Cleaver & Cleaver (No 2)
[2024] FedCFamC2F 1032
•15 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cleaver & Cleaver (No 2) [2024] FedCFamC2F 1032
File number(s): TVC 5 of 2024 Judgment of: JUDGE TURNBULL Date of judgment: 15 August 2024 Catchwords: FAMILY LAW – REVIEW – Parenting proceedings – Children ordered to live with Father – Where the Father retained the children in his care in October 2023 due to concern that the children unsafe in the Mother’s care – Youngest child with serious medical condition – Whether children should relocate closer to Brisbane to live with the Mother to be closer to medical services – Whether the child at risk of harm due to geographical location – Whether the Mother poses an unacceptable risk to the children. Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Bant & Clayton [2019] FamCAFC 198
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Bringinshaw v Briginshaw (1938) 60 CLR 336
Eaby & Speelman[2015] FamCAFC 104
Godfrey & Sanders [2007] FamCA 102
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1998) 166 CLR 69
Marvel & Marvel[2010] FamCA 240
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Murphy & Murphy [2007] FamCA 785
SS & AH[2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 100 Date of last submission/s: 5 April 2024 Date of hearing: 25 March 2024 and 5 April 2024 Place: Hobart via Ms Teams Counsel for the Applicant: Ms Minnery Solicitor for the Applicant: Lander & Rogers (Brisbane) Counsel for the Respondent: Ms Marshall Solicitor for the Respondent: Bennett & Philp Lawyers Counsel for the ICL Mr Wright Solicitor for the ICL Murray & Lyons Solicitors ORDERS
TVC 5 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CLEAVER
Applicant
AND: MR CLEAVER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
9 APRIL 2024
THE COURT ORDERS THAT:
1.The Review filed 8 March 2024 be allowed in part.
2.Orders 4 and 5 of the Orders of a Senior Judicial Registrar of 16 February 2024 be discharged.
3.The children Y d.o.b. 2014 and X d.o.b. 2013 (‘the children’) spend time with the Mother, provided she is living in City B, each alternate weekend, and to continue through the school holidays, as follows:
(a)On the first occasion from 9.00am until 4.00pm on both Saturday and Sunday.
(b)On the second occasion from after school Friday or 3:00pm until 4.00pm Sunday.
(c)On the third occasion and following thereafter from after school Thursday or 3:00pm to commencement of school Monday or 9:00am.
4.The Independent Children’s Lawyer has leave to inspect the Section 93A material provided to the Court and provide copies of same to the Family Report Writer.
5.All other Orders made 16 February 2024 remain in place with full force and effect.
6.The Review filed 8 March 2024 be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Introduction
These are the published version of res tempore Reasons for judgment delivered on 9 April 2024. The Reasons have been slightly amended for ease of reading.
This is an Application for Review (‘Review’) filed by Ms Cleaver (‘the Mother’) on 8 March 2024 seeking that Interim Orders made by a Senior Judicial Registrar on 16 February 2024 (the Orders) be varied.
The parenting proceedings relate to two children, Y born in 2014 (‘Y’) and X born in 2013 (‘X’) (‘the children’). X is currently attending C School and Y attends BB School.
Y has significant physical and cognitive disabilities. He has been diagnosed with a medical condition, global development delay (an intellectual disability) and other medical conditions (which is a recent diagnosis since early 2023). To treat his medical condition, Y has had multiple surgeries since he was a newborn, most recently in mid-2023.
The Mother specifically sought Orders 1 to 9 and 31 be reviewed[1] that, in essence, provided for the children to live with the Father in City B and spend time with the Mother, provided she move to City B, every Saturday at 9:00am to 1:00pm and Sunday 9:00am to 1:00pm each alternate weekend.[2] Time for the Mother was also ordered in the event she remained at her residence in Town D.[3]
[1] Applicant for Review of Ms Cleaver filed 8 March 2024.
[2] Orders of a Senior Judicial Registrar in Cleaver & Cleaver (Federal Circuit and Family Court of Australia Division 2, TVC5/2024, 16 February 2024).
[3] In the event the Mother remains living in Town D, the children are to spend time with the Mother when she visits City B — provided the Father is given seven days notice of the visit — on weekends from Saturday 9:00am to 1:00pm and Sunday at 9:00am to 1:00pm, provided the weekend time is no more than one weekend each fortnight or after school until 5:00pm, provided the school time is no more than two afternoons per week.
I note that Order 9 is the restraint that the children not be brought into contact with Ms E, the Mother’s former partner. The Mother appeared to abandon the review of that Order during the hearing. It would have been an order retained in any event given the disputed allegations raised during the hearing and evidence of a volatile relationship that exists between the Mother and Ms E, as allegedly witnessed by the children.
In the Review, the Mother sought the following orders:
1.The children, [X] born in 2013 and [Y] born in 2014 live with the Mother in [Town D].
2.The children spend time with the Father at all times as may be agreed in writing between the parents, and failing agreement, from 3.00pm or after school (as the case may be) Friday until 9.00am or before school (as the case may be) Monday, but no more than every second week and on the giving 14 days’ notice in writing to the Mother, with such time to take place in [Town D].
IN THE ALTERNATIVE:
3.The children live with the Mother in [City B].
4.The children spend time with the Father at all times as may be agreed upon in writing between the parents, and failing agreements, from 3.00pm or after school (as the case may be) Friday until 9.00am or before school (as the case may be) Monday every second week.
The Mother’s alternative application for the Father’s time changed to Thursday to Monday by the end of the hearing. I also note that by the end of submissions, the Mother asked that the Father’s time be supervised — due to his poor health.
The Father, Mr Cleaver (‘the Father’), responded to the Review on 18 March 2024 seeking that the Orders are maintained.[4]
[4] Affidavit of Ms F filed 18 March 2024.
The parties relied upon the documents set out in their case outlines and several tender bundles.[5] I have only had regard to those parts of the tender bundles specifically referred to during submissions. The hearing was lengthy, and I will not refer to all submissions made but I have considered all the matters and material put before me.
[5] Outline of Case of Ms Cleaver filed 22 March 2024 (‘Mother’s Case Outline’); Outline of Case of Mr Cleaver filed 22 March 2024 (‘Father’s Case Outline’); Outline of Case of the Independent Children’s Lawyer filed 22 March 2024.
Pursuant to Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘Rules’), an Application for Review is to be heard as an original hearing.
Background
The background to this matter was helpfully set out in an agreed statement of facts, extracted here:
1.The Mother and Father started living together in or about [late] 2011 / [early] 2012.
2. The Mother and Father married [in] 2016.
3. The Mother and Father separated in April 2018.
4. The Mother and Father divorced [in] 2021.
5.[X] was born [in] 2013 and is currently 10 years old.
6.[Y] was born [in] 2014 and is currently 9 years old.
7.[Y] has significant physical and cognitive disabilities. He has been diagnosed with global development delay (an intellectual disability), [numerous medical conditions] (which is a recent diagnosis since [early] 2023).
8.To treat his [medical conditions], [Y] has had multiple [surgeries] since he was a newborn, most recently in [mid] 2023.
9.[G] was born [in] 2022 and is currently [one year] old. [G] is the child of [Ms E] and the Mother. [G] was born via IVF. [Ms E] is [G]'s birth Mother.
10.The Father's current de facto partner is [Ms J]. [Ms J] is pregnant and expecting her first child with the Father in 2024.
11.A temporary protection order was made [in late] 2023 (amended [in early] 2024) as a result of a police protection notice where the Mother is the aggrieved and the Father is the respondent. Both children are named on that order.
12.The Father is resisting the application for the protection order and proceedings are ongoing.
13.After the parties separated in 2018, the children lived in an equal shared care arrangement with the parents in [City B].
14.In [mid] 2021 the Mother relocated with the children from [City B] to [Town D]. The Mother's relocation with the children was agreed to by the Father, although the parties disagree about the circumstances in which this occurred.
15.Prior to the relocation to [Town D], the children attended school in [City B], where they are currently enrolled and attending. [BB School] for [Y] and [C School] for [X].
16.When the children were living with the Mother in [Town D], [Y] attended [H School] (from grades 1 to 3) and [X] attended [K School] (from grades 2 to 4).
17.During the period May 2021 to October 2022 (when the Mother was living in [Town D] with the children), the Father spent time with the children every few months for a few days.
18.During the period November 2022 to 29 October 2023 (when the Mother was living in [Town D] with the children), the Father spent the following time with the children:
•11 to 16 November 2022
•28 December 2022 to 19 January 2023
•[early] 2023 - during a period [Y] was admitted to hospital
•27 March to 12 April 2023
•[mid] 2023 - during a period [Y] was admitted to hospital
•26 to 27 September 2023
19. On 29 October 2023 the Father withheld the children from the Mother's care.
20.In late 2023 the Father relocated the children to [City B] without the Mother's consent.
21.The Father enrolled the children in schools in [City B] commencing in 2024 without the Mother's consent; [BB School] for [Y] and [C School] for [X].
22.Since interim orders were made by [a] Senior Judicial Registrar on 16 February 2024, the Mother has spent the following time with the children in [City B]:
•9am to 1pm on Saturday 17 February 2024
•9am to 1pm on Sunday 18 February 2024
•9am to 1pm on Saturday 9 March 2024
•9am to 1pm on Sunday 10 March 2024
23.The Mother commenced proceedings in this Honourable Court on 3 January 2024 seeking urgent recovery orders for the return of the children to her care in [Town D].
24.On 16 February 2024 [a] Senior Judicial Registrar made interim orders that the children remain living with the Father in [City B] and spend limited day time contact with the Mother.
25.[The] SJR made interim orders that restrains the Mother from bringing the children into contact with [Ms E].
26.On 8 March 2024 the Mother filed an application to review paragraphs 1 to 9 and 31 of the orders dated 16 February 2024.[6]
(Emphasis added).
[6] Statement of Agreed Facts filed 21 March 2023.
The Applicant's submissions
Ms Minnery, Counsel for the Applicant, submitted that both the Mother and Father prima facie pose risks to the children, so the matter should be measured not on who poses a risk but rather weighing the competing risks against each other.
Ms Minnery submitted that the largest issue for Y is a life-threatening risk that he cannot access a specialist in Town D urgently. If Y suffers a medical episode, the travel time required to fly to City L from City B would place his health and life at serious risk of harm. The Father’s position, however, is that Y’s condition can be safely maintained and properly cared for in City B.
Ms Minnery pointed to past occasions where Y was delayed in receiving medical attention after suffering from a medical episode. She submitted that it took 12 hours for Y to get to City L, as the local doctor in City B, initially, would not move him closer to Brisbane, which resulted in the ambulance service being delayed in transporting him, which lead to Y having a medical episode.
Ms Minnery submitted that the issue of travel and the risk to Y would be mitigated if he resided in Town D or generally closer to Brisbane, as he would be located closer to the Children’s Hospital and other required medical services. Y’s doctors and other medical support are also located in Brisbane. It was submitted:
39.This risk [of alleged and disputed physical harm from the Mother] must be weighed against the risk of [Y] dying if subtle but critically important changes in his behaviour are not noticed in time. He would have died but for his access to specialist emergency [surgery] at [M Hospital] in Brisbane in 2022 and 2023 and in [City L] in [late] 2019. There was also a critical incident in 2019 while he was living in [City B]where there was a delay in doctors at [City B] Hospital ordering [Y]’s emergency […] transfer to [City L] hospital in 2019 due to their lack of experience with [his medical condition], medical experience and a further delay in the [Ambulance] Service being able to collect [Y] due to a competing need at [another incident]. [Y] arrived at [City L] hospital, experiencing a [medical episode] in circumstances where the Mother says the paternal grandmother did not recognize the early signs requiring emergency treatment in [Y].[7]
[7] Mother’s Case Outline (n 5) [39].
In relation to the Mother’s alleged risks to the children, Ms Minnery submitted that the risk from the Mother’s former partner, Ms E, is mitigated as there is currently an order in place for no contact with Ms E and the children. Further, the allegation that she slapped the children, and particularly Y to the head should be treated with scepticism, as even if X told the Father that this happened, the Father’s inaction at the time suggested he did not believe the allegation to be true.
By contrast, it is the Father who poses a risk, due to his own medical condition that would place Y in jeopardy if he became suddenly unwell. As a result, the Father’s time should be supervised. She submitted:
50.[X] has informed the Mother that the Father is no longer living with his parents and the Father’s partner [Ms J] is due to give birth in 2024 (such that she can provide limited support where she will have a newborn baby), must care for the Father and [Y].
51.While there is limited medical evidence about the conditions the Father suffers from, he has admitted in text message to the Mother that he suffers from “[episodic] type stuff” and “it can be super unpredictable”. The Mother’s evidence is that the Father has told her he suffers from “blanking out”, [medical episodes] where he has not been able to get out of bed, an inability to care for himself without assistance and […] episodes where he has urinated on himself. He has had to be taken to hospital by ambulance while the children were in his care in [late] 2022. The Mother describes an incident where [X] told her how scary it was seeing his Father suffer from a [medical episode]. He admits to difficulty driving long distances but his health is largely minimized by evidence filed in his case.[8]
[8] Ibid [50]-[51].
The Respondent’s submissions
In summary, Ms Marshall, Counsel for the Father, submitted that the Mother poses an unacceptable risk to the children and that the Court, at an interim stage, should take a cautious approach in relation the risks. The children are well settled in City B and relocating them would unnecessarily destabilise them — particularly Y, as he would be removed from his allied health supports which are not available in Town D. The children also have further support in City B from the Father’s long term partner and parents, who live on the same property. Further, there are concerns of the Mother engaging in illegal activity and fraudulent behaviour in relation to claims made through NDIS.
The Mother’s claim that there are inadequate medical facilities in City B to deal with any emergency relating to Y should be dismissed. It was submitted:
1.The medical and health needs of [Y] are best addressed while [Y] lives with the Father, given:
a)The Father lives five minutes’ drive to [City B] Hospital where he can be provided with immediate emergency care and be transported if required;
b)In [Town D], the Mother lives approximately [80] minutes from the [M Hospital] and approximately [50] minutes from the [N Hospital];2
c)The Father is engaged with [Y]’s medical specialists, allied health therapists and NDIS providers and is well aware of his son’s medical history and issues;
d)The Father has [Y]’s emergency [treatment] plan, is trained to administer emergency medication and obtained the emergency medication from [M Hospital];
e)The children live on the same property at their paternal grandmother, who has recently retired, and is still a [health care worker];3
g)[Y] was adequately cared for by [City B] Hospital before relocating to [Town D];
h)[Y] was engaged with a Paediatrician prior to relocating to [Town D], however on relocation in 2021, the Mother did not engage with a Paediatrician for [Y] for over 18 months, which the Mother states was due to waiting list delays despite her consistently following up with [M Hospital] about [Y] being allocated a local paediatrician;
i)Since relocation to [City B] with his Father in [late] 2023, the Father has secured an appointment for [Y] to see a Paediatrician [in early] 2024 (in less than 6 months);
j)[Y] has experienced [medical episodes] and was diagnosed with [a medical condition]. He was under the care of [a specialist] team, but has not had any [symptoms] for a number of years, and was discharged from the [specialist] team, he has routine [specialist] Appointments;
k)The Mother has previously deposed to the support services at her home in [Town D] and surrounds do not have the capacity to provide services to [Y]1
l)The Mother previously relied on her partner, [Ms E], to provide the required support services to [Y];
m)The Mother now deposes to having access to a disability support worker called [Ms O] or alternatively [P Services];
n)Whilst the Mother travels between [Town D] and [City B] to work in her various businesses, she relied on [Ms E] to care for [X], [Y]and her own child [G], while the Mother was away. The support services allegedly provided by the partner to [Y] would necessarily been compromised given her caring responsibilities for the children including her [one year old] son;
o)Despite a notification to Child Safety raising concerns about the Father’s ability to care for the children due to his medical conditions, and allegations that [Y] was too far from appropriate medical care, the Department found no evidence to suggest the Father is unable to care for the children and found no evidence to suggest that [City B] Hospital could not provide appropriate care to [Y] if required.[9]
[9] Father’s Case Outline (n 5) [1(a)]-[1(o)].
Ms Marshall also submitted that the Mother poses a physical risk to Y and X. The Father says that X reported that the Mother had slapped Y to the head numerous times:
4.Both [X] and [Y] have claimed that the Mother has repeatedly slapped [Y] in the head. [X] is understood to have outlined the conduct to police and child safety.
5.While [X] was interviewed by Child Safety officers, the section 69ZW material does not contain records of that interview and this material ought to be provided to the Court.
6.The Mother admits to physically disciplining the children but denies any severity to these actions.
7.The Paternal GrandMother deposes to seeing the Mother physically disciplining the boys by pinching and slapping them.
8.The Father has acted protectively to ensure [Y] is not further harmed by being physically disciplined by the Mother, as he has [medical treatment] that can be affected by being struck. Notably, [Y] has had to have [surgery] in [early] 2023 and again in [mid] 2023.
9.It is noted that in the Protection Order Application taken out by Police in 2009, the Mother’s behaviour involved [assaulting] her partner (with [assault] also in a previous incident in 2007) where the Mother stated to police that she ‘gets worked up and [she] snaps’.
10.The Mother admits to exposing the children to domestic violence between herself and her partner, [Ms E], although downplays it as bickering. She admits that she and her partner ‘used raised voices, said unkind, immature things to one another and acted coldly/tensely towards each other’.
11.The Mother admits that her partner has inferred a sexual relationship occurring between the Mother and [X] and concedes that [X] may have overheard these assertions.
12.The assertions by the Mother’s partner are extremely detrimental and emotionally abusive, particularly in respect of them being said in the presence of [X]. [X] clearly understood the sexual connotation made, given his disclosures and denial of any such conduct.
13.The child, [X], was deeply troubled by these assertions and refused to return to [Town D], to speak with his Mother for some time (only recommencing communication with her in accordance with orders made on 16 February 2024) and does not wish to return to [Ms E]. On the Mother’s own evidence, (prior to orders of 16 February 2024) [X] had asked her to stop with the constant messaging to him.
14.The Mother asserted she has concerns about the mental health of her partner, [Ms E], deposing to [Ms E] suffering challenging and traumatic experiences of [treatments] to fall pregnant and experiencing two failed pregnancies and being diagnosed with Post Natal Depression. The Mother deposes that ‘those experiences had a big impact on [Ms E]’s mental health and well being’
15.In her affidavit provided in these proceedings, [Ms E] does not address her mental health issues or whether she has received any treatment for them.24
16.Both children were interviewed by QPS and Department of Child Safety. The section 69ZW material from Child Safety does not include records from the interview with [X].
20.The section 69ZW QPS material reveals the Mother was the Respondent in respect of a two-year protection order between 2009 and 2011.
21.Exhibited to the affidavit of [Ms Cleaver] at [MSC]01 is a Protection Order Application made by Police against the Mother on behalf of her former partner, [Mr Q]. Those records show that [in] 2009, after a heated verbal argument between them, the Mother slapped [Mr Q] using her open right hand, leaving red marks. It appears that neighbours have called the police and the Mother was taken to the watchhouse.
22.On that occasion, the Mother stated to police that ‘she gets so worked up, she snaps’.
23.The application also notes a previous history of domestic violence between the Mother and [Mr Q] where [in late] 2017 the Mother has previously slapped [Mr Q] and pulled his hair during a verbal argument. Given this history and the incident on [in] 2009, police believed ‘there is a strong chance that domestic Violence will re-occur between [the Mother] and [Mr Q]’[10]
(Emphasis added).
[10] Ibid [4]-[23].
The Father said that he raised the alleged slapping to police and appropriate medical services at the earliest opportunity. The hospital did not require Y to be tested immediately.
In relation to the Mother’s allegations of family violence against the Father, Ms Marshall submitted that there is no objective evidence indicating any family violence perpetrated by the Father. Rather, the Mother has a history of family violence and using physical violence against former partners, including slapping with an open hand and pulling hair, which adds veracity to his concerns regarding assaults upon the children. It appears that the Mother’s behaviour deteriorates under stress:
24.The Mother alleges that she called the police during a domestic violence incident which occurred between the parties when they were living in [City L] in late 2014/early 2015. She deposes ‘I ran out of the house and locked myself in the car. [Mr Cleaver] was then threatening to smash the car window and hurt me if I call (sic) the police.’
25.The only QPS record for 2015 is [in mid] 2015. Police were tasked to attend to a 000 hang up phone call. On arrival police could hear an argument. Police records state ‘both parties stated that they had become engaged in an argument about their newborn son who has [a medical condition] and requires a large amount of medical attention. [Mr Cleaver] works away in [City B] so [Ms Cleaver] is struggling to cope with everything on her own as they also have another two year old son.’’ And notably, it continues ‘Following the arguments this afternoon, [Mr Cleaver] has gone to leave the residence via car, however [Ms Cleaver] was trying to stop him. [Mr Cleaver] has then threatened to call 000 so that he could get some space. [Mr Cleaver] accidentally pressed the call button and handed the phone to his son’.
26.A further domestic violence complaint against the Father was made by the Mother’s partner [Ms E] in [mid] 2023. On that occasion, the Mother spoke to police and said the Father was harassing her via texts and emails. Police determined that the exchanges were in relation to a parenting arrangements for the children, the Mother was actively engaged in the texts and emails, there were no threats of DV made and the parties were communicating in similar tones. Notably, the Mother did not make mention of any allegations of physical violence or coercive or controlling behaviours as she has alleged in the current protection order application against the Father. The current application was only made after the Father has withheld the children, after the childrens’ disclosures of harm by the Mother and her partner. In her Annexure A to the Protection Order Application, the Mother makes no mention of the alleged 2014/2015 incident that she deposes to in these proceedings at paragraph 48 of her affidavit.
27.It is important to note that the children lived at [Town D] with their Mother and her partner on a remote property. As a result, any domestic violence between the adults or towards the children would not be readily seen by neighbours. These concerns were noted in the Child Safety material.[11]
(Emphasis added).
[11] Ibid [24]-[27].
It was further submitted that the Court should be sceptical about the Mother’s claim that she is no longer in a relationship with Ms E, even though there is an injunction not to allow that person to come into contact with the children — an Order that is not reviewed. The Father stated:
40.It is noted that the Mother and [Ms E] continue to share a residence in [City B], and they also share a business together. It is unclear whether there is still any ongoing personal relationship.
41.The Mother deposes to attending [BB School] with [Ms E] to see [Y] during his lunch break. This raises significant concerns regarding the Mother’s judgment and insight.[12]
[12] Ibid [40]-[41].
Ms Marshall submitted that if the Court orders the Mother’s time to be varied, that time should be increased gradually and not include overnight time. The Father proposed that time be from 9:00am to 3:00pm every Saturday and Sunday for two alternative weeks and then increase to 9:00am to 5:00pm on Saturday and Sunday each alternative week. The gradual increase is to support X’s relationship with the Mother, as he has shown resistance to spend time with the her since a sexual inference was raised in his presence by Ms E.
If the Court found that the children should live with the Mother in City B, the Father proposes a week about, shared care arrangement.[13]
[13] I note this is not the first time the Father has proposed an equal time arrangement.
The Independent Children Lawyer’s submissions
In essence, Mr Wright submitted that the Review should be allowed in part in relation to the Mother’s time. He supports the children living with the Father as they are well settled, have a history of living in that area, and no risk is posed to Y in relation to the medical services available to him in City B.
Mr Wright submitted that the children should not be relocated to Town D with the Mother as the medical services within City B are adequate enough to deal with Y’s medical needs and concerns. Both residences in Town D and City B are located at some distance from the necessary specialist care for Y, meaning that neither provides a faster avenue for Y to receive medical care.
In relation to the Mother’s time with the children, Mr Wright, at the break of the hearing on 25 March 2024, drafted the following proposed orders — which were maintained at the end of the hearing:
1. That Orders 4 and 5 of the Orders of [a] Senior Judicial Registrar of 16 February be discharged.
2. That the children will have time with the Mother in [City B] each alternate weekend to continue through school holiday time from after school Thursday to commencement of school Monday.
3. That the Independent Children’s Lawyer have leave to peruse the Section 93A material and provide copies of same to the Family Report Writer.
In relation to the Father’s proposal for no overnight time, Mr Wright was sceptical about the Father’s reaction to the Mother’s time with the children. He supported a gradual increase of time at the beginning of the visits, possibly as day visits only, but submitted that her time should increase to overnight.
Mr Wright was also sceptical about the allegation that the Mother had slapped Y ‘multiple times’. Nevertheless, a cautious approach must be taken, which Mr Wright submitted can be achieved by maintaining the existing injunctions, having all the parties live in City B, and the parties living close to a major hospital and the better supports that exist in City B.
The Law
In Marvel & Marvel[2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
as has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).[14]
[14] Marvel & Marvel [2010] FamCA 240 [120].
In SS & AH[2010] FamCAFC 13, the majority (Boland and Thackray JJ) discussed the care to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.[15]
[15] SS & AH[2010] FamCAFC 13 [88].
Their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.[16]
[16] Ibid [100].
Of this, the Full Court in Eaby & Speelman[2015] FamCAFC 104 said:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.[17]
36 Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
[17] Eaby & Speelman [2015] FamCAFC 104 [19].
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.[18] Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). There are 2 primary considerations and 14 additional considerations set out in section 60CC. I have considered each of those sections when determine this matter, but I will only refer in these reasons to those sections that are most relevant to my determination in this case.
[18] Family Law Act 1975 (Cth) s 60CA (‘FLA’).
The childrens best interests: the s 60CC factors
The Act sets out two mandatory considerations at section 60CC(2). It is noted that section 60CC(2)(b) is to be given greater weight than section 60CC(2)(a). This means that the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence outweighs the benefit to a child of having a meaningful relationship with both of their parents. The Act also includes a number of additional considerations under section 60CC(3), which will be considered insofar as they are relevant to this matter.
Unacceptable risk
It is my task to ensure that the ultimate parenting orders do not place the children at an unacceptable risk of harm due to family violence, abuse, or neglect or exposure to the same. I may include orders as I consider necessary to achieve this end. Protecting a child from harm (or any unacceptable risk thereof) is intertwined with the paramountcy principle, as evident in section 60CC(2)(b). This includes any risk of family violence, abuse, or neglect.[19]
[19] Ibid ss 4AB (definition of ‘family violence’), 4 (definition of ‘abuse’), noting that the Act does not define ‘neglect’ for the purpose of s.60CC(2)(b), nor does it define ‘serious neglect’ for the purpose of sub-s(d) of the definition of ‘abuse’.
The assessment of whether a risk is ‘unacceptable’ does not require a court exercising jurisdiction under Part VII ‘to resolve in a definitive way the disputed allegation … as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence’.[20] The Full Court in Isles & Nelissen clarified that unacceptable risk is also not to be measured according to the civil standard of proof — on the balance of probabilities.[21] A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk.[22] It remains that any risk must be grounded on the evidence, which then informs a trial judge’s exercise of their discretion under section 65D by reference to the child or children’s best interests. This is a particularly difficult exercise to undertake at an interim stage of the proceedings, where allegations are disputed and the evidence is untested.
[20] M v M (1998) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Bant & Clayton [2019] FamCAFC 198, [38]-[41].
[21] Isles & Nelissen [2022] FedCFamC1A 97, [46]-[51], [86]; Bringinshaw v Briginshaw (1938) 60 CLR 336, 361-362 (Dixon J); Evidence Act 1995 (Cth) s140 (‘EA’).
[22] Isles & Nelissen (n 21) [83].
The enquiry involves ‘a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk’.[23] The parenting orders ultimately made, in those circumstances can include measures to mitigate the type of risk as characterised.
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
[23] Murphy & Murphy [2007] FamCA 785, [318]–[319].
The Act does not define ‘meaningful’. Characterising a meaningful relationship between a child and their parent is, necessarily, an individualised assessment.
The Full Court in McCall & Clark [2009] FamCAFC 92 endorsed the explanation of ‘meaningful relationship’ as given by Brown J in Mazorski & Albright [2007] FamCA 520:
What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[24]
[24] Mazorski & Albright [2007] FamCA 520, [26]; McCall & Clark [2009] FamCAFC 92, [115].
A ‘meaningful relationship’ does not, however, have to be an ‘optimal relationship’. Kay J’s remarks in Godfrey & Sanders [2007] FamCA 102 more fully state this position:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[25]
[25] Godfrey & Sanders [2007] FamCA 102, [36].
There is little doubt that the children have a relationship with both parents that is meaningful to them. It is to be remembered that when the parties were living in City B in 2021, they shared the care of the children. At that time there appeared to be a level of good parental alliance and a collaborative approach. When the children were living with the Mother, the Father spent multiple nights with them. It has only been since October 2023 that the Mother’s time diminished.
There may be some resistance from X to spending time with the Mother presently, but all agree that he should be spending regular time with her. There may, however, need to be cautious reintroduction of time given the purported reluctance he has apparently expressed. Ultimately, the parents must do all they can to promote the children’s relationship with the other. The children have been exposed to the parents’ conflict — to think otherwise is naïve. The children have been exposed to volatility and uncertainty. It is little wonder they have reacted to this poor parental behaviour.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This is the most important consideration at this interim stage. The Father's allegations of physical abuse of the children by the Mother could not be more serious — particularly as they relate to Y.
The allegations first arose in October and November 2023 when X claimed that he and Y had been hit around the head by their Mother on numerous occasions:
The Initial concerns of harm
23.In Brisbane [in late] 2023, [X] told [Mr Cleaver] a series of very concerning incidents. [Mr Cleaver] told me about this the next morning.
24. [X] said the incidents happened while [X] and [Y] were being looked after by their Mum, [Ms Cleaver] including:
a)[Ms Cleaver]’s partner, [Ms E], has accused [X] of having a sexual relationship with [Ms Cleaver] (which [X] denies);
b) [X] and [Y] have been frightened by the behaviour of [Ms Cleaver]’s partner [Ms E], including her holding a [weapon], threatening to damage cars and swerving her car towards their car on a highway;
c) [X] and [Y] experienced domestic violence including physical violence and verbal abuse between [Ms Cleaver] and [Ms E]. Father alleges that the Mother
…
44. [In late] 2023, we received a phone call from the police and we advised them of our address in [Town R] and that the boys were fine.
45. Police from New South Wales arrived at our address in [Town R] to check on the boys’ welfare around 6:00pm. They observed the boys were happy and well cared for. The police had no concerns.
46. That evening [in late] 2023, [X] was very concerned to discuss the difference between a “slap” and a “smack”.
47. We had called [Y] to the dinner table and explained to him that if he didn’t come there will be consequences, like not getting dessert.
48. [Y] asked: “What about a smack instead?”
49. [Mr Cleaver] and I explained that we don’t smack in our family and there are other consequences we can use.
50. [X] then said: “What about a slap?”
51. I remember discussing with [X] that a smack might be a small tap on the hand, but a slap was harder and more forceful.
52. [X] said: “Please don’t tell anyone. I don’t want anybody to get into trouble for this”.
53. I explained that we couldn’t promise that because we might need to tell someone.
54. [X] said: “It’s not me and it’s not [Ms E] and it’s in the face”.
55. [Mr Cleaver] and I explained he needed to be direct and tell us what he meant.
56. [X] said: “Mum slaps [Y] in the face”.
57. [Y] also said: “Mum slaps me in the face”.
58. After [X] explained that it has happened “more than once”. [Mr Cleaver] decided to protect the boys.
59. [X] also said to us: “I don’t want to go to [Town D] if [Ms E] is there”.
60. [Y] also said to us: “I don’t want to go back to [Ms E]”.
61. [X] had said to me: “[Ms E] doesn’t want to look after us anymore”. My understanding is that when [Ms Cleaver] travels to [City B] for work, her partner [Ms E] looks after the boys.
62. [X] said words to the effect: “Mum and [Ms E] leave me alone and I have to look after [Y] and [G], usually while Mum and [Ms E] argue or work around the property”.
63. [X] has told me that [Ms E] held up a [weapon] and threatened to damage the cars. [Ms Cleaver] was filming this and [Y] said [Ms E] knocked the phone from [Ms Cleaver]’s hands and they wrestled to the ground.
64. We tried to keep the boys calm and get them off to bed with hugs and reassurance.
…
Interview with Queensland Police Service
85. I understand [Mr Cleaver] attended [City B] Police Station and [X] was interviewed for about three (3) hours.
Interview with Department of Child Safety
86. In [City B], [Mr Cleaver] arranged to take the children to be interviewed by the Department of Child Safety.
87. The Child Safety Officers, suggested I could be a support person for [X] and [X] asked if I could be his support person.
88. In the interview with the Child Safety Office, [X] described to the child safety officers a number of instances where [Ms Cleaver] has slapped [Y] in the head.
89. [X] showed the officers his phone and communications with [Ms Cleaver]. The officers were concerned about the images [Ms Cleaver] had sent to [X] of her crying and sending the message about her “heart being so sore not seeing my boys – it’s broken”. [X] also showed them messages where he stated he was not going back to [Town D].
90. [X] described an incident where [Y] was sitting between two seats in the living room. [Ms Cleaver] walked across the room and struck [Y] in the face and on the head, while [Y]’s head was stuck between the two seats.
91. [X] mentioned that [Ms Cleaver] punishes [Y] and hits him across the head.
92. [X] told Child Safety that [Ms Cleaver] and her partner, [Ms E] got into physical fights as well as lots of arguing, yelling and that [Ms E] had accused [X] of having a sexual relationship with his Mum.
93. The Child Safety Officers indicated they would record the matter, but because [Mr Cleaver] and I were caring for [X] and [Y], they were satisfied the boys were safe while they were in our care.
94. The Child Safety Officers explained they would look into more support for [X] and [Y].
Further concerns raised by [X]
95. [X] is gradually opening up and becoming more confident.
96. [X] said words to the effect: “I want to stay in [City B] with you and Dad. I’m scared about going back to [Town D]. I’m going to get in trouble for talking to the police and telling Dad what happened”.
97. [X] has also said to me: “I’m scared Mum will come to my school drag me back to [Town D], where [Ms E] lives”.
98. [X] told me and [Mr Cleaver] that [Ms E] and [Ms Cleaver] raced each other home and [X] said they were on a double lane road and [Ms E] was on the right side of the lane in a car with [G]. [Ms E] merged into [Ms Cleaver]’s lane, half pushing their car ([X] and [Y]). [X] said “[Ms E] only stopped when [Ms Cleaver] wound down the window and yelled at her and flipped her the finger”. [X] thinks that [Ms E] has a terrible driving history. [X] said that [Ms E] is always getting traffic fines from a company.
99. [X] said: “It ended up really serious. It was dangerous”.[26]
(Emphasis added).
[26] Affidavit of Ms J filed on 29 January 2024 [23]-[24], [44]-[64], [85]-[99].
The Father said that he reported the allegation to Police:
Attempted a call biological Father [Mr Cleaver] to canvas whether [Y] would be capable of provide a 93A statement and find out where the kids are currently residing. No answer. Email to text message sent.
It would appear as though there is significant dispute between the biological parents with a temporary DV order taken out against [Mr Cleaver in] 2024.
Made multiple attempts to speak with [Mr Cleaver] however he is not answering his phone.
Called and spoke with [Ms Cleaver] who is currently in REDACTED for her grandMother’s [birthday]. She advised she will be returning to [City B] next Tuesday and is happy to speak with police when she returns. Arrangements tentatively made for [late] January to discuss. When on the phone, [MS CLEAVER] stated that [MR CLEAVER] had ‘kidnapped the kids and was refusing to return them to her custody’
[Early] 2024
[Ms Cleaver] attended [City B] Police station and agreed to participate in an EROI
During an EROI, all allegations from the child’s 93A statement were put to her and she denied any of these things had occurred.
[MS CLEAVER] advised that [Y] has [a medical condition]. It is likely if she was hitting him in the sides of the head he would have required medical attention and it would have had to have been reported.
[MS CLEAVER] indicated [Y] also suffers from [a medical condition] as well as an intellectual disability, he’s unable to read or write and has the maturity of 4-5 year old.
[MS CLEAVER] advised she disciplines the kids by taking away their ipads, limiting park visits, reducing screen time, no ice cream etc. when asked if she has ever physically disciplined the children, [MS CLEAVER] said she has probably given them a tap on the arm or leg on a handful of occasions throughout their childhood, but never anything excessive. She categorically denied slapping or assaulting [Y].
There are ongoing custody issues between [MS CLEAVER] and [MR CLEAVER]. [MR CLEAVER] has taken the kids as of [late] 2023 and has refused to return them to [MS CLEAVER] at all. They are currently going through family law court and fighting over custody. There is a current DV order where [MR CLEAVER] is the respondent and [MS CLEAVER] is the aggrieved – the application details significant manipulation and coercion on the part of the respondent.
Attempted to contact [MR CLEAVER] again, however no answer.
Discussed with [MS S] and the matter found to be unfounded - evidence indicates offence did not occur.[27]
(Emphasis added).
[27] Tender Bundle of Ms Cleaver filed 28 March 2024, 3.
For the police to take no action and reach these conclusions when the alleged assaults relate to a child as medically compromised as Y, is significant. The Father also said that he reported the matter to Child Safety Services (CSS) as detailed above. They viewed the children’s living arrangements with the Father as sufficient to protect them.
I asked his counsel as to what immediate medical action the Father took upon X making these revelations, noting that to slap a child with Y’s condition about the head could result in grave consequences. I questioned what scans were taken, if any, and what specialist advice he received. The Father claimed he told a GP in Town R who suggested that no actions or treatment was needed.
The ICL sought information from Dr T, the medical professional contacted in January by the Father. He was asked whether the incident had been raised with him earlier, given the information came to the Father in October 2023. The ICL was advised by Dr T that on reading Dr U’s notes, who had seen the Father and Y in November and December 2023, that no earlier revelation had been made.
Y did undergo a further test in late 2023 with the Report attached to the Father’s January affidavit:
[Test] results [late] 23
[Details omitted to comply with Part XIVB of the Family Law Act1975 (Cth)].[28]
[28] Father’s January affidavit Annexure 2, 28.
I have no expertise to decipher these notes, however, what I do not see is any reference to a change of Y’s medical situation regarding his surgeries, despite the allegation that the Mother had ‘slapped [Y] on the face and head and it happened more than 20 times.’[29]
[29] Ibid [20].
Notwithstanding the concerns raised in Ms J’s Affidavit, the Father’s proposal set out in his affidavit filed 25 January 2024 was that he and the Mother should share the care of the children if she returns to City B:[30]
120. I would like the boys to remain living with me in [City B] and for them to spend time with [Ms Cleaver], provided they are safe and [Ms Cleaver] does not physically discipline the children.
121.If [Ms Cleaver] is to live in [City B], [Ms Cleaver] and I could resume the shared care arrangement, provided the boys were safe and [Ms Cleaver] is not physically or verbally abusive.
[30] Ibid [120]-[121].
I further note that in the Father’s Response to the Initiating Application, he proposed that, in the event the Mother relocated to the City B area, the children live with the Mother from Friday to Monday each alternative weekend.[31] However, he later amended his position and sought the restricted time that was eventually ordered on 16 February 2024 by the SJR.
[31] Response to Initiating Application of Mr Cleaver filed 25 January 2024.
I hold some scepticism as to the allegation that the Mother slapped Y around the head numerous times. It is true that the Father reported the concerns, but his proposal of January 2024 suggested that he was not, at that time, overly concerned that the Mother would hurt the children and place Y at grave risk.
This was also the assessment of the police, who took no action notwithstanding the dire nature of the allegations. If the Father had truly believed that the Mother had slapped Y around the head such that it may have required adjustment surgery — more than once — then surely there would be significant medical evidence, pointing to the likelihood of these things occurring? Y has had regular testing in his short life — yet none evidence any damage has been caused by these terrible alleged assaults. The fact that the police did not charge the Mother is informative.
That said, notwithstanding my scepticism, I cannot ignore the allegations. They will need to be properly investigated for the trial. My scepticism must give way to the cautious approach that I am bound to take to ensure the children are safe. Therefore, all the injunctive orders that exist will remain.
I note that the Mother lives in somewhat isolated and unsupported circumstances in Town D. It is alleged that her violent reactions are in part the product of stress. I am concerned that the children are more likely to be exposed to volatility and conflict and family violence if they were to live in such isolated conditions. I also note the Father’s doubts that the Mother’s rather volatile relationship with Ms E has ended — they share a child and she has been living in Ms E’s Father’s house. The risks for the children are reduced if they live in the City B area, close to supports, schools and a hospital.
I further note that the Mother alleged that the Father was violent towards her during the relationship. This was denied, and it was submitted that the Mother did not make mention of any allegations of physical violence or coercive or controlling behaviours in the current protection order application against the Father, nor an alleged incident from 2015. I can make no findings about the truth or otherwise of these matters, but they do speak to the current level of distrust and volatility existing between the parties. However, again, the allegations cannot be ignored.
What is clear, is that the children have been exposed to volatility, uncertainty, and conflict. The Mother admitted that the children were exposed to conflict between her and Ms E. The children should not be exposed to adult conflict.
No doubt a Court Child Expert will be able to meet with the children and hopefully provide some objective feedback to assist the Court in determining the extent of the poor parental behaviour the children have endured.
I do not find the children to be at an unacceptable risk of harm in the Father’s unsupervised care. There is no real evidence that he has been violent to the children. The Mother’s accusations are serious but there are question marks surrounding them.
I am also satisfied that, with the existing injunctions in place, and if she lives in City B, that the children are also safe in the Mother’s unsupervised care. Given the allegations, it would be inappropriate for the children to live in the isolated circumstances of Town D, particularly where the Mother has no supports to assist her with the care of the children. Subject to my consideration of the question of the availability of medical support for Y, the children are likely to be safer if all parties live in closer proximity in City B, close to supports and City B Hospital. I note that the Mother says that she can relocate to City B within a few weeks.
Section 60CC(3)(a): any views expressed by the child, and the weight to be accorded to those views given their age and level of maturity
There is no universal rule for the weight to be afforded to the views of a child. It is ultimately a matter of discretion and, ultimately, this factor is one of several in the overall assessment of best interests. Importantly, as stated in Bondelmonte v Bondelmonte (2017) 259 CLR 662:
The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long-term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.[32]
[32] Bondelmonte & Bondelmonte (2017) 259 CLR 662, 673-674.
The children are aged 9 and 10. Their views have not been objectively assessed. X is apparently showing some reluctance to spend time with the Mother. The Mother has been having small amount of time with the children since the SJR orders were made. She said that Y hates living with his Father, and that X wants more time with her and has previously had a meltdown on having to return to the Father.
What their current views are regarding spending time with the Mother are unknown, but I note that the Father was suggesting shared care in January. A cautious approach is appropriate where the children’s lives have been so disrupted, but not one that is overly cautious, in circumstances where the Mother has been their primary or equal carer for most of their lives, and the children have enjoyed significant time with both parents.
Section 60CC(3)(b): the nature of the relationship of the child with each of their parents
The children appear to have good relationships with their parents, their paternal grandparents and Ms J.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect to the child from any separation from either of their parents
This is a very important factor.
The Mother claims that if Y does not live with her in Town D, then he is at grave risk because of the distance and time it would take to get him to City L Hospital in the event that he suffers a medical episode. Thus, change is necessary or Y is at extreme risk. She says in her recent affidavit:
9. …
(a)[Y]'s treating doctors have told me that if [Y] experiences a complication with his [medical condition] (e.g. a blockage or untreated infection), he will require emergency [surgery].
(b)[City B] does not have a hospital with a dedicated [specialist] or [specialist] department that can treat [Y] in an emergency. If there is an emergency in [City B], [Y] needs to be flown from [City B] to the closest major hospital that has the resources to treat him; this is [City L] Hospital or [M Hospital] in Brisbane in the event that [City L] Hospital has no capacity to provide emergency care.
(c)From when [Y] was in NICU in [City L], I received advice from his medical practitioners that if [Y]’s [medical treatment] fails or has severe complications, he requires emergency surgery within two to three hours or he risks death.[33]
[33] Affidavit of Ms Cleaver filed 20 March 2024 [9(a)]-[(c)].
During submissions, it became clear that the Mother's concern regarding emergency care did not relate to Y’s medical episodes. Y is currently medicated in relation to his episodes and, provided both parties give that medication to him, there should be enough time for any hospital to deal with an episode.
The Mother claims that City B Hospital is not equipped to deal with any medical episode that Y might suffer and that it would take a very long time for him to be transported to City L so that he could receive specialist care.
It became clear during submissions, however, that the time that it would take for Y to travel to a hospital in City B would only be a matter of a few minutes, as City B Hospital is 5 minutes from the Father's home. City B Hospital is a major hospital and much better equipped than the hospital at Town V — the closest hospital to the Mother in Town D. The transport time from City B to City L is just over one hour by plane.
By contrast, the Mother lives approximately one hour and twenty minutes from M Hospital. She is a short distance from Town V Hospital and an ambulance could be taken from that hospital to M Hospital in the event of an emergency, with the travel time again being up to one hour. There is also a slightly closer hospital in City N.
It seems on the evidence available to the Court that there is little difference in the time that it would take for Y to be transferred to an appropriate hospital in the event of there being a medical malfunction. The Mother’s home is, however, off-grid and somewhat isolated. The Father queried the reliability of phone reception in the area and noted that power to her property can be an issue. The Father lives five minutes away from City B Hospital. On the face of it, Y is closer to medical care in the event of an emergency in City B. Both parents also lived in City B until 2021, for approximately six and a half years of Y’s life. It is difficult for the Mother to argue that the location of City B creates risk for Y now, when it clearly did not in the past.
The Mother sought information from the M Hospital to confirm her concern regarding the distance of the hospital from City B. The response follows:
Performed by: [MR W] [in early] 2024 12:37 AEST
Verified by: [MR W] [in early] 2024 12:37 AEST
Encounter info: […] Pre-arrival […] 2023 -
* Final Report *
Asked to provide letter as evidence in custody battle that patient should live in Brisbane and not [City B] due to [medical treatment] and proximity to medical services
[Dr Y] (acting director) as [Dr AA] on leave this is not our usual advice to patients with [medical conditions], who live all over the state - therefore wouldnt be defensible to provide this documentation in these specific circumstances and we're unable to provide that documentation[34]
[34] Tender Bundle of Mr Cleaver filed N/A, 69.
I was referred to a later letter from Dr AA expressing some concern about the availability of services in City B, however, that opinion was criticised as being the result of misinformation given to the Doctor by the Mother — particularly that the Father had not been involved in Y’s care when sick. The evidence points to the Father being heavily involved when Y has had operations.
The letter of Dr W is consistent with the objective evidence referred to regarding medical services available in City B for Y, and I give that letter weight, albeit untested.
The Mother also believes that because of the Father's medical condition he may not be able to get Y to a hospital in an emergency. This is not, however, made out on the evidence as it stands. The Father appears to have a number of supports including his Mother — a health care worker — within close proximity to him, and his partner within the same household. In many ways, the Mother’s more isolated existence poses greater risk for Y. The Mother no longer has the assistance of Ms E, so it begs the question as to who would help care for the children when she is away working — including work in City B? Who would she call on if there was an emergency?
I am not satisfied, based on the limited untested information that I have, that Y is at risk in the event of a medical episode because the Father lives in City B.
To change the children’s living arrangements now, would be to add to the volatility and uncertainty that they have endured in recent years. They are now settled in school, although I note that Y has missed quite a lot of school. The Mothers’ circumstances and her available supports are somewhat unknown at this time. I note that this concerned the SJR:
The Mother deposes that the residence of the Father in [City B] does not have the capacity to provide those services. I have read with respect to the Mother’s assistance, it was gleaned from the material that the Mother has relied on her former partner, [Ms E], to provide support services to [Y]. [Ms E] was [an allied health worker] when providing services in 2017 and 2018, and I accept that is likely how the Mother and [Ms E] met. It is clear that [Ms E] is no longer providing these services and this to me leaves a big question, as to how the Mother will now access those services.[35]
[35] Cleaver & Cleaver, [54] (Jenkins SJR).
I agree with the SJR. Given the Mother’s isolated living arrangements, the children would be set into to somewhat unstable circumstances if returned to the her care in Town D, notwithstanding what the Mother stated in her affidavit.
72. [Ms E] was providing [support] to [Y] when we were together. As we are separated and where there is a restraint against [Ms E] coming into contact with the children, I have access to a disability support worker named [Ms O] who works in [Town D] (1 kilometre from my residence) or I have otherwise contacted [P Services] who offer local disability support services. My Mother has also agreed to live with me at my home in [Town D] to assist with [Y]'s care. I also have lots of family and friends that live within an hour of my home who are able to assist me in caring for the children if I need.[36]
[36] Mother’s Affidavit (n 33) [72].
The parties and the children lived in City B for many years. The parties have supports there and appropriate medical care exists for Y. On the current information, to change their living arrangements now would potentially place them at some risk and uncertainty.
Section 60CC(3)(e): the practical difficulty and expense of the children spending time and communicating with a parent
This will only be a relevant issue if the children live with the Mother in Town D. The Mother says that she will return to live in City B within a few weeks if the children cannot live in Town D. If she remains there, the children will live on an off the grid property, some distance from hospitals and services. There are also questions raised about the Mother’s ability to contact hospitals in the event of an emergency. The cost of contact for the Father would also be high, and his time limited as a result — as evidenced by the nature of his previous time.
The Mother works in City B from time to time and can easily move there. The question of practicality and expense favours the children living in City B at this time.
Section 60CC(3)(f): the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs
The parties raise questions about the other. These issues will be examined more closely at trial.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
The SOAF states:
A temporary protection order was made [in late] 2023 (amended [early] 2024) as a result of a police protection notice where the Mother is the aggrieved and the Father is the respondent. Both children are named on that order.
I have dealt with the family violence allegations earlier in this judgment.
Section 60CC(3)(m): Any other fact or circumstance that the Court thinks is relevant.
The marked deterioration in the parents’ relationship and their once cooperative parenting is frankly a tragedy. For the parents to have such distrust and expose the children to such turmoil — particularly Y — paints neither of them in a good light.
They both need to reflect on their attitude and behaviour going forward. There is a very bright spotlight shining on them. This is of course protective of the children to some degree, but the parents need to keep in mind that the Court’s focus, as it should be theirs, is the welfare of their children. I fear they may have both lost sight of this in their pursuit of self-interest. The matters X said to the Father are very serious. He must take them seriously, but he also must apply a level of critical thinking. Perhaps his inaction in having Y checked suggests he in fact did this. There will now be a proper investigation with experts to provide the evidence as to whether the Mother really put Y’s life at grave risk by slapping him about the head.
Conclusion
I am not satisfied that the orders for the children to live in City B with the Father should be altered. The children are settled and supported. There is no real evidence that the Father poses a risk to them that would require a transfer of care to the Mother. The Mother’s argument that the Father may place the children at risk if he becomes sick seems to disregard the reality of the Father living close to his supports of the paternal grandparents and his partner.
The real question is the nature of the Mother’s time. All agree that her time should increase and, therefore, the Review must be allowed in relation to those orders.
The allegations raised against the Mother could not be more serious. It is alleged that the Mother seriously assaulted a child who suffers medical episodes and has had operations in recent years by slapping him numerous times to the head. Further, the operations the child has had, it is suspected, were surgeries resulting from the assaults. It is an allegation that, if true, would see the Mother potentially gravely injuring the child.
The Father did not act like a parent who took these allegations seriously. Yes, he spoke to police and told a GP — but one would reasonably expect police would have taken immediate drastic action if there was anything to this. Yet no action was taken once reported. Nor were any tests for specialist examinations taken to assess the damage, if any, caused by the incident. The Father’s speculation that the surgeries related to the alleged assaults is just that — speculation. One might have expected to see a specialists opinion stating that the surgeries were likely needed because of blunt trauma to the head. There is no such evidence. There is evidence of a medical condition and this poor young boy needing treatments, but this did not result from an assault.
I am sceptical, but at this stage of the process I must be very cautious. The Mother does seem to react poorly under stress. She appears to have some history of slapping people. She seems to have had a volatile relationship with Ms E. These accusations need to be investigated and the medical evidence needs to be properly considered.
I accept the submission of Mr Wright that if the Mother lives in City B, there is no reason why her time cannot quickly build to overnight time from Thursday to Monday each alternate weekends. Her location in City B, near the Father and the various supports, offers a level of protection, as do the existing injunctions. The bright light because of these proceedings also offers a further level of protection.
I note that the Mother has been spending a few hours with the children each fortnight. I believe, as the ICL suggests, a fast build up back to four (4) nights a fortnight is appropriate.
I note that there is no order for either party to have sole parental responsibility and the presumption is revoked. The parties will likely need to make joint decisions about Y at some point, so they must work on their ability to communicate with each other and perhaps aim to start a better dialogue, refocused on the children.
I will make the orders set out at the start of these Reasons.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Judgment of Judge Turnbull. Associate:
Dated: 15 August 2024
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