Binns & Palister
[2021] FedCFamC1F 142
•19 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Binns & Palister [2021] FedCFamC1F 142
File number(s): BRC 2496 of 2017 Judgment of: HOWARD J Date of judgment: 19 October 2021 Catchwords: FAMILY LAW – PARENTING – undefended hearing – where the matter proceeded on an undefended basis due to the failure of the applicant mother to appear and comply with orders and directions of the Court – Court’s discretion to allow the defaulting party to participate in the undefended hearing – where the evidence put before the Court by the parties was not sufficient to allow the Court to make a decision in the children’s best interests – where updated oral evidence was taken from both the mother and father – where updated expert evidence was adduced – where the parties agreed with the procedural approach adopted by the Court – consideration of risk – where the two children live in different households – where the children’s best interests are served with each of them residing with their current respective resident parent. Legislation: Evidence Act 1977 (Qld) s 93A
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 91B
Family Law Rules 2004 (Cth) r 11.02
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.33
Cases cited: Baghti & Baghti & Ors [2015] FamCAFC 71
Banks v Banks (2015) FLC 93-637
Beckham v Desprez (2015) 55 Fam LR 310
Briginshaw v Briginshaw (1938) 60 CLR 336
Calvert and Madock [2020] FamCA 219
Cox v Pedrana (2013) 48 Fam LR 65
Eagle & Scarlett (No.2) [2020] FamCAFC 291
Fitzwater and Fitzwater (2019) 60 Fam LR 212
In the Marriage of N and S (1995) 19 Fam LR 837
Johnson v Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Napier v Hepburn (2006) 36 Fam LR 395
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Vesey & Lygon [2017] FamCA 717
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Zane & Allan [2008] FamCAFC 115
Division: Division 1 First Instance Number of paragraphs: 88 Date of last submission/s: 14 October 2021 Date of hearing: 3, 8, 10 September 2021 and 7 October 2021 Place: Brisbane Counsel for the Applicant: Mr Casey Solicitor for the Applicant: Hofstee Lawyers Counsel for the Respondent: Mr Pope Solicitor for the Respondent: Derek Legal Counsel for the Independent Children's Lawyer: Mr Ashcroft Solicitor for the Independent Children's Lawyer: Dooley Solicitors ORDERS
BRC2496 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BINNS
ApplicantAND: MR PALISTER
RespondentAND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HOWARD J
DATE OF ORDER:
19 OCTOBER 2021
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting orders be discharged.
2.That the child X born … 2005 (“X”) live with the father.
3.That the father have sole parental responsibility for X.
4.That the child Y born … 2007 (“Y”) live with the mother.
5.That the mother have sole parental responsibility for Y.
6.That X spend time and communicate with the mother at such times that X wishes.
7.That Y spend time and communicate with the father at such times that Y wishes.
8.That both parents shall facilitate communication between X and Y.
9.That the Independent Children’s Lawyer be discharged.
IT IS NOTED:
A.That the Department of Children, Youth Justice and Multicultural affairs shall continue to monitor Y’s progress living in the household of the mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Binns & Palister has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOWARD J:
Background
The applicant mother in this matter is Ms Binns. She was born in 1985 and is currently 36 years of age.
That respondent father is Mr Palister. He was born in 1986 and is currently 35 years of age.
The parties commenced a relationship in April 2004 and married in 2006. The parties separated in or around 27 March 2008. A divorce order was made by a Registrar of the Federal Magistrates Court of Australia (as that Court then was) on 25 May 2010 and took effect from 26 June 1010.
The parties have two children of the relationship – X born in 2005 and Y born in 2007. The final parenting arrangements for the children are the subject of the application currently before the Court.
The children have been the subject of a previous parenting application before the Federal Circuit Court of Australia[1] which was filed on 16 September 2016. At that stage, the matter before that Court also concerned two other parenting applications in relation to a further three of the mother’s children she had from other relationships. Final consent orders were made in relation to the children subject of the application presently before the Court (and the mother’s other children) on 12 June 2018. Relevantly, that order provided (inter-alia) as follows:-
[1] Now known as Division 2 of Federal Circuit and Family Court of Australia.
“…
2. That the Applicant father shall have sole parental responsibility for the children X born … 2005 and Y born … 2007 (“the children”) in respect of all major-long term issues, save that the father shall, prior to making the sole ultimate decision about any such issue
a. Advise the mother in writing of the decision intended to be made;
b. Seek to obtain in the mother’s written (email/SMS will suffice) response in relation thereto;
c. Consider, by reference to the best interest of the child/ren, any such response prior (provide it is received within three (3) days) to making any such decision;
d. Advise the mother in writing as soon as reasonably practicable of his ultimate decision and the reasons therefore.
3. That commencing immediately, the children shall live with the father and spend time with the mother as agreed in writing, or failing agreement, as follows:
a. From 10.00am until 4.00pm on the last Saturday of each calendar month;
b. For half of each school holiday period being the second half in even numbered years and the first half in odd numbered years; and
c. The parent that is to have the children for Christmas Day shall be the parent that is to have the children for the first half of the December/January school holidays.
…
6. That the parents and the children communicate with each other by telephone or video call at all reasonable times as may be agreed between the parties, and failing agreement each:
a. Tuesday, Thursday and Saturday evening between 7.00pm and 7.15pm.”
On 25 April 2019, the mother filed the current Initiating Application under Part VII of the Family Law Act 1975 (Cth) (‘the Act’) now before this Court seeking that the X and Y live with her; that she hold sole parental responsibility and that the children spend supervised time with the father. The mother made several allegations against the father in her supporting affidavit filed 25 April 2019 – the central allegation being that the children were the subject of neglect in his care. As a result, the mother withheld the children from the father’s care over the April 2019 school holiday period.
On 19 August 2019, a Judge of the Federal Circuit Court of Australia (as it was then known) made an order for the children to be returned to the care of the father on 20 August 2019 and for the order to be explained to the children and a changeover facilitated by a Family Consultant (now known as Court Child Experts). However, as events ultimately unfolded on 20 August 2019, the child Y quite vehemently refused to return to the father’s care and was eventually taken to the B Hospital by the Queensland Police Service after making threats of self-harm. It eventually transpired that Y returned back into the mother’s care. On 9 October 2019, the current operative order for the children’s time was made in the following terms:
“1. That the child Y born … 2007 live with the mother and the time with the father be suspended until further order.
2. That the child X born … 2005 live with the father and time with the mother be suspended until further order.”
By a further Order of 24 April 2021, the matter was transferred to this Court. [2] The Court made an Order in Chambers on 14 April 2021 that this matter be listed for a Trial Management Hearing on 29 April 2021 and that the parties personally attend Court. The mother failed to appear before the Court on 29 April 2021 and the Court made the following directions:-
“1. That this matter be adjourned for a final hearing of no more than three (3) days commencing at 10:00am on 1 September 2021 in the Family Court of Australia at Brisbane.
2. That pursuant to section 91B of the Family Law Act 1975, the Court requests the intervention of the Director-General of the Department of Children, Youth Justice & Multicultural Affairs in the proceedings relating to the children Y born … 2007 and X born … 2005 (“the children”)
3. That the Registrar of the Family Court of Australia advise the said Director-General forthwith of this request.
4. That the said Director-General have liberty, upon application to the Registrar, to search and take copies of the documents on the Court file in relation to the said proceedings.
5. That pursuant to s.102NA(1)(c)(iv) of the Family Law Act 1975:
a. the applicant mother not be permitted to personally cross-examine the respondent father; and
b. the respondent father not be permitted to personally cross-examine the applicant mother.
[2] Now known as Division 1 of the Federal Circuit and Family Court of Australia
6. That by no later than 13 May 2021, the Applicant mother shall file and serve an Affidavit deposing to her non-attendance before the Court on 29 April 2021.
7. That this matter be adjourned for a further Trial Management Hearing commencing at 9:30am on 10 June 2021 in the Family Court of Australia at Brisbane.
8. That personal appearances by the parties and their legal representatives (if any) are required on 10 June 2021.
9. That in the event the Applicant mother fails to comply with the preceding Order, then at the Trial Management Hearing on 10 June 2021, the Court shall give consideration to setting the matter down for an Undefended Hearing.
10. That the parties be permitted to inspect a copy of the Transcript of Proceedings in this matter of 29 April 2021.
IT IS NOTED:
A. That a separate Order shall issue from Chambers in this matter with Trial Directions for the final hearing commencing on 1 September 2021.
B. That the Court indicated different final hearing dates to the parties in open Court on 29 April 2021. However, upon further review of the Court diary, this matter has been listed for final hearing on the dates referred to in paragraph 1 of this Order.
Trial directions for the matter were made in Chambers by the Court on 12 May 2021 (as contemplated by Notation A of the 24 April 2021 orders) and the matter again returned before the Court for a further Trial Management Hearing on 10 June 2021. The mother again failed appear. The mother had at that point failed to appear on two occasions as ordered by the Court and in accordance with rule 11.02(2) of the Family Law Rules 2004 (Cth)[3], the Court set the matter down for an undefended hearing to commence on 3 September 2021.
[3] Now contained in rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
On 26 August 2021, the Department of Children, Youth Justice, and Multicultural Affairs (‘the Department’) responded to the Court’s request made under s.91B of the Act (contained in the Order of 29 April 2021) to intervene in these proceedings. The Department declined at that point in time to intervene as an investigation was ongoing and cited that it would be premature at that juncture for the Department to form a view as to whether the children were yet in need of protection.
The matter returned again before the Court on 3 September 2021 for the undefended hearing of the matter. The mother appeared on this day represented by Mr Casey of counsel (instructed by Mr Hofstee of Hofstee Lawyers) after accessing the Commonwealth Family Violence and Cross-Examination of Parties Scheme. Mr Pope of counsel appeared on behalf of the father and Mr Ashcroft of counsel appeared on behalf of the Independent Children’s Lawyer. The matter was unfortunately unable to proceed on this day due to the Court’s busy list and the matter was given a short adjournment to commence on 8 September 2021.
When the undefended hearing of the matter ultimately commenced on 8 September 2021, it became apparent to the Court that the Court did not have any up to date evidence from the father or the mother. Both were called into the witness box and gave oral evidence on that day. I will return to the details of such procedure later in these reasons. The Court further adjourned the matter to 10 September 2021 for further evidence to be adduced from expert witnesses in the case.
The matter proceeded 10 September 2021 where oral evidence from the Family Report writer (Ms C) and the child Y’s treating psychiatrist, Dr. E, was adduced. The matter then required a further hearing date on 7 October 2021 for the parties counsel to make oral submissions. Oral submissions were made on 7 October 2021 and I granted the parties a further seven days to provide a further brief written submission. All three additional written submissions were received by the Court on 14 October 2021.
Part VII
Part VII of the Act provides the statutory framework within which the Court can deal with applications for parenting orders. The child’s best interests are the paramount consideration in the making of any parenting order. Section 60CA of the Act states:-
“60CA Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC of the Act then states that the Court is to determine what is in a child’s best interests by a consideration of the primary (s.60CC(2)) and additional considerations (s.60CC(3)) listed within that section.
The primary considerations are found in section 60CC(2) and are as follows:-
“(2) The primary considerations are:
(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.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
Whilst the provisions of Part VII of the Act are often referred to as a ‘framework’ or ‘legislative pathway’ – there is no requirement that the sections of Part VII be considered in any particular order. [4] The Full Court of the Family Court further opined in Cox v Pedrana (2013) 48 Fam LR 651 at paragraph 31:-
“31. While reference to a “legislative pathway” is, of course, an accurate descriptor of what individual sections within Pt VII of the Act require when taken together, care must be taken to not permit arguments about form to take precedence over the substance of what Pt VII requires. Equally, care must be taken to ensure that the use of such an expression is not to be a suggestion that a particular order must be followed if error is to be avoided…”
[4] Cox v Pedrana (2013) 48 Fam LR 651 at [29] to [31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31].
A determination under Part VII does not require the Court to make findings in relation to all those facts that may be in issue between the parties. This much has been said by the Full Court in Baghti & Baghti & Ors [2015] FamCAFC 71. The Court is only required to make findings and determine those facts which “are necessary for the determination of the issues between the parties.”[5] The High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 stated at paragraph 62, per Gleeson CJ, McHugh and Gummow JJ, inter-alia:
“62...A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.”
[5] Baghti & Baghti & Ors [2015] FamCAFC 71 at [63].
The Full Court of the Family Court recently supported this dicta in Whisprun in a decision of Eagle & Scarlett (No.2) [2020] FamCAFC 291 (at paragraph 103). This approach is also consistent with what the Full Court has said in cases such as Banks v Banks (2015) FLC 93-637 – where the Full Court (when discussing the requirement to consider s.60CC factors) said at paragraph 49:-
“49…It is also important to stress here that the requirement to ‘consider’ each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion”
Whilst it should be noted that Banks was decided in relation to an interim orders application, I have come across no authority which would doubt its applicability to final orders applications – noting that what is required of the Court on both interim and final order applications is a consideration of the same statutory provisions. This approach is consistent with other decisions of this Court at first instance (see for example Calvert and Madock [2020] FamCA 219 at paragraph 46).
As noted, this matter was listed as an undefended hearing because of the failure of the mother to engage in the litigation. It became apparent during the course of the undefended hearing that the Court would need to hear testimony from the father and the mother. The child Y is 14 years old. In the past, the child has been diagnosed with ADHD (attention deficit hyperactivity disorder) – as well as ASD (autism spectrum disorder) and ODD (oppositional defiant disorder). These diagnoses are referred to at page 62 of Exhibit 1.
On Friday, 10 September 2021 the Court heard oral testimony from Dr E. Dr E is a psychiatrist working in Region D. He is a medical director of F Psychiatry Services. Dr E oversees a team who are caring for Y. The team includes Ms G – psychologist; as well as support workers named Ms H and Mr J. This trained team – overseen by Dr E – have the task of closely monitoring Y and providing assistance to Y and to her mother (Ms Binns) along with the mother’s partner, Mr L.
Dr E was served with a subpoena to give oral testimony when it became apparent to the Court that an up-to-date assessment was needed in relation to the child’s mental health. Dr E said the child’s first underlying condition is ADHD. The drug, Concerta is prescribed for this condition. The child also takes an antidepressant (Lexapro) and another drug known as Respiridone. Dr E explained that Concerta acts as a stimulant and assists Y in regulating her behaviour. As far as Dr E was aware – the child's underlying ADHD has been compounded by a history of trauma. He mentioned sexual and physical abuse. Apparently the child has never disclosed any sexual or physical abuse to Dr E personally – but Dr E noted that, apparently, the child had made such comments or disclosures to his colleagues. There was no evidence to support such assertions. In any event, during the course of evidence, Dr E, when pressed, made the point that – even if the child’s comments about being a victim of physical and/or sexual abuse were not actually true – the child herself seems to have become convinced that she was a victim of physical and sexual abuse, and she has, it seems, from what Dr E said, become convinced that the father was the perpetrator. That was the import of what Dr E had to say on that matter.
Dr E explained, in relation to Y, as follows:-
(a)Y, on occasion, has limited control;
(b)Y has sudden episodes of emotional and mood swings; and
(c)If there is any sort of conflict or conflict situation with her mother – Y’s emotional behaviour and emotional condition will deteriorate rapidly.
Such a situation arose on 13 August 2021. The Court only became aware of this when the mother gave oral evidence on Wednesday, 8 September 2021. Because the matter was set down for an undefended hearing, the Court was very cautious in relation to the extent of oral testimony and, more particularly, the extent or manner of questioning and cross examining any witnesses actually called. So far as the parents were concerned, all questions were directed by counsel through me to the father and the mother respectively. Each of the parents (and the Independent Children’s Lawyer) are represented by experienced counsel. All three counsel agreed with the approach taken by the Court. All three counsel agreed that the traditional manner of hearing an undefended hearing needed to be modified in the circumstances of this case. The Court has a discretion as to how to conduct a hearing when a case is undefended. That this is so has been confirmed in earlier cases. I note that in the decision of the Full Court of the Family Court of Australia in Zane & Allan [2008] FamCAFC 115 – the Court did not cavil with the comments of the trial judge (Le Poer Trench J) concerning the “wide discretion to be exercised by the trial judge” in relation to, amongst other things, the involvement of the defaulting party in an undefended hearing. It was noted by Le Poer Trench J and (seemingly supported by the Full Court) that the discretion “must be tempered with regard to procedural fairness, natural justice and the requirement to do justice to all of the parties.”
At each stage during the conduct of this particular undefended hearing – I made sure that each of the three counsel agreed with the approach adopted by the Court – including calling the father to give evidence; calling the mother to give evidence and calling Dr E (psychiatrist) and Ms C (family report writer). At each step in the process, all three counsel supported the approach adopted by the Court – which was explained to all parties before the Court proceeded. The reason that the usual practice needed to be modified and the reason that oral testimony became necessary was because, as the hearing progressed, it became very apparent that the child’s situation is quite extreme and the Court did not have up-to-date evidence in relation to the child’s condition and nor did the Court have up-to-date evidence in relation to the child’s current tribulations. That this is so is the fault of the mother. The mother, by disengaging from litigation, failed to put before the Court relevant up-to-date evidence in relation to the child. The child’s situation was so concerning to the Court that it was deemed inappropriate for the case to be adjourned to enable further evidence to be obtained by way of affidavit. The urgency surrounding the child’s condition meant that, in the child’s own best interest, the best way to proceed was the manner adopted by the Court.
In any event, returning to the evidence of Dr E – he noted that on 13 August 2021 the child was taken to the Emergency Department of the hospital situated at Suburb K, Queensland. There had apparently been an argument at home. The child had been refusing to eat – claiming she had an eating disorder. The mother did not agree with the child. There has not been an eating disorder diagnosed. The child began to throw things around and she became uncontrollable. The child then put herself into a bath and attempted to cut her arms using a piece of plastic. Dr E also thought the child might have been attempting to unpick a wound on her arm. The mother gave evidence that the bath was full of blood. Understandably, the mother was extremely concerned. The child was taken to the Emergency Department. The hospital did not think that the child’s life had been put in danger. Neither the mother nor her partner Mr L were prepared to allow the child to return home because they were concerned that they were not in a position to control her or care for her. Dr E pointed out that the child’s behaviour is “very challenging” and he noted that it would be very difficult to deal with her at home.
Dr E works under the auspices of an organisation known as “NMHS” – N Mental Health Service. Within the umbrella of NMHS there is another special mobile outreach service known as “MYS”. This term is for “Mobile Youth Service”. Dr E took the view that the child would benefit from an environment at home which was “calm and containing”. He also said the child needs someone to support her in a positive manner. Even minor conflict leads to an emotional meltdown. This was the import of his evidence. Dr E noted that the child has very low self-esteem and a very low view of herself. Dr E gave evidence that the child would be unhappy if her wishes were not followed. He is not aware if similar supports are available in Suburb O but expects they would be. Dr E made the point that the child made good progress with her one-on-one interaction with her caseworker, Ms H. He said it is always disruptive to move between support staff. Ms H sees the child twice per week and has sessions with her either at the mother’s residence or elsewhere. Dr E – when told of the father’s plan for Y to attend a mainstream school in Suburb O – did not think that was a good idea. He thought that would be very challenging for her and that she needs a very individualised program. He said she would struggle in mainstream school with teachers and with peer relationships. Dr E did note that Y can go for periods of time with settled behaviour. But if there is even a relatively minor life event that Y can be quite volatile. Dr E was asked what his opinion was if the child were ordered to live with the father. Dr E is not in favour of such an outcome. Dr E reiterated his understanding that the child had suffered physical and sexual abuse at the hands of the father. Dr E said that the presentation of a child with this level of severe emotional dysregulation is not just usually seen with a diagnosis of ADHD. He said it is consistent with a child who has suffered abuse. He did say that there may be other explanations.
The evidence of the mother was, in many respects, less than satisfactory. The child had reported that during a recent conflict at home, the mother had told the child to leave the room put on her headphones so she could not hear an adult argument. The child told hospital staff that she went back into the room where her mother and Mr L were situated (after hearing loud noises) and saw Mr L physically assaulting the mother. The level of family violence of the mother’s household is a risk factor for the child. It is not a “calm and containing” (to use the words of Dr E). The mother and her partner Mr L seem to have a volatile relationship. The mother sought to downplay this but her evidence was unconvincing. I do note that whatever may be the criticisms of Mr L, he has been attending meetings with hospital staff along with the mother. It seems that Mr L is the manager of a business.
Dr E made it clear that it would be beneficial to the child if the household in which she lived was well settled. He noted that as an inpatient the child’s behaviour was not a concern. I presume this means within the mental health unit. Dr E said that if the right environment can be created for her, she will remain settled. Dr E view was that a more independent carer was probably going to find it easier to manage the child. This indicates to the Court that someone, other than the mother or the father, with experience in caring for troubled youths, would be best placed to assist the child. This is the conundrum for the Court.
On the one hand the child wants to live with the mother. The mother has had her own issues with mental health. Since the relationship with the father, the mother has had several different partners. Her current partner is Mr L. Each of the mother’s relationships appear to have been characterised by family violence – or allegations of family violence. Certainly in her current relationship, the evidence leads the Court to conclude that there is family violence and that the home life of the child is disrupted as a result. On the other hand, the father has a proven track record of providing a stable home for the child’s older brother X. In 2019, pursuant to an order made by a judge of the Federal Circuit Court of Australia (as it was then known) ordered that the child X and the child Y move residence from the mother to the father. After some counselling and explanations from senior members of the Child Dispute Services staff at the family law courts, X moved residence. He remains living with his father and he attends the P School in Suburb O. X seems well-settled. He does not seem to have communication with his mother. The father’s evidence is that X is having some communication with Y via social media. It seems to be the case that the home life for the father, X and the father’s younger child Z is significantly quieter and more settled than the mother’s household. I am well aware of the sometimes volatile nature of the mother’s current household. This is just one of the factors that the Court must take into account in determining the best interests of the child.
One of the very great difficulties with case is that the 14 year old Y steadfastly refuses to spend any time at all with the father. Notwithstanding the making of an order in 2019 – the child Y refused to transition to the father’s care. There were emotional and very disruptive scenes at the Court building in August 2019 when a changeover was supposed to be effected for Y to move to her father’s care. The child eventually left the court building with the father – but the father gave oral testimony on 8 September 2021 to the effect that the child ran off from the father and back into the main door Court building through security – insisting that she was not going anywhere with her father. The Queensland Police Service arrived at the Court took the child to a hospital. The father’s sister-in-law collected the child from the hospital. Since that time the child has remained with the mother has not had time or communication with the father.
The father has insight into the situation. He is extremely concerned for the welfare of Y. But he does understand the child’s views and the difficulties surrounding the precise manner in which a transition from one household to the other could be effected. The father stated that he thought the best approach was for the Department of Child Safety to intervene and to take the child into care. The father envisioned the Department then working with the child to assist her to transition to his household. The Department have been reluctant to intervene. A section 91B order was made on 29 April 2021. The Department declined to intervene. After the second undefended hearing on 8 September 2021, the presence of a Departmental officer was requested at the next Court date. Ms Q from the Department was in attendance at Court on 10 September 2021 (and on 7 October 2021) and was able to hear the oral testimony of Dr E and Ms C. I was impressed by the evidence of Ms C, the family report writer. Her report is dated 22 December 2020. She noted that, given the complexities of the case and noting the mental health difficulties suffered by the child’s – that multiple professionals will be needed to help transition the child to the father’s care. Ms C was of the view that a neutral third party with skills and knowledge to manage the child’s stress and presentation would be needed. Ms C noted that it would be difficult for her to make a recommendation that the child stays with the mother. Ms C noted that there are risks in the mother’s household. Ms C queried the mother’s ability to manage the child. On the other hand, Ms C is not prepared to recommend a return to the father. Ms C's firm view is that, “this is a matter that belongs in the Child Protection system” (Transcript of Proceedings of 10 September 2021, page 153, line 16).
Ms C made the point that there are risks in the father’s household because of the child’s view about living with the father. Ms C notes that the father is willing to have the child live with him – but Ms C is of the view that the father does not have the ability to currently deal with Y. Ms C, prior to the time that she was a full-time reporter, has experience in working within Child Safety Department. Ms C emphasised that there would be “significant risks” associated with affecting a return of the child to the father’s household. It is the actual practicalities of effecting a return which is at the heart of the problem. The entire situation was made more complex by the fact that on 6 October 2021 the Department concluded their investigation and decided not to intervene in respect of the child Y (see Exhibit 10). I will return to this aspect of the evidence later in these reasons.
Having regard to the outcome for X, the opinion of Ms C is that the father’s household is both positive and supportive. Ms C noted that this of course would be subject to the proviso that there were no findings of sexual abuse. As part of Exhibit 1 there is contained Police notes. These commence at page 1 of Exhibit 1. Page 1 indicates the child Y as a “victim”. It was said to relate to an “assault occasioning bodily harm”. The note is dated 1 July 2018 and the alleged reporter is said to have contacted the Police on 29 June 2018. The Police noted a “minor physical injury”. The Police notes continued:-
“The victim's injuries are: bruising and redness. The following emergency services attended the scene: Unknown. Medical treatment: Not Sought by Victim. Notification received RIS 29/06/2018. Reported, information: On the 29 June 2018, Reporter contacted the DD Regional Intake Service and provided the following information: The reporter is aware that Mr Palister is extremely violent and aggressive. The reporter believes that Y is being sexually abused by Mr Palister or a family friend, [omitted]. Y has stated to her cousins that her father has told her not to tell parents anything. This is in relation to previously reported sexualised behaviours. Y has also been extremely angry after having contact with her mother and having to return to her father. This has included stating to her cousins that she hates them because they get to stay with their mother and that she wants to slit their throat. X has had bruises all over his body from being smacked. X had bruising on his back and the top of his legs. The reporter believes that the last time he had bruising was about three weeks ago. X said that his father had hit him. The reporter is aware that Child Safety have interviewed X in relation to the bruises before. Mr Palister took X and Y off their medication, when they went into his care in 2015, for their ADHD and Aspergers and the reporter doesn't believe that the children are coping. The reporter is also worried that X and Y are not in counselling.”
The “reporter” referred to by the Police is likely to be the mother. That inference is open to the Court on the available evidence – some of which I will refer to shortly.
In mid-2018, the children were living with the father pursuant to consent order made by the Court on 12 June 2018. The “reporter” contacted the police 17 days after making the order.
The Police note on page 5 of Exhibit 1 under the heading "supplementary report" notes, inter-alia:-
“Investigating Officer has contacted Docs and spoken with [omitted] who stated that an IA was initiated and has been unsubstantiated, the following was conducted by Docs:
IA was conducted and child interviewed was conducted and as a result IA was unsubstantiated – Children not in need of protection.
DSC R has conducted an EROI with the child X (13 yrs of age) in relation to unrelated assault complaint at a similar time as this was reported. Nill disclosures by child when asked about any other matter. Nil injuries observed. Child was brought into Suburb S Police Station by the Suspect. Nil concerns observed by DSC R.”
It is apparent from this Police note that the Department of Child Safety had conducted an investigation in relation to the alleged injury suffered by the “victim”, Y. The Police noted that the investigation conducted led to a conclusion that the allegation was unsubstantiated. The conclusion of the Department was that the children were not in need of protection. It does seem to be the case that Detective Senior Constable R conducted some form of interview with the child X. Again, the child made nil disclosures and no injuries were observed. The father (referred to as "the suspect") had brought the child into the Suburb S Police Station. Detective Senior Constable R had no concerns. From page 7 of the Police notes in Exhibit 1, there is a complaint that seems to be seems to have been made on 23 May 2019. That may have been the date of the Police note. The father is stated as a suspect and Y is stated as the victim. It seems that an interview was undertaken with the child. The interview was conducted pursuant to section 93A of the Evidence Act 1977 (Qld). On page 9 of Exhibit 1, a review of the section 93A interview provides the following narrative:-
“Y states;
1. At police station to talk about ‘disturbing stuff at dads’.
2. Happened while living with dad, from January – May 2019.
3. When showering dad would come into bathroom and ask to wash hair by saying ‘you want help’.
4. Dad would then tell me to open my legs and take pictures or he would tell me to lay down and then take pictures.
5. This happened in the bathroom.
6. Dads phone is in a black case with white sides.
7. It happened every 3 weeks when dad would be feeling ‘cuddly’.
8. My sister [omitted] would shower with me sometimes. He would do the same things to her.
9. He would say the same words to [omitted] ‘open your legs’ or ‘lay down’.
10. [omitted] and me were both naked because we were showering.
11. Dads shower was small, I could touch both sides.
12. Never saw the photos on dads phone.
13. I heard the camera sound and saw the flash.”
On page 10 of Exhibit 1, the Police notes continue:-
“Investigating officer obtained a copy of 93a completed by Region D CPIU. V/C made disclosures in 93a relating to father photographing her in the shower however there was no particularisation of offences. All disclosures were of general nature. V/C stated that her younger sister [omitted] has been present during these incidents and that their father also photographs her younger sister while showering.
Review of suspect male's qprime history completed which revealed ongoing custody issues and multiple anonymous complaints and intelligence submissions. All previous complaints and intelligence submissions have been finalised as vexatious complaints made by informant Ms Binns.”
It is particularly important to note that the conclusion of the Police was that the complaints made were vexatious and that they had been made by the mother, Ms Binns.
The Police interviewed the father on 20 July 2019 and the notes date:-
“On 20/07/2019 at 0900hrs investigating officer attended [omitted] and TUW Suspect Male MR PALISTER. Field interview conducted with PALISTER who stated that there been multiple allegations made by is ex-partner Ms BINNS. PALISTER denied taking photograph of his daughter PALISTER (victim child). PALISTER voluntarily permitted police to review the photos on his mobile phone. Nil photographs as outlined in child's 93a observed on PALISTERS phone. Police did observe photographs of suspect male MR PALISTER in various stages of undress.”
Of particular importance is that the Police stated that there were “nil photographs as outlined in the child's 93a observed on PALISTER’S phone.” There were some photos of Mr Palister in various stages of undress – but this does not appear to have been of any concern to the Police.
The police notes continue:-
“School 93A conducted with nominated witness/victim [omitted] conducted on 03/09/2019. Nil disclosures made by [omitted] states that she always showers alone, her father has never made her feel uncomfortable and that her sister Y (Victim child) used to live with them. [omitted] states that Y moved out after their father only gave her $35 for her birthday because Y wanted more money.”
The "witness/victim” is the father’s youngest child, Z. Z is the sister (half sibling) of X and Y. Z was nominated by Y as a witness/victim to the alleged offence committed by the father. I note that a section 93A interview was conducted at the school on 3 September 2019. At that stage the child Z was aged 9.
The Police notes on pages 10 and 11 of Exhibit 1 reveal the narrative from the section 93A interview with the child Z and state:-
“1. Lives with dad and brother X.
2. Dad is kind and caring.
3. Y was upset because dad told her that she was getting $35 for her birthday. Y wanted more money.
4. Y stated that she wanted to live with her mum as her mum would give her more money for her birthday.
5. [Omitted] showers alone. Washes her body and hair by herself.
6. Dad watches the news while [omitted] showers.
7. [Omitted] showers at 5pm before dinner.
8. [Omitted] saves her pocket money.
9. Dad will pay her $5 to massage his back. Dad wears his shirt and pants during massage. Will use her hand to rub the middle of his back or do karate chops.
10. Nil disclosures consistent with Y.”
After Z provided information to the Police – the Police went back to Y on 6 September 2019. It seems that a further complaint had been made, although it doesn't seem to have been a disclosure by the child. The allegation was that Y was made to perform oral sex on her father and that the father would perform oral sex on her. The Police note states:-
“On 06/09/2019 a further referral from RIS was made to police. New referral stated that ‘notified’ advises V/C Y was made to perform oral on her father and that he would perform oral on her. Further 93A conducted with C/V by Region D CPIU. V /C did not make any further disclosures. V /C did not make disclosures relating to the new referral from RIS. V/C stated that attended the Police station to talk about her father and outlines domestic discipline as the reason. When reminded about the last time she came to speak to police she said that she remembered. When prompted the reason why, she said that she couldn't remember anything. When asked if her Dad had ever made her feel uncomfortable and she said that she couldn't remember. When asked if there was anything else that she wanted to say again she said she couldn't remember.”
The child herself made no disclosures to the Police relating to the "new referral". I take that to mean that the child made no disclosures in relation to the allegations of oral sex.
Furthermore, the child could not remember why it was she had visited the Police station a couple of months prior. That is, the child could not remember that she had previously complained that the father had taken inappropriate photographs of her. The child could not even remember whether the father had ever made her feel uncomfortable. The Police concluded that part of their report by stating:-
“As there is no particularisation of offences, the nominated witness does not corroborate the V/Cs initial version of events that the V/C now states that she can’t remember anything, investigating officer requests this matter be unfounded.”
There seems to have been a further interview conducted interview conducted – I infer, with Y, on 8 September 2019. Please note states that:-
“Matter currently being investigated by Suburb O CPIU and a further 93A request was made after disclosures from child were disclosed.
Conducted a 93A interview with Y regarding the ‘new’ disclosures. Her mother also attended. She stated that Y's behaviour has changed dramatically since putting her on Risperdal. She had been acting out at school and saying and doing inappropriate things to some children but her behaviours had since settled.
Child was well spoken and very high functioning, she disclosed that she had come to speak about her father and that he had treated the children badly. She stated that he had pulled her hair, grabbed her around the back of her head, put her over his knee and kicked her up the bum and sent her to the naughty corner. She said that she doesn't want to go back to her Dad's and she will run away if she does.
When reminded about the last time she came to speak to police, she said that she remembered. When prompted the reason why, she said that she couldn't remember anything. When asked if her Dad had ever made her feel uncomfortable and she said that she couldn't remember. When asked if there was anything else that she wanted to say again she said she couldn't remember. She then asked if her Mum had the office number and if she remembered something she would call.
There were no additional disclosures made and she couldn’t provide any further context around the ones she’d preciously made.”
In the family report X – whom was aged 15 years and 4 months at the time of the interview – said that his mother had never asked him to say anything about his father that wasn’t true. But then he appeared to contradict that stating, about his mother:-
“She wasn't telling us to say it but was encouraging it, she believed it.”
The relevant paragraphs are paragraphs 88 and 89. In those paragraphs, the report writer has stated:-
“When asked by the writer if his mum has ever asked him to say something about his dad that wasn’t true X said “never”. He said that he recalled talking to police and said he “made up lies… at the time I wanted to live with Mum and not see Dad at all… I guess I was just angry that Dad took us and thought I wouldn’t see Mum anymore”. X said that his mum did not coach him and Y about what to say and “she wasn’t telling us to say it but was encouraging it, she believed it”. X said “Y made up lies too, that Dad put her head through a wall”. He said that they sometimes had arguments with their dad before being dropped to their mum.
89. X said that he and Y did not discuss making things up about their dad between them. He said that last year when they came to Court he had wanted to stay with his mum but had still wanted to see his dad. When asked if his dad has ever hurt him or hit him X said “nah definitely not… not Y either”. He said that if he could choose what happens now he would choose to live with his dad and spend weekends and holidays with his mum.”
It seems clear enough from those two paragraphs that X and Y may have said untrue things about the father. It is clear enough that the mother was encouraging them to say it. The boy doesn't necessarily think that the mother knew it was untrue. I am not so sure – but I do not need to make a specific finding about. The important point is that X said that his father had never hurt him or hit him and he had not hurt or hit Y either.
Of particular note also is X’s preference for Y to stay living with their mother and to spend weekends and holidays with the father so that he could see Y. In this regard I note paragraph 90 of the family report:-
“90. When asked about his relationship with Y, X said “I feel a bit angry at her, feel she’s the one that sparked all this, that she’s the reason I can’t see Mum anymore… she said a lot of stuff to Mum, Mum believed her and told people, Mum got in trouble and now I can’t see her… from the start Y never wanted to live with Dad, always wanted to live with Mum… liked living with Dad but always wanted to live with Mum”. X said that he would like it if Y stayed living with their mum and spent weekends and holidays with their dad advising that he would like to be spending time with Y. X said that he would like to see his brothers and ‘I miss them the most out of everyone, I haven’t seen them grow up, nearly a year now’.”
In M v M (1988) 166 CLR 69 the High Court stated, inter-alia, from page 76:-
“…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds[12]; McKee v. McKee[13]. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke[14].
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw [15]. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw [16], that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.”
The gravity of the matters alleged by the mother against the father are extremely serious. The standard of proof required is governed by section 140 of the Evidence Act 1995 (Cth) (“Evidence Act”). Section 140 states:-
“140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged”
Dixon J’s judgment in Briginshaw v Briginshaw (1938) 60 CLR 336 remains applicable and helpful when considering the standard of proof in a case such as the present. My view in that regard is supported by a decision of Branson J in Qantas Airways Ltd v Gama (2008) 167 FCR 537. At paragraph 128, Branson J noted that section 140(2) of the Evidence Act:-
“…was intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities.”
I am also keeping in mind those decisions of the Family Court of Australia following the High Court's decision in M v M. In particular, Fogarty J’s decision In the Marriage of N and S (1995) 19 Fam LR 837. Fogarty J stated from page 860:-
“Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to judges to consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard.
In asking whether the facts of the case do establish an unacceptable risk the court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?”
Given that the child Y was not able to remember what is was that she had alleged against the father – a mere two months after she first made the allegations to the Police – I have come to the conclusion that the events described by Y to the Police (in relation to the allegations of the father photographing Y and her sister et cetera) simply did not occur. My view in that regard is reinforced by the fact that the nine-year-old Z denied that any such incident or incidents have occurred. Z confirmed that she has never been made to feel uncomfortable by her father. In the circumstances, I consider that the Court is in a position to make a finding that the allegation made by the child Y, concerning the father taking inappropriate photographs of her and her sister Z did not occur. The allegation is groundless. Further support for my conclusion in that regard is found in the fact that the Police did not uncover any inappropriate photographs of the children of father’s telephone. There is no suggestion from anyone that the father had more than one telephone.
Having come to that conclusion, it follows that I am also of the view that the children are not and would not be at an unacceptable risk of harm in the care of the father. As urged by Fogarty J – I have given “real and substantial consideration to the facts of the case”. The facts do not give rise to an unacceptable risk in the father’s care. I have taken into account all the questions posed by Fogarty J. For instance, it could not possibly be said that the child Y, “genuinely believes” what she told the Police initially about the photographing by the father. If she did genuinely believe it to be true, then it is incomprehensible that at the age of 11 years and six months she could not even remember having recently explained to the Police the nature or substance of those allegations. I do note that Fogarty J’s decision in N and S was a dissenting judgement, but his Honour’s views have been supported by the Full Court in subsequent decisions: Napier v Hepburn (2006) 36 Fam LR 395 (at paragraph 56) and Johnson v Page (2007) FLC 93-344 (at paragraphs 66 and 95) and Fitzwater and Fitzwater (2019) 60 Fam LR 212 (at paragraphs 14 to 16).
There is no other evidence before the Court relied upon by the parties in these proceedings in relation to allegations of sexual or physical abuse perpetrated by the father against Y or against any of the children. Dr E made reference to members of his staff having been told that Y considered she was a victim of physical and/or sexual abuse. There are no details of those comments. There is no evidence before this Court in relation to those allegations.
The conclusion of the Court is that the children are not at any unacceptable risk of harm in the care of the father.
My conclusions in relation to risk relating to the father lead to my further conclusion that the father would be a suitable parent for both X and Y. The very real problem which must be confronted is the fact that Y is 14 years of age and her wishes have been made very clear. Two years ago it was impossible to effect a transition from the mother’s care to the father’s care. The situation would only be even more difficult now.
Y is receiving significant support at the moment under the auspices of NMHS and MYS. That support was outlined the evidence of Dr E. Neither Dr E nor Ms C support a conclusion that the child should transition now to the care of the father. In the evidence of Ms C – it is apparent that she does support a move from the mother – but only to some independent, unknown third person – preferably within the realm of State care/child safety. This Court, of course, has no power to make such an order. The Court’s powers are limited to making a parenting order in favour of a party currently before the Court. Those parties are either the father or the mother.
On 10 September 2021, the Court drew the attention of the parties to a decision of Carew J in Vesey & Lygon [2017] FamCA 717. In that case, the her Honour included various findings of the commencement her order (in the nature of Notations) and also stated that:-
“It is respectfully requested that the Department of Communities, Child Safety and Disability Services (Qld) (“the Department”) take all necessary steps to forthwith remove B born…2002, C born…2006 and D born…2014 from the mother.”
The essential submission made on behalf the Independent Children's Lawyer on 10 September 2021 (and supported by the father) was that the Court issue a similar request to the Department to take the child Y into State care.
7 October 2021
When the matter returned before the Court on 7 October 2021, the state of play had shifted again. The Department had at this time finalised its investigation and assessment into the safety and wellbeing of Y and furnished to the Court on 6 October 2021 a covering letter responding to the s.91B request and a copy of an Investigation and Outcome assessment report prepared by Ms T (a Child Safety Officer of the Department). Those documents were tendered into evidence on 7 October 2021 as Exhibit 10. None of the counsel sought to cross-examine Ms T in respect of her report. In the covering letter, the Department stated as follows:-
“It remains the department’s position, that it will not seek to formally intervene in the current parenting proceedings. The rationale being that the investigation was closed on 6 October 2021 with the outcome being recorded as substantiated emotional harm, with Ms Binns and Mr L recorded as the persons responsible for the harm. Y was assessed as not in need of protection as Ms Binns was assessed to be as a parent willing and able to meet the future care and protective needs of Y.”
In her Investigation and Outcome assessment report, Ms T set out much of the Departmental history and concerns of the mother, father and Mr L. Under the heading “Complicating Factors” on the third page of the document, Ms T stated as follows in respect of Y’s history-
· “Y has a prejudicial childhood with a trauma background characterised by exposure to adverse childhood experiences, being exposed to domestic violence, parental separation, familial mental illness and parent substance abuse. Historically Y has disclosed both physical and sexual abuse perpetrated by her father. Whilst these concerns have not previously been substantiated they continue to be reported by Y as part of experience of being cared for by her father. Y no longer has contact with her father and there is a family law court order in place confirming Y is to live with her mother.
· Y has a background history of depression, anxiety, ODD, ADHD, ASD, Dyslexia, Fleeting Suicidal Ideation and deliberate self-harm, and has had several hospital admissions within the Adolescent mental health ward.
· Throughout this investigation Y has continued to express that she will run away and kill herself if she has to return to live with her father.
…”
In respect of the mother and Mr L, Ms T went on to say (under the same heading):-
“…
· Ms Binns has experienced significant domestic violence perpetrated by several of her partners and as an impact of this violence, Ms Binns has been diagnosed with PTSD and anxiety symptoms. Ms Binns adheres to a medication regime to treat her symptoms.
· Ms Binns has experienced mental health concerns in the past and it is likely that her mental health has been negatively impacted by the domestic violence that she has experienced.
· Ms Binns and Mr L are in a new relationship and at times they have experienced ongoing stressors within their relationship, and Ms Binns has spent some time with her sister, however Ms Binns has reported that they are working well together and wanting the best outcomes for Y.
· Ms Binns and Mr L deny domestic violence is occurring within their relationship, however report that they have engaged in arguments and Y has been exposed to this fighting and this may have exacerbated Y’s mental health symptoms
…”.
Ms T’s report was illuminating in respect of Y’s current circumstances and progress and the progress of the mother and Mr L. Under the heading “Strengths and Resources”, Ms T stated as follows:-
· “Y has been discharged from the V Health ward and is currently emotionally stable, adhering to her medication regime and is residing with Ms Binns and Mr L.
· Y is engaging with MYS on a weekly basis and this service is supporting the family to understand and respond to Y’s emotional and mental health needs.
· Y has returned to U School and she is now attending full-time hours.
· Ms Binns has safe and stable housing to support Y and at times, M and W.
· Ms Binns and Mr L are engaging well with the treating team to support Y safely. Throughout the investigation it is evident that Ms Binns and Mr L have strengthened their insight, skills and capacity to support Y’s presenting behaviours. Y has therefore had less escalations.
· Ms Binns has been engaging with Program BB for an 8 month period. Ms Binns is able to acknowledge her own emotional well-being and is able to recognise the impacts that her stress levels can have on her parenting capacity.
· Ms Binns is engaged with CC Service and is willing to engage with this service on a long term basis to support Y’s developmental needs.
· Ms Binns has acknowledged that she has made many mistakes as a parent, however, she has agreed for the best interests of X that he remains living with his dad as he is supported there.
· Throughout this investigation, Ms Binns has reconnected with her sister who resides Region D. and is in daily phone contact with her mum who also supports her at this current time. Ms Binns’s parents are willing for Ms Binns and Y to reside with them if this was required.
· Throughout the investigation, I observed Ms Binns and Mr L were engaging well with community services and QLD health, seeking support and advice on the best way to safely parent Y and positive interactions were observed between Ms Binns and Y at all times.
· During the current investigation Ms Binns and Mr L have been engaging with Child Safety and been open and transparent.”
Mr Casey of counsel made a submission on 7 October 2021 that this evidence of Ms T was “glowing” of the mother and Mr L. As was rightly pointed out by Mr Ashcroft (counsel for the Independent Children’s Lawyer) – there is nothing “glowing” about the circumstances that this child finds herself in. I did only understand Mr Casey to use the term as matter of expression. However, the import of this evidence is that it is undeniably positive and I accept it. Y is currently emotionally stable and engaging with her support services. The mother and Mr L are engaging with support services. Y has returned to full time hours at the U School. The mother is providing “safe and stable housing to support Y”. The Court has to date been confronted with evidence that indeed confirms the observation of Ms T that Y has had a “prejudicial childhood”. This evidence however seems to indicate that the situation may finally be turning around for Y.
Perhaps of even more importance, the report of Ms T provided the most up to date evidence now before the Court in respect of Y’s views and wishes. On the fifth page of her report, Ms T noted:-
“…throughout the investigation, Y has continued to express to others that she is experiencing extreme fear of having to return to her father’s home and has threatened to kill and harm herself if this was to happen due to what she has previously experienced within his home.
Y was observed to be happy and smiling in the care of her Mum and I observed Ms Binns and Mr L to respond to Y’s emotional cues such as offering genuine encouragement, reassurance and compassion for how Y was feeling through the times of stress to stabilise their relationship…”
Ms T then summarised on the sixth page of her report:-
“In relation to Y’s presentations of mental health and her own childhood experiences, it is likely she will continue to experience challenges as she learns how to manage her mental health. Y is clearly and consistently expressing her preference to reside with her Mum at this time for the support she needs. It is my assessment that the current family law court process also appears to impacting Y’s emotional wellbeing. This is within the context of her views regarding where she wants to live, and her ongoing commentary regarding suicidal ideation and self harm should she return to the care of her father, and she understands that decisions are being made about where she will live. Regardless of the actuality of her expressed concerns, they nonetheless inform Y’s perceptions of her own safety and security, and will likely continue to influence her behaviour and mental health. Intervention to support growing stability for Y needs to acknowledge her perceptions, and work with her towards greater understanding of her childhood experiences, and support her sense of competency going forward, such that she can have a sense of contribution to her circumstances.”
(Emphasis added)
This evidence confirms that Y is still firmly of the view that she wants to live with her mother – as was clear in the evidence of Dr E and Ms C. Importantly, Ms T touched on an important matter which Dr E highlighted in his evidence – being that regardless of whether or not events which have been alleged occurred or not, Y perceives that such events have occurred and that Y perceives that she is at risk in the father’s care. As Ms T said – “regardless of the actuality of her expressed concerns, they nonetheless inform Y’s perceptions of her own safety and security, and will likely continue to influence her behaviour and mental health.”
This point was also put to the family report writer, Ms C. At page 167 of the Transcript of Proceedings of 10 September 2021, Ms C gave the following evidence:-
“MR CASEY: And also on that point, is it more important regardless of whether that incident or the allegations that Y has raised in relation to her father – regardless of if that did actually happen or not, do you see it as just as important or even more so important that it’s the perception of Y?
MS C: Look, that is an important factor and I think that that’s something that underlies that distress for her in terms of returning to dad, is that there is – that is generally accompanied by a genuine belief that they’ve – that – that – that – that she has experienced harm are genuine beliefs that – I mean this isn’t about – this is – I’m not at all suggesting that this is an – you know, a – a young woman being wilful. This is a deeply distressed young woman who – who I think believes that she would be at risk with – with – with her father. And that’s why her distress would be so significant in – in – in effecting that return and – and why it would require so much careful management and intervention for her to – to help her to – and it would have to be transition. You couldn’t just do it one for the other, for that exact reason, that if there’s a belief there that she’s not going to be safe – that – that all of these things, you know, and if – if she’s already vulnerable in terms of her emotional state and then believes that she’s also unsafe, then that’s obviously going to trigger a further deterioration that’s going to be traumatic. All of those things. So absolutely her belief and her perceptions are very important and – and really underlie all of this.”
Y will turn 15 years of age in 2022. Her views must be given significant weight by the Court. The evidence Dr E, Ms C and Ms T is clear. If Y is of the belief that she is at risk in the father’s care – then this of itself becomes a risk to the child. This is the inference I draw from the evidence of Dr E.
The Independent Children’s Lawyer seeks an order that the child move to the care of the father.
This approach is supported by Mr Pope, counsel on behalf of the father.
Mr Casey, counsel on behalf of the mother, has urged the Court to leave the child Y in the care of the mother. I have come to the conclusion that this is the correct approach. In particular, I note the following:-
a)The child is 14 years and seven months old. Y is a troubled child. She has been diagnosed with ADHD and, apparently, also ASD and ODD. She suffers from emotional dysregulation. She suffers from very low self-esteem and has a low opinion of herself. The psychiatrist who oversees her care is against the idea of the child moving to live with the father. Dr E was clear in his opinion in that regard. I reiterate Dr E’s opinion that even if the child was not a victim of physical or sexual abuse at the hand of the father – the child nonetheless thinks that she was. The child’s views are entrenched. Furthermore, Dr E notes the child is very fond of her mother and always asks to return to her mother whenever the child is at the hospital. Furthermore, the child currently has a large amount of resources being devoted to assisting her. The NMHS team and the MYS team are overseen by Dr E. It is true that these resources are likely available in Suburb O but there is no evidence in that regard and moving support workers carries risk. It will necessarily be disruptive child. This point was made by Dr E.
b)Dr E was not in favour of the child attending a mainstream school. That is the father's plan if the child moves to his care.
c)In addition, there is the very concerning evidence relating to what occurred in 2019 when a changeover was attempted. The evidence actually reveals that the child ended up in the Mental Health Unit. Such a risk is very real. The risks in trying to move the child to the father’s care are very real. The risks eventuated last time. The child made it clear to the family report writer in December 2020 that she just was not prepared to move to live with the father.
I appreciate that the mother’s present household environment is less than optimal. It is helpful that the mother and Mr L are receiving counselling, assistance and support from Mr J from the MYS team. It will be remembered that Ms H is the support worker from the MYS team for the child Y. It is also helpful that the mother and her partner have been engaging with the MYS team and have been seeking more assistance.
The Department have decided not to intervene. The child has a number of complex medical issues as outlined in these reasons. The child is almost 15 years old. The child wants to remain living with her mother. The child does not wish to spend any time with the father. I have given consideration to the possibility of an injunction to restrain the mother from bringing the child into contact with Mr L. I am well aware of the risk issues relating to Mr L. But I note that the most recent independent evidence (Exhibit 10) confirms that the mother at this point in time does have “safe and stable housing to support Y” and I also note that both the mother and Mr L “are engaging well with the treating team to support Y safely”. The report also notes that the mother and Mr L “have strengthened their insight, skills and capacity to support Y’s presenting behaviours”. Very importantly I note the Department’s conclusion that as a result of the mother and Mr L improving their parenting skills (as just stated) – “Y has therefore had less escalations.”
The conclusion that I have reached is that it would not be in the best interests of the child to issue an injunction restraining the mother from bring the child into contact with Mr L. I am quite certain that such an injunction will cause the mother significant stress – which is likely to have adverse impacts on Y. I am well aware that the Court has not had the benefit of evidence from Mr L. The best evidence before the Court is the recent report from the Department (Exhibit 10) and this report does not identify Mr L as a current risk issue in respect of the child.
I am also encouraged by the fact that the mother is engaging with the CC Service (an indigenous support network). This will be beneficial to Y (note section 60CC(3)(h)).
Conclusion
It will be apparent from these reasons that there will be a final order that X will live with the father and only spend time and have communication with the mother in accordance with his wishes. The father will have sole parental responsibility in respect of X. The mother agrees with the father’s proposal (in broad terms) concerning X.
For the reasons stated, there will be a final order that Y live with the mother. The mother will have sole parental responsibility in respect of Y. Y will spend time and communicate with the father in accordance with Y’s wishes.
Both parents shall be required by order to facilitate communication between X and Y.
I have had regard to section 61DA. The presumption in that paragraph of the Act has been rebutted in respect of both children (for the reasons stated). Because there will be no order in accordance with section 61DA, there is no necessity for the Court to consider the provisions of section 65DAA. Further, I note there is no necessity for the Court to provide any detailed reasons concerning any other aspect of Part VII of the Act.
Each of the parties provided a further written submission on 14 October 2021. I have had close regard to those written submissions. Each submission supports the making of a final order.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard. Associate:
Dated: 19 October 2021
2
11
5