Bruin & Bruin (No 2)
[2024] FedCFamC2F 176
•14 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bruin & Bruin (No 2) [2024] FedCFamC2F 176
File number(s): MLC 1939 of 2022 Judgment of: JUDGE HARLAND Date of judgment: 14 February 2024 Catchwords: FAMILY LAW – parenting – whether the parties should exercise equal shared parental responsibility or the father should have sole parental responsibility – risk of the children in the mother’s care – sexual abuse allegations– whether the mother’s time be professionally supervised then progress to unsupervised time – the mother’s drug use – mental health of the mother– whether or not conditional orders can be made that would allow for the mother’s time to progress to unsupervised Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 64(g)(2), 64B(2)(g), 65D Cases cited: Betros & Betros [2017] FamCAFC 90
Isles & Nelissen [2022] FedCFam1A 97
Lainhart & Ellinson [2023] FedCFamC1A 200
Nuan & Lei [2023] FedCFamC1A 211
Oberlin & Infeld [2021] FamCAFC 66
Oram & Lambert and Ors [2019] FamCAFC 4
Division: Division 2 Family Law Number of paragraphs: 218 Date of hearing: 29, 30 November 2023 and 1 December 2023 Place: Melbourne Counsel for the Applicant: Ms Mariole Solicitor for the Applicant: Coote Family Lawyers Counsel for the Respondent: Mr Chislett Solicitor for the Respondent: MMH Lawyers Counsel for the Independent Children's Lawyer: Mr Marchetti Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 1939 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRUIN
Applicant
AND: MS BRUIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
14 FEBRUARY 2024
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The Father have sole parental responsibility for the children, X born in 2011 and Y born in 2012 (“the children”).
3.The Father, in exercising sole parental responsibility, except in the case of urgency, advise the mother in writing of his intention to make a decision and why, giving the mother an opportunity to express her view and shall inform the mother of the decision.
4.The children live with the Father.
5.The children spend time with the Mother as follows:
(a)Commencing in February 2024, during gazetted school term periods, as follows:
(i)supervised by N Contact Service (or such other supervising agency or professional as may be agreed between the parents in writing, including via email or SMS text message) for not more than 3 hours on the first Saturday of each month at times as may be agreed between the parties in writing and in default from 9am until 12pm on such days; and
(ii)supervised by N Contact Service (or such other supervising agency or professional as may be agreed between the parents in writing, including via email or sms text message) for not less than 3 hours and not more than 6 hours on the Sunday following the first Saturday of each month at times to be agreed and in default from 10am until 4pm;
(b)At such further or other times and upon such conditions as may be agreed between the parents in writing (including via email and sms text message).
6.The parties be at liberty to provide to any psychologist, psychiatrist, counsellor, family therapist, or other medical practitioner:
(a)Copy of the Family Report by Ms L, filed 13 September 2023;
(b)Copy of the Report and Affidavit by Dr B, filed 1 April 2022; and
(c)Copy of the DFFH sec 69ZW Report dated 30 June 2022;
(d)Copy of these reasons.
7.The Father is to notify the Mother of any illness or injury sustained by the children and advise her of the any treating medical practitioner appointed to treat that illness or injury.
8.The Father is to provide the Mother with any written report received from the children’s treating medical practitioners or allied health professionals.
9.The Father provide a copy of these orders to the children’s medical practitioners and the children’s schools.
10.The Mother, her servants and/or nominees, be and is hereby restrained from:
(a)Attending any residence which the Father and the children reside
(b)Attending the children’s school which they attend ;
(c)Discussing health issues with the children (or either of them); and
(d)Attending upon any medical practitioner to seek prescriptions and/or referrals for or on behalf of the children (or either of them);
unless otherwise agreed in writing;
11.Within seven days, the mother sign and return any passport application for the children to the father. If the mother fails to return the application, the father be permitted to apply for a passport and any subsequent renewal(s) for the children notwithstanding he does not have the consent in writing of the Mother, such passport to be at the expense of the Father to pursuant ss7 and 11 of the Australian Passports Act 2005 (Cth).
12.The Father be authorised to provide a copy of these orders to the Australian Passport Office.
13.Pursuant to s65Y of the Family Law Act 1975 (Cth) the children be permitted to travel internationally with the Father without the permission of the Mother subject to order 15.
14.The Father be at liberty to travel overseas with the children provided that the Father:
(a)Provides the Mother with 4 weeks’ notice; and
(b)No later than 2 weeks’ prior to the travel, provides the Mother with a travel itinerary that includes details of return flights, accommodation arrangements and destinations which the children will be travelling.
15.The Independent Children’s Lawyer arrange and meet with the children to explain these Orders to the children.
16.The order appointing the Independent Children’s Lawyer be discharged effective as and from 31 March 2024.
17.All extant applications be dismissed.
THE COURT ORDERS BY CONSENT THAT:
18.The parties shall meet at Suburb M Train Station for changeover unless otherwise agreed between the parents in writing.
19.Each parent is authorised to obtain any information from the children’s school usually disseminated to parents, including but not limited to school photos, reports and newsletters.
20.The Father provide a copy of these Orders to the children’s schools.
21.Each parent communicate via email or text message and all communication is to solely relate to the children.
22.Each parent is to keep the other informed of any change to their email address and/or mobile telephone number within 24 hours of any change.
23.Each of the parents, their agent/s and/or nominees be and are hereby restrained from:
(a)Abusing, insulting, belittling, rebuking, intimidating, harassing or otherwise denigrating the other parent or any member of their household within the hearing of the children (or either of them) or allowing anyone else to do so;
(b)Discussing the evidence filed or given in these proceedings to and/or within the hearing or presence of the children (or either of them) or allowing anyone else to do so; and
(c)Knowingly allowing the children (or either of them) to have access to any document procured in relation to these proceedings to allowing anyone else to do so.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND
X aged 12 and Y aged 11 live with the father and see their mother regularly under supervision. The applicant father is 49 and the respondent mother is 41.
The parties married in 2009 and separated in August 2015. The parties agreed to final consent orders on 14 June 2016 with respect to both financial and parenting matters including orders for the parties to have equal shared parental responsibility, the children live with the mother, and for the children to spend regular time with the father.
X and Y lived in their mother’s primary care after their parents separated until 2019. They later returned to their mother’s care but have been in their father’s care since 27 April 2021. Both times the Department of Families, Fairness and Housing (‘DFFH’) removed the children because of protective concerns. The father and the Independent Children’s Lawyer (‘ICL’) characterise this case as being about risk. The mother’s case is that any concerns about the children being at risk in her care are historical and have been addressed.
From early 2019 until early 2022, DFFH conducted investigations due to concerns regarding the mother’s capacity to care for the children. DFFH is not currently involved with the family.
DFFH first removed the children from the mother and placed them in the father’s care in mid-2019. The mother had supervised time for about eight months with DFFH when the children were eventually returned to the mother’s care. The children were removed again in 2021. Since early 2021, the mother’s time with the children has been professionally supervised with DFFH supervising the mother’s time initially. The father commenced these parenting proceedings on 28 February 2022. Since April 2022, the mother has paid for professional supervision by N Contact Service.
THE PARTIES’ RESPECTIVE CASES
The Father’s Case
The father says the mother remains a risk to the children as the mother has not shown insight into her behaviours and the detrimental impact this has on the children. He seeks that the mother’s time continue to be professionally supervised. Neither party had proposals for any non-professional individuals to supervise the mother’s time. The father seeks sole parental responsibility. He says there is no effective communication between the parties.
The Mother’s Case
Up until the commencement of the trial, the mother sought orders that the children move to City K and live primarily with her. She did not have any alternate position.
On the morning of the first day of the trial, the parties’ Counsels indicated that the matter was settling but they needed more time to draft orders. The parties were granted time to continue negotiations which unfortunately broke down later that day.
When the trial commenced, the mother no longer sought orders for the children to live with her in City K and instead sought orders for unsupervised time in Melbourne. The mother’s position changed further during the trial with the mother indicating part way through her cross-examination that she now intends to return to Melbourne to live. It is unclear as to when this is likely to occur. The mother referred to having renewed her employment contract for another year a couple of months ago. It was clear that the mother has not seriously considered her relocation to Melbourne before the trial and so she has not had the opportunity to make plans and consider the logistics.
The mother’s Counsel submitted that the mother had a clear psychiatric assessment and that she does not see why time should be supervised. As will become apparent, the evidence about the mother’s mental health is not straight forward and that submission is not accurate. The mother seeks to progress to weekend time including overnights straight away, and for there to be a week about arrangement when she returns to live in Melbourne.
The mother seeks an order for equal shared parental responsibility.
The Independent Children’s Lawyer’s Case
The ICL also characterises this case as being about risk and submits the mother has not adequately addressed the protective concerns. The ICL submitted a detailed minute of order at the end of the trial. The father adopted the ICL’s position. That minute provides a pathway forward for the mother’s time to progress to unsupervised time.
DOCUMENTS RELIED ON
The father relies on the following documents:
(1)Amended Initiating Application filed 2 November 2023;
(2)Trial Affidavit filed 2 November 2023;
(3)Affidavit of Ms O, the father’s partner filed 2 November 2023. She is the father’s partner. She was not required for cross-examination.
(4)Psychological and Parental Risk Evaluation Report of Dr B filed 1 April 2022; and
(5)Material tendered.
The mother relies on the following documents:
(1)Amended Response to Final Orders filed 24 November 2023;
(2)Trial affidavit filed 1 November 2023;
(3)Affidavit of Dr E, forensic psychologist filed 8 April 2022;
(4)Affidavit of Ms P filed 20 April 2022. She was not called for cross-examination. Her affidavit was not relevant to the issues in dispute.
(5)Affidavit of Ms C, psychologist, filed 22 November 2023; and
(6)Material tendered.
The Independent Children’s Lawyer relied on the following documents:
(1)Affidavit of Ms Q, contact supervisor filed 10 November 2023;
(2)Psychological and Parental Risk Evaluation Report of Dr B filed 1 April 2022; and
(3)Material tendered.
The parties jointly relied on the following:
(1)Family Report prepared by Ms L dated 13 September 2023,
(2)Affidavit of Ms Q, contact supervisor filed 10 November 2023;
(3)Affidavit of Ms Q, contact supervisor filed 4 September 2023;
(4)Affidavit of Ms Q, contact supervisor filed 15 September 2022;
(5)Affidavit of Ms Q, contact supervisor filed 31 August 2022;
(6)S67Z Response dated 29 March 2022; and
(7)S69ZW Report dated 30 June 2022.
Dr B, and the contact supervisors were not required for cross-examination.
The mother annexed various reports and letters she had annexed to her trial affidavit. I did not allow her to rely on those at the trial as I had told her in the compliance mention on 6 November 2023 weeks before the commencement of the trial that if she wanted to rely on these reports, the authors would need to swear or affirm affidavits annexing their reports and be made available for cross examination so that their opinions could be tested. At the commencement of the trial counsel agreed they were not being relied on. Included in the annexures was a letter dated 15 November 2019 from Dr R, a letter dated 26 April 2021 from Dr T, and a letter from dated 14 February 2022 from Dr T. The mother was cross-examined extensively about these reports. It is therefore necessary to refer to these reports to put the cross-examination in context. It is not for the purpose of the authors’ opinions but with respect to what the mother told them and what information she provided them.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions. Any reference to a particular provision is a reference to the Family Law Act unless stated otherwise.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence being mindful always that the best interests of the child is paramount. A two-year final intervention order was made in late 2021 against the mother, naming the father and the children as protected persons. There is no current IVO.
Section 61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA(4)).
The Full Court of the Family Court discussed the assessment the Court must make when considering whether or not there is an unacceptable risk in Isles & Nelissen [2022] FedCFam1A 97. Assessing unacceptable risk is a predictive exercise based on the facts and circumstances of the case. The Full Court clearly stated that the assessment of risk is an entirely separate task to making findings of fact. The Court must make findings of fact based on the balance of probabilities. It involves assessing the evidence. Assessing risk involves making predictions about future behaviour. The risk may be a possibility, probability, or a certainty. If the Court is satisfied that there is an unacceptable risk, the Court must then consider ways in which the risk can be ameliorated.
For reasons I shall explain this is a case where I am satisfied that the children are at an unacceptable risk of psychological and physical harm if they spend unsupervised time with the mother due to her behaviour. Given this conclusion, I must consider the ways in which the risk can be ameliorated. The mother has been having professionally supervised time with the children since 2021. Several Full Court authorities[1] refer to the undesirability of long term supervision orders. To have professionally supervised time once a fortnight is not sustainable long term, this is particularly so when travelling from Queensland given the travel expenses in addition to the supervision costs. It is unfortunate that neither party has proposed a suitable family member or friend who could supervise the mother’s time which would enable it to occur more naturally with more flexibility.
[1] For example: Betros & Betros [2017] FamCAFC 90, Oram & Lambert and Ors [2019] FamCAFC 4, Nuan & Lei [2023] FedCFamC1A 211.
Section 64(g)(2) empowers the Court to make parenting orders that set out steps that must be taken before a party can make a further application to the Court. Such orders can be fraught with difficulty unless it is possible to provide a clear cut pathway that does not improperly delegate judicial function or create further uncertainty.[2] I will discuss this further after traversing the evidence.
[2] Oberlin & Infeld [2021] FamCAFC 66
ISSUES IN DISPUTE
The issues I must determine are as follows:
(1)Should the father exercise sole parental responsibility, or should the parties have equal shared parental responsibility?;
(2)What orders should be made with respect to domestic and international travel?
(3)Does the mother pose an unacceptable risk?;
(4)Should the time the children spend with the mother be supervised?; and
(5)Are there orders that can be made that provide a pathway for the mother’s time to become unsupervised?;
Prior to the commencement of the trial, the issue with respect to the children’s pets being in the possession of the mother was contested. On the final day of the hearing, the parties agreed by consent for the mother to return the pets to the father’s residence on or before late 2023 at her sole expense. The issue of the pets will be discussed later in these reasons.
Before addressing the issues in dispute, I will discuss DFFH’s involvement with the family, the incidents that caused concern, the mother’s drug use, and the supervised visits.
CHILD PROTECTION INVOLVEMENT
The s69ZW response provided by DFFH dated 30 June 2022 records there being nine reports to DFFH since 2018, three of which warranted intervention. The s67Z response dated 30 June 2022 and the s69ZW report dated 29 March 2022 are included in the court book. The exact timing of the interventions are unclear as most documents from the Children’s Court proceedings are not in evidence before the Court. What is clear however is that DFFH removed the children from the mother’s care twice due to protective concerns.
In mid-2019, DFFH issued proceedings in the Children’s Court. The children were then placed in the father’s care pursuant to an Interim Accommodation Order. The children remained in the father’s primary care for eight months. During this period the mother spent supervised time with the children through DFFH.
DFFH returned to the Children's Court in early 2021. Orders were made in early 2021 for the children to live with the father. During the Children's Court proceedings, Dr B conducted a psychological and parental risk evaluation report of the mother and identified significant concerns about the risk to the children if they had unsupervised time with their mother.
The father was given consent by DFFH pursuant to s69ZK to commence proceedings in this jurisdiction. The Children's Court proceedings were withdrawn in mid-2022 once interim parenting orders were made in this Court. DFFH appeared as Amicus Curiae at the first two Court events in early 2022 in these proceedings, with Dr B’s report being raised at the Court events. DFFH noted that the children had been in the father's full-time care since 27 April 2021 with DFFH having no concerns about the father’s parenting capacity. However, with their most recent involvement, they still had significant concerns about the mother’s mental health and the children's exposure to her complex presentation and the limitations of the mother engaging meaningfully given she denied any protective concerns. It is not unusual for proceedings that have commenced in the Children’s Court to be finalised when DFFH is satisfied that the children are safe in one party’s care and may support a party to make an application to a court exercising jurisdiction under the Family Law Act. In these types of cases, the issues before the Children’s Court may remain relevant to the family law proceedings.
DFFH recorded that the mother's contact with the children was not always positive. DFFH had to end the supervised visits early on several occasions due to the mother's presentation, the mother being unable to follow directions, and her having inappropriate conversations with the children about Court proceedings and their perceived medical needs. This led to Y refusing to attend altogether. DFFH further noted that the mother did not address or acknowledge any of the recommendations in Dr B’s psychological and parental risk evaluation. DFFH raised concerns about the potential emotional harm to the children due to the mother’s failure to address the protective concerns, and the difficulty she has in prioritising the children’s emotional wellbeing during contact visits. The mother denied asking inappropriate questions and said that because she was self-represented, speaking to the children was the only way to obtain information and so in the circumstances was reasonable. As will be seen later in these reasons, the concerns identified in the Children’s Court proceedings remain unresolved.
Incidents of concern
There were several incidents that took place during DFFH’s involvement that are of particular concern and are relevant to the issues I must determine, particularly with respect to assessing unacceptable risk.
2018 Incident
When speaking to the Family Report Writer, Y referred to witnessing the mother’s boyfriend who was rude and pushed the mother against a wall. The mother addresses this incident in her trial affidavit and acknowledges that this occurred and says she removed him from the house and ended the relationship as she would not put up with that behaviour. If this was an isolated incident it would be wrong to place too much weight on it as the mother acted appropriately in response. However, the children have made references to the mother having ‘bad friends’ who lived in the house, that they witnessed the mother’s involvement with ‘bad people’ in the home, the frequent police visits, and the mother’s ‘bad friends’ who would follow them when they were driving which resulted in them feeling unsafe. The mother and her friends spent a lot of time in the garage. The children recalled these events when talking to the family report writer.
Early 2019
In early 2019, an incident took place at the mother's home which involved the police. In his trial affidavit the father says he was returning an object to the mother’s home that X had a left behind. When he arrived at the mother’s home, the police were executing a search warrant where they allegedly found stolen property and a bag of illicit drugs in the mother's home. The children were home whilst the police executed the search warrant.
The mother addresses this in her trial affidavit and says that she gave a friend’s son access to her home so they could store some items. The police attended and found stolen property and drugs in the home to which she denied knowing anything about. She was not charged for any offences relating to this incident. I accept this.
DFFH records that when interviewed the children disclosing significant concerns about the mother’s friends using drugs and drugs being in the home. Both parents were assessed as being responsible for harm.
The mother told the Family Report Writer that she had trusted a male friend and gave him access to the home, who, unbeknownst to her used it to store stolen goods and drugs when she was away for the weekend. She said she was surprised upon her return to see the police waiting to search her house. She acknowledged one child was present during the search and again stresses she was never charged for anything to do with this incident.
The mother was cross-examined extensively about this incident. The mother denied having drugs in the house. She repeated that the drugs found in the home were amongst her friends’ things. She says she misjudged their character, and that she was not present when they put the items in her home. Counsel for the father asked the mother about X reporting to DFFH that she had seen drugs in her home to which the mother replied that during the raid the police brought the bag of illicit drugs into the house, in front of the children and apologised for doing so. Counsel for the father took her to paragraph 39 of the family report where she says one child was present during the search. The mother again said the children were in the house with the mother giving a statement to the police. It was put to the mother that the children being there would have been traumatic or scary for them to which the mother replied she tries to “minimise trauma”. She then admitted the children were present when the police were there but claimed that the police had told her it was okay as the warrant was for the garage and not the home, and the children only saw the bag of illicit drugs in the house when the mother was giving a statement to the police. The mother’s justifications minimises the children’s experiences seeing the police at their home at all, let alone searching the garage and finding drugs. When pressed, the mother conceded that X would not have been able to make the distinctions the mother did. This would have been a frightening and unsettling incident for the children.
Car Incident mid-2019
In mid-2019, a car reversed into the mother's driveway and crashed into her car, pushing it into the home. The father detailed to the Family Report Writer at paragraph 34 of that report that he received a call from a neighbour around 8.00am that day. The father says when he arrived at the mother’s house he saw the damaged car and it concerned him greatly this had happened just before the children were meant to be taken to school. He also briefly mentions this event in his trial affidavit. The mother made no comment about this incident to the Family Report Writer and does not address this incident in her trial affidavit.
During cross-examination the mother said the children were inside the house with her when the incident occurred and they would not have seen anything. Counsel for the father pressed the mother that they would have heard something to which the mother explained they heard a bang and went outside with her but they were not scared. The mother said the police said this was another random event. Counsel further pressed the mother as this was at the time she had extra padlocks on the door. The mother denied this and that she only had an extra lock on the laundry door, a chain lock on the front door, and CCTV outside the home for security. When asked for more detail about the CCTV footage she said she did not watch the footage with the children and was used only to help the police with the car incident. I am unable to make a finding based on the evidence before me that this was a deliberate act by a known associate as the father implies or a random act. Given this, I do not draw any inference based on this incident.
Police attendance mid-2019
In mid-2019, Victoria Police and Ambulance Victoria attended the mother’s home in response to concern about her mental health. In his trial affidavit, the father says that the reports refer to the mother being incoherent and erratic and appearing to be substance affected, referring to voices in her head telling her she was not safe. When the police attended the property they found kitchen knives in the mother’s bedroom. The mother claims it was one knife she uses to cut fruit. I do not accept the mother’s evidence about this as it is highly unlikely that she would be cutting fruit in her bedroom. It is more likely that the mother had kitchen knives in her bedroom as described by the police.
DFFH records show there were safety concerns about the children in the mother’s care due to the mother’s mental health and the children's exposure to emotional harm and substance misuse. The records show Y was present when the police observed the mother in the bedroom with the knives and was presenting as being substance affected and experiencing a ‘mental health episode’. Y disclosed she was extremely distressed in her mother's care and concerned about the mother’s behaviours. She reportedly said “mummy has voices in her head and they were telling her to do something”. Both children were placed in the father's care and the mother was admitted to the psychiatric ward of U Hospital as an involuntary patient under the Mental Health Act2014 (Vic).
DFFH interviewed the children a few days later at the father's home. The father says in his trial affidavit that DFFH recorded the children were scared of the mother. It was further recorded that they were concerned that the mother would often talk to herself and spend time staring at the wall in silence, and that the children would become confused and unable to understand what the mother was saying and who she was talking to. The mother would also speak frequently about a person she called “[…]” which was referred to in the s67Z response dated 29 March 2022. In mid-2019, DFFH determined the children were at risk in the mother’s care and issued proceedings in the Children’s Court to place the children into the father’s care.
The mother does not address this incident in her trial affidavit however was cross-examined extensively about it. Counsel for the father took her to paragraph 41 of the family report where the mother told the family report writer that the ambulance treated her due to a psychotic breakdown after she called them as she believed her keys were missing and it was related to people stalking her and speaking to her through the walls. The mother said someone had broken into her house but denied ever hearing people talking through the walls and said that the Family Report Writer was incorrect. The mother admitted Y was present but insisted that she did not barricade them in her room as Y was already asleep in her room. The mother said they only found one knife that she uses for cutting fruit.
Counsel for the father took her to paragraph 70 of the family report detailing Y’s recollection of the incident. Y recounted that the mother was hearing voices and called an ambulance and that she had to pass keys to the police officers through a window as the mother had barricaded them in the bedroom. The mother denied this and when asked if Y was lying, she again said yes and that it is likely she heard things from people around her and that it is possible she imagines more and does not have a good recollection. The mother referred to it being strange that Y would recall this six years later but did not say it to DFFH at the time.
The s67Z report from DFFH refers to their intervention in mid-2019 and Y expressing distress about remaining in the mother’s care because of her behaviours. They refer to police seeing knives in the mother’s bedroom and being concerned that the mother being substance affected was having a mental health episode. They refer to interviewing the children and their disclosing significant concerns about the mother’s friends being in the home as well as drugs. The mother also said she believed that Y had been coached. She believes the children have been traumatised by adults repeating conversations to them which they should not have and denies ever doing this. There is no evidence to suggest this occurred. The mother denies the children’s lived experiences. This only adds to the children’s sense of not being safe with her.
This would have been a frightening and traumatic incident for Y. It is not surprising that it left a lasting impression. This is another example of the mother denying the children’s experiences. She conceded that as she was unwell at that time, it is possible that Y had a better recollection of that incident even though she was five at the time. It is clear from the evidence that the mother had some sort of serious mental health episode that resulted in her being hospitalised for several days. Given the acute nature of this episode, the mother’s memory of it understandably may be unclear. The mother is keen to downplay the seriousness of this incident and the impact on Y.
It is clear that Y has her own recollections of these events and feeling unsafe in the mother's home. She acknowledged to the Family Report Writer that the mother shows love for them but being with her does not make her feel safe. She says she feels very safe in her father's care. Y became very emotional when talking about it being hard to choose between her parents both of whom love her however, she feels safe with one but not the other. This is reflective of Y’s experiences.
The father’s Counsel took the mother annexure AA2 of her trial affidavit annexing a discharge report from the hospital. The report indicates that she heard people in the house and the voices got louder and she knew they would hurt her, so she moved a large cabinet and barricaded the door. She was then involuntarily admitted to the hospital. The mother said this report was not accurate and that when she arrived it was voluntary but to put her under the Mental Health Act2014 (Vic) it had to be involuntary. The discharge report also records that the mother was hospitalised for a possible ‘first episode psychosis’. It is concerning that when cross-examined about this document the mother disagreed with parts of it, however, she annexed it to her trial affidavit and sought to rely on it. She did not make any qualifying statement about it in her trial affidavit.
The family report writer recorded the following at paragraph 110:
Collateral information from Child Protection supports the children's accounts. Child Protection noted that during their investigations, it was established that [Ms Bruin] frequently engaged in self-conversations and spent time in silent contemplation while staring at the wall daily. The children were confused and unable to comprehend what [Ms Bruin] was saying or to whom she was addressing her remark and that [Ms Bruin] also mentioned someone named '[…]' and often used swear words when referring to him.
Counsel for the father asked the mother to expand on who “[…]” was and put to her this was a made-up figure. The mother denied “[…]” being made up and said that there had been many break-ins in the area and that the neighbourhood referred to this person as ‘[…]’ because they were of “black character” and that they were a bad person. She said it was “a joke” to give them that name.
It is unclear the exact date of and for how long the mother was admitted to U Hospital. The only medical document provided in relation to the mother’s admission is the discharge summary annexed to the mother’s trial affidavit. The discharge summary indicates that the mother was admitted in mid-2019 and discharged the following day. However, the document indicates the mother was previously in the emergency department and then placed in an inpatient unit (IPU) at the same hospital. She also had a procedure in mid-2019. Establishing the exact dates of the mother’s hospitalisation is not necessary in order to determine the risk. Notwithstanding, what is clear is that the mother experienced a serious mental health episode requiring her to be involuntarily hospitalised for an extended period in mid-2019. The children were exposed to the mother’s ill health. This is not a criticism of the mother. This would have a frightening and disturbing experience for the mother. The reality is that the children were frightened and did not understand what was happening. As the mother minimises what happened, she is not able to assure the children that she was unwell but is now better.
Both parents indicated to the Family Report Writer that the children returned to live with the mother some eight months from the mother’s hospitalisation. They spent regular time with the father.
Early 2021 incident
In her trial affidavit at paragraph 24, the mother states the following:
In [early] 2021 I attended [Suburb M] police station because I believed someone had attempted to break into my house to steal my cars. As they are [valuable] they are often the targets of thieves. The police did some drive bys but otherwise no further action was taken. Around the same time, I was required to complete a mental health assessment with the CATT triage team. At that time there was no evidence of psychosis.
This paragraph is significant for what the mother she does not say. The father alleges in his trial affidavit that the police informed him that the mother had been reporting to police that she could hear footsteps behind the fridge, people were monitoring her internet, people were making threats to rape and kill the children and asserted that the fruit had been poisoned.
The report writer explored the parties’ allegations and responses in some detail.
The father recalled this incident to the Family Report Writer detailed at paragraph 106 of her report. The Family Report Writer stated these claims were “profoundly distressing and alarming”. She says the accounts provided by the children align with the father’s.
In her trial affidavit the mother admitted to attending the police station regarding the stolen cars. However, during cross-examination the mother denied complaining that the internet was being surveyed or there were any threats to the children. She admits to being assessed by the Crises Assessment Treatment Team (‘CATT’) after the incident, but stresses she was not required to be hospitalised. The mother says she accidentally put too much fertiliser on the fruit and Y has interpreted that as being poisoned. She also denies hearing footsteps behind the fridge but on one instance when she was cleaning behind the fridge, she saw footprints made by workers who built the house. She admitted she showed the children this and they laughed. The mother does not detail this incident in her trial affidavit other than noting she went to the police about concerns about her car. It is not clear from the material what happened after this. The mother became unwell again and DFFH intervened and made a protection application to the Children’s Court. The children were placed in the father’s care. The children have only had professionally supervised time with the mother since then. The s69ZW report refers to an investigation in early 2021 regarding concerns about the mother’s deteriorating mental health and drug use. They summarise interviewing the parents and children and established that the children are confused and unable to understand the mother and who she is talking to when no-one else is there. The children felt scared and reported that the mother would hit and kick the pets. The mother vehemently denies ever abusing any pet.
ALLEGATIONS ABOUT THE MOTHER’S DRUG USE
The mother’s evidence about her drug use is inconsistent. She was cross-examined at some length about the contradicting information she gave to various experts. In her trial affidavit at paragraph 18 the mother admits to using drugs on one occasion in 2019 after testing positive for illicit drugs in late 2019. She says she told the Children’s Court this and this Court and insists this was the only time she used illicit drugs and that it was after her release from hospital.
Dr R – Letter of 25 November 2019
The mother annexes Dr R’s letter to her trial affidavit at paragraph 42 to address concerns raised about her ability to care for the children. Dr R recorded in his letter that the mother advised him that she had never used drugs and only drank socially. During her cross-examination the mother originally claimed that she told Dr R she had used illicit drugs once and that he mis recorded the information. However, at the end of her cross-examination the mother conceded this was not true and in fact she never told Dr R that she had used illicit drugs once in 2019.
Dr B – Report 10 November 2021
In her assessment of the mother at paragraph 26 of her report, Dr B records that the mother said she only used marijuana and illicit drugs on one occasion in 2019. She reported that the mother told her she was studying drug and alcohol counselling and that it was important that she have experience with drug use. During cross-examination the mother said she told Dr B that she had used illicit drugs once but says she never smoked marijuana and that it was never important for her studies.
Dr S – Letter of 14 February 2022
Dr S, a psychiatrist assessed the mother in a report dated 14 February 2022. The mother annexes this report to her trial affidavit at paragraph 42 in support of her addressing concerns raised about her ability to care for the children. Dr S stated at paragraph 14 in their letter that the mother claimed she had never used illicit substances and had only consumed alcohol recreationally. At first, the mother during cross-examination said she told Dr S she had used illicit drugs once. However, towards the end of her cross-examination, similarly with Dr R she admitted she never told Dr S about her previous use of illicit drugs.
Dr E – Report of 28 March 2022
Dr E swore an affidavit in these proceedings filed 23 November 2023 annexing his report dated 8 April 2022. The mother filed and relied on his affidavit in support of her case. Dr E was required for cross-examination. The mother also annexed his report to her trial affidavit. In this report, Dr E reported that the mother indicated to him that she had not partaken in any illicit drugs and particularly denied using illicit drugs. Initially during cross-examination, the mother insisted she had told Dr E she had used illicit drugs once, however, as was a theme of her evidence at the end of her cross-examination she admitted she had not told Dr E she had used illicit drugs once. During his cross-examination he confirmed the mother had not told him she had used illicit drugs.
Ms L – Family Report of 13 September 2023
The parties attended upon Ms L in mid-2023 for a family report. Ms L reported that the mother said she returned a positive drug screen as she was exposed to drugs due to the people she was associating with, however, later admitted to using illicit drugs once during this time frame. The mother again in cross-examination confirmed she told Ms L that she had smoked illicit drugs once.
Ms C – Report of 26 September 2023
Ms C is the mother’s treating psychologist and swore an affidavit in these proceedings annexing her report on 23 November 2023.The mother filed her affidavit in support of her case. Ms C was required for cross-examination. Ms C reported that the mother disclosed experimenting with smoking illicit drugs years ago with a man who used the substance. During cross-examination the mother said she told Ms C she had only used illicit drugs once in 2019. During her cross-examination she confirmed the mother had told her about her illicit drug use and confirmed she said she used illicit drugs on one occasion.
Cross-examination and analysis of the mother’s drug use
The mother was very inconsistent with her evidence and changed her evidence constantly in regard to her drug use. After the mother admitted to not disclosing her drug use to Dr R, Dr S and Dr E, I asked the mother how I could rely on any of their letters and reports. The mother replied that they all knew she had “dirty tests” and had obtained information from DFFH. This is another example of the mother deflecting to avoid taking responsibility for her own actions. With respect to Dr R and Dr S’s reports, they were not available for cross-examination about this or any other aspects of their reports.
Counsel for the father suggested to the mother that she changes what she says to suit her convenience, to which she replied that she did not say this one fact and again reiterated they all knew about the “dirty tests”. This reasoning is illogical. According to the mother, she only used illicit drugs once and claims she was exposed through a friend on another occasion. The mother’s drug use remains a live issue of concern because of the inconsistencies in her evidence. What is of further concern is the mother sought to rely on these professionals when she knew that they had misleading information about her drug use. Counsel for the ICL asked the mother to clarify where in her affidavit she says this information was wrong and where she had attempted to correct these errors, to which the mother replied that her lawyer did not tell her she could correct anything. The mother is unable to take responsibility for her actions. She also expects everyone to accept that she is being truthful about everything else. I am unable to accept that her drug use was limited to one occasion. It also raises real concerns about what other inaccuracies the mother told various experts and how this impacted on their assessments of her.
The mother annexes several clear drug screens to her trial affidavit and one clear hair follicle test from early 2022. The mother returned a negative random urine drug screen in late 2021, a negative hair follicle test in early 2022, a negative urine drug and alcohol screen test in mid-2023, and a negative hair follicle test in late 2023. She claims that she did a hair follicle test in late 2023. There is no evidence of this.
The urine drug and alcohol screen test in mid-2023 is strange, as it appears from the columns that there are ticks for the drugs being tested for while the negative column boxes are unchecked and the non-negative column is blacked out. It would be highly unusual to see a urine test be positive for all the drugs listed in the column. Given these issues, I do not think this test can be taken to be a negative or a positive test. The final hair follicle test annexed to the mother’s affidavit was dated as being collected in mid-2023. There appears to be a typographical error with respect to the date received as both say “[…] 2023”. It could be that ‘[…]’ is an error and that the three dates were the same. That test was negative for all substances tested. That is the most recent test.
Curiously given the issues in dispute, there are no interim orders requiring the mother to undergo random supervised drug testing. The minute of orders proposed by the ICL and supported by the father requires the mother to undergo four supervised hair follicle tests. If those tests are clear for illicit and non-prescription drugs the mother does not need to do more. If a test comes back positive, she must start again and provide four consecutive clear hair follicle tests. This is an onerous requirement.
RISK AND PARENTING ASSESSMENTS OF THE MOTHER
Dr B – 10 November 2021 Risk and Parenting Assessment
On 14 October 2021 Dr B assessed the mother’s parenting capacity and risk for the purposes of the Children's Court proceedings. She swore an affidavit in these proceedings filed 1 April 2022 annexing her report. The father filed her affidavit in support of his case. The ICL also relied on Dr B’s report. The police records were not in evidence. The only hospital record before me is the discharge hospital record. She was not required for cross examination. Despite this, the mother disagrees with Dr B’s report and is critical of it.
Dr B recorded that the mother had difficulty focusing on the questions being asked and often provided evasive or inconsistent answers and showed little insight into her mental health, the child protection concerns and how others might perceive her. This is consistent with my observations of the mother during the trial.
The mother claimed she did not have a drug induced psychosis in 2019 and said the drug testing supported this. She claims that it was she who called the police after three people forced entry into her house and that she had locked herself and Y in a bedroom and so it was reasonable that she was hysterical at that time. The mother did not tender documents supporting her claims. The mother also denied ever experiencing hallucinations or speaking with people who are not there. She also claimed that she and the children had sought counselling from Dr T since 2019 to speak about their anxiety after the children had been removed from her care and that he had written a report in support of her but that it had gone missing. The mother did not call Dr T as a witness.
The s67Z report response summarises the mother’s drug screen results. In 2021, eight urine drug screens were positive for opioids (codeine and morphine) with the mother missing an additional two screens. The three drug screens in early 2022 were clear for all substances.
At paragraph 22 of her report, Dr B referred to information provided by DFFH and indicated that the mother had spoken about people breaking into her home or walking on the roof on several occasions and spoke about finding footsteps behind her fridge and people monitoring her home internet. It was also recorded that the mother presented to police making allegations that people were threatening to kill and rape her daughters and that the fruit had been poisoned. The mother provided a recording to the police allegedly of voices in the home which only contained white noise. The police referred the mother for psychiatric triage being very concerned about the mother’s presentation. Dr B also refers to a DFFH worker describing the mother as erratic, reflected by her speaking loudly and quickly, pacing and stepping towards the worker.
Dr B found that her clinical testing results did not suggest a clinical psychopathy, but that there were elevations across various clinical scales suggesting a combination of personality difficulties including grandiosity, resentment, social disconnected notice and alienation, and conflict and mistrust in relationships. She concluded that the risk of neglectful psychological abuse was high as well as the risk of physical abuse and that there were factors present consistent with personality disorder with intermittent psychotic episodes or symptoms. However, Dr B made it clear that this was a provisional diagnosis that would need to be clarified in the context of psychological treatment.
Dr B made several recommendations including that the mother be assessed by a psychiatrist to see whether medication would assist her. She also thought that the mother would benefit from family therapy or parenting therapy so she could receive and address feedback from her children about her interactions with them. She also recommended that she see a psychologist who has expertise in personality disorder presentations. The mother did not follow up these recommendations. Rather, the mother has engaged with various professionals to refute Dr B’s assessment. It is important to note that Dr B’s assessment of the mother was made after the children were removed from her for the second time in 2021 and not 2019.
Dr E – 28 March 2022 Parenting Assessment and cross-examination
The mother’s former lawyers arranged for Dr E to conduct a forensic assessment of the mother’s parenting capacity. The report dated 28 March 2022 is annexed to his affidavit filed 8 April 2023. Dr E was required for cross-examination. Dr E says he had access to a number of documents from the Children’s Court proceedings. After listing several specific documents, he refers to “various witness statements” and “other documentation”.
The letter of instruction to Dr E from the mother’s former lawyers is quite selective in the background provided. Most significantly in reference to the children being removed from the mother’s care in 2019, no mention is made of her mental health and involuntary hospitalisation. Psychosis is briefly mentioned as being related to illicit drugs use. The mother’s former lawyers also criticise the father, DFFH and Dr B. They also incorrectly refer to the Supreme Court evidence rules which have no application to this Court. It is clear that the mother’s focus has been to refute Dr B’s report.
Dr E on page 13 of his report indicated the mother told him that she described herself as a “light social drinker” and that she has not partaken in any illicit substances particularly denying the use of illicit drugs. He further reports that the mother detailed she underwent a drug test in late 2021 that was clear of illicit substances and that she “does not believe she has a genuine psychiatric history”. When asked specific questions about experiencing auditory or visual hallucinations, responding to voices or psychotic phenomena, the mother denied having had any of these experiences.
Dr E concluded that based on his clinical and forensic examination, the mother does not suffer from any diagnosable condition as defined by DSM-V and that she does not exhibit signs of a personality disorder. At the time of his assessment, Dr E concluded that the mother was not exhibiting adverse psychological or psychiatric presentations and as long as this remains there would not be any adverse impact on her parenting. However, he notes that the mother “lacks considerable insight” into her past mental health. He goes on to say that regarding her parenting capacity, the mother possesses the skills and abilities necessary to provide for her children and does not pose any risks if she remains well. In reaching this conclusion, he attaches considerable weight to Dr T’s views in his report of 26 April 2021 who saw the mother and the daughters for counselling and described the mother as “encouraging and supporting”. This is of concern as there is very little known about how involved Dr T was and on what basis. The only document from Dr T is a half-page letter dated 26 April 2021. Furthermore, this is before the children were removed from the mother a second time.
Dr E concludes that the mother’s drug use remains to some extent unresolved. There is evidence the mother has either used or was exposed to illicit substances despite adamantly refusing to admit such usage. However, he referred to discharge summaries and the mother’s drug tests not being positive for illicit substances and determined her risk for drug use would be low. It is important to note that according to the mother’s evidence she took illicit drugs on one occasion after her discharge from hospital in 2019. He recommended the mother attended for ongoing psychological assistance to help her develop an insight and understanding of her mental health and its impact on her children. This is a similar recommendation to that of Dr B.
Dr E admitted during cross-examination he did not have any material filed by the father prior to undertaking his assessment and had only read limited information from DFFH. When Counsel for the father put to Dr E the inconsistencies regarding the mother’s illicit drugs use, he said he took the mother for her word and however if she had lied and smoked once in 2019 this would not reflect too deeply on his determination of her parenting capacity.
The father’s Counsel also asked multiple questions about the medications the mother had been prescribed as being for an anti-psychotic. I sought clarification on this topic from Dr E and the wide uses for these types of medications. Dr E confirmed that these medications can be used for a variety of reasons referred to as “off label” use depending on the professional which can lead people to think something is seriously wrong when it may not be the case. I accept this statement.
When cross examined, Dr E said that if the mother told him that she did not take drugs but did take drugs on one occasion, then that is an inconsistency, but that one inconsistency does not necessarily reflect either on her parenting capacity or her ongoing drug use. I accept this.
Dr E said he has no doubt that the mother had a psychotic break in 2019 and confirmed that it would be highly unusual for someone to be admitted to a psychiatric hospital for 10 days unless they were experiencing a significant psychiatric issue. He reflected that the mother did not have insight into this but pointed out that that is not uncommon in psychiatric phenomena. I accept this. That is one thing that can be difficult for those who have suffered such an episode.
Dr E was asked about his opinion that if the mother has the skills necessary to provide for the children, and whether he maintains that view given that the children were removed from the mother’s care in 2019 and 2021. He said the basis of his opinion was on the proviso the mother was not in a psychotic state or decompensating mentally. Dr E thought that the mother’s history had demonstrated she had the skills to provide for her children. I do not know what history Dr E referred to for him to be able to draw this conclusion. He was however unsure as to what happened in 2021. It is concerning that he puts such weight on this history without having the context of DFFH involvement. He did not see the mother with the children.
Dr E was also asked about the mother's decision to cease medication without consultation and said that it does cause concern given the episode in 2019. There is always a vulnerability to having a further episode, so it is best practise for her to remain in touch with a mental health professional. I do not place weight on Dr E’s opinion about the mother’s parenting capacity as his basis for that opinion is unclear. He also places significant weight on Dr T seeing the mother and children based on a half-page letter which predates the second time DFFH took protective action and removed the children from the mother’s care.
Ms C – 26 September 2023 Report and cross-examination
The mother has been seeing Ms C since mid-2023. Ms C prepared a report in relation to the mother dated 26 September 2023 which is her affidavit and filed on 23 November 2023. Ms C was required for cross-examination.
At the time of her report, she had seen the mother on six occasions. The mother initially contacted her seeking general supportive counselling. Her report is brief being only two pages. It was clear that Ms C did not start seeing the mother on the basis that a report would be needed with the possibility of her being called to give evidence. The mother engaged her in a therapeutic context where the client sets the agenda, and the therapist relies on the client’s self-reports. It is not that therapist’s role to challenge the client about the truthfulness of their account. The therapeutic context is very different to the forensic one.
In contrast to what she told other medical professions as outlined above, the mother told Ms C that she had experimented with smoking illicit drugs years ago when dating a man who used it. She went on to tell Ms C that the husband made complaints to DFFH and the children were removed from her care. The implication is that this was done without merit at the father’s instigation. That is not an accurate account of the events.
Ms C refers to the mother being high functioning and well-adjusted. She expressed her “clinical opinion” that based on the mother’s self-reports and her presentation at her sessions that the mother was able to reasonably care for her children.
When Ms C was cross-examined, she was uncomfortable with being a witness as that was not how her engagement with the mother started. She also candidly said that she did not really understand why the children were taken away from the mother. This is not surprising given she was reliant on the mother’s self-reporting and did not have access to any court documents. When she realised she was being asked to provide a report and give evidence, Ms C asked for documents in which the mother was selective in what she provided. She provided reports such as Dr E’s which was favourable to her but not Dr B’s report or the family report. Ms C was not aware as to why the mother’s time was being supervised but assumed it was related to concerns about drug use and the mother’s mental health. Ms C readily conceded that if the mother’s self-reports were unreliable that could affect her opinion.
Ms C specialises in trauma and addiction and says she assumed the mother engaged her for those issues and not parenting issues. She tested the mother for those things and found that the mother does not have stress or trauma.
Ms C was cross-examined by the ICL’s Counsel as to how she could express an opinion on the mother’s parenting especially when it is not her expertise and when she does not have the full picture to form a conclusion. Ms C said that she based her clinical opinion on the fact that the mother is a high functioning adult female and they tend to be good parents. She also did not see any signs of drug use or mental illness. She then said the mother is tested for drugs through her work and has been cleared to work with children. Ms C became defensive at this point during her cross-examination.
The reality is, the Court does not have any evidence, other than what the mother says about her employment which is little. If regular drug testing is part of the mother’s employment, then it would be an obvious thing for the mother and her lawyers to provide evidence from her employer about this. It is overly simplistic to equate someone as being high functioning with being a good parent. People can be high functioning in some areas and not in others. It does not automatically flow that because the mother is a youth worker working with vulnerable children that her parenting capacity must be high. They are very different things.
Ms C provided her notes. The mother told her that the pets were going to be taken from her as the children lived in Melbourne. Ms C says the mother was hoping the children would come to City K and that they would all be together. Ms C was somewhat unclear about some her notes when cross-examined about them. It must be remembered that these are therapeutic notes, not notes in a forensic context. Her notes refer to the mother lying about the pets and parental alienation, but she could not recall what the mother was referring to.
Again, I am unable to place any weight on Ms C’s opinion as to the mother’s parenting capacity as it is unsound to base such an opinion on a person’s employment and is well outside the scope of her role.
FAMILY REPORT
The parties attended upon Family Report Writer, Ms L for a Family Report on 24 August 2023.
The mother raised issues about family violence. The mother told Ms L about family violence and the father’s drinking during their relationship. This predates 2016. There is no evidence before the Court about these matters. There is no evidence to support any concern that the children are at risk in the father’s care.
The mother presented appropriately, however, she had erratic thought patterns and had difficulty expressing herself regarding inquiries about allegations made against her. She often required redirection to focus on the matters being discussed and she did not fully grasp the seriousness of the allegations made against her. Despite difficulties between the father and herself, she remained positive about a co-parenting relationship moving forward. When asked about her drug use she admitted to using illicit drugs once. She denied being fixated on the children’s health. The mother said that she addressed the concerns held by the father and claimed she had completed drug and alcohol counselling and had arranged for the children to see a therapist. She claimed she was not a drug addict or suffering from psychosis. Speaking to the family report writer, the mother maintained that the children should live with her in City K.
Both observations of the children with their parents were positive with the children being relaxed and comfortable and the parents being engaged.
Ms L recommended that the children live with the father and spend time with the mother at a contact centre every Sunday from 9.30am to 3.30pm. She also recommended the mother complete a ‘Tuning into Teens’ parenting program and the children attend a psychologist or therapist to address any past trauma.
Cross-examination of the family report writer
Ms L was required for cross-examination. During cross-examination, Counsel for the ICL put to her that the mother was now seeking to relocate to Melbourne and asked if she did would she recommend time with the mother to be any different. Ms L said that significant change may be manageable, however the parents would need to communicate and that the anxieties about the children having to visit the mother interstate would be a change in circumstances in that sense.
She was asked if there was a downside to the Court ordering supervision for the future and she said that she does not have any information that would enable her to recommend it progressing to unsupervised time for the children.
She confirmed that she had received updated supervision reports, the video tendered in the proceedings, and the letter written by X pursuant to the Consent Orders made on the first day of the trial. She did not change her opinion after reviewing these. When Ms L prepared her report, the case was about a change of residence being if the children live with the mother in City K or in Melbourne with the father. With respect to the mother now returning to Melbourne, she said it would be easier to reassess the parenting arrangements and the mother’s engagement with support services and whether or not she addressed the risk concerns.
She explained that when she referred to the children being entangled in the care arrangements, she said that the nature of the conflict is that they are vulnerable children caught in the middle and that they have been separated from the family they knew, including being with their pets, and have gone through several interviews and assessments as part of a corporate setting which sees them caught in the middle of their parent’s dispute.
She did not have the impression that the children knew too much about the Court proceedings based on being exposed to inappropriate conversations being had with them or the types of issues and allegations, but rather based on their past lived experiences and the trauma they have experienced. Ms L maintains her recommendation that the mother’s time should be supervised and says that this conclusion was not based solely on the children telling her that they want the time supervised. Rather she had taken a holistic view of their experiences in the mother's care, disclosure and information in the DFFH material and from the police, and the children’s views and wishes.
Ms L did not support the mother's proposal of having overnight time once a month pending her return to Melbourne and the progression to week time. She said the mother’s time with the children would need to be reassessed. She does think that the children need therapy, and at ages 11 and 12 they have some capacity to self-protect by calling emergency services but should not be exposed to traumatic events due to the effect that may have on them and their mental health.
With respect to the children receiving therapy, it is important to consider who is to be involved and what the purpose would be. In my view it would not be helpful for the girls to see a therapist based on an incomplete or skewed narrative. The children would benefit from seeing a family therapist with experience in dealing with high conflict separated families. There could be the potential for the therapist to give feedback to the parents and potentially arrange joint sessions. It may be however that the parents are unable to afford this.
Ms L noted that when she spoke to the mother, she had denied all allegations levelled against her which could be an indication of her not taking accountability for past events and the trauma the children were exposed to whilst living with her, and the likelihood of further harm if she is in denial due to lack of insight.
She is of the view that both children need therapeutic support counselling with respect to conflict in trauma they have experienced. She said that if the Court finds that the recent allegation of sexual abuse is false, this demonstrates that the conflict between the parents has escalated to a point where the mother has had to make that allegation without prioritising the children's needs and that there is a risk of further emotional harm given what they have already experienced.
Ms L acknowledged that the observation of the mother with the children was extremely positive with the children comfortable and relaxed and the mother engaged with them. She made the indication however that positive interaction is not a reflection of what day-to-day life might be or would be if unsupervised. She did not think that the children’s views were influenced by others but were a true reflection of their views based on their presentation. Both Y and X were emotional and tearful not solely when reflecting on their trauma, but also with their memory of how things happened which was consistent with the reports made by and to DFFH and the police. I accept her evidence.
THE MOTHER RELOCATES TO CITY K
The mother says she decided to move to City K before mid-2021. During cross-examination she was pressed about on whether she had moved before the end of 2021, or in January or February 2022. The mother said she could not recall the dates exactly without looking at documents but thought it was around mid-January 2022. The timing is significant given the correspondence passing between the parties’ lawyers at the time. In cross examination the mother said that she did not have any responsibility to the father to tell him about the move. She claimed that she had discussed the move with the children, but then clarified and said she had been talking to them about moving to Queensland prior to them being removed from her care.
The mother insists that she offered for the pets to be returned to the father and that the father did not want to take them. She referred to telling DFFH and saying she did not want to pay $3,000 to move the pets. I do not accept the mother’s evidence on this point. It is not consistent with the fact that she did not tell the father that she was moving which is of significance. This is highlighted particularly in the correspondence exchanged between the parties’ lawyers between 20 January 2022 and 21 February 2022.
On 20 January 2022, the father's lawyers wrote to the mother's lawyers setting out the recent history and the DFFH involvement and proposed a set of parenting orders being made in by this Court. On 21 January 2022, they received an email reply from the mother’s lawyer confirming receipt of their correspondence and that they would provide a reply in due course. On 8 February 2022, the father's lawyers enclosed the father's initiating court documents by way of service. The mother's lawyers replied to that letter via email first on 8 February 2022 confirming receipt, and then in detail via a letter on 21 February 2022. Significantly, that letter claims that the mother had been denied due process with respect to the Intervention Order and the Children's Court proceedings, and that they believed there had been a serious breach of the mother's human rights and significant overreach by DFFH. The letter goes on to complain about the limitations with respect to the mother’s supervised time with DFFH requiring visits take place at their offices. Concerningly, they also claim that the father did not receive notifications from Victoria Police and that the CATT assessment did not find that the mother suffered from a psychosis in early 2021, and that these false matters formed the basis of the Children's Court orders. These are both serious allegations. The mother has not provided any evidence supporting this. It is not an accurate reflection on what happened.
The mother transported the pets to Queensland in early 2022 and annexed her invoice to her first affidavit. Although not in evidence, the mother agreed with this proposition when cross-examined. The mother then claimed not to have seen the previous letter and then blamed her lawyers for making various mistakes in it. Initially, the mother tried to justify the proposal with respect to week about arrangements even though she was moving to City K and initially suggested that she would come down every second week. The mother said she would not have gone through with the settlement of the property which she says was due to settle in early 2022. This does not make sense chronologically as she had arranged for the pets to be transported to City K before settlement.
When asked by the father’s Counsel, the mother says that she had moved to City K around early 2022. She confirmed that she did not inform the father of her move, but that she offered to return the pets to the father. When the mother was asked about this inconsistency, she said that she had advised DFFH and offered the pets to be returned which the father refused. Correspondence between the parties’ lawyers in January and February 2022 indicated that the father sought to initiate proceedings in this Court which was tendered as Exhibit 3. The mother was asked by the father’s Counsel about the timing of her move to City K knowing that the father was about to initiate proceedings. The mother accepted that she was aware of the father seeking to instigate proceedings but that she had decided to move as she had already sold her house as she had planned the move for a long time.
Counsel for the ICL revisited the issue of the timing of the mother’s move where she said that in early 2022, she went to City K to look at houses which is why she does not refer to relocating to City K in the letter from her lawyers dated 21 February 2022 (forming part of Exhibit 3). At this point I pointed out that earlier she had said that she had moved to City K, which the mother denied as she said she was staying there and looking at accommodation.
In the letter dated 21 February 2022, the mother complains that she has not spent any time with the children for the past three weeks from the date of the letter, despite earlier giving oral evidence that she would fly down from City K to see them. She said that her lawyers responded to the father’s lawyers compliant that the mother had not seen the children for the past three weeks, and then claimed that she did not know why her lawyer wrote that as she had not seen the children face to face for nine months. This was occurring during a period of extensive lockdowns in Melbourne due to Covid-19. I raised the concern that she was changing her evidence depending on who was asking her the question.
Some of the information in the letter from the mother’s then lawyers is demonstrably wrong. It is at odds with the subpoenaed material and other material before the Court and it is of real concern as it is indicative of the mother continuing to deflect from the issues of risk. She also clearly seeks to blame the father for the children being removed from her care which completely ignores the history of this matter including most significantly the involuntary hospital admission. It is of further significance that there is no mention at all of the mother moving to City K. It is troubling that it appears the mother’s former lawyers wrote misleading letters and gave incomplete instructions to Dr E.
The mother disagreed with the proposition posed by the father's Counsel that the father has been a good parent and that he has been able to meet the children’s needs. The mother further said that he has not met their psychological needs since he took the children away from her and referred to Dr T attempting to call him. The father was not cross-examined about this. The mother annexes to her trial affidavit a half page letter from Dr T from 2021 where he refers to counselling the mother and children for several 55-minute sessions. I do not know why he saw both the mother and the children and in what context. The mother said that the children would see him once a month or more and that he would see them on their own and sometimes all three of them would go together. The mother says that the children were comfortable talking to him. The mother complains about the father not arranging psychological support for the children. Significantly, she said the father took the children away from her. This is not a fair characterisation of what occurred.
When it was put to the mother that she was aware the father issuing proceedings in this Court when she moved to City K, she said that it had been her plan to move for a long time. She accepted the proposition that she could have stayed in Melbourne and rented a property but said she had planned her life moving forward and that she had sold her house and purchased another house so she did not have a choice. She then said that she has had to pay significant legal fees and that she could afford a house in City K but no longer in Melbourne. I do not know when the mother sold her house in Suburb M and purchased the house in City K. The mother was very deflective when asked about the proceeds of sale she received from the sale of the Suburb M property. It is strange timing for the mother to make such a big move whilst court proceedings were on foot. The mother has shown her commitment to spending time with the children regularly travelling from City K to Melbourne and paying for supervision. The mother rejected the suggestion that her move to City K was a poor parenting decision given that she created distance, complexity, and financial restraint with respect to spending time with the children. From the children’s perspective the mother’s move to City K would be an indication that the mother was not prioritising them. The mother acknowledged that the children were upset that she moved to City K and wanted her to return.
In Oberlin and Infeld, the issue the Full Court had to determine was whether or not there would be an unacceptable risk of harm to the children if the mother had time unless it was supervised by her parents because of her unstable psychological health. Similarly, to the case before me, the diagnosis of one or multiple conditions of the mother were in dispute. However, as the Full Court acknowledged, diagnosis of a condition does not equate to a lack of parenting capacity. The focus is not on a diagnosis but on behaviour and how that affects parenting capacity and whether or not a person has insight and seeks appropriate assistance.
The appeal centred on the orders that prevented the mother from bringing fresh proceedings within two years and various conditions attached to her spending time. The Full Court discussed s64B(2)(g) at paragraphs 39 to 41:
Section 64B of the Act was subsequently amended to include sub-section (4A) in these terms:
(4A) Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:
(a) resolving any dispute about the terms or operation of the order; or
(b) reaching agreement about changes to be made to the order.
The evident intention of s 64B(2)(g) of the Act is to enable orders to be made defining the steps which must be taken before fresh proceedings may be commenced under Part VII of the Act, which such steps are ordinarily directed to the parties’ initial resort to some form of alternate dispute resolution before the immediate commencement of adversarial litigation. But, even if the provision contemplates much more comprehensive conditions being imposed, then before any more expansive orders could be considered as being “appropriately framed” they must still be prescriptive and enforceable, not aspirational and productive of further controversy.
It is presently unnecessary to express concluded views on the breadth and complexity of orders which may be made in the form of parenting orders under s 64B(2)(g) of the Act because Order 20 is certainly not an order within the contemplation of that provision. Aside from the order impermissibly restraining any fresh proceedings for some two years, the conditions it then imposes as steps to be taken before any variation application is made are ill-defined and misconceived.
The Full Court discussed and identified the following problems with the orders the trial judge had made:
(1)The requirement for the mother’s psychiatrist to address the risk issues in an affidavit was problematic because it was uncertain. How comprehensive did his assessment have to be? If the assessment was definitive then that was an improper delegation of judicial power.
(2)An order for the mother to engage in therapy was made without power as it was a stand-alone order, not tied to a parenting order.
The Full Court recently considered the difficulties with these types of orders in Lainhart & Ellinson [2023] FedCFamC1A 931. This appeal also focused on orders which governed conditions under which the father could spend time with the children. Once those conditions were fulfilled the father would spend unsupervised time with the children that would gradually increase. In order to be able to spend more expansive time with the children, the father had to meet conditions which included the father engaging in a course of cognitive therapy The Full Court said at paragraphs 13 and 14:
The conditions which qualify the child spending more expansive unsupervised time with the father are central to the appeal and were expressed in these terms:
4. [The child] spend time with her Father as follows:
...
(b) Upon the Father engaging in a course of cognitive behavioural therapy with a qualified clinical psychologist and that Father’s therapist providing to the Mother a report confirming in the therapist’s view that:
(i) The father has understood and accepted that during and after their relationship he had significant anger management problems that led to him perpetrating physical and psychological family violence upon the Mother; and (ii) The father has gained understanding of the need to manage his anger so as to eliminate any unacceptable risk to [the child] of outbursts of anger by the father while she is in his care for any period of time
then for a period of 3 months ...
Despite best intentions, Order 4(b) creates more problems than it solves.
The Full Court observed that no finding had been made about the nature of the father’s psychological condition nor was there any expert evidence that supported cognitive therapy as being an effective treatment for the father. The father had previously engaged in it unsuccessfully. The orders did not state how long he would need to engage in this therapy and how success of the therapy would be measured. The psychologist was not identified and the orders required the psychologist to provide a report to the mother which meant the father had to waive his right to confidentially and would create a conflict of duties for the psychologist owing a therapeutic duty to the father and a forensic duty of impartiality to the mother and the Court in the event of further proceedings.
Austin J gave the reasons with McClelland DCJ and Aldridge J agreeing with him. Austin J identified the problems in further detail at paragraphs 22 to 25:
Fourthly, the psychologist’s report must confirm the father’s achievement of these milestones:
(a) his understanding of his past “significant anger management problems”;
(b) his understanding that such condition led him to perpetrate “physical and psychological family violence” upon the mother;
(c) his acceptance of both of the above propositions; and
(d) his current understanding of the need to “manage his anger so as to eliminate any unacceptable risk” to the child of her being exposed to any of his outbursts of anger while she is spending time with him.
As already noted, the orders do not specify how the achievement of any of those objectives will be measured or established. Should the psychologist rely upon the father’s assurances of his acquired understanding, acceptance and contrition, or should the psychologist exercise his own professional judgment? If the former, why should the father’s assurances be accepted as truthful and accurate when the primary judge had already rejected his sworn assurances that he had no need of any further treatment? If the latter, how would such a subjective opinion be formed and by what means could the validity of the opinion be verified if challenged?
The orders presume that the psychologist’s opinion will be dispositive of the issue and, hence, govern the expansion of the time the child spends with the father and the dispensation of their professional supervision. But why should a psychologist, chosen by the father, be vested with power to determine when it is safe for the child to spend more unsupervised time with the father? Will not more litigation ensue if the mother doubts the reliability of the psychologist’s opinion and refuses to act upon it – in which event the orders will have encouraged, rather than deterred, further proceedings? In that event, the orders would have caused exactly the mischief the primary judge said they were designed to avoid.
All of these questions, which are incapable of being satisfactorily answered, are the manifestation of legal error.
There was no question that the Court had the power to make conditional orders, the issue was that the orders impermissibly conferred judicial power to a third party to determine future parenting arrangements. Further the Court observed “the orders are aspirational and unenforceable, not prescriptive and enforceable” The Court has to determine the issues in dispute on the basis of the state of evidence before them, taking litigants as they find them. Justice Austin said at paragraph 31:
In this instance, the primary judge did not confine his role to simply deciding the case on its merits by reference to the evidence which the parties elected to adduce. His Honour tried, but failed, to formulate orders which would remedy the deficiencies in the evidence about the child’s future safety in the father’s care and dictate via the use of an intermediary how the child would be prospectively protected from the risk of harm, undoubtedly hoping that would prove beneficial for the child and the parties. However, orders of this type have been identified and criticised by the Full Court in the past (Re David [1997] FamCA 48; (1997) FLC 92-776 at 84,575–84,576; Rader & Rader & Ors (No 2) [2019] FamCAFC 227 at [53]).
Austin J said that as the trial judge found that on the evidence the father posed a risk to the child that could only be ameliorated by professional supervision, then the Trial Judge should have simply ordered supervised time. He acknowledged that several authorities have generally discouraged indefinite supervision orders, but emphasised each case must be determined on its own facts.
The proposed orders make the mother’s supervised time be conditional upon her continuing to see Ms C and attending her general practitioner to obtain a referral to a psychiatrist to review and address the mother’s mental health. I appreciate that Counsel have tried hard to come up with orders that provide for the mother’s time to progress without making interim orders and having the proceedings remain on foot and that also provide guidance to the mother as to the issues she needs to address.
I have given serious consideration to the orders proposed by the ICL. I commend the efforts of the ICL and her Counsel to craft orders aimed at addressing the risk issues and progressing the mother’s time. Unfortunately, I have reached the conclusion that the orders proposed do not solve the problem.
Making orders that progresses the mother’s time is a vexed issue. Unfortunately, neither party has offered any friends or family who are suitable to supervise the mother’s time. That would provide more flexibility for spend time arrangements and would be more natural for the children.
With respect to the conditions attached to the proposed order 6 which continues the mother’s professionally supervised time, if the mother failed to comply with continuing therapy with Ms C and did not attend her GP for a referral to a psychiatrist by early 2024, then her time would cease. This would not be in the children’s best interests as despite the difficulties that have arisen during supervised visits from time to time, the children enjoy and value those visits. The children are on the cusp of adolescence where they are likely to want to talk about issues relating to puberty that they may want to talk about with their mother rather than with the father or his partner. I do not suggest that the father and his partner could not deal with those issues properly, it is simply a matter of logic.
Proposed order 8 provides for the mother’s time to progress initially with handovers being supervised and then the mother having unsupervised time with the children for the same periods that have been supervised. The orders do not provide for any further progression of time. Proposed order 9 is properly expressed as being pursuant to s64B(2)(g). It requires the mother to undergo a risk assessment with Dr AA or someone nominated by him to address risk concerns and whether the children or either of them are likely to be at risk of exposure to neglect or abuse in the mother’s care. The order is silent as to what is to be done with the risk assessment. Technically the risk assessment could make a similar conclusion to Dr B and the mother would still be entitled to press for unsupervised time as she has completed the assessment. If that occurred, no doubt there would be further proceedings. The proposed orders also require the mother to undergo a psychiatric assessment. The proposed orders for hair follicle testing which I have discussed above do not suffer from the same issues but given my conclusion that I am unable to make an order for the mother’s time other than for it to be supervised there is no utility in making that order.
The mother acknowledged during one exchange I had with her that the Court’s concern is about whether or not the children are at an unacceptable risk if they spend unsupervised time with their mother and that such an assessment does not depend on the mother being found to have some sort of mental health disorder or some other disorder. The concern about risk is not based on a label or diagnosis, but the mother’s behaviour and the impact of that on the children.
The ICL’s Counsel further submitted that there is no evidence that the children are at risk in the father’s care. He has acted protectively. In the absence of a diagnosis, the mother does pose an unacceptable risk to the children which can be ameliorated by her time being supervised. The mother needs to engage with a treating psychiatrist as recommended by Dr B, also noting Dr S’s and Dr E’s comments about medication and the need for therapy.
The ICL’s Counsel further submitted that whilst there were difficulties and limitations in Ms C’s evidence, she was in a difficult position and was not aware of the background. The mother had a good report with Ms C and she could provide the mother with valuable support provided she is given access to the family report, the report by Dr B, the reports by DFFH and a copy of these reasons.
I will not make the proposed orders that “all communication must be child-focussed, respectful and polite” as this descends into micromanaging and would be difficult to enforce.
I will also make orders that enable both parties to provide the documents of the various reports outlined in the ICL’s minute. If the mother chooses to engage in therapy with Ms C or someone else, she should provide these documents if the mother wants to address the issues which have been identified in these reasons. If she chooses to obtain a further psychiatrist and or psychological risk assessment, she should also provide these documents.
It strikes me that the parents and children would benefit from engaging with a family therapist experienced in family law to work with the children and the trauma they have experienced and also with the parents, particularly with respect to the mother’s relationship with the children. This is not something that I will order. To be effective the parties need to be motivated to engage in it and have confidence in the person they choose.
CONCLUSION
Before turning to the issues of risk, I will address parental responsibility and overseas travel.
Parental responsibility
I am satisfied on the evidence that equal shared parental responsibility is not workable in this case and would be contrary to the children’s best interests. There is little trust between the parents and little communication. The mother appeared to be quite naive in her optimism that they will be able to consult each other and make long term decisions for the children’s benefit.
I do not accept the mother’s Counsel’s submissions that given the pet issue has been resolved, much of the conflict has gone out of the proceedings. I still have this same concern even if the mother returns to Melbourne. The recent abuse allegation makes communication between the parents even more challenging.
The minute proposed by the father and the ICL requires the father to notify the mother of any decision he makes within seven days. I think there should be a further obligation on the father to advise the mother of decisions he intends to make and give the mother an opportunity to express her view and have the father consider it.
It is not only a matter of the parties’ inability to communicate that would make equal shared parental responsibility unworkable. The mother complains that the father has not attended to the children’s needs by having them attend upon a counsellor. I do not think there is any prospect of the parties agreeing on this as the mother would want them to return to the counsellor she previously saw with the children or someone else who conformed to the mother’s narrative. Understandably the father would be reluctant to engage with someone the mother chooses because of this. It is likely that if the parents have to consult about decisions such as this it is likely such decisions would be delayed which would not be in the children’s best interests.
There is also the issue of the mother’s preoccupation with the children’s health would also likely lead to delays and disputes about the children’s health such that necessary treatment may be delayed and that they might be subjected to other unnecessary treatment. In this regard I refer to the injunction sought by the father and ICL which largely repeats the interim injunction made on 22 November 2022.
Domestic and international travel
Understandably, given the other issues in dispute, little attention was paid to the issue of travel during the trial. The father seeks to be able to obtain a passport without the mother's signature and also seeks to be able to travel overseas with the children. He has travelled overseas with the children previously, having taken the children to Country V. If the mother’s time is able to progress to block periods of unsupervised time, then it is highly likely that the mother will also wish to travel with children overseas given her parents live in Country W and it is of benefit for the children to have exposure to their Country W heritage.
I will make the order with respect to the passports, but the mother should be given the opportunity to sign the passport applications first. I will order that the mother sign and return any passport application for X and Y to the father within seven days. If the mother fails to return the application, then the father may apply for passports for the children without the mother's consent.
I will also make the father’s proposed orders with respect to overseas travel provided he complies with the notice provision in order 14.
Unacceptable Risk
I am satisfied on the current evidence that the children will be at an unacceptable risk of harm if the mother has unsupervised time. In this regard I refer in summary to the following matters I addressed above including:
(1)The mother has exposed the children to dangerous people and has been involved in drugs. X told DFFH about there being strangers in the house who made her uncomfortable and the children made other disclosures to DFFH that are indicative of neglect. I am unable to accept the mother’s contention that she only used drugs on one occasion in 2019. The mother’s evidence is unreliable and inconsistent. She refers to there being more than one positive drug screen but has variously claimed this was because the test was taken too close to the first one. This is unlikely. At this period, it would have been tests DFFH were administering. DFFH are well versed in such matters. The mother also claimed that she tested positive because of being in the room with friends who were taking drugs. She provides no objective evidence about this. Again, this is highly unlikely. The mother refers to having recently completed a clear hair follicle test in late 2023 but this is not in evidence. There is a hair follicle test from mid-2023. There was reference to her employer administering drug tests. Again, there is no evidence of this.
(2)Both children were traumatised by the mother experiencing poor mental health resulting in her experiencing frightening delusions that people were breaking into the house and also feeling unsafe around some of the people the mother had in the house.
(3)On several occasions during supervised visits the mother has had inappropriate conversations with the children. It appears that this was more prevalent in the earlier visitations when she was being supervised by DFFH. It still happens enough that it causes the children distress. It also shows a lack of emotional attunement to the children and lack of insight.
(4)The mother’s conduct around the children’s pets also shows this lack of attunement and an inability or unwillingness to put the children’s needs ahead of her own. The children repeatedly expressed their distress about missing their pets. Despite this and despite the mother acknowledging the importance of their pets in assisting the children’s anxiety, it was only at the trial that the mother agreed to return them. Despite knowing how distressed the children were and were fearful that their pets were dead. It would have been much better for the children if the mother had contacted the father to tell him she was bringing the pets and bringing them to her next visit.
(5)The children have strongly expressed their views. They love their mother and want to spend time with her but they do not feel safe with her. They also do not feel prioritised by her. Examples of this include her sudden move to City K and her vague comments about their pets. The children also feel the mother does not listen to them as her focus on their health makes them feel like she is saying there is something wrong with them.
(6)Most concerning of all is the recent sexual abuse allegation that the mother made without providing any foundation. Her evidence is extremely unsatisfactory. If it really was the case that the mother was not concerned about sexual abuse but really about poor hygiene in the father’s care as was raised in 2018, she would have raised this with the father and asked him to take Y to the doctor. Her explanation that she is a mandatory reporter does not excuse this, and I do not accept her explanation for delaying the report. It is much more likely that she made up the allegation to place negative attention on the father in the lead up to trial. As a result of her actions, the children were again traumatised and distressed by the police attending their home. X particularly has strongly expressed her anger and sense of betrayal. The mother has much work to do to gain the children’s trust.
I am satisfied that due to the mother’s behaviour and lack of insight, the mother having unsupervised time at present would place the children at an unacceptable risk of harm. The children have experienced a lot of trauma and changes in the past few years. Twice they were removed from the mother’s case due to risk concerns that the mother failed to address. They have experienced stability living with the father since April 2021. They are clear in their views. They want to see their mother, they love and value their relationship with her but they do not feel safe with her and their trust in the mother has been negatively impacted by the mother’s actions including moving to City K, keeping their pets for over two years despite knowing the children were distressed by this and the recent false sexual abuse allegation.
The mother has for a long time been on notice about the risk concerns and her parenting capacity as well as her drug use. Rather than addressing these, the mother has denied and dismissed them. It is telling how selective the mother has been in the history she has given various professionals in order to support her case. It shows the mother’s lack of insight and inability to accept how the children have been affected by her behaviour. There is no evidence to support any suggestion that the father has made false claims against her and does not support the mother’s relationship with the children. It is within her power to address these issues and commence further proceedings in the event she and the father cannot reach agreement.
There are no concerns about the children’s welfare in the father’s care. The children want to remain living with their father.
I will make the injunction as set out in the ICL’s minute which restrains the mother from attending the father’s home, the children’s school, and discussing health issues with the children. I am satisfied on the evidence that the injunctions are necessary to ensure that the children can attend school without attention being drawn to them that may embarrass them. It is clear that the children find the mother’s preoccupation with their health disturbing and upsetting.
I will make orders for the mother to have supervised time in accordance with the proposed orders by the ICL at order 6 which provides for the mother to have time once a month for three hours on a Saturday and up to six hours on the Sunday. Once a month is more sustainable long term than fortnightly given the costs of supervision and travel whilst the mother remains in City K.
There may be further proceedings if the mother is able to address the risk concerns and the parties are unable to reach agreement.
This will be a disappointing decision for the mother. Both parents clearly love their children and have a valuable relationship with them. Both parents have made mistakes as every parent, as every human does. The last few years have been difficult for the whole family with court proceedings on foot initially in the Children’s Court and now here. Court proceedings inevitably place stress and pressure on parties. If the mother had any doubts as to what she needs to address in order to progress her time, now it should be clear to her. The mother’s continuing denial of the children’s lived experiences is that they may feel unsure in their relationships with the mother and may feel unsafe. If she wants to address the risks, it will be important that any practitioner she sees is fully informed, rather than being given a selective history. To aid in this I will make orders enabling the parties to provide the documents set out at order 6.
I certify that the preceding two hundred and eighteen (218) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 14 February 2024
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