CAO & CAO

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAO & CAO

[2018] FCCA 1816

Catchwords:
FAMILY LAW – Interim Parenting – risk of harm assessment.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 61C, 61DA

Cases cited:

Keats & Keats [2016] FamCAFC 156

Applicant:

MR CAO

Respondent:

MS CAO

File Number:

PAC 3226 of 2016

Judgment of:

Judge Obradovic

Hearing date:

5 June 2018

Date of Last Submission:

5 June 2018

Delivered at:

Parramatta

Delivered on:

14 June 2018

REPRESENTATION

Counsel for the Applicant:

Ms Coulton

Solicitors for the Applicant:

Vizzone Ruggero Twigg Lawyers

Counsel for the Respondent:

Mr Adams

Solicitors for the Respondent:	Merit Lawyers
Counsel for the Independent Children's Lawyer:	Ms Soliman
Solicitors for the Independent Children's Lawyer:	Legal Aid New South Wales

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The father is to return the children [X] born 2010 and [Y] born 2015 to the mother’s care at the conclusion of school today.
Time in accordance with the orders made on 12 August 2016 is to recommence as follows:
(a)As to the time on the alternate Tuesdays from 19 June 2018; and
(b)As to the time on the alternate weekends from Friday 22 June 2018.
Pursuant to section 68B of the Family Law Act 1975 the mother is restrained by injunction from:
(a)Bringing the children into any contact with Mr C;
(b)Consuming any alcohol 12 hours prior to the children coming into her care and during any periods of time the children are in her care; and
(c)Physically disciplining the children.
Pursuant to section 68B of the Family Law Act 1975 both parents are restrained by injunction from taking the children or either of them for any therapy or counselling or similar treatment unless by order of the Court.
Pursuant to section 68B of the Family Law Act 1975 the father is restrained by injunction from permitting, allowing or encouraging the paternal grandmother from having any contact with the child [X] during the days on which the child attends school or is otherwise living with the mother pursuant to these orders.

THE COURT FURTHER ORDERS THAT:

Dismiss the Application in a Case filed 9 May 2018.
Vacate the listing of the matter at 9am on 30 July 2018 and 9.30am on 20 August 2018.
List the matter for directions at 11.30am on 20 August 2018.

IT IS NOTED that publication of this judgment under the pseudonym Cao & Cao is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3226 of 2016

MR CAO

Applicant

And

MS CAO

Respondent

REASONS FOR JUDGMENT

On 5 June 2018 the Court heard the father’s urgent interim application, in essence, for a discharge of interim orders made by Hannam J in August 2016. The matter itself has a long history, and it is almost at the tail end of the proceedings with the preparation of the expert’s report well underway and a final hearing in the foreseeable future. The parties have been in high conflict since separation. Clearly, their two young children: [X] who was born on 2010, and [Y] who was born on 2014, are the meat in the sandwich.
[X], who is not yet eight years old, suffers from what appears to be severe anxiety. She has been taken by her parents to at least two different psychologists or counsellors to assist her with her anxiety. Unfortunately for [X], in the sense of her security about the things which she discloses to any counsellor she sees, and those matters remaining confidential and not finding their way back to the people that she speaks about – these matters which she has told the counsellors and psychologists about have found themselves in various affidavits before the Court. That is not unfortunate for [X] in the sense that the Court ought to be aware of what she is saying, but it is unfortunate for [X] in the sense that she might in the future have little confidence in psychologists’ or counsellors’ ability to assist her and for her discussions with such people to remain confidential.
In any event, by an Application in a Case filed on 15 May 2018, and in reliance on his affidavit filed on the same day, the father seeks a discharge of previous interim orders. The Independent Children’s Lawyer, in essence, supports that application for what the Court understands are slightly different reasons than those which were submitted by the father in support of the orders that he seeks.
What the Court is faced with are applications by the father and the Independent Children’s Lawyer for the children to live with the father and spend supervised time with the mother pending further order. In the background, and prior to the father filing his Application in a Case on 15 May 2018, on 9 May 2018 the mother filed a recovery application. That application is returnable on 20 August 2018 and is, in essence, made redundant by the reasons and the judgment which is hereby delivered.
The application filed by the mother on 9 May 2018 was not an application which was pressed on 5 June 2018. It is unclear why the mother’s recovery application was not filed on an urgent basis, nor why the orders did not seek for the listing of that recovery application at short notice. The father in his affidavit which was filed in support of the Application in a Case outlines the reasons why he retained [X] on 2 May 2018 contrary to the current orders, and why he retained Mr Cao on 4 May, also contrary to the current interim orders.
The Court has done the best that it can during the short period of time since the matter was heard on 5 June 2018 to today to outline the relevant chronology of events, and particularly the matters which have concerned the Court in coming to its determination today. The current interim orders are those which were made by Hannam J when the matter was before the Family Court of Australia prior to its transfer to this Court, those orders having been made on 12 August 2016 after a contested interim hearing where various – what one might call ugly allegations, were raised by the parents towards each other, including allegations of sexual abuse.
On 12 August 2016 Hannam J ordered that the children live with the mother - these were interim orders - and that the children spend time with the father each alternate weekend from Friday 6.30pm until Sunday 6.30pm, and also each alternate Tuesday from after school or day care until 6.30 pm. The orders provided for the children to spend time with the father during the school holidays, relevantly for 2018 during the second half of the school holidays. “Relevantly” because of the way it fits in with the chronology of what has occurred in the last few months.
On Wednesday, 2 May 2018 the father attended [X]’s school. He took [X] out of school on that day, and she has remained in his care contrary to the orders which Hannam J made in August 2016. On Friday, 4 May 2018 the mother handed [Y] over to the father in accordance with the orders, that is, for him and [X] to spend the alternate weekend with the father. Notwithstanding those orders made in August 2016, the father has retained both children and has not returned them to the mother in accordance with the orders. The most recent events are important in the chronology.
The school holidays, that is, the school holidays at the conclusion of term 1 2018, occurred during the last two weeks of April. In accordance with the orders, the children spent time with the father during the second week of those school holidays. They were returned to their mother on Monday, 30 April 2018 in accordance with those orders, presumably because that Monday was a pupil-free day. [X] was due to return to school on Tuesday, 1 May 2018. Her mother took her to school on that morning, but [X] refused to stay at school. Consequently, after the mother spoke to the school counsellor and [X]’s teacher, [X] did not attend school on 1 May 2018.
In her affidavit - particularly paragraphs 48 to 50, the mother sets out the relevant events as to what she says occurred on 1 May 2018. Importantly, though, in paragraph 47 of her affidavit the mother says that on Monday, 30 April 2018 when the children were returned to her care in accordance with the orders [X] broke down that evening, and was extremely anxious and said to her words to the effect, “I don’t want to go to school tomorrow. Mr Cao and nanna are going to take me away. They do not listen. They are going to take me away”. The mother says that she tried to calm [X] down as much as she could by hugging her.
The following day, the mother deposes in her affidavit, she attended a meeting which she had organised for the safety and protection of the children with the school principal and the school counsellor. The purpose of the meeting, according to the mother, was to assist [X]’s anxiety of not wanting to go to school and to also prevent the father’s mother, who is a teacher at the school, from taking [X] out of the classroom and making her speak to Mr Cao - that is, the father, on the phone.
The mother says that the acting principal, Ms S, and the school counsellor, Ms H, attended the meeting. During the meeting [X] was in the mother’s car with a friend of the mother. After the meeting the mother went to her car to try to get [X] to attend school. However, the mother says that [X] refused to go and was jumping over into the back seat where the bags were. According to the mother, the school counsellor saw how anxious [X] was, and she said to [X]:
If you feel safe with mummy, you go home with her. And I will meet you at kiss and ride tomorrow at 8.40 am.
The mother annexes to her affidavit a copy of the note written by the school counsellor for [X] to attend school at 8.40am on 2 May 2018, which was the following day and the Wednesday of that week. [X], according to the mother, agreed and she went home with the mother on that day.
According to the father, on 2 May 2018 he attended school because [X] had a cross-country carnival that day, in order to watch [X] participate in the cross country. The father’s evidence is set out as to what occurred on this day at paragraphs 15 through to 20 of his affidavit filed on 15 May 2018. The father says that when he arrived at school at around 11.30am he could not find [X]. A teacher then told him words to the effect:
[X] is not racing today. She’s up near the (omitted).
The father says:
I walked toward the (omitted) and saw [X], as she was the only child in her school uniform, instead of her sports uniform. When I got closer I noticed that [X] was crying uncontrollably and was extremely distressed.
I then sat down next to [X] and gave her a hug. [X] then said to me, words to the effect: “Mummy hit me again when she was drinking”. [X] also disclosed that “mummy crushes up tablets and puts them in [Y] and my drinks. I can’t do it anymore. mum is always hitting me”.
The father then goes on to depose that during the conversation with [X] the school principal came over to see how [X] was. She then took [X] for a walk for around 10 to 15 minutes. When the school principal returned, according to the father, she said to him:
Mr Cao, do you mind coming into a classroom with me so we can discuss some things confidentially -
Ms S (who is said to be the school principal but who, according to the mother, is the acting principal) and the father, according to the father, then had the following conversation:
Principal: Mr Cao, [X] has just made some pretty serious allegations about what happened last night.
Father: [X] told me that Ms C hit her last night.
Principal: What do you want to do about this?
Father: It needs to be reported.
Principal: I am a mandatory reporter when it comes to allegations like this, so I will be making a report but what did you want to do right now? Do you want to take [X] to the Police now?
Father: Yes, I will.
The father then attended Suburb A Police Station. While [X] was in the car with the father, the father says that she disclosed to him more of what happed the night before. According to the father, [X] told him words to the effect:
Mummy and Mr C were on the balcony drinking and they started arguing. When they came inside I grabbed [Y]’s hand and we hid in our fortress under the bed. I could hear them both swearing at each other and Mr C said he was leaving and the door slammed. I went out to see Mummy, but she looked crazy and screamed at me to get back in my room but then she pushed me to the ground, and grabbed me on my leg and arm and dragged me across the floor into my room. I crawled back under the bed but Mum grabbed me and pinched me and pulled me up from under the bed and hit me on my thigh and scratched my stomach! Mum then left and slammed the door and [Y] and I stayed in the bedroom all night and cuddled together and we were crying and wanting Daddy.
According to the father, whilst [X] was telling him what had happened, she was sobbing. When the father arrived at Suburb A Police Station, Constable A saw [X] and the father, and [X] reported what she had told the father in the car. According to the father, Constable A saw [X]’s bruises and injuries, and took a written statement before arranging for two female officers to take photographs and a video of [X]’s injuries.
After this, the father gave a typed statement to another officer whilst his mother was with [X] in another room, as she had arrived with food for [X] and the father after finishing school on that day.
Therefore, it appears that the father remained with [X] at the police station for some hours. The father also says that he understood that [X] gave a statement to the police officer. However, he was not present when such interview took place.
Shortly after the interview concluded, the father says that the mother arrived at the station, and that he could hear her yelling in the foyer of the station. According to the father, the mother was told to leave and that there was an investigation underway in relation to “last night’s events” that concerned the mother. After about 20 minutes, according to the father, an officer came into the room where [X] and the father were and advised: – apparently in front of [X] - “We cannot press charges for assault at this stage as the mother has not been interviewed yet, and she has advised she needed to get legal advice”.
The father was further advised by the officer that they would transfer the matter to the Area Command where the assault occurred, but that they will apply for a provisional Apprehended Domestic Violence Order to protect [X] and [Y]. The officer said:
This is the best we can do until the investigation is over, and Ms Cao is charged with assault.
The officer then told the father what the provisional ADVO entailed, and confirmed that the mother would be served with it later that evening.
According to the father, the police officer remained concerned that [Y] was in the mother’s care. The father says that he did not know where [Y] was during this time. He instructed his solicitor to email the mother’s solicitor requesting that [Y] be returned to him. However, he was advised that there was no reply to that email.
That email forms part of Annexure “D” to the father’s affidavit. Indeed, Annexure “D” to the father’s affidavit is not only just that email, but a number of emails between the father’s and the mother’s solicitors, also involving the Independent Children’s Lawyer. Some of that correspondence is quite unfortunate and inappropriately worded as between the lawyers.
The father then took [X] home. He called for a home doctor to attend. The home doctor provided a report, which is annexed to the father’s affidavit. The report notes as the presenting complaint:
Upper abdominal pain with associated nausea today.
Denies nausea currently.
No diarrhoea.
Bowels opened today.
No fevers
No analgesic given,
No sick contacts.
Currently living with her dad.
Police involved with domestic violence case against mother.
Examination:
looks well,
mild bruise marks over the legs and arm.
Chest clear.
HSDNM. no bruise marks on the chest, abdomen, back.
Abdomen soft, tenderness over the upper abdomen, no guarding bs audible.
Diagnosis? Viral illness.
Treatment: paracetamol and PRN.
If complaining of nausea or abdominal pain, tomorrow to be taken to her local GP,
Review ED if abdominal pain gets severe or vomiting persistingly.
Importantly, on examination, the home doctor noted:
No bruise marks on the chest, abdomen, back.
Importantly, what the presenting complaint was, was:
Upper abdominal pain with associated nausea today.
The police records, or part of the police records, form part of the evidence. The provisional Apprehended Domestic Violence Order is an annexure to the mother’s affidavit filed on 1 June 2018.
According to such records, the father and the child attended Suburb A Police Station at about 1.35 pm. I shall read what the police record says because it is important as it appears to be a complaint largely by the father. It states as follows:
The defendant is Ms C, and the PINOP 1 is child, [X], aged 7, and PINOP 2 is [Y], aged 4. About 1.35 pm on Wednesday, 2 May 2018 the father of the PINOP 1 attended Suburb A Police Station and provided the below version of events.
At some time in the night on Tuesday, 1 May 2018 the defendant had dragged her 7 year old child, [X], from under her bed and assaulted the PINOP. PINOP 2 was also under the bed hiding, as the DEF and her boyfriend were having a physical altercation. Due to the age of the PINOP she was not specific as to how the assault occurred and whether or not it was under the grounds of lawful chastisement. However, as a result of this incident the PINOP, [X], has received a number of injuries including bruises to both arms, both legs and scratch to her stomach. Police are of the opinion the use of force on the PINOP is borderline excessive. There is also a fear from the PINOP, on a regular basis, where she and her brother hide under the bed to avoid being hit by the DEF.
About 11.45 on Wednesday, 2 May 2018 the father, Mr Cao, was at school with the PINOP during a cross-country carnival. At this time, the father has noticed that the PINOP was not participating in the event and started crying. As a result, the father has recorded a video on his mobile phone of the PINOP crying, and saying, “I can’t take it anymore. I feel like I want to vomit. Can you take me to the doctor”? Also mentioned in this video, the PINOP says, “ I saw mummy smash/crush tablets and put in my drink - red pills, and makes me drink it”. The PINOP also says, “Mummy hit me last night”. Police cannot confirm what these pills are and if they have any effect on the PINOPs health. Police did obtain information from the DEF that the PINOP has anxiety.
The PINOP made allegation to the school principal that her mother, the DEF, hit her and the school principal advised the father to report the incident to police.
About 1.35pm on Wednesday, 2 May 2018 the father attended with the PINOP to Suburb A Police Station. At this time, police spoke to both the father and the PINOP, the PINOP told the police, “Mummy hit me last night”. The father then told police the existence of bruises on the PINOP.
A short time later police have taken photos of injuries along with a video recording of the PINOP, with the consent of the father. At this time, the police have observed numerous injuries consisting of bruises to both arms and both legs of the PINOP, also a scratch to the stomach.
About 3.00pm on Wednesday, 2 May 2018 police attended Day Care located at Suburb A to check on the welfare of PINOP 2. At this time, the police did not observe visible injuries on PINOP 2.
About 3.50pm on Wednesday, 2 May 2018 the police spoke to FACS on the phone, spoke to Mr P and lodged a report. Mr P stated that the report will be assessed but declined referring the matter to JIRT.
About 5.00 pm on Wednesday, 2 May 2018 the police have obtained a video recording interview with the PINOP and in the presence or support of the person being her grandmother

This is something that the father did not disclose in his affidavit. In his affidavit he was specific about not being present while the interview took place, but he did not mention that the grandmother was present.
Going back to the police record:
At this time the police have asked questions to the PINOP, where she understood the difference between a truth and lie. During the interview, the PINOP disclosed that she was dragged out from under the bed and hit. There is also a disclosure of alcohol being involved at the time of the incident. Police were unable to obtain a specific version of events from the PINOP as to how she got assaulted. However, police could clearly observe numerous injuries on the PINOP and how she was fearful of the DEF.
The PINOP stated that the DEF pushed her to the ground and dragged her along the floor, however wasn’t able to be specific, but stated that is how she obtained the bruise to her right-shin area. She stated the DEF crushed up a tablet and put it in PINOP 2’s bottle to make him sleep. The PINOP stated that her and PINOP 2 regularly hide under the bed when the DEF and the DEF boyfriend fight and drink alcohol. PINOP 1 wasn’t able to be specific with police, but clearly stated the DEF regularly hits her and her brother, PINOP 2.
About 6.00 pm on Wednesday, 2 May 2018 the police contacted the DEF on her mobile. Police introduced themselves as Law Enforcement (Powers and Responsibilities) Act 2002 safeguards. Police offered the DEF the opportunity to be interviewed in relation to the allegation of assault. The DEF stated “I need to get legal advice”. Police have obtained photos of injuries, statement from the PR. However, videos recorded by the PR have not all been uploaded as he is currently organising a USB to provide to police.
Once again, importantly, in the father’s evidence he does not mention at all that he recorded the child making any disclosures to him on 2 May.
The police record then goes on to say:
Numerous injuries consisting of bruising to both arms and both legs of the PINOP, also a scratch to the stomach.
Alcohol taken by the DEF at the time of incident.
The PINOP is fearful of being assaulted by the DEF, and she mentioned that she would hide under the bed for that reason.
Police have fears for further assault due to the claims made by PINOP 1, and police fear for the safety of PINOP 2 as he is currently still in the custody of the DEF.
Brought into this mix of what now appears to be conflicting or at least in some respects inconsistent versions between the child and the father, and certainly versions given by the child to the police after - and only after - according to the father, she disclosed things to him - specifically to him - but not in the presence of any other person on the day of 2 May when he attended the school - comes the correspondence between the solicitors. And when the Court says “correspondence between the solicitors”, importantly, an email sent by the father’s solicitor on 2 May 2018 to the mother’s solicitor.
That email was sent at 11.51am, shortly after [X] had apparently disclosed to her father that she had been seriously assaulted by her mother the night before and involved in what, according to [X]’s version of events to her father, was drunken behaviour between the mother and her boyfriend. It is an email, as I have said, that was sent at 11.51 am on 2 May. It says as follows – and I shall only read parts of it:
We refer to the above matter and your correspondence of 1 May 2018 in respect of Ms C.
Ms C is, of course, the counsellor - to whose evidence the Court shall be referring a little bit later - to whom the father has been taking [X] for the purposes of counselling, but more so for the purposes, it seems, of having reports prepared for these proceedings. That, however, is not a finding that is made. In that letter from VRT Lawyers, being the father’s solicitor, the father’s solicitor says as follows – which the Court shall come back to later on:
We are instructed that [X] enjoys speaking to Ms C, and at no time does Ms C go on our client’s instructions. Ms C is a professional, and understands that there is a code of conduct, and that she listens and speaks to [X] directly.
Given that these appointments have been extremely beneficial to [X], under no circumstances will our client be terminating [X]’s attendance upon Ms C.
In respect of the serious nature of the allegations that the father makes about the mother, and also given the way that these children have been retained by the father it is of particular interest to the Court that the father must have provided certain instructions to his solicitors on 2 May to write to the mother’s solicitors, because of the following – this appears on page 2 of that correspondence of 2 May, being page 68 of the mother’s affidavit filed on 1 June. The father’s solicitors say as follows:
In respect of [X]’s needs, we confirm that we wrote to you on 1 May in respect of [X]’s absence from school. We are yet to receive the courtesy of a response. Our client, therefore, has absolutely no knowledge why his daughter, who was happy and healthy the afternoon that she returned to your client, was absent from school the following day.
And this is the bit that the Court wants to highlight -
We are further instructed that today the children of [X]’s school are participating in a cross-country event however [X] has been held in the school office. Why is it the case that your client is not allowing [X] to participate in class prior to the carnival? We require your immediate instructions.
This was sent at 11.51am, some 20 or so minutes after the father had apparently been told by [X] that she had been seriously assaulted. No mention of the assault is made in the solicitor’s letter. Indeed, what the solicitor seems to be concerned about, on the father’s instructions, is that [X] is not participating in the school cross-country carnival, and that somehow it is the mother who is to blame for [X]’s non-participation in the school carnival. Those instructions could only have come from the father.
The Court wonders whether there had been some reporting by the father’s mother to him about what was happening with [X] on 1 May and, indeed, on 2 May, noting that the father’s mother is a teacher at the school which [X] attends. There is absolutely no mention of the alleged assault on [X] in that letter. The Home Doctor Service noted mild bruising marks over the legs and arm. No bruising was noted on the child’s abdomen. No marks were noted on the child’s abdomen. That report, as already indicated, is annexed to the father’s affidavit.
There is no evidence before the Court of what [X] apparently said to the principal or the acting principal on 2 May 2018. When I say “there is no evidence”, I mean there is no direct evidence from the principal about these matters. What is before the Court in Exhibit “1” is a document whose origin is not clear, that is, it is not clear whether this is a document produced by the school, or by the Department of Family and Community Services, but what it purports to be is a note of a phone call from Ms S who is the principal at Suburb B Primary School. At tab 7 is the report of the phone call from the principal. And at tab 6 of Exhibit “1” is what is said to be a handwritten note by [X] written on 2 May 2018 at 12.20. The notation on the note is:
…after telling me at 12 o’clock.
It appears that this is a note provided either to the father or through subpoena documents of a note which [X] wrote to the principal. And it appears to be consistent with what [X] had disclosed to the father during various points of the day on 2 May 2018.
However, there are some general inconsistencies. The note of the phone call from the principal notes as follows – that is, tab 7 of Exhibit 1:
[X] was upset today at the school carnival, and reported that she sees her mother smash pills, and put them in her food and in [Y]’s bottle. She also said that her mother puts medicine in syringes and puts it in her food. Ms S asked [X] to write this down – please see attached. [X] stated her mother hit her last night, and she has bruises on her shins. Ms S was unable to see any other bruises, however [X] was dressed.
That is, the principal appears not to have noticed any other bruises -
[X]’s father has arrived to watch her at the carnival, and [X] became upset with him. Ms S reported that he has taken her for some time away from the carnival. Ms S advised that she was not at school yesterday.
That is, that [X] was not at school yesterday -
Ms Cao, the child’s mother, had a meeting with Ms S and the school counsellor yesterday about [X] missing school, and they created a plan.
Which accords with the mother’s evidence –
According to Ms S, Ms Cao was happy with the plan.
According to this note, [X] is stating to the school principal that she wanted to reside with her father. There is then a further notation that:
There was no involvement of Ms Cao’s partner with the school. And that in term 1, [X] has had 10 days absent and five partial days: eight of these were justified, and two were unjustified.
That is the extent of the evidence of what [X] apparently said to the principal.
Importantly in the chronology of events, if such things were said to the principal, according to the father, they were said to the principal after he had a conversation with [X] which occurred when it was only the two of them, without any other person present, where, according to the father, [X] had said to him:
Mummy hit me again when she was drinking. Mummy crushes up tablets and put them in [Y] and my drinks. I can’t do this anymore. Mummy is always hitting me.
That is the extent of the disclosure to the father.
As the Court has already indicated, the correspondence between the parties’ solicitors is something which is of significant concern to the Court, particularly the email of 2 May 2018 from the father’s solicitor. What is a further concern, is a letter dated 4 May from the father’s solicitor which forms part of Annexure “D” to the father’s affidavit. On the second page of that letter dated 4 May the following assertion is made:
[X] was not present at school yesterday, on 3 May, given the injuries to her -
According to the father, [X] was examined by the home doctor on 2 May, which I have already referred to – the Annexure “C” to the father’s affidavit. That noted:
Abdominal pain with associated nausea.
It also noted:
Police involved with domestic violence case against mother.
There was no diagnosis that the child was suffering from injuries as a result of the alleged assault by the mother. There is no suggestion in that confidential clinical report that the child should stay home from school due to the alleged injuries as a result of the alleged assault. The father’s evidence is that he then took [X] to Medical Centre the following day, on 3 May, where, apparently, detailed notes were taken of [X]’s injuries. And it was suggested that [X] be kept at home with the father the next day. It does not appear that the clinical notes or the notes from the Medical Centre form part of the evidence before the Court.
What is before the Court is a report of Dr M dated 1 June 2018, at tab 1 of Exhibit “1”, which says that Dr M has been seeing [X] since 1 December 2017. On that occasion, she was brought into the surgery because she was teary when going to school, had recurring abdominal pain, weight loss, poor appetite, and was allegedly becoming anxious when at school. Her father also mentioned bruising on her legs, the cause of which was unknown. After physical examination and a midstream urine test, which was normal, Dr M diagnosed a functional abdominal pain, and referred [X] to Ms C, a psychologist at a nearby facility. Therefore, as of 1 December 2017 the father was raising bruising on [X] legs. Dr M says that she next saw [X] on 5 May 2018, again, accompanied by her father.
If Dr M is the doctor at Medical Centre it may be that the father’s evidence is mistaken as to when he took [X] to Medical Centre, because according to the father there was a doctor that [X] saw on 3 May 2018 at Medical Centre, as already mentioned. The clinical notes or the notes of any examination on 3 May do not appear to be before the Court by way of evidence. What Dr M says is that:
On 5 May [X] was accompanied by her father after an incident at school on 2 May when [X] was allegedly found at school crying, and saying that she could not do this anymore.
She was, on that occasion, noted to have moderate bruising on both her legs. Dr M next saw [X] on 8 May when the father requested more time away from school because of persisting anxiety – not because of injuries, but because of the persisting anxiety; which appears that [X] has been suffering from for a lengthy period of time, according to both parties’ evidence. On 8 May [X] was noted to be sitting very close to her father and seemed very clingy.
A medical certificate was provided because, not only did Dr M appear concerned, but also because according to Dr M, Ms C appeared concerned. Therefore a medical certificate was provided for 5 to 8 May, but it was dated 8 May.
Dr M next saw [X] on 18 May when it was recounted that she had mild gastroenteritis, as had her brother, and that she needed to be away from school for 14 to 16 May. She remained anxious and clingy to dad during this time.
Dr M again saw [X] on 22 May when it was noted that:
She had gained 2.5 kilos while staying with her dad. She was less anxious, and experiencing less abdominal pain and eating much better.
Dr M contacted Ms C who felt, as Dr M did, that:
[X] was frightened that her mother would take her out of school if she returned.
On what basis Dr M formed that opinion is unknown. Certainly, it can only be on the basis of what either the father or [X] had reported to Dr M, more likely the father in the presence of [X], or [X] in the presence of the father.
Again, the child was seen on 25 May by Dr M. She, according to Dr M, appeared less anxious and was experiencing less abdominal pain.
Dr M, who is not, or does not appear to have any expert qualifications in assessing mental health, formed the opinion that it was in [X]’s mental-health interest that she remain away from school until there was a better understanding of who would be collecting her from school and when. Why that might be Dr M’s understanding is difficult to understand, from the Court’s perspective, given that there were current orders in place for [X] to be living with her mother. So why Dr M thought that there might be some uncertainty, is unclear when the orders clearly provide for the child to live with the mother, and to spend alternate weekends and alternate Tuesday afternoons with the father.
At tab 2 of Exhibit “1” is what appears to be a medical certificate from Dr M to the school principal at Suburb B School dated 1 June which says that Dr M has been reviewing [X], and that she felt that she needed further time off school because of anxiety and recurring abdominal pain. According to Dr M:
She has been unwell since 5 May until 1 June 2018.
According to Dr M, she felt:
…some definitude re custody. And who was picking her up needs to be ascertained before she can return to school without too much anxiety.
Once again, why there was any uncertainty is unclear to the Court given that there were orders in place. It could only be because the father refused to comply with the orders, despite the mother writing through her solicitor that she was expecting for [X] to be returned to her care in accordance with the orders.
Also forming part of Exhibit “1”, at tab 3 is a report of Ms C dated 4 June 2018. That report has to be read together with the affidavit of Ms C which was filed in the father’s case on 22 March 2018. Notwithstanding the fact that the report was addressed to the Court. The Court has never made a request for such a report. The letter of instruction pursuant to which that report was prepared has never been provided to the Court.
The report (at tab 3 of Exhibit “1”) is clearly a document that was prepared at the father’s request for the purposes of these proceedings. The report dated 4 June says that it is a letter that has been written to certify that Ms C has seen [X] for 10 therapy sessions since 2 December 2017, the most recent of which was on 2 June 2018. The report doesn’t, however, set out the specific dates on when each of those sessions were. But when read together with the affidavit of 22 March 2018 there is some clarity as to when at least some of those sessions occurred. Importantly for the purposes of the present application, the following is noted by Ms C:
From what I had gathered from Mr Cao regarding his concerns for his children, firstly, from the analysis of [X]’s school attendance in term 4 2017, and the dates in which she had resided with her father it was found that there were 18 whole absences, seven partial absences, and one x two partial absences within a day, with two partial absences occurring while [X] was residing with her father, and the remainder of the whole partial absences occurring while she was residing with her mother.
It seems to the Court that what the father was trying to paint was a picture that [X] had a significant number of absences from school whilst she was in her mother’s care, contrasted with the small amount of absences that [X] had while she was in the father’s care. What seems to have been missed is that, according to the orders, [X] was, indeed, spending most of her school days with the mother. And it was the mother’s responsibility to ensure, according to those orders, that [X] attends school and is picked up from school on most days, except for the alternate Tuesday and Friday and therefore if she was absent from school it would likely be on a day she was with the mother.
Next, Ms C notes that:
Mr Cao saw bruises on [X]’s legs and hips.
The Court is unsure where the bruising on the hips comes from because it is not reported in the father’s material, at least not in the affidavit which is in support of the urgent application which the father now seeks, at least not in the pages which are read in support of that application:
Ms C goes on to say in her report:
[X] was initially reluctant to disclose any information regarding its cause, or would abruptly stop while disclosing the ordeal she had experienced. However, [Y] has told Mr Cao that the bruises were inflicted by Ms Cao.
[Y] is a four year old child. This Court was not taken to any evidence during the submissions of [Y] disclosing to the father that the bruising which was noted on [X]’s legs on 2 May was said by [Y] to have been caused or inflicted by the mother.
Next, according to Ms C, the father has said that:
Mr C, Ms Cao’s current partner, with whom Ms Cao had an affair while being married to Mr Cao which led to the dissolution of the marriage, is a chain-smoker who has raped and physically assaulted Ms Cao in February 2017.
Where that comes from is a complete mystery to the Court, because the allegation contained in the police material which forms part of exhibit 1 is that Mr C assaulted the mother in February 2017 by choking her. There is no allegation that the mother was raped in February 2017 by Mr C.
The father then says, according to Ms C, that:
Ms Cao filed an AVO against him to protect herself and her children. However, Mr C often stays with her.
The father then, according to Ms C, reported that:
[X] has witnessed nudity and sexual acts between Mr C and Ms Cao on multiple occasions and had reported this to the father.
These allegations were not the subject of any submissions in relation to the current application.
There are then other matters apparently reported by the father including that [X] told the father that she saw her mother crushing tablets, and putting them in her drinks and [Y]’s drinks. There is some reporting about how much [X] weighed in September 2017, as opposed to how much she weighed in April 2018. Why the father is weighing [X] is also an unknown.

There are then lengthy, what one might call disclosures by the father of the complaints the mother has apparently made against the father in relation to the children. These are certainly historical and the Court is at a loss as to understand why these matters were reported to Ms C by the father in circumstances where the apparent reason why Ms C is seeing [X] is to assist her with her anxiety, particularly about her non‑attendance at school.
The document at tab 3 of Exhibit “1” contains almost two pages of material which is said to have come from the father reporting matters to Ms C. Contrast this with the assertion in the father’s solicitor’s letter of 2 May 2018, which was referred to earlier, which says that, “At no time does Ms C go on our client’s instructions.” It is clear that Ms C has spoken at length to the father and taken into consideration matters which the father has reported to her. When I say that she has taken those matters into consideration, she has taken them into consideration in the sense that they are referred to in her report.
What she has thereafter done with those matters is not something which the Court is aware of because nowhere in the report is there a forensic analysis or a detail of how it is that Ms C came to the opinions that she did. The Court does not glean from the report based on which particular facts or the acceptance of which particular facts or assertions did Ms C come to her opinion (as one might expect in an expert’s report or a purported expert’s report). Otherwise, the relevance of Ms C’s opinion is unknown.
The disclosures which [X] has apparently made to Ms C appear on the last page, that is, the fourth page of that report, which starts at the bottom of the page before. The report says:
Based on what I have gathered from [X]’s disclosures, which occurred from March onwards, regarding [X]’s exposure to the drug fuelled rage and volatility between her mother and her mother’s partner (please see mood charts exercise), regarding [X]’s experience of abuse in her mother’s household, both directly and vicariously (please see attachment titled “exercise kid’s stuff story starters”), regarding an incident of physical abuse in early May 2018 (please see attachment titled “attachment to mandatory report which I had submitted to FACS), [X] is apprehensive of returning to school as aforementioned, but expresses that it is all right if mum doesn’t take me.
She recalled her time in kindergarten when her mother had arrived at the school and upon seeing her to try to run to the school office and then to her paternal grandmother’s classroom, however, Ms Cao and Mr C had chased after her and caught her. She was withheld from school for two weeks and did not see her father for three months to her dismay. She is fearful of this occurring again. [X] revealed that her mother would take her or [Y] to the beach or go shopping the day after she has hurt them, which she speculates is her mother’s way of appeasing them.
It is difficult to understand how a seven year old child could come to the conclusion that her mother tries to appease her in some way, particularly noting the language in the report which seems to be attributed to the child making reports.
One then turns to the attachment to the mandatory report which forms part of tab 3. The attachment to the mandatory report is dated 15 May 2018, some 14 days after the apparent alleged incident on 1 May 2018. According to this attachment to the mandatory report, on 23 April, [X] had disclosed to Ms C that her mother and Mr C had engaged in another physical altercation that involved punching and choking, mostly committed by Mr C to Ms Cao. She had frequently witnessed this as they reportedly drink every night heavily for half the week and would engage in physical and verbal altercations at least on a weekly basis. This seems to be a consistent theme reported to Ms C, as noted in Ms C’s affidavit of 22 March.
On multiple occasions, Mr Cao, [X]’s father, has expressed his concern about [X]’s unexplained absences while she is under the care of her mother. Once again, the Court notes that Ms C seems to be taking into consideration matters reported to her by the father, contrary to what is asserted in the father’s solicitor’s letter of 2 May 2018.
In any event, on 7 May, six days after the reported incident, five days after she was retained by the father, the father gives Ms C an update as to what had happened. The following is noted:
Mr Cao had given me an update that he had attended School on Wednesday, 2 May to watch [X] participate in the cross country. However, she was in her school uniform and had refused to race, citing stomach pains and a desire to vomit. She began to cry uncontrollably and had then disclosed that her mother had engaged in another drunken brawl with her boyfriend to which [X] responded by taking [Y], her younger brother, who she shares the same parents, aged four, to hide under the bed.
From what I had gathered over the past appointments, this protective mechanism is habitual as [X] and [Y] are regularly exposed to domestic violence as well as sexual acts between Ms Cao and Mr C.
What follows thereafter seems to be, on the Court’s reading of the document, what the father is reporting to Ms C, not what [X] is reporting to Ms C, because the reports refer to “according to Mr Cao”, “the principal expressed to Mr Cao that the allegations are serious”, “Mr Cao remains doubtful”, etcetera.
The attachment then notes on the following page:
As of 2 May, both [X] and [Y] have been residing with Mr Cao and are reportedly doing better.
This is not factually correct because Mr Cao did not come into the father’s care until the Friday of that week.
The attachment notes:
When I spoke to [X], she stated “I’m afraid to go back to mum’s because she might hurt me again which she always does to me and [Y]. On Tuesday, mum and Mr C had a fight. [Y] and I hid under the bed. Mum called Mr C a ‘fucking’. I went out to check on mum. Mum told me to get back in, hit me on the legs, held me by the arms and legs. I ran under the bed. She pulled me out by my legs twice. [X] tried to pull mum away. I told [Y] to get back under the bed. I feel sad when I think, why our mum would do that to us. Sometimes, she does that on purpose, like when she drinks four to six bottles in one go on Thursday, Friday, Saturday and Sunday and Tuesday. Mum didn’t drink when she was with dad, but she started drinking when Mr C came around. She found him online and it said he likes to drink. Mum smokes. It’s where you put the tablets inside which still makes you go crazy. She smokes every day with Mr C but sometimes alone. She can smoke anywhere, even in front of [Y] who has asthma.”
It certainly does not appear from the notes when those statements alleged to have been made by [X] were made to Ms C. The Court does not know whether it was on 7 May, a date prior to that, a date after that, or some other time. Certainly, it seems to be a mish mash of matters reported by the father and by [X] during various sessions with Ms C. Importantly, Ms C has never spoken to the mother. The mother has not participated in any of the sessions between Ms C and [X].
The affidavit of 22 March 2018 notes that sessions occurred on 2 December, 16 December, 6 January 2018, 10 February 2018, 10 March 2018. There were various exercises conducted by Ms C which formed part of the annexures to her affidavit of 22 March. For example, at page 16 are some handwritten notes together with what appear to be some toys and a scene set out by [X] and it says “a typical day with mum”. Happiness is rated at seven out of 10, but “[X] wants more time with [A]”. Eight out of 10, “more time with [A]”. “All four can scare mum with crabs at the beach.” Mr C, a rating of five out of 10, “smoking around baby brother, sometimes has asthma, tries to be funny but not”.
There was then apparently a question put to [X] whether there was anything that she liked about Mr C to which she responded “nothing”. A miracle picture, “a day with mum 16.12.2017” at page 17 of that affidavit where [X] is asked the question, “What would be happening here if a miracle happened?” And [X] replied, “More time with [A].”
Page 19 is “a typical day with dad” which was apparently done on 6 January 2018 where according to Ms C, happiness is rated as 10 out of 10. A miracle picture, page 18, happiness is rated as 10 out of 10. “Grandfather staying at home, all together at the park with [X], dad, [Y] and Nan collecting sticks to give to the stranger’s dogs.”
Certainly it appears from those documents that [X] reports feeling slightly happier or happier at dad’s house than she does at mum’s house but she certainly seems to be missing [A] and wants to spend more time with [A], her half‑sister, who lives in the mother’s household, who she now has not seen for about a month.
Lastly forming part of Exhibit “1” is an affidavit sworn by Mr R, who is a clinical psychologist, who prepared an affidavit in the mother’s case which seems not to have been filed but which annexes to it, a report of sessions between [X] and that psychologist.
The Court shall just briefly refer to certain parts of that. The report is dated 20 November 2017. It says as follows:
As you are aware, I first saw [X] last year. She has seen both alone and with her mother. On one occasion, I saw her with both parents. The purpose of this consultation was to try and work out some access arrangements for the children. At that time [X] was quiet and uncommunicative. I had her do some drawings and play with some doll’s houses, etcetera. What came out was that she felt very conflicted about what was happening with her parents. She felt in the middle and she did not know what to do.
Between the referral dated 7 November and 20 November [X] had been seen by Mr R three times. She reported symptoms of stomach pain, diarrhoea, and feelings that her heart is racing. She was unable to eat as per normal and when she did eat, she reported that she felt like vomiting. Mr R observed that [X] is much more clingy with her mother and will often not leave the mother’s side. The following is then noted:
I spoke with [X] and she told me when she goes for access with her father, Mr T, he talks to her constantly. This is always on her own, i.e. when her grandfather is not present. During these talks, her father reportedly told her that people are watching her mother and that he knew everything the mother did. He reportedly told her that her mother was smoking out of a Gatorade bottle and showed her this on You Tube, of course, implying her mother was smoking pot.
He told her that his policeman friend had been given her mother’s address and that this friend would spy on her mother. She, that is [X], has since been frightened and told her mother that they were being stalked. [X] said her father told her that her mother was going to die. These are among many things which had been reportedly said to [X].
Over the sessions that Mr R had seen [X], he has observed that she has become more and more anxious and has not gone to school. [X] reportedly said that this was because her grandmother, the paternal grandmother, works at the school and [X] was worried that her grandmother is watching her and that she does not feel free. She is also worried about another staff member, who she has been told, reports to her grandmother. Based upon the conversations had with [X], [X] is very worried and just wants her father to stop talking to her.
The mother, in her affidavit, filed on 1 June 2018, gives consistent evidence about what [X] says is the father talking to her, and also about changes in [X]’s behaviour, particularly after spending time with the father during the last school holidays that occurred in late April 2018.
The mother also, frankly, in her affidavit, discloses that she has had difficulties in dealing with [Y]’s behaviour and that he has particularly been aggressive towards her and hurtful in what he says. For example, the mother says that [Y] has said to her words to the effect:
You are the worst. You are the worst mother. I hate you. I hate you so much. I don’t care about you. I just want my dad. I want to live with dad. You blow smoke on us. You’re a drug dealer. Nobody told me this. Nobody is my dad. I hate you.
These things were said to the mother in March 2018.
There are other matters in the affidavits which the Court simply does not, in the context of these reasons for judgment have time to refer to. What is clear from both parties’ evidence is that [X] is not doing very well. She is clearly suffering from anxiety, which is exhibiting itself in physical symptoms, stomach pains, nausea, so much so that the child cannot eat properly. She is also missing out on a lot of school. For example, in term 1 of 2018, she had 10 absences. In term 4 in 2017, she appears to have had 30 absences. So much is evident from tab 7 and tab 3 of Exhibit “1”.
In relation to [Y], that is, the four year old child of the parties, despite [X] being retained by the father on 2 May 2018, [Y] stayed with the mother until she handed him over to the father in accordance with the orders on the Friday of that week, being 5 May 2018. Annexed to the mother’s affidavit is an incident report dated 2 May 2018 from [Y]’s childcare centre. That says that at approximately 2.48 pm, two police officers arrived in a police car and that they asked whether [Y] was there and that they then said to the childcare worker that there had been allegations against the mother. The allegations are that the children are covered from head to toe in bruises.
The childcare worker then had a conversation with the police officer who indicated that the father said that both the girl and [Y] are covered in bruises. The childcare worker apparently said to the police officer that they had not seen any evidence of bruising or marks on [Y] and that “he has been happy today”. “He hasn’t complained of anything.” [Y] was then examined by the childcare worker, and he was asked whether he was sore or feeling itchy and he replied that he was not and that he did not.
The police officer spoke to [Y]. [Y] said that he was okay and that he was feeling okay. When asked whether he had sisters, [Y] replied that he has two, [X] and [A]. He was able to answer how old they were and when the police left, he waved bye to them.
Certainly, according to that report, [Y] does not appear to have been distressed that day at all or that he was showing any signs of bruising or physical abuse as reportedly said to the police by the father, although in the father’s material, he does not make any such allegation.
The Independent Children's Lawyer also asked the Court to take into consideration the child‑responsive memorandum, dated October 2016. Parts of that memorandum were specifically referred to, in particular, paragraph 47 which noted that the parents’ ability to protect the children from the parental conflict and to effectively co‑parent the children appears inconsistent, that is, the Family Consultant raised in that memorandum her concerns about the parents’ capacity to shield the children from their conflict and to protect them from their conflict. It is something that has been a part of these children’s lives for years unfortunately.
The Court has concerns, given what is contained in the report of Mr R about the father speaking to [X] consistently and constantly, about the father speaking to [X] prior to any report being made on 2 May, and also about the various reports made via the father to Ms C.
The Court is also significantly concerned about the serious nature of the actual allegation, that is, that the mother has physically abused [X] by hitting her and pulling her from under the bed on 1 May 2018.
The mother, in her affidavit which was filed in response to the father’s application, denies all of the allegations of physical abuse and indeed says that on 1 May 2018, when the children were in her care, that there was a very pleasant evening and that Mr C was present during the evening and that there was simply a dinner but no incident occurred.
The mother denies that she dragged [X] from under the bed or that she assaulted her. She denies causing any injuries to [X]. She only remembers cuddling [X] and doing her regular massage with the coconut oil to assist with her anxiety. She denies hitting the children. She denies that [X] and [Y] were hiding under the bed on the day of 1 May 2018. The mother then says that: “[X] and [Y] do not hide under the bed and the only occasion I remember them playing under the bed was when we first moved to Suburb E last year.”
The mother denies that she crushes or smashes red pills and puts them into [X]’s drink and forces her to drink it. She would never do such a thing, she says. She denies pushing [X] to the ground or dragging her along the floor. She denies smashing tablets and putting them in [Y]’s bottle. She says that she has never given [Y] any sleeping pills. She does not take any prescription medication or use non‑prescription drugs.
She denies that she has had any fights or altercations with Mr C in the past year. There was one altercation in February in 2017 which she says was the subject of an ADVO, however, the ADVO has since been revoked in March this year and there have been no further incidents. The mother says that she does not drink copious amounts of alcohol but that she does have an occasional glass of wine. She denies taking any illicit drugs.
It is Mr C, the mother’s previous partner with whom the mother remains in a relationship, the nature of which seems to be at least perhaps partly romantic but certainly that of a friend who seems to be a problematic figure, as does the drinking which the mother is alleged to be engaged with and the physical discipline which is alleged by the father in the mother’s household. The mother has indicated to the Court that she would agree to a restraint from the children coming into contact with Mr C.
The Court has had regard to the incident in February 2017 which forms part of Exhibit “1” and the allegation that in front of [A] in February 2017, Mr C tried to choke the mother and that there was a physical altercation between the mother and Mr C on that night. At the time, according to the police documents, the mother and Mr C were no longer in a relationship but were residing together in the same household. Mr C was said to have gone out and bought some drinks, returned a little while later and there was a fight between the mother and Mr C. [A] is the person who contacted the police on that occasion after she saw Mr C positioned on the bed with his hands around the victim’s throat, that is, the mother’s throat, who was lying on the bed underneath him.
As indicated earlier, despite what is contained in Ms C’s report of 1 June 2018 about the mother apparently being raped in February 2017, the police material does not disclose any such allegation. Certainly, the mother’s evidence is at present that she lives alone with the children and that Mr C does not form part of the household. As the Court has already indicated, she consents to an injunction by not placing the children in a situation where Mr C is present.
The Independent Children's Lawyer made some passionate submissions in relation to the mother’s lack of capacity to protect the children from Mr C and also to protect herself from Mr C. The Court was taken to the mother’s affidavit, which does not seem to have been filed in the proceedings but certainly which was sworn, and parts of that affidavit were tendered, being the affidavit dated 21 March 2018 at paragraphs 72 and 73 where the mother deposed as follows:
Since the apprehended domestic violence incident in February last year, over a year ago, Mr C and I have remained in touch and have often gone on outings together with the children and had barbecues. During this extensive time period, there have been no breaches of the apprehended domestic violence order and Mr C and I remain friends.
On Thursday, 15 March 2018, I attended Court to have apprehended domestic violence order revoked and my application was successful. Accordingly, there is no longer an apprehended domestic violence order in place.

The Independent Children's Lawyer submitted to the Court, in essence, that because the mother, in the face of that Apprehended Domestic Violence Order, continued to have a relationship with Mr C in circumstances where it was her child, [A], who had reported the incident to the police and in circumstances where it was 13 or 14 year old [A] who observed Mr C apparently strangling the mother, that the mother was not acting protectively towards the children by remaining in whatever the nature of the relationship with Mr C is, and by placing the children in contact with a person who had assaulted the mother in [A]’s presence. Those are matters upon which the mother can be cross‑examined at a later stage. Certainly, the mother has indicated to the Court, as I have already indicated twice, that she will agree to an injunction.
At this stage, and without any testing of the evidence, the best that the Court can do is assess the risk to the children. The Independent Children's Lawyer, together with counsel for the father, strongly urge the Court to make an order for the children to live with the father and for there to be only supervised time with the mother. The actual nature of the risk, to the Court’s mind, has not been articulated by the Independent Children's Lawyer or the father, but it seems to be the risk of physical discipline or physical assault in the mother’s household, the risk that follows from the mother’s drunken behaviour or rather a risk flowing from the mother drinking and then engaging in certain behaviour, and also violence in the mother’s household as a result of her drinking and also as a result of her relationship with Mr C.
The Court has an obligation to ameliorate the risk in the best manner possible, but not to eliminate the risk. It is a risk assessment exercise. On the other side of the coin, there is a risk to the children in terms of their relationship with the mother being affected, in terms of their mental health both short term and long term, particularly [X]’s mental health, being affected as a result of the continued parental conflict, possibly and potentially her not spending any time with the mother for at least a month now, and also the effects of [Y] not spending any time with the mother for the last month, the children’s relationship with [A] and the impact of the children not having a relationship with [A] or that relationship being severely curtailed pending final hearing, are also matters which the Court has to consider.
The children have already spent over a month without any time with their mother. There has been no time provided for by the father during that period of time while the children have been retained. It appears that there is already alignment with the father, as is evidenced by the reported behaviour of [Y] in the mother’s affidavit. This, of course, is a matter which the Court cannot make any findings about at this point in time and the Court simply says that it appears that this may be so, given those matters reported by the mother. However, in circumstances where there is an expert’s report which will shortly be available, these matters are more than properly to be addressed in that report and no doubt will be addressed in that report.
There is already significant evidence that [X] is lost, suffering from severe anxiety and does not know what to do in terms of the parental conflict. It may be that the children are hiding in a fort that they have created in the mother’s household, or it may be that they are simply playing. Those matters cannot be the subject of any findings at this stage. It may be that the children do not like Mr C. It may be that the children are frightened of Mr C, or it may be that the children have been spoken to at length about Mr C and why he is not a good influence in the mother’s household. Those, of course, are matters of pure speculation which the Court does not engage in, in these reasons.
The Court’s task is to assess the best interest of these children on the limited evidence before it. Risk assessment is not an exact science. The central inquiry is for the Court to determine the outcome that will be the best for the children the subject of these proceedings. The Court is to have regard to the best interests of the children as a paramount consideration and section 60B of the Act outlines the objects and the principles underlying part VII of the Act. In determining what is in the child’s best interests, the Court must consider the matters set out in section 60CC of the Act. They include primary as well as additional considerations.
The Act itself does not mandate the discussion of those considerations in any particular order and it is well recognised that additional considerations may outweigh the primary consideration. In applying the primary consideration, the Court must give greater weight to the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, and to the benefit of the child having a meaningful relationship with both of the child’s parents. The focus is not on the relationship as such, but on the benefit that the relationship might have with the children.
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence. The Court may include in the order, any safeguards that it considers necessary for the safety of those affected by the order.
There is a presumption of equal shared parental responsibility provided for in section 61DA. That presumption is a rebuttable presumption. However, no submissions were made to this Court in relation to any order for parental responsibility at this stage of the proceedings, and as such, while the presumption may be rebutted, no order will be made, leaving the statutory position intact, that position being the position pursuant to section 61C of the Act.
The Full Court in Keats & Keats[1] has said, in respect of the conduct of interim proceedings, that the principles which emerge are that apart from relying on the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted upon or rejected.
[1] [2016] FamCAFC 156
As the Court understands it, that is a risk assessment of the risks identified in the mother’s household and the risks identified in the father’s household and how, if those risks come to fruition, how they might affect the children.
The protection of the children from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the children from harm as against the benefit of the children having a meaningful relationship with the parents. Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so, the Court must weigh up any risk of harm to the children, all the while considering what might be in the children’s best interests. It is the existence and the magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of that time, if any, the children are to spend with their parents.
The views of the children, of course, seem to be confused, that is, there are certainly reports that the children wish to live with their father, but there are also conflicting reports about the children being clingy, particularly [X] being clingy to her mother, and [Y] acting in a manner which shows that there might be the beginning of a fractured relationship between him and the mother. He is, of course, only four years old. Whatever views these children have, have to be considered in all of the circumstances of this case, particularly given the high conflict situation that they find themselves with and as such, I give little to no weight to the children’s views as expressed to various psychologists, counsellors and to their parents.
The nature of the children’s relationship, likewise, is a difficult matter for the Court to assess. There was some earlier evidence that the children have strong relationships with both of their parents, that evidence being available through the child‑responsive program memorandum dated October 2016. As already indicated, the children’s relationship with the mother appears to be troubled, particularly [Y]’s relationship. On one view of the evidence, it may be that there are certain pressures being placed on the children in the father’s household. On another view of the evidence, it may be that the children are calling out for help because of matters that are happening in the mother’s household.
The likely effect of any change is unknown at this stage because of the lack of expert evidence in the proceedings. Certainly, both of these parents, in the Court’s view, might lack certain insight and the capacity to provide for the children’s needs, and it certainly seems that they have forgotten in the high conflict situation that arises between them, that there are two little lives caught up in this high conflict situation, and that the children, particularly [X], are simply not coping. It may be that what is reported by Ms C, that [X] has settled since being in the father’s care is correct, and the reason that she has settled is because she has not been exposed to this conflict between the parents. It may be that the reason that she has settled is because she has not been exposed to any violence in the mother’s household. The Court is simply unable to make findings about those matters. These will all be matters for final hearing.
The Court is troubled by what appears to be the paternal grandmother’s involvement through the school and the reporting which might be occurring to the father as to how [X] might be behaving at school, particularly noting that correspondence of 2 May 2018 from the father’s solicitor, and also noting what [X] is reporting to her mother as at 30 April, the day that she is returned to her mother’s care after spending a week or at least half the school holidays with the father.
The allegations of violence have already been dealt with in some detail and the evidence has already been addressed, as already indicated in some detail over the last hour and a half, if not two hours, during the oral reasons given in this matter. However, as already indicated, it is a risk of harm assessment that the Court needs to undertake. It is a forensic analysis of the evidence that the Court needs to undertake and while there is some Full Court authority which suggests that the Court must act cautiously in circumstances such as this, that is, where there are serious risks raised and allegations of serious risk raised, the Court must act cautiously in all of the circumstances and try to do the best that it can in weighing up the conflicting evidence that is before the Court.
In essence, the Court needs to assess whether it is more likely than not that the children will be placed at an unacceptable risk of harm if what the father alleges has occurred or is likely to occur in the future. The risks which the Court has identified can be ameliorated in a number of ways and it is not only the risks which the father has identified in the mother’s household, it is also the other risks which the Court has identified, including the risks to the children’s relationship and mental wellbeing as a result of the conflict and potentially as a result of separation from their mother which, of course, is not the subject of any particular evidence at this point in time.
Those risks can be ameliorated in a number of ways by, for example, in order for the children to live with the mother, for there to be no contact with Mr C, and for certain other restraints to be put in place. They can be also ameliorated by an order for the children to live with the father and to have limited and supervised time with the mother. It is a tough decision that the Court needs to make in the circumstances.
In all of the circumstances, the Court does not find that there is an unacceptable risk of harm to the children in the mother’s household.
In the circumstances of this case, where both of the parties are under a very bright spotlight shone on them as a result of these proceedings, and in circumstances where the expert’s report will be ready within a relatively short period of time, where a final hearing is likely to occur also within a very short time, the Court expects both parents to be on their best behaviour and to put the children’s needs well and truly above their own.
The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the children having a meaningful relationship with both of the parents while ensuring their safety as much as possible.

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 14 June 2018

[2018] FCCA 1816

14 June 2018

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