act on the recommendations of a Family Report writer. However, a failure to follow the recommendations of an expert generally requires some explanation and demonstration that I have properly taken the matters raised into account.[76]
[76] Vigano & Desmond (2012) FLC 93-509 at [79] and [87] and the cases there cited.
Ms Arnold did not explain why I should reject the recommendations of Dr B and Dr H despite being given an express opportunity to do so. Through her solicitor, she accepted various aspects of the reports but did not modify her proposal in any way.
I find no basis to depart from the recommendations of Dr B, for X and Y to live with Mr Sandor and spend no time with Ms Arnold. Such an outcome is necessary for their safety.
Ms Arnold made no submissions in support of the order she proposes for the parties to make joint decisions about major long-term issues affecting the children. She gave oral evidence that the parties last communicated about such issues in December 2022. She accepted that the parties have no ability to communicate at the present. Mr Sandor’s evidence that his co-parenting relationship with Ms Arnold is essentially non-existent and that he does not consider Ms Arnold can contribute positively to decision-making about the children, was unchallenged. Dr B’s oral evidence that she considered the likelihood of shared parental decision-making and co-parenting to be very low, was also unchallenged.
I am not satisfied that the parties could or would comply with the mandatory requirements of section 61DAA of the Act in light of that lack of cooperation and conflict.[77] I decline to order joint decision-making about major long-term issues.
[77] Boyle & Zahur & Anor (2017) FLC 93-814 at [22].
Given my conclusions that the children should not currently spend time with Ms Arnold, I am satisfied that it is in the children’s best interests for Mr Sandor to have sole decision-making responsibility for the children.
Ancillary to that conclusion is that Mr Sandor ought be permitted to travel overseas with the children without Ms Arnold’s consent. Ms Arnold did not submit otherwise.
It is consistent with Dr B’s recommendations that the children continue to attend upon counselling. An order to that effect is proposed by Mr Sandor and the Independent Children’s Lawyer. In the absence of any contrary submission, I find it to be in the children’s best interests.
Mr Sandor is currently attending upon a psychologist in Town L. Whilst he and the Independent Children’s Lawyer propose an order that he continue to do so, they do so by way of an untethered, self-standing order for therapy. Such an order is likely beyond power.[78] For that reason, I decline to make it. Mr Sandor’s willingness to continue to attend upon a therapist does reflect well on his ongoing capacity to provide for the children’s needs.
[78] Oberlin & Infeld (2021) FLC 94-017 at [51]-[52] and the cases there cited; Eastley at [58].
Ms Arnold took no issue with Mr Sandor and the Independent Children’s Lawyer’s proposal that Mr Sandor ought be at liberty to provide copies of the Court’s Orders and the Family Report to relevant third parties. I find that relief sought to also be in the children’s best interests.
Ms Arnold made no submissions with respect to other relief sought by her. Dr B did not support the concept of the children having communication with Ms Arnold, as it was her opinion that any re-introduction would require therapeutic support. I decline to make an order for the children to have stand-alone communication with their mother given the trauma they have experienced in her care and the absence of Ms Arnold engaging in necessary therapeutic support.
I also conclude it is not in the children’s best interests to encounter their mother at school functions, extracurricular activities or other events rather than in the specific therapeutic environment recommended by Dr B for any re-introduction. The children’s fear of being taken by their mother remains extant and a chance encounter with her is not now in their best interests.
Given Ms Arnold’s historical neglect of her children’s vaccinations, I am also not satisfied that the children’s best interests are served by facilitating her involvement with the children’s medical practitioners.
Ms Arnold advanced no foundation for the injunctive restraints that she sought. I am not satisfied they are in the children’s best interests.
I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 19 December 2024
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