Collingwood & Collingwood (No 3)
[2022] FedCFamC1F 388
Federal Circuit and Family Court of Australia
(DIVISION 1)
Collingwood & Collingwood (No 3) [2022] FedCFamC1F 388
File number(s): BRC 6830 of 2017 Judgment of: HOGAN J Date of judgment: 31 May 2022 Catchwords: FAMILY LAW – PARENTING – Where the children are aged 15 and 11 – Where the mother has always been the children’s primary carer and responsible for managing their health and education – Where the children have always been home-schooled – Where the mother has exposed the children to her negative views of the father – Where it is unlikely the mother will support the children having a relationship with the father – Where the mother has not complied with previous orders for the children to spend time with the father – Where the mother alleges the father perpetrated family violence towards her and the children – Where the mother has struggled with a physiological dependence on prescription medication – Where the mother’s evidence has to be approached with significant caution – Where the father’s post-separation parenting is largely untested – Where the father is more likely to accept recommendations made by therapists and experts – Where the father is more likely to support the children having a relationship with the mother.
FAMILY LAW – PROPERTY SETTLEMENT – Where the father contributed real property – Where the mother is the only party who has received the benefit of the funds obtained from the sale of the real property owned by the father at the commencement of cohabitation – Where the father will be primarily responsible for the care of the children – Where it is unlikely the mother will make any direct financial contribution to their future financial support.
Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48
Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64
Hepworth v Hepworth (1963) 110 CLR 309; [1963] HCA 49
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC
93-143; [2003] FamCA 395Lee Steere and Lee Steere (1985) FLC 91-626; [1985] FamCA 57
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Morden & Coad [2019] FamCAFC 233
Pastrikos and Pastrikos (1980) FLC 90-897; [1979] FamCA 56
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
U v U (2002) 211 CLR 238; [2002] HCA 36
Waters and Jurek (1995) FLC 92-635; [1995] FamCA 101
Division: Division 1 First Instance Number of paragraphs: 289 Date of hearing: 8, 9, 10, 11, 12, 22, 23, 24, 25 & 26 November 2021; 24 January 2022; 17 March 2022; 13 April 2022 Place: Brisbane Counsel for the Applicant: Ms Chekirova Solicitor for the Applicant: A P Hodgson & Associates Counsel for the Respondent: Mr Linklater-Steele on 8, 9, 10, 11, 12, 22, 23, 24, 25 and 26 November 2021 Solicitor for the Respondent: Barry Nilsson Lawyers on 8, 9, 10, 11, 12, 22, 23, 24, 25 and 26 November 2021 Respondent: Self-represented on 24 January 2022, 17 March 2022 and 13 April 2022 with no appearance on those days Counsel for the Independent Children's Lawyer: Ms McArdle Solicitor for the Independent Children's Lawyer: Brisbane Family Law Centre ORDERS
BRC 6830 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR COLLINGWOOD
Applicant
AND: MS COLLINGWOOD
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
31 MAY 2022
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The children, C, born 2007 and D born 2010, shall live with the father from 3.00 pm on 1 June 2022.
3.For the purpose of implementing Order 2:
(a)the mother shall ensure that the children are at Q Street, Suburb R in the State of Queensland at 3.00 pm on 1 June 2022; and
(b)the father shall collect the children from Q Street, Suburb R in the State of Queensland at 3.00 pm on 1 June 2022; and
(c)the mother shall ensure the children take their personal possessions, clothing, and all educational items with them when they move to live with the father.
4.The father shall have sole parental responsibility for the children in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)), with such issues to include but not be limited to:
(a)the children’s education; and
(b)the children’s religious and cultural upbringing; and
(c)the children’s health.
5.Each parent has responsibility for decisions about the day-to-day care, welfare and development of the children when they are in that parent’s care.
6.The children shall spend no time with the mother for a period of twelve (12) weeks from the date of these orders and shall only communicate with her as allowed by the father.
7.For a period of twelve (12) weeks from the date of these orders, the mother be restrained and an injunction issue restraining the mother from:
(a)attending at S Street, Suburb T in the State of Queensland, or such other address at which the father may be residing with the children as he advises; and
(b)attending at any school or educational facility into which the children are enrolled; and
(c)collecting the children from any school or educational facility into which they are enrolled; and
(d)making contact or communicating with any school or educational facility into which the children are enrolled.
8.If, during the period of twelve (12) weeks from the date of these orders, the children or either of them attend at Q Street, Suburb R in the State of Queensland, or at any other place where the mother is situated or located, the mother shall immediately return the children to their father’s care at S Street, Suburb T in the State of Queensland or such other place as he advises.
9.Following the expiry of the period of twelve (12) weeks from the date of these orders, the children shall spend time with the mother at all times as agreed between the parents in writing and failing agreement as follows:
(a)on each alternate weekend from after school/3.00 pm on Friday to before school/9.00 am on Monday; and
(b)for one half of all Queensland school holiday periods, being the first half in even numbered years and the second half in odd numbered years; and
(c)on the children’s birthdays:
(i)if a school day that the children are not otherwise in the care of the mother in accordance with other terms of this order: from after school/3.00 pm to 6.00 pm; or
(ii)if a non-school day that the children are not otherwise in the care of the mother in accordance with other terms of this order: from midday to 6.00 pm.
(d)on the mother’s birthday in each year: from 3.00 pm to 6.00 pm; and
(e)for the weekend on which Mother’s Day occurs in each year: from after school/3.00 pm on Friday to before school/9.00 am on Monday; and
(f)for Christmas in each year as follows:
(i)in even numbered years: from 3.00 pm Christmas Eve to 3.00 pm Christmas Day; and
(ii)in odd numbered years: from 3.00 pm Christmas Day to 3.00 pm Boxing Day.
10.Following the expiry of the period of twelve (12) weeks from the date of these orders, the children shall communicate by telephone/video call with the mother on each Wednesday at 6.00 pm and for the purposes of this order:
(a)the father will forthwith provide the mother with the children’s direct mobile phone numbers; and
(b)the mother will initiate the call to the children.
11.Notwithstanding any other order which provides for the children to spend time with the mother, the children shall live with the father:
(a)for one half of all Queensland school holiday periods, being the second half in even numbered years and the first half in odd numbered years; and
(b)on the children’s birthdays:
(i)if a school day that the children are not otherwise in the care of the father in accordance with other terms of this order: from after school/3.00 pm to 6.00 pm; or
(ii)if a non-school day that the children are not otherwise in the care of the father in accordance with other terms of this order: from midday to 6.00 pm.
(c)on the father’s birthday in each year, if the children are not otherwise in his care on that day in accordance with other terms of this order: from 3.00 pm to 6.00 pm; and
(d)for the weekend on which on Father’s Day occurs in each year: from after school/3.00 pm on Friday to before school/9.00 am on Monday; and
(e)for Christmas in each year as follows:
(i)in odd numbered years: from 3.00 pm Christmas Eve to 3.00 pm Christmas Day; and
(ii)in even numbered years: from 3.00 pm Christmas Day to 3.00 pm Boxing Day.
12.During any time the children are spending holiday time with their mother, they shall communicate with the father by telephone/video call on each Wednesday at 6.00 pm with the father to initiate the call to the children.
13.Neither parent shall enrol the children in any activity which occurs during time that the children are living or spending time with the other parent without first obtaining the written consent of that parent.
Changeover
14.Unless otherwise specified, changeovers which occur on gazetted school days shall take place at the children’s school, with the mother to be responsible for collecting the children from school at the start of their time with her and returning them to school at the conclusion of that time.
15.Changeovers which occur on days other than gazetted school days shall, unless agreed between the parents in writing, occur at:
(a)McDonald’s Suburb U when the children are going to the father; and
(b)McDonald’s Suburb V when the children are going to the mother.
16.Each parent is at liberty to have a person other than themselves collect the children at the commencement of their time with that parent, or to return them at the conclusion of such time, provided that:
(a)any such person is known to the children; and
(b)the parent having someone other than themselves attend the particular changeover informs the other parent by text, sent no less than forty-eight (48) hours prior to the changeover, of the name and contact phone number of the person who shall attend at changeover on that parent’s behalf; and
(c)no less than forty-eight (48) hours prior to the changeover, the parent having someone other than themselves attend the particular changeover provide the other parent with a photograph of the person attending at changeover on that parent’s behalf.
17.Each parent will keep the other advised of a mobile phone number to be used to contact the children and advise the other in writing of any change to the same within forty-eight (48) hours of any change to the same.
Schooling for the children
18.The father do all things necessary to enrol the children to attend at a school local to their home forthwith.
19.By this order, any school at which the children attend is hereby authorised to release to and provide both parents (at the requesting parent’s cost) with information about the children including copies of school reports, newsletters photographs, certificates and awards obtained by the children, and all information that either parent may, from time to time, seek in relation to the children’s educational progress and other school related activities.
20.Following the expiry of the period of twelve (12) weeks from the date of these orders, the mother is at liberty to attend any day-care or school event at which parents would ordinarily attend (such as, but not limited to: speech nights; parent-teacher interviews; sports events; swimming carnivals and fetes) and to attend the children’s extracurricular activities.
21.By this order, any day-care, school, educational facility or extracurricular activity provider at which the children attend is authorised to provide each parent with such information as they are lawfully able to provide about the children and their progress.
Medical authority
22.These orders act as an authority for any treating medical practitioner/health care provider associated with the children to release and provide both parents with information about the children and act as an authority for either parent to speak to any treating medical practitioner/health care provider associated with the children and to obtain from them copies of all reports and any other document associated with the children’s health care and wellbeing, and all information that either parent may, from time to time seek in relation to the children’s health care and wellbeing.
23.By this order any treating medical practitioner is hereby authorised to release to both parents such medical information about any medical emergency, significant health issue or significant illness suffered by the children as they are lawfully able to provide about the children and, in determining the extent of their lawful actions, any medical practitioner is excused from having regard to the content of correspondence dated 31 March 2021 ostensibly authored by the child C to express his wishes about the management of his medical information.
NDIS
24.This order authorises the father to be listed as the primary contact for each of the children with the National Disability Insurance Scheme (NDIS) and for the NDIS to provide copies of all communications, plans and any other documentation in relation to the children to both parents notwithstanding that the father has sole parental responsibility for the major long-term decisions relating to the children.
25.Any support co-ordinator appointed to manage the children’s NDIS plans is hereby authorised to communicate with the father and provide him with such information about the children’s NDIS plans as he reasonably requests.
Exchange of information and communication between the parents
26.Each parent shall keep the other parent informed at all times of their residential address, a contact telephone number and an email address and shall:
(a)notify the other as to any change in those details as soon as practicable after such change and no later than after forty-eight (48) hours of the same; and
(b)notify the other parent at least sixty (60) days prior to relocating their residence beyond a fifty (50) kilometre radius from where they currently reside.
27.Save for in emergency situations (when they shall communicate via text message), the parents shall communicate with each other about the children via email and, for this purpose, each shall keep the other informed at all times of the email address they wish to be contacted via and shall notify the other in writing of any change to the same within forty-eight (48) hours of any change.
28.In the event of a child being admitted to hospital for emergency treatment, receiving treatment by an ambulance crew, or being taken to a medical practitioner for urgent treatment following any accident, injury or sudden illness, the parent in whose care the child is at the time shall immediately, by the best means available, notify the other parent of the following details:
(a)the name and contact details of the medical professional administering the treatment; and
(b)the medical or other complaints for which the children were taken to the medical professional; and
(c)any treatment and/or medication prescribed for or provided to the children and the reasons for the same; and
(d)the prescribing or provision of such medication and/or treatment; and
(e)if the child is admitted to hospital: the name and contact details of that hospital.
Gifts and Cards
29.Both parents shall be at liberty to send gifts and/or cards to the children and the parent with whom the children are living will ensure that the children receive anything sent to them.
Non-denigration
30.During the times that the children are in their care, the parents shall:
(a)not question the children about matters concerning the personal life of the other parent;
(b)speak respectfully about the other parent; and
(c)not denigrate the other parent, their partner or their family to or within the presence or hearing of the children and remove the children in the event that someone in their household or presence is denigrating the other parent.
31.Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the children, nor involve the children in any discussions regarding any issue in dispute between them and each parent shall take all reasonable steps to remove the children from any such discussion if instituted by any third party.
AND IT IS FURTHER ORDERED THAT
32.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Order made 31 May 2022, the Reasons for Judgment published in support of the same and all reports exhibited to the mother’s affidavits or otherwise tendered in Court to any school or educational facility at which either of the children attends, to any therapist upon whom the parents and/or the children attend for the purpose of therapy, to any medical practitioner upon whom the parents and/or the children attend, to the NDIS, to the Department of Children, Youth Justice and Multicultural Affairs (by whatever name the Queensland Department is then known), the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
33.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
34.In the event that the mother fails to make the children available to live with the father as provided for in Order (2) above, the father has liberty to apply on the giving of notice in writing, with such application to be advised in writing to the Associate to the Honourable Justice Hogan.
35.The Independent Children’s Lawyer will be discharged following the implementation of the terms of this order.
AND IT IS FURTHER ORDERED, BY WAY OF FINAL ORDER PURSUANT TO S 79 OF THE FAMILY LAW ACT 1975 (CTH), THAT:
36.The father shall retain as his absolute property and is entitled to be the sole legal and beneficial owner of and to retain sole use and control of:
(a)any funds held in all bank accounts in his sole name; and
(b)any furniture, household contents, motor vehicles and all other chattels currently in his name or possession; and
(c)his superannuation entitlements; and
(d)all other proprietary interests of whatsoever nature currently in his possession or under his control.
37.The mother shall retain as her absolute property and is entitled to be the sole legal and beneficial owner of and to retain sole use and control of:
(a)any funds held in all bank accounts in her sole name; and
(b)any furniture, household contents, motor vehicles and all other chattels currently in her name or possession; and
(c)her superannuation entitlements (if any); and
(d)all other proprietary interests of whatsoever nature currently in her possession or under her control.
38.All outstanding applications in which orders altering the interests of the father and the mother in property were sought are dismissed.
IT IS DIRECTED THAT
39.Any application by the father in reliance on the liberty to apply conferred by Order (34) of this order shall, if practicable, be brought immediately to the attention of Hogan J.
IT IS FURTHER DIRECTED THAT
40.A Registrar of the Court forthwith provide a copy of the Reasons delivered 31 May 2022 in support of the orders made today to:
(a)the Director-General of the Queensland Department of Education; and
(b)the Director-General of the Department of Children, Youth Justice and Multicultural Affairs in Queensland,
for the consideration of the issues raised therein.
AND IT IS FURTHER ORDERED THAT
41.All outstanding parenting and other applications are otherwise dismissed and removed from the list of cases requiring finalisation.
42.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Collingwood & Collingwood has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
These proceedings require the determination of those parenting orders which are now in the best interests of 15 year old C, who was born in 2007, and 11 year old D, who was born in 2010, and the property adjustment orders, if any, which are just and equitable between the parents.
The children’s parents started a relationship in 2005, commenced cohabitation in 2010, married in late 2014 and separated in early November 2017, when the father moved out of the former matrimonial home to live with his mother. The mother has another son, B, who was born in 2003. I accept that the father has always treated him, and continues to regard him, as his son.
The children have always lived with their mother and remained in her primary care after the parental separation. Both C and D have only ever been home-schooled: their mother has always been primarily responsible for managing their education (she has been their “tutor”) and they are currently enrolled at W School (“W School”). The mother is also the parent who has always been primarily responsible for managing the children’s medical and developmental issues.
A number of interim parenting orders have previously been made in the proceedings:
(a)on 31 July 2018 – an order was made by consent for the children to live with the mother and for B and C to spend time with the father on Tuesdays (at sport) and Wednesdays from 6.30 pm until either 8.15 pm or 9.00 pm and on every third Saturday from noon until 4.00 pm (with the mother to encourage D to attend on these occasions) and, amongst other things, for the father to be at liberty to attend C’s sport training on Thursdays between 5.30 pm and 7.30 pm (and all other sport events and school events at which parents were entitled to attend), with changeovers to occur at either McDonald’s Suburb U or BP Suburb U; and
(b)on 22 January 2019 – an order was made for the children to spend time with the father from 10.00 am until 4.00 pm on each of three consecutive Saturdays of each month, with changeovers to occur at the G Contact Centre; and
(c)on 21 May 2020 – an order was made for the children to communicate with the father each Saturday from 2.00 pm for up to 30 minutes via Zoom; and
(d)on 2 August 2021 – an order was made for C and D to spend time with the father from 10.00 am until 4.00 pm on each of three consecutive Saturdays in every four (with the time to commence on 21 August 2021) and changeovers to occur at McDonald’s Suburb U or Suburb V.
I accept that the children have not spent time with the father in accordance with the terms of those orders. Whilst B and C spent overnight with the father in January 2018, D did not accompany them. Whilst the father attended sport to spend time with the children after the July 2018 orders were made, I accept his evidence to the effect that the mother often refused to allow them to speak to or interact with him. I accept that, despite the terms of the January 2019 orders, the lack of availability of a Contact Centre meant that the children did not start spending time with their father there until 30 November 2019. I accept that, after three supervised sessions at the Contact Centre, it was used only to facilitate changeovers and that the children had a few subsequent visits with the father until the last of the same in early March 2020. I accept that it was after the mother stopped taking the children to the Contact Centre in about mid-March 2020 (following the outbreak of the COVID-19 pandemic), that the May 2020 orders were made: despite the terms of the same, the father has only been able to speak with C (and not D) by telephone since then.
The children have not spent time with their father as required by the August 2021 order.
PARENTING
In determining the proceedings, I must have regard to the Objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”), and the principles which underpin those Objects.[1] In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[2] The matters to which regard must be had in determining those parenting orders which are in the children’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[3] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the children’s best interests. I have considered all of the relevant considerations in arriving at my conclusion about those orders which are in the children’s best interests. Further, it is well-settled that the exercise of the discretion involved in determining those parenting orders which are in children’s best interests “necessarily involves, because of the focus upon the future, significant elements of value judgements; assumptions; necessarily uncertain predictions and intuition”.[4]
[1] Family Law Act 1975 (Cth) s 60B.
[2] Family Law Act 1975 (Cth) s 60CA and s 65AA.
[3]See Banks & Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
[4]Morden & Coad [2019] FamCAFC 233 at [13] and the reference to U v U (2002) 211 CLR 238 per Gummow and Callinan JJ ( with whom Gleeson CJ, McHugh and Hayne JJ agreed) at [90]; CDJ v VAJ (1998) 197 CLR 172 per the plurality at pp 218-219.
The children continue to live with their mother and B in the upstairs portion of a house also inhabited by the maternal grandmother. If the children remain living with their mother, there is no doubt whatsoever that she will continue with the home-schooling which has been implemented to date and that she will continue to manage and address the children’s education, medical needs, care needs and issues as she has historically.
The primary issue is whether it is in the children’s best interests for them to continue to live within the parenting regime overseen by their mother or whether their best interests are more appropriately addressed by moving to live with their father, who is largely untested in his post‑separation parenting of them.
There is no doubt that orders requiring the children to live with their father would require them to adapt to an entirely different parenting regime – not only in terms of living with him but, given that he proposes an end to their home-schooling regime, also their integration into, and attendance at, classes at a school.
In order to assess the likely impact on the children if they are required to undertake such a transition, it is, I think, necessary to assess their functioning on the basis of the assessments and reports in evidence. Herein lies one of the significant difficulties in these proceedings – namely the attempt to ascertain whether each child’s reported deficiencies are the consequence of matters inherent to each of them or, rather, the consequence of the implementation of the parenting decisions primarily made by their mother or a combination of the two. For example:
(a)are the difficulties that have been reported in their attempts to write with a pencil the consequence of inherent incapacity or, rather, the fact that they have not been taught sufficiently how to use a pencil and/or that insufficient time has been spent practising this learned skill?
(b)are the reported limitations in their respective capacities to concentrate a consequence of their inherent nature or the fact that they have not been required to develop such capacity to the best of their ability?
(c)are the reported difficulties with their social skills a consequence of matters inherent to each of them or the consequence of the fact that, because of decisions made by the mother in her parenting of them, their opportunities to engage with members of the community have been extremely limited – particularly since March 2020?
Is this a case in which the mother, faced with children with significant inherent limitations and/or incapacities, has simply done the best that could be done or is it a case where, for whatever reason, the children’s inherent limitations and/or incapacities (whatever they may be) have been exaggerated by the mother? Does the mother have the capacity to ensure that, with appropriate professional assistance, each of the children fulfils their potential or are her limitations, identified by and consequent on the various diagnoses summarised in these Reasons,[5] such that, despite her efforts, the children’s needs are more likely to be better met in the future if they move to live with their father? Is the children’s current level of functioning predominantly a consequence of nature or nurture? Have their capacities been downplayed and their limitations exaggerated or are they currently functioning to the best of their abilities?
[5] Which include the Schedules.
Irrespective of the answers to any of the questions posed above, is it simply too late to require the children to endure the complete discombobulation that moving to live with their father now would entail?
This case provides an excellent example of the way in which assertions reported to one medical practitioner, medical specialist or therapist are accepted and then repeated to others without question: an assertion becomes, in essence, an accepted fact. Obviously, therapeutic processes can only proceed on this basis: it would be completely unrealistic to expect that, before embarking upon a course of treatment, each medical practitioner or other expert undertake a completely independent assessment of each child who has been presented to them with asserted conditions, rather than accepting, as fact, any historical diagnoses which have been provided.
However, a consequence of this reality is that it means there is always the possibility that responses by educators, therapists and medical practitioners are formulated on a false premise: an educational response formulated on the basis of an acceptance that a child cannot, for medical reasons, concentrate sufficiently to participate in mainstream schooling may well fail to afford such child the appropriate developmental opportunities if, in fact, their concentration difficulties are not completely the consequence of medical reasons but, rather, the result of the manner in which that child has been parented; responses promoting social isolation which are premised on the acceptance of an assertion that a child cannot, for medical reasons, interact appropriately with their peers runs the very real risk of reinforcing any such interactional limitations if, instead, they are the result of having insufficient opportunity to form social connection – as opposed to being the consequence of an inherent incapacity.
On the evidence before me (a contention I emphasise), this case also suggests that there is, currently, a bewildering and unacceptable absence of sufficiently rigorous oversight of the home-schooling aspect of the education system. How can it be, I ask rhetorically, that it has been possible for these children to have, essentially, “disappeared” from the usual educational oversights, checks and balances that participation in our society promotes? Can it really be that it is so easy for a parent to rely upon assertions about a child’s medical condition or incapacities in order to substantiate a request to home-school that child and, at the same time, explain subsequent deficiencies in their child’s educational development on the basis of the asserted medical condition/incapacities without anyone within the education system consistently requiring an independent assessment (and, where suggested by a child’s failure to progress, a reassessment) of the child’s actual functioning and the causes of the same? Can a parent effectively disengage a child from meaningful participation in the education system without consequence? How are parental failures to engage properly with the home-schooling aspect of the education system – and discharge the onerous obligations of any person standing in the shoes of a qualified teacher – managed? Is there any point at which there is an independent assessment of a parent’s purported discharge of the tutoring tasks involved in delivering education to their child at home – or is it simply enough for a parent to say that they have done so? How are parents assessed to determine if they have the capacity to give their children the education they would receive if they were afforded the benefits of day-to-day interactions with qualified teachers?
Whilst answers to these questions may well already exist, the state of the evidence before me in this case is such that they remain unanswered insofar as these children are concerned. It is for this reason that I have determined that it is appropriate and in the children’s best interests to direct that a Registrar of the Court forward a copy of these Reason to the Director-General of the Queensland Department of Education for urgent consideration of the systemic issues surrounding the manner by which these children have interacted with the education system in this state.
Initial comments about the children, these Reasons (including the Schedules) and matters to be considered in assessing aspects of the evidence
As raised during the course of the proceedings on multiple occasions and as already noted, one of the significant difficulties in this case lies in attempting to ascertain the components of each child’s “baseline” functioning. I regard this as one of the fundamental aspects of the determination of those parenting orders which are in these children’s best interests because I consider that it is only with the benefit of an appreciation of each child’s inherent capacities that the Court can best approach a consideration of the likely impact on each of them of orders that would require them to move to live, for the very first time, away from their mother’s care and, instead, be subjected to their father’s parenting regime – which would also involve them being introduced to mainstream education.[6]
[6]This is the term used in these Reasons, without disrespect to the home-schooling aspect of the education system, to refer to children attending physically in the classroom at a school, irrespective of whether this also involves participation in a specially designed or modified curriculum.
Whilst I think it highly unlikely that the evidence before me encompasses all of these children’s interactions with various medical experts and therapists over their respective lives, what follows in these Reasons[7] is a detailed, chronological review of the relevant evidence I have about the various assessments and reviews undertaken of each of them. I have also determined it appropriate to include a similar detailed chronological review of the evidence I have about both the mother and B because, whilst he is now an adult, it is clearly established that the information about his functioning, capacity, limitations and/or disabilities (as well as those of the mother) have informed some of the assessments about each of C and D. Further, an assessment of the mother’s capacity to discharge the obligations of “tutor” to the children and otherwise parent them can only realistically occur with the benefit of an appreciation of the information available to the Court about matters pertaining to her health and functioning.
[7] Which include the Schedules.
So that there is no misunderstanding about how the information recounted in these Reasons and Schedules (summarised from the evidence before the Court) has been used in the determination of those parenting orders now in the children’s best interests, I record that:
(a)I accept that the information recounted therein was provided by whomever is said to have provided it; and
(b)where indicated in the Schedules, I accept the opinions proffered by those who have assessed the children and the mother on occasion; and
(c)because of my assessment of the mother’s veracity, perceptions and capacity to recount events inaccurately, I do not necessarily accept the accuracy or truthfulness of the information conveyed by the mother as recounted by the recipients of the same: that is, I accept that the mother said what she is reported to have said, but I do not necessarily accept that what was said (and therefore reported) was a truthful or accurate representation of what had, in fact, happened, although it may, on occasion, have accurately represented the mother’s perception of what was reported; and
(d)I accept that the information recounted by the various schools at which the children have attended and the therapists (of whatever nature) upon whom they have attended has largely been the consequence of information provided by the mother to the school or the therapists; and
(e)where assertions or opinions proceed on the basis of an acceptance of the existence of domestic violence in the relationship between the mother and the father (and after their November 2017 separation), the same has proceeded on the basis of an unquestioning acceptance, by those who have asserted the existence of domestic violence as a fact, of the mother’s allegations about domestic violence and without reference to the father’s denials of the same; and
(f)records of the mother’s reports of being stressed or anxious or suffering PTSD or complex PTSD due to “ongoing domestic violence” and records of her assertions about other consequences asserted to have been caused by alleged domestic violence do not establish the existence of the domestic violence which the mother alleges that the father perpetrated against her and the children and, similarly, do not establish the alleged causation; and
(g)assertions made by Dr L to Dr H (for example, in correspondence dated 23 April 2021) that “one of the main contributing and maintaining factors” about a child’s situation and/or presentation is “his challenging family environment and history of family violence” does not establish that either of the children was subjected, or exposed, to family violence or that there is, in fact, a history of domestic violence; and
(h)assertions contained in documents maintained by the NDIS (such as the mid-2021 Plan Review reports relating to the children) to the effect that the family had been isolating “due to the complex DV situation” that they were “continuing to experience” does not establish the existence of a domestic violence situation (complex or otherwise) or the causative link implicit in such an assertion; and
(i)assertions in the nature of that outlined in Dr H’s 17 July 2018 correspondence (to the effect that the father was said to have become quite emotionally manipulative), for example, are no more than a record of the mother’s report of her perception or assessment that the father had behaved in such a way; and
(j)Dr L’s evidence needs to be considered with an appreciation that:
(i)she has never spoken to the father or seen him interact with the children; and
(ii)she approached her engagement with the mother and children on the basis of an acceptance of the premise that the father was an abusive ex-partner; and
(iii)she accepted the truthfulness and accuracy of the information reported to her by the mother; and
(iv)the only report provided to her was Dr H’s Mental Health Care Plan (which contained the assertion that there had been a history of violence) and her only engagement with other therapists or allied health practitioners was limited to a couple of telehealth calls she had with the children’s individual DF Service psychologists; and
(v)she had not been provided with any assessments of the children’s educational progress or any document which contained recommendations about the type of schooling in which the children should engage and she was not aware of any recommendation that they attend mainstream schooling; and
(vi)her understanding of the children’s routines in the mother’s household was based almost entirely upon information the mother provided to her.
I also record that, where there are chronological gaps in the information summarised in these Reasons and Schedules (for example, about the children’s educational progress over time or their progress at any previous school with which they have been involved), this is because any such information is not before the Court. To the extent that there are chronological gaps in the medical and allied therapy reports summarised or referred to in these Reasons, I note that the mother’s evidence included that she thought she had provided the Court with all of the reports (of whatever nature) about the children that were in her possession.
It is clear that, since March 2020, the vast majority of the children’s interactions with the various medical practitioners upon whom they have attended has occurred via telehealth consultations. I think it highly likely that, even now, the majority of the children’s interactions with these practitioners has continued, where possible, to occur via this medium.
In this respect, it is relevant to note that the mother’s evidence included that: she was present for all of the children’s consultations with Dr H; that, whilst D does not speak with Dr K on the phone “because he hardly ever sees him”, he does communicate by phone with Dr H; that, in conducting his consultations, Dr K factors in the time taken to write his reports such that, for example, the most recent attendance of the mother and the three children in late 2021 involved between 30-45 minutes of direct interaction with him in total (that is, whilst the consultation might be 60 minutes duration, the actual interaction with Dr K might only be 10‑15 minutes, because he spends a lot of time after it writing the reports). If this is so, it has obvious consequences for Dr K’ assessments.
The mother’s credit, accuracy and reliability
Given that so much of the information about the children’s actual functioning is sourced from the mother and that it is uncontroversial that:
(a)the mother was the parent responsible for managing the children’s health and education both prior to the November 2017 separation and thereafter; and
(b)much of the evidence before the Court involves the recounting by various experts of the information provided to them by the mother; and
(c)the children being home-schooled has effectively eliminated other substantial sources of information (other than the mother) about the children’s observed behaviours and functioning,
it is especially necessary to consider whether the mother can be regarded as being a truthful, accurate and reliable witness or as someone whose evidence needs to be assessed very carefully before accepting it as a truthful, accurate and reliable recitation of facts, rather than a misrepresentation (deliberately or otherwise) of what occurred.
Even taking into account the various diagnoses set out in these Reasons and the Schedule which relates to the mother (which outlines, chronologically, various matters established by the evidence before the court), I have ultimately concluded that the mother’s evidence has to be approached with significant caution. I am persuaded that she deliberately lied on occasion; at other times she was, I consider, deliberately evasive and obstructive; at other times she may well simply have been overwhelmed.
Whilst it is easy to accept that it is almost impossible for any witness to recall every historical matter with complete accuracy, the mother’s refutation of recollections about matters in which she played a significant role has persuaded me that such denials are untrue. If I am wrong in this and the mother was truly unable to recount accurately her knowledge about issues such as the father’s attempts to obtain information about the children from their general medical practitioner (Dr H), then her inability to hold such information in her mind is a factor which needs to be added to many others in the assessment of her capacity to support the children in their future educational and vocational aspirations.
The following aspects of the mother’s evidence are but examples which have persuaded me of the need to exercise significant caution in assessing her veracity, accuracy and reliability in the recitation of events.
Mr Z is the mother’s previous husband. He gave evidence in the father’s case. Part of Mr Z’s evidence was that: despite divorcing in 1996, he and the mother resumed contact; in March 2002, she travelled to Town AA to care for him when he was released into her care following his admission to an army hospital because he had been shot in the course of that service; the mother told him that B (who was born in 2003) was his child before later telling him that he was not B’s biological father; and, the mother obtained a Protection Order against him in 2003.
The mother’s evidence (adduced orally with leave before she was made available for cross‑examination) was that: she last had contact with Mr Z in 1996; she had not told Mr Z that B was his biological son; and she did not obtain a Protection Order against Mr Z.
When first cross-examined, the mother denied taking out a Protection Order against Mr Z.
However, it is clear that the mother did in fact apply for a Protection Order against Mr Z and that such order was made in early 2003 in her favour and that of the others she had sought be named on it.[8] That this happened is, it seems to me, relevant not only to an assessment of the mother’s credit overall but also to her assertion that it was only via her engagement with domestic violence counselling after the November 2017 separation that she realised that she had been in a domestically violent relationship with the father. That the mother applied for and obtained a Protection Order against Mr Z on the basis of the asserted existence of domestic violence in their relationship certainly suggests that she was well aware of the type of behaviour required to found such an order and, also, that she knew, well before the end of her relationship with the father in November 2017, about the protection available to those who allege they have been the subject of actions constituting domestic violence.
[8] Exhibit 29.
Even if the mother’s explanation that she had forgotten she had obtained a Protection Order against Mr Z because of the impacts on her functioning of the domestic violence she alleged the father had perpetrated against her (during their 12 year relationship and after the November 2017 separation) was accepted, such assertion does not explain the difference between her recounting of how it came to be that the assessments undertaken by Ms BB (Senior Occupational Therapist from Group CC ) in June 2021 occurred at that service’s offices rather than at her home.
Ms BB’s assessments of each of the children and B (as outlined in the relevant Schedules) make it clear that the same occurred at the service’s office because the mother did not want the assessment to occur at the children’s home. I accept that this was the case.
However, when she was asked during her cross-examination to tell the Court why the Group CC assessment took place at the service’s office and not at her home, the mother’s evidence was as follows:
Because they insisted on it happening – excuse me. They insisted for some reason on it happening there. I – I honestly don’t know or understand why. I think it could have been a safety issue. I really didn’t understand. They just said we have to – we had to go to their office. I said, “Do we really have to? We don’t really want to. You know, we’re trying to stay at home because of medical reasons”. And they said, “We need you in the office”. So that’s why we went…
I consider this aspect of the mother’s evidence to establish clearly that she is very capable (intentionally or otherwise) of simply inventing a conversation that is highly unlikely ever to have occurred. Her evidence is much more than an assertion that she was mistaken and/or that she had simply forgotten how it came to be that she and the children travelled to the Group CC office for the assessments rather than having the therapists travel to their home (as I accept the therapists wanted to do): she demonstrated her capacity to simply invent details and interactions and to provide a recounting in which she was the person whose will was overborne – when in fact, the therapists had to accommodate her wish for the assessments to occur at their office and not at the children’s home; on her recounting she is, in one sense, the victim of decisions made contrary to her request whereas, in fact, she retained the power and control over the venue at which the various assessments occurred.
Whether the mother’s recounting was a deliberate lie, or the consequence of the manner in which she sees and approaches the world and her interactions with those in it, does not seem to me to matter much for the purpose of assessing what weight can safely be placed on her evidence as being an accurate recounting of matters and events which actually happened and the manner in which they occurred. If the mother was being entirely truthful in her recounting of how the Group CC assessments came to take place where they did, then her recounted perceptions of how that came to be means, I think, that it is difficult to be confident that the balance of her evidence – when it involves recounting alleged past events and interactions – is not similarly influenced. Further, it is difficult to be confident that her reports to various therapists and treating medical and allied health practitioners about the children’s functioning and behaviours have not been similarly significantly influenced by her own perceptions of the same – as opposed to being, simply, factual recitations of what she saw or heard at various times. This concern has not been ameliorated by, for example, the mother adducing evidence from various support workers/mentors with whom the children have been engaged under her direction – who could likely have provided direct evidence of these matters, particularly before March 2020 when the mother decided that she and the children would self-isolate at home – or by calling those teachers whom she said, in her evidence, had noted the children to be distressed both before and after spending time with their father.
In addition, the mother’s willingness and capacity to ad lib an explanation as she did during this aspect of her evidence is another matter which has caused me to be very, very cautious in accepting the truthfulness, accuracy and reliability of her recounting of events unless the same is supported by other evidence.
The mother’s later evidence that she:
(a)accepted that she stood corrected about her version of how the Group CC assessments came to occur at their office rather than her home; and
(b)had obviously recalled “this particular reason incorrectly”; and
(c)did not recall either having asked for the assessments to occur there (rather than at her home) or why she had made such a request,
does not dissuade me from the conclusions I have already expressed.
A further aspect of the mother’s evidence which has caused me to be very circumspect in my assessment of her evidence and my consideration of the information she is recorded as having provided to various medical practitioners and allied health professionals over time is what she said when she was asked whether, during her relationship with the father, she had complained to him about a former partner abusing her. The evidence unfolded as follows:
[COUNSEL FOR THE FATHER]: …[the father] says that during the relationship, you would constantly complain of your former partner abusing you, and you also said that you were sexually assaulted by another partner some times before you and my client met. Is there any truth to that?
[THE MOTHER]: No.
…
[COUNSEL FOR THE FATHER]: Have you ever said to my client that prior to your relationship with [the father], you had been sexually abused by somebody else?
[THE MOTHER]: No, I never said that to [the father].
[COUNSEL FOR THE FATHER]: Are you sure of that?
[THE MOTHER]: Yes, I am sure of that.
However, after the mother returned to the witness box (having left the courtroom at the Court’s request to enable discussion between the Court and counsel for the father to occur unimpeded by any concern that exposure to the same may in some way influence the mother’s evidence), the mother was then asked:
[COUNSEL FOR THE FATHER]: Had you disclosed to [the father] that prior to your relationship with [the father], you had been sexually assaulted by another person?
[THE MOTHER]: Sexually ---
[COUNSEL FOR THE FATHER]: Yes?
[THE MOTHER]: --- assaulted.
[COUNSEL FOR THE FATHER]: Yes?
[THE MOTHER]: Yes. As a – in confidence as my then husband.
The mother’s evidence that she told the father she had been sexually assaulted by another person prior to their relationship is also relevant to the assessment of the various reports recording the mother’s recounting of the domestic violence she alleged the father to have perpetrated against her during their relationship (and since the November 2017 separation) and also to the diagnosis of PTSD and the assertion that the father’s alleged behaviours caused this.
Further, despite the mother’s initial evidence that she did not ask Dr H to change anything in her March 2020 correspondence about the necessity for the mother and children to isolate at home because of COVID-19, it is clear from the contents of Dr H’s notes[9] that she did. For example, the contents of Dr H’s notes:
(a)of the consultation on 26 March 2020 – include that the mother wanted the letter to reinforce the importance of self-isolation for the whole family; and
(b)of the consultation on 1 April 2020 – include that the mother “needs minor change to letter provided last visit. Needs documented that I provided her with a verbal recommendation to isolate since 19 March 2020”; and
(c)of the consultation on 4 June 2020 – include that the mother was “not happy with some wording” and that she “wants this change to be more specific to COVID-19 and high risks severe disease for them and her mother”.
[9]The accuracy of which the mother did not challenge: in fact, she said Dr H was very accurate in her note-taking and she accepted that Dr H’s records were correct.
In addition, according to the records of the consultation on 22 June 2021, the mother told Dr X that there was a domestic violence order in place but, on the evidence before me, that is not the case – certainly not between the parents.
That the mother has been disingenuous at times is, I consider, clearly established by her criticism of the father’s use of Dr Y to assist him to obtain the children’s medical records from Dr H. The mother’s evidence that there was no reason the father could not have made an appointment to see Dr H about the children’s medical issues and their records needs to be considered in light of:
(a)the contents of Dr H’s notes of the consultation on 16 June 2020 – which include that, after she told the mother that the father had asked her to call him back to discuss D’s asthma (and that she had not done so because of safety concerns, confidentiality and domestic violence), the mother told Dr H not to provide any information to the father and that, if he wanted medical information, he needed to go through his lawyer; and
(b)the contents of Dr H’s notes of the consultation on 23 June 2020 – which include that, when the mother called to advise that she was aware that the practice was receiving emails and telephone calls from the father requesting medical information about the boys (and requested a copy of his emails to give to her solicitor), she advised first, that an order said he was not permitted access to such information and secondly, that, if he wanted to obtain this information, he would have to go through his solicitor; and
(c)the contents of an email she sent to Dr H’s practice on 25 June 2020 – in which she asserted, amongst other things, that the father was “harassing” Dr H and by which she provided the practice with photographs of the father and the paternal grandmother so they could be identified if either attended at the practice to try to obtain information about the children; and
(d)the contents of Dr H’s notes of the consultation on 1 September 2020 – which include that, after Dr H told her that the father had emailed a request for information about the children’s medical management and COVID-19 restrictions, the mother told Dr H that she did not want him given any information and that he could only access the children’s medical records through subpoena.
Given the above, the mother’s evidence to the effect that she stayed out of the communications between the father and Dr H about his access to the children’s medical records is patently false.
Further, I reject the mother’s evidence to the effect that Cr DD’s inclusion in her 26 October 2021 correspondence[10] about the children benefiting, until vaccinated for COVID-19, from physically distancing from the public was something that Cr DD included completely of her own volition; I do not accept the mother’s evidence that she did not ask Cr DD to address that issue at all.
[10] Annexure 1: C at [173].
In her 27 October 2021 affidavit, the mother said that “I receive treatment and support from the following medical and allied health professionals to assist me with the above-mentioned health difficulties:” – and referred, at (e),[11] to “Ms N, Speech Pathologist”. However, when the mother was asked whether she had seen Ms N since 17 December 2018 (the assessment date recorded in her report) she said that she had had conversations with Ms N after December 2018, but there were no formal appointments with her after the assessment, no invoices had been received and that “as far as I was concerned it was just me talking to her as a friend”. When taken specifically to the obvious discrepancy between this evidence and the evidence she had given in her October 2021 affidavit, the mother’s answer was that she got treatment and support from Ms N “on occasions”; she also said, amongst other things, that Ms N had occasionally given her an invoice which was paid using funding available from the mother’s NDIS plan (the details of which were not produced and are not in evidence).[12]
[11] Affidavit of the mother filed 27 October 2021, paragraph 102.
[12]Whilst Ms N’s affidavit was formally read in the mother’s case, she was not made available for cross-examination and consequently, I have not had regard to her evidence.
In addition, much of the mother’s evidence about the issue of her use of prescription medication was completely unpersuasive. At one point she appeared to assert that, whilst various scripts had been written for her over time, that did not mean that she had filled them – and she went on to describe disposing of a large pile of unfilled scripts during a spring clean. However, once subsequent evidence clearly established that the scripts written for the mother had been filled, her evidence, in my view, evolved to meet this development and included that she continued to receive the medication when the scripts were filled but did not use it, did not take any steps to prevent the pharmacist from filling the script and, on occasion, simply returned the expired medication.
Given the contents of Dr H’s notes (which include references to the mother saying that she needed various pain killers prescribed to her), the evidence obtained from the Department of Human Services about the extent of the prescriptions written for the mother and Dr H’s 1 December 2020 correspondence[13] advising of the mother’s physiological dependence on prescription medication, I think it highly unlikely that the mother did not take the Mersyndol Forte and the Valium prescribed to her.
[13] Schedule 3: The Mother at [112].
A further example of the mother’s lack of veracity can be found in her answers to questions about how her legal fees were paid. When first asked whether the money had been “crowdfunded”, she said “No”. However, when she was later asked whether she had, for instance, a “GoFundMe” page, she said that she had for a little while, but had been advised to take it down. Her evidence also included the assertions that most of the funds raised via this source had been paid to her in cash and that she could not say which bank account they had been paid into (because she had lots of accounts), but it would have been an account with Westpac Bank which she subsequently closed. Any thought that the mother may have failed to recall specific details about the funds she said she had received via her crowdfunding efforts was because they were minimal is scotched by her evidence that she received about $50,000 from her GoFundMe page.
In general, all of the mother’s evidence about how she funded the litigation was entirely unsatisfactory and unpersuasive and certainly did nothing to bolster her credit.
The mother told Ms M, the Family Consultant who interviewed the parents and the children in October 2021, that she had been unable to do Zoom calls between the children and the father because she could not figure out how to do this. However, it is abundantly clear that, from at least March 2020 until the first tranche of the trial in November 2021, the children’s interactions with various therapists, teachers and medical practitioners had occurred substantially using such a medium or, if not Zoom, something comparable. In addition, the children’s interactions with their mentors/support workers in the same period of time only occurred electronically.
Finally, the mother’s evidence about the text messages which I accept she sent to a friend of hers (Ms EE) in January 2018 (which are discussed elsewhere in these Reasons) provides an example of her capacity to simply lie in an attempt to explain away occurrences that do not fit easily with other aspects of her case. When first asked about the January 2018 texts (in which she wrote about how she was feeling given that B and C were spending overnight with the father and it was the first time in about eight years that she had been apart from C), the mother denied that the texts had been sent in 2018 and asserted that the date on the print-out of them was the date on which they had been recovered from her phone by a person she had engaged for that purpose. However, once the content of the text – and, in particular, the reference to the timeframe within it – was explored further with her, the mother accepted that she had in fact sent the text on the date shown and said, in essence, that her evidence had been a “mistake”.
Given the extent of her assertions that the date shown on the print-out of the text was the date on which the texts had been retrieved from her phone, I was left with the very real feeling that, absent such a time-specific reference in her January 2018 communication with her friend, she would have maintained her assertion that the date shown was the date of retrieval and not the date it was written and sent by her to her friend.
Whilst the mother told Ms M, in October 2021, that the time the children spent with their support workers on Tuesdays, Thursdays and Saturdays often varied depending on other appointments and the needs of the children that week, her evidence when cross-examined persuaded me that the reality is that the times – especially on Tuesday and Thursday – occur when it suits the support workers rather than the children: otherwise, how can it be thought beneficial for D (who has been described as child with long-term sleep issues and as suffering from “insomnia”) to engage in online gaming with a support worker between 5.30 pm and 9.30 pm on those evenings?
A further example of the potential for the mother’s representations about the children’s functioning to have a real impact on the approach taken by the medical practitioners and therapists engaged to treat them can be seen by the evidence relating to D’s use of melatonin to assist with his sleep issues. The mother’s evidence about this included, at least initially, that D very rarely took the melatonin because of his “swallowing disorder” and that she did not recall giving him more than one tablet, as getting him to take one was hard enough because he was very resistant and felt like he was choking. However a diary entry recorded that he had taken four melatonin tablets, but only slept between 11.30 pm and 2.00 am.
The mother: her involvement in the children’s lives; her capacity to meet the children’s emotional, intellectual and other needs; her attitude to the children and their relationship with their father and to the responsibilities of parenthood[14]
[14] Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).
I consider that the evidence shows that the mother has considerable ability to enjoin others to support her in her contentions: for example, as discussed elsewhere in these Reasons, she was able to have Dr H change, more than once, correspondence she had written so as to further her underlying assertion that the children could not spend time with their father because their medical conditions were such that they needed to self-isolate at home (and attend only to matters like visiting their grandmother in hospital and having orthodontic work done); she was able to have Dr H assert in correspondence that the children had suffered a deterioration in their anxiety symptoms and general health to the extent that this “pattern of decline” was related to or connected with a change in the interim parenting orders.
Further, I am easily persuaded that the mother’s general approach to obtaining therapeutic or other specialist medical support for the children has been either to ignore the recommendations or to change the therapist if, or when, the therapist or specialist medical practitioner does not agree with her view or perception of things: for example, despite Ms FF achieving good speech pathology progress with the children over a relatively limited time, the mother decided to cease her involvement with the children on the basis of an assertion that the children want to engage with a male therapist – in circumstances where there is no mention at all in any of the reports prepared by any of the various female professionals upon whom the children have attended that the children have had any difficulty interacting with them and despite the reports of a number of female therapists asserting that the children had consistently interacted with them in a socially appropriate manner. Similarly, despite Dr GG’s recommendation about how D’s asserted asthma should be managed and the concerns he raised about the amount of medication D was using (both in relation to the asserted asthma and the melatonin), it seems highly likely that the mother simply reverted to the way in which she had previously managed that issue.
I also note that Dr L’s evidence included her assessment that the mother could have malicious interpretations of others sometimes: she said that, during discussions on 10 June 2021, the mother’s perception of D’s psychologist (“[Ms HH]” from the DF Service) was that Ms HH had “turned on her” because her response to the mother’s request that she write a letter for the Court was not in terms that were supportive of the mother’s view; Dr L’s evidence included that the mother’s perception of the correspondence (which Dr L had not seen) was that Ms HH was asserting that she (the mother) was coaching the boys and, therefore, she was not prepared to say some of the things the mother sought she did. This approach seems similar to the mother’s comments to Dr L about B being, in essence, an enemy because he wanted to have more interactions with his maternal grandmother than the mother thought appropriate.
The idea that the mother would be likely to facilitate the children seeing their father despite her view that it is not safe for them to do so is also contradicted, I think, by her approach to Dr Y following that medical practitioner’s intercession in support of the father’s attempts to obtain the children’s medical records from Dr H. Not only did she write to Dr Y (after Dr H told her that she was sending the children’s notes to Dr Y’s practice) to try to prevent access to these records, a diary entry for 28 May 2021 contains references to her wish to take defamation proceedings against Dr Y.
The idea that the mother will ensure that the children spend time with their father if that is what they say they want is undermined, in my view, by her evidence about C’s comments to people other than herself and Dr L: she did not accept that C told the family report writer that he felt okay talking to the father (because this was different to what he had told Dr L and his versions changed and she had noticed “errors” in what he had said to others); similarly, when asked about him saying, in an earlier interview, that he would like to see his father once a week, the mother said that this was not an expression of his true feelings and that he had told the family report writer something that he did not really want; further, she said that, when he told Dr H that visits with his father were okay, this was not really what he meant, despite the words he used. The mother’s responses to these instances when C expressed a wish to spend time or interact with his father makes it very clear, it seems to me, that she regards herself as the only person capable of knowing what the children’s views really are and that, when those expressions differ from what she thinks they should be, she will discount them completely.
Overall capacity to meet the children’s needs
The mother’s evidence of her own functioning included that: she had previously suffered strokes and, on some days, found it difficult to get words out; she had poor memory (which she asserted was the result of the domestic violence she alleged the father had perpetrated against her); she had trouble concentrating at the best of times and was not as capable as “normal” people of concentrating, responding and interacting in the questioning process that cross‑examination entails; she had difficulty focusing at times and that it sometimes took more than one person to keep her focused and on track; that she was fairly regularly bedridden with migraines; that she became sick, picking up germs, when she goes out into the community and that she loses track of time.
All of the above, it seems to me, have significant adverse consequences insofar as her capacity to discharge the onerous obligations of being the children’s “tutor” is concerned. As noted in comments made by the children’s school, barriers to the children receiving the appropriate educational input include the mother’s functioning.
In addition, it is, I think, abundantly clear that the mother has struggled with a physiological dependence on prescription medication. Whilst she refuted the assertion that C had been absent from the house riding his bike for several hours on the basis that, as she was at the home, she would have known if he was gone for that long, I think it highly possible that he could have been absent from the home for that length of time whilst she was under the effects of the prescription medication.
Further, whilst the tenor of the mother’s evidence about the manner in which she and the children share the maternal grandmother’s home suggested, at times, that there was no particular difficulty associated with this, the contents of Dr L’s notes paint a very different picture – one which is, I think, succinctly explained by the mother’s 19 March 2021 diary entry which said “disconnect Satan’s phone number”. I reject completely the mother’s attempt to explain this entry away as being a reference to her actions after an unknown male contacted her. Having regard to Dr L’s notes, I think it much more likely than not that the “Satan” to whom the mother was referring was the maternal grandmother (whom the evidence shows the mother had also referred to as being destructive, abusive, causing family discord, being disruptive and an abusive manipulator – predominantly, it seems, because of the mother’s perception of the maternal grandmother’s influence on B and him wanting to spend time with her). In addition, the reference to disconnecting the phone number needs to be seen in the context where the mother is, for Centrelink purposes, the maternal grandmother’s carer. I also note that the mother’s evidence was such that it appeared that the tasks she undertook as her mother’s carer were pretty limited; further, school reports recorded that B had done “work experience” as his maternal grandmother’s carer.
The mother’s evidence, combined with the contents of Dr L’s notes, left me with the very uncomfortable feeling that the mother’s actions in arranging for locks to be fitted to various doors in and at the home was more about maintaining separation between the children and the maternal grandmother and according her (the mother) the ability to control their interactions with the maternal grandmother than affording privacy to the maternal grandmother. Aspects of Dr L’s notes (although not raised with the mother during her cross-examination) also suggest that the mother had, in some way, restrained B in his room (and removed his ability to access various items of technology) as part of her management of his interactions with the maternal grandmother.[15] This could hardly have been missed by the other children and, to me, demonstrates what happens when one of the children’s views about something differs from the view held by the mother – something which is relevant to the consideration of her evidence that, if either C or D wanted to see their father and expressed that wish to her, she would make it happen and that, in essence, she has simply been following their wishes when she has continued to fail to comply with the August 2021 orders (which prescribes that they spend time with their father on three consecutive Saturdays in every four) and her evidence that, given their asserted wishes, she would be unable to have the children spend time with their father if final orders were made to that effect. In restricting B’s interactions with the maternal grandmother – in complete contrast to what he wants – the mother has demonstrated the capacity, when she thinks it appropriate, to ensure that behaviour in her house accords with her views.
[15] Schedule 4: B at [137] to [141].
I also note that the mother’s evidence included that she had taken steps to have security cameras put up in the house, that she had applied to Victims of Crime to fund the installation of more cameras and that she was considering installing security cameras in her room and the rooms of each of the children. All of these actions suggest that the atmosphere in the mother’s home is one of suspicion and fear – which seems highly likely to be conveyed, in some way at least, to the children.
Approach to the children’s education and extracurricular activities
I accept the father’s evidence to the effect that the mother’s views about home-schooling the children were such that she told him that, if he did not agree to this, she would leave with the children and he would never see them again. I accept that it is in this context that the mother’s evidence about the father’s agreement to the children being home-schooled needs to be seen and that it is against this background that he signed whatever was necessary for the children to be enrolled, most recently, at W School.
My conclusion about the father’s evidence about the mother’s stance about the children being home-schooled is supported by the notes prepared by Ms II (a child development social worker) of a home visit she conducted with the mother on 17 October 2016 during which the mother told her that she had seen B struggle at school and therefore chose to home-school all of the children. I accept Ms II’s account that, at that time, the mother displayed significant distrust of educational institutions.[16]
[16] Schedule 1: C at [24].
It is, I think, completely clear that the mother simply decided, irrespective of the children’s behaviours or asserted capacity to interact at school, that it would be best for them not to attend mainstream schooling. I also think it highly likely that, given this attitude, the mother’s approach was to advance reasons why the children could not attend mainstream schooling rather than even consider that possibility – even in the face of comments (as set out in these Reasons) that have consistently supported the children at least trialling participation in mainstream schooling.
Nothing in the mother’s evidence suggested that her attitude to “educational institutions” has changed in any way: she remains resolute in her view, in essence, that there are no benefits at all to the children engaging in mainstream schooling. She has maintained this view in the face of various recommendations over time that the children would benefit from engaging with mainstream schooling – for example:
(a)an Occupational Therapy Department report from the NN Hospital (dated 16 December 2011 and based on an assessment undertaken on 17 November 2011) recommended that C would benefit from attending a structured educational program where he needed to learn to fit in with routines and expectations for behaviour as well as having the opportunity to interact with other children;[17] and
(b)in October 2016 – a social work assessment conducted by a child development social worker from J Service recommended that C’s developmental progress be monitored within “a more structured and supporting learning environment” (which I take to be a reference to him attending at mainstream school);[18] and
(c)in November 2016 – the mother was advised by Ms MM that the service for which she worked would like to support C to transition to a formal learning environment and to support him to reach his developmental potential in relation to his learning, communication and social skills;[19] and
(d)in July 2021 – a functional assessment report from Group CC Occupational Therapy recommended, amongst other things, that C trial attendance in special education classes at a mainstream or special education school (or being engaged with a qualified teacher or tutor on a daily basis for up to four hours per day, five days per week) so as to support his home education and increase his academic skills to be within an age and ability appropriate level.[20] The same recommendation was made in July 2021 in relation to D trialling attendance at mainstream school.
[17] Schedule 1: C at [15(b)].
[18] Schedule 1: C at [41].
[19] Schedule 1: C at [54].
[20] Schedule 1: C at [156].
It is clear that the mother will not change her approach to the management of the children’s education. Her view is simply that they are unable to attend a mainstream school because of “their numerous, profound, and complex special needs, including ASD Level 2”. Nothing – including the recommendations referred to elsewhere in these Reasons to the effect that C would benefit from trialling attendance at mainstream school – will change her mind. Her evidence when cross-examined included that: there are no advantages at all to C trialling attendance at mainstream school; attending mainstream school will not help C learn how better to interact with people; there is no benefit at all to C of changing him to attend mainstream school at his current stage in the educational system; and, nothing will ever change her opinion about the absence of benefit for C in attending mainstream school. Further, whilst she agreed with the suggestion that C needed structure, she said that he already had that at home.
Given her evidence and its confirmation of the continuation of her long-held views about the children’s participation in mainstream schooling, I think it highly likely that, in the future, the mother may well seek to use anything to try and justify the children’s continued participation in home-schooling: for example, when she spoke with Ms M in October 2021 she initially told her that one of the religious rules was that the children had to be home-schooled – before clarifying that not all devotees home-schooled their children. According to Dr L’s evidence, the mother said that, given the children’s sensory processing, developmental delays and ASD, she felt that the school would not be able to adequately address all of those requirements – that is, to Dr L it was that the school would or could not cope with the children whereas to others it has been that the children could not cope with school.
Dr L noted the mother had been referred to her by her previous psychologist (Ms PP) for assessment and treatment of PTSD with additional family therapy. She recorded that Ms PP had seen the mother for 12 months and that the mother reported ongoing counselling engagement, since leaving the parental relationship in November 2017, for treatment of trauma “resulting from a domestically violent relationship”.
Dr L noted that she had been provided collateral information by the mother’s treating psychologist and her general practitioner who recorded a diagnosis of PTSD and Asperger’s disorder in November 2019 and who noted the mother’s “status” as a “domestic violence victim”. According to Dr L, the mother’s general practitioner recorded her ongoing use of Valium for the treatment of anxiety and panic: she noted that the mother reported using this medication since 2017.
Dr L also outlined that a Mental Health Care Plan from the general practitioner for D on 8 September 2020 reported diagnoses of: anxiety; depression; ASD; an eating disorder; learning disorders with ongoing and significant stress and some suicidal ideation at times (his score on the Paediatric Symptom Checklist – I infer, completed by the mother – was such that it indicated very significant impairment); she outlined that a Mental Health Care Plan from the general practitioner for C on the same date reported diagnoses of: anxiety; ASD; ADD; SPD and domestic violence (as was the case with D, his score on the Paediatric Symptom Checklist – I infer, completed by the mother – was such that it indicated very significant impairment).
Dr L recorded that Ms PP had reported a diagnosis of PTSD in 2019, whilst the mother reported that a previous psychologist had diagnosed her with PTSD in early 2018 (although Dr L said she had not viewed that collateral). She did though comment that “as such, multiple sources confirm a diagnosis of PTSD”. There is no report from Ms PP in evidence.
Dr L’s report includes the following information: B “is from a previous relationship”; the mother is a full-time carer for the children and her elderly mother; due to her mental health, the mother was unable to engage in employment at this time; all three children have diagnoses and ASD and below average IQ (70 – 75 range “where below 100 is average and below 80 is diagnosed”), for which they receive NDIS packages; they have significant care needs and require extensive parenting from the mother.
Dr L noted that the mother reported: a history of depression and anxiety; experiencing regular migraines from a young age; brain damage from three strokes; speech and language processing disorders; having had two prior “bad” relationships “but no PTSD symptoms prior to her marriage”; that she had been in a 12 year relationship in which, for the majority, she had been subjected to domestic violence and had witnessed family violence against her children; that the father displayed significant traits and behaviours consistent with narcissism, but did not have a formal diagnosis of the same; that she had been subjected to “ongoing harassment” since she ended the relationship in November 2017 and on an ongoing basis.
Dr L said the mother’s account of her own experience of domestic violence were the following: threats of physical harm (“... I could kill you”); financial control (she said she had no access to finances, was required to pay for her costs and the children’s costs from Centrelink, with the father maintaining a separate bank account for his wages); verbal abuse (insults and inciting the children to insult her and tell her she was stupid); sexual abuse (reports that she was regularly pressured into sex against her consent); gaslighting behaviours; controlling behaviours (such as socially isolating her); using guilt to manipulate her; threats of homelessness for her and the children if she attempted to end the relationship and refusing to allow her to access appropriate healthcare.
Dr L said that the mother’s accounts of the family violence she asserted she had witnessed from the father toward the children were as follows: one child being incited to attack another with a knife; verbal abuse and hypercritical statements (“don’t cry like a girl”; derogatory comments about their ASD diagnoses); the children refusing to eat because it cost too much (as a consequence of their father’s comments about money) and inciting the children to play a “finger up the bum” game.
Dr L reported that the mother had asserted that she had received ongoing harassment from the father since the end of the relationship in November 2017 and that this included: ongoing legal and custody challenges (including court appearances approximately monthly); frequent requests for her and the children’s medical records (which damaged her relationship with medical professionals and the ease of access to treatment); intimidation of medical professionals (including her general practitioner being reported to the health ombudsman); intentional harm to property (based on her attribution of responsibility to the father for her report of her tires being slashed and having nails inserted into them); death threats sent to her via text message and refusal of consent for the children to obtain a passport to enable them to travel to visit their spiritual leader.
Dr L noted that the mother reported that this “ongoing harassment” continually retriggered per PTSD symptoms “which would be to be expected.”
Dr L’s account of the mother’s mental status examination included that: her speech was normal tone and pitch with a fast pace and was pressured at times; her affect was reactive and full range with anxious traits; she self-reported her mood as depressed, stressed and anxious most of the time; her thought content focused on narrative disclosure and sources of distress; her thought processes were linear and appropriate, although tangential at times, and demonstrated a negative bias and themes of guilt, self-blame and hypervigilance towards threat and maltreatment from others; her insight and judgement were adequate and, whilst her memory and cognition were not formally assessed, she reported impairments in attention, concentration and short-term memory, as well as disrupted sleep patterns and stress-induced low appetite.
Dr L reported that, according to the mother’s responses to some psychometric (quantitative) assessment measures she administered to her, the mother experienced: extremely severe depression, anxiety and stress which was said to be “highly indicative of psychopathology”; high levels of post-traumatic stress symptoms (a score of 83/85) and high general distress, indicative of a likely mental health disorder. Dr L outlined that she assessed the mother for the presence of symptoms consistent with diagnoses of PTSD and generalised anxiety disorder. She considered that the mother’s presentation was consistent with a diagnosis of PTSD on the basis that the mother:
(a)was exposed to threatened death and/or serious injury, actual and threaten sexual violence and witnessing threats of injury to her children (Criterion A: stressor); and
(b)experienced re-experiencing traumatic events and intrusive symptoms including unwanted upsetting memories, nightmares, flashbacks, emotional distress and physical reactivity after exposure to traumatic reminders (Criterion B: intrusion symptoms-one required); and
(c)experienced avoidance of trauma related stimuli by “blocking out” reminders of the trauma and related thoughts and feelings – she was required to consistently engage in trauma reminders through the court process and avoided saying the father’s name (Criterion C: avoidance – one required); and
(d)experienced negative thoughts or feelings that worsened after the trauma including inability to recall key features of the trauma, overly negative thoughts and assumptions about oneself or the world, exaggerated blame of self or others for causing the trauma, negative effect, decreased interest in activities, feeling isolated and difficulty experiencing positive affect (Criterion D: negative alterations in cognitions and mood – two required); and
(e)experienced trauma-related arousal and reactivity that began after the trauma, including hypervigilance, heightened startle reaction, difficulty concentrating and difficulty sleeping (Criterion E: alterations and arousal and reactivity); and
(f)had these symptoms, which had been formally diagnosed for approximately two years – although the mother reported symptoms immediately after leaving the relationship and Dr L thought it likely they were present during the relationship (noting that the mother reported increased anxiety and panic which required medication and “blocking out” memories of events during the relationship) (Criterion F: duration > six months – required); and
(g)experienced symptoms which cause significant distress and result in social and occupational impairment (although Dr L noted the mother was not impaired in her parenting abilities given her engagement in psychological treatment and securing psychological treatment for the children, albeit that she recorded that her ability to engage in some domestic tasks like cleaning fluctuated but said she could provide her children with all practical needs such as food, shelter and medical treatment (Criterion G: functional significance – required); and
(h)had symptoms that were not due to medication, substance abuse or other illness (Criterion H: exclusion – required).
Dr L considered that the mother’s presentation was also consistent with a diagnosis of generalised anxiety disorder and asserted she: demonstrated excessive anxiety and worry occurring more days than not for at least six months about multiple events or activities; had difficulty controlling the worry; had anxiety and worry that were associated with prescribed symptoms; had anxiety, worry or physical symptoms that caused clinically significant distress or impairment in social and occupational functioning; had disturbance that was not attributable to the physiological effects of a substance (although it is not remotely clear that Dr L was aware of the extent of the mother’s use of prescription medication) and had disturbance that was not better explained by another medical disorder.
Dr L also outlined that, whilst not a recognised psychopathology in the DSM-V, the mother also displayed symptoms consistent with “complex PTSD” – a condition she said was becoming more recognised in the literature as occurring when an individual is exposed to chronic and repeated interpersonal traumas. Dr L said she considered the mother to display all of the symptoms consistent with what she described as the current understanding of complex PTSD including:
(a)interpersonal problems (social and interpersonal avoidance; feeling distant or cut off from others; never feeling close to another person); and
(b)negative self-concept (feelings of worthlessness and guilt); and
(c)interpersonal sensitivity (feelings which are easily hurt; loss of previously held beliefs; a loss of trust in individuals and the tendency for malignant interpretations of others’ motivations); and
(d)affect dysregulation (difficulty managing emotions – although Dr L said that, in the mother’s case, this did not lead to any self-harm or risky/impulsive behaviours).
Dr L outlined that, based on the mother’s presentation, psychometric results and the collateral information provided, she supported formal diagnoses of PTSD and generalised anxiety disorder.
In relation to the impact of the mother’s psychological symptoms on her daily functioning, Dr L said that she had observed the mother to have: difficulty establishing and maintaining routines of daily living (for example: sleep and regular meal times); long periods of focused attention on areas of stress (for example: completing legal activities); difficulty attending to administrative matters (for example: responding to emails; organising life tasks); ongoing challenges with attention and concentration; avoidance of social engagement or tasks requiring interpersonal interaction – beyond engagement with professionals; ongoing vigilance towards threat from others and frequent feelings of being overwhelmed and poor coping, which often lead to behavioural deactivation.
Dr L recommended that the mother engage in regular and long-term treatment for her complex mental health diagnoses and to enable her to best parent the children and manage their medical conditions. She said the treatment should include individual treatment for the mother and family therapy for her and her children.
Dr L reported that, between 15 May 2020 and 11 February 2021, she had had 34 sessions with the mother; B had engaged in two sessions; C had attended five sessions and D had attended three sessions. Having regard to the contents of Dr L’s 20 October 2020 report, it seems that, since then, B had engaged in the therapeutic process, that C had attended an additional two sessions and that D had not attended any more sessions than he had attended as at 20 October 2020.
Dr L said that the progress achieved had been somewhat slow due to the frequent need to manage crisis events (especially legal and custody issues) and the complex comorbid issues the mother and the children experienced (that is: ASD and the impact of this on emotional fluency). She said the treatment plan was focused on the goal of helping the mother manage her trauma and regulate her emotions so she was able to assist the children with the same and assisting her to develop her skills to support them and understand their emotions.
Dr L noted the mother was highly motivated to engage in treatment and to support the children, had attended regularly and was very open to feedback and suggestions for adaptive strategies and appropriate communications with the children.
Whilst Dr L also said that she had observed the children’s interactions with their mother to be “healthy and loving”, reference to the actual content of her notes of the sessions suggests to me that that was not always the case; further, Dr L’s ability to assess the interactions between the mother and the children in a meaningful was highly likely, it seems to me, to have been limited by the fact that she had conducted her sessions with the mother and children via Zoom and that the children’s actual involvement was as limited as her reports recount (noting, also, the mother’s evidence about D’s active avoidance of engaging via Zoom and not letting people see him over this media).
Dr L’s recommendation was that the mother have weekly therapy herself and an additional weekly family therapy session; she said that, whilst this represented a high treatment demand, it was ideal given the mother’s need to manage ongoing stressful events, address her trauma and support the children.
Dr L’s “Dear Reader” correspondence dated 11 February 2021[313]
[313] Exhibit 106 p.355.
Dr L outlined the mother had asked that she write a letter to support her assertion that she was socially isolating herself and the family due to her concerns around COVID-19 and the medical safety for her family. She noted that, at this time, she had had 36 individual and family sessions with the mother and children since 15 May 2020, all of which had been conducted via telehealth. She said that, whilst the clinic returned to face-to-face sessions from February 2021, the mother elected to continue online only sessions due to her concerns about COVID-19. She also outlined that “as far as I have observed” from the mother’s “ongoing report”, this isolation reflected a broader pattern of behaviour whereby the mother was minimising all social interactions outside the home and only leaving it for essential activities.
Dr L’s “Dear Reader” correspondence dated 8 April 2021[314]
[314] Exhibit 106 pp.351–353.
Dr L stated she had been asked by the mother’s disability advocate to write a brief report about her impression of the impact of the conversion of the mother and children’s NDIS plans to NDIA-managed.
Dr L said she had worked with the mother and children since July 2020 to improve their relationships and with the mother on parenting children with neuro-diverse needs and that she had assisted the family to begin to recover from “the trauma they experienced as a result of the family violence situation they were subjected to for many years”. She recounted that the mother had a diagnosis of PTSD (as a result of “this family violence”) in addition to ASD; that all children were diagnosed with ASD and “have been impacted by trauma”. She said that, whilst it was not a diagnostic category per se, the mother also met the criteria for “complex PTSD” – which she said was steadily gaining more recognition in the literature as a discrete diagnosis and which resulted in extreme difficulty forming and maintaining relationships and trusting others, in addition to the hypervigilance to threat experienced in PTSD.
Dr L outlined that, after the NDIS plans were converted to NDIA managed plans, there was a general decline in the family functioning, which perpetuated poorer family functioning; she said the mother’s own mental health declined due to the reduced availability of services and reduced services to the children; she experienced a significant increase in financial stress and this impacted on her mental health and that of her children.
Whilst Dr L said she had seen no evidence of the mother misusing any funds (and that, instead she had prioritised spending on the family’s health needs before other expenses), it seems much more likely than not that the bases for such assertion came from information provided by the mother.
Dr L also said, amongst other things, that the nature of her work with the mother had changed due to the mother’s increased distress and emotional dysregulation, which Dr L asserted had been precipitated by the loss of her support workers and increased carer burden; consequently, her work with the mother was then more focused on immediate crisis management and they had been unable to progress the longer-term family systems work.
Dr L said she believed that an NDIS-managed plan (where only registered providers were allowed) was not ideal for the family because the mother and children had great difficulty forming and maintaining safe relationships (which she said was “common to victims of trauma”) which meant an abrupt change to only NDIS-registered providers was not appropriate. Further, even if they could make the transition, the disruption to their care would be significant and delay treatment gains for them.
Dr L’s “To whom it may concern” correspondence dated 29 April 2021 and 6 May 2021[315]
[315] Exhibit 106 pp.347–348 and pp.344–345.
In this correspondence, Dr L said she had been seeing the mother and the children since 15 May 2020 and noted that the mother had asked her to provide a summary of the boys’ statements around contact with their father - for the purpose of informing the court about their preferences in terms of “visitation rights”.
Dr L reported that she had spoken with both C and D about their preferences for contact with their father, which had been consistent over time and that she had confirmed them with both children on 29 April 2021 – she said they were aware the mother wanted to support their preferences.
Whist Dr L said in this report that she did not believe that any of the information the children provided to her was either coached or coerced, she acknowledged, when cross-examined at the trial that, irrespective of the mother telling the children that she wanted to support their preferences, there was a risk that they would be influenced by her attitude about them having any interaction with their father – her evidence included that modelling by parents is always an influential factor for children. Whilst it may well have been – as Dr L also said – that she and the mother tried to address the mother’s influence on the children as best they could, I think it highly unlikely that these attempts prevented the children from being influenced by their mother’s overarching view about their father as a person with whom they were not safe and a “deadbeat dad”.
I note that Dr L’s also said that, whilst she thought that modelling behaviour was always influential, she did not think it was a significant factor in the current situation because, for some time, the mother had been very clear in reinforcing to the children that they were allowed to have a relationship with their father and that she would not get upset if they wanted that and that she would make it happen. Whatever the mother’s comments to the children in front of Dr L, it is, I think, highly likely that her behaviour about other issues clearly demonstrated to the children that, if their views about an issue differed from hers, her views would be implemented: for example, she maintained their isolation despite their clear desire to engage with the community; she restricted B’s interactions with the maternal grandmother despite his clearly expressed (both verbally and via his actions) wishes to the contrary; she has continued to require B to engage in therapy with various psychologists despite his view that it is not assisting him. Whilst Dr L’s evidence included that the mother had not wanted to be directive and was very concerned about making sure that the children had free choice about what they wanted and about not being directive in any way, I struggle to accept any proposition that she would fail to direct them to engage in assessments and therapies that she considered they needed.
I accept that, in this correspondence, Dr L outlined that C had said that he would like to have contact with his father approximately fortnightly – with him to initiate this and it to include face-to-face and telephone contact at his preference and request; she also said C had said that he would like to be able to refuse contact when he did not feel like it and that he had completed the weekly telephone calls at times because “it’s easier”.
I accept that, in this correspondence, Dr L reported that D had said that he would like to not have contact with his father because it feels “very bad weird” and to be able to refuse contact when he did not feel like it. She outlined he had said he did not wish to have the weekly telephone calls because he did not want to talk to his father – Dr L also noted that the mother had told her that she had not forced D to speak with his father on the phone but, instead, had given him the choice about this because she was concerned about the impact of telephone communication with the father on his mental health, given his diagnoses (anxiety and depression) and his neurological problems.
Dr L said she believed it was important that: the children’s wishes were taken into consideration; the children were provided with choice and were not placed in situations that either triggered their trauma or exacerbated their symptoms of anxiety or depression. She also noted their ASD diagnoses were a further consideration, albeit that she was not treating them for this nor is she specialist-trained in relation to this. She outlined, though, the general principles that changes to their routines could be anxiety provoking; that it was ideal that changes were made infrequently and, if needed, were done with a period of transition to allow them to prepare for any such change.
I note that Dr L outlined that this correspondence did not constitute a medico-legal report. She advised that, if there was a question around what was best for the boys’ mental wellbeing, she would encourage an assessment from an independent clinical paediatric psychologist or a paediatrician.
Dr L’s report dated 25 October 2021[316]
[316] Affidavit of Dr L filed 27 October 2021, Annexure AR-01; Exhibit 106 pp.328–341.
Dr L reiterated, in the report prepared in response to questions posed to her by the mother’s solicitors, that, whilst she has completed advanced training in a number of therapies (such as Cognitive Behaviour Therapy, Acceptance and Commitment Therapy and emotionally focused therapy), she does not have specialist training in paediatric psychology or Autism Spectrum Disorder (ASD) and had not been engaged to treat ASD or related concerns or individual mood disorders.
She said that her therapeutic engagement with the mother and the children had occurred via Zoom and that she had generally seen the family on a weekly basis weekly for one-two hours and that, between 15 May 2020 and 21 October 2021, she had 72 sessions in total with them.
Dr L noted the family had been referred to her in May 2020 by Ms PP, a psychologist upon whom the mother was attending for domestic violence counselling and post-traumatic stress disorder resulting from domestic violence. She said the referral was for family therapy in order to address the impacts of family violence on the family and their relationships with each other; additional goals were to support the mother to maintain strong relationships with the boys, including: positive communications; healthy routines and “quality time together”.
Dr L said the mother reported the relationships between family members were significantly negatively impacted by the family violence by which they were often placed in opposition to each other; consequently, the focus of the therapy was to be on parenting. However, as the “family court matter progressed”, she undertook regular reviews, at the mother’s request, with B, C and D individually “to determine their feelings and wishes around visitation with their father”.
Dr L reported that, whilst the treatment plan initially established was for one hour per week with the mother individually, to address trauma and parenting concerns, and one hour per week with the mother and one child for family therapy, it had not always been possible to implement this for reasons which included: the consequences of an audit of the NDIS plan (which resulted in the suspension of the mother’s self-managed plan); the mother’s transition to a Medicare Better Access Program (which did not allow for an adequate number of sessions per calendar year); the distress the mother experienced as a result of the NDIS audit and the ongoing court processes (which meant that the sessions needed to address her and the family’s immediate concerns and functioning) and additional chronic stressors imposed by the COVID-19 pandemic and the resultant social and physical isolation this caused the family. However, she said that they had been able to focus on parenting and communication.
Dr L reported that the mother had diagnoses of ASD, PTSD and sensory processing disorder. She said, amongst other things, that she was regularly stressed about life stressors (especially court matters), had had occasional periods of low mood and presented as frequently anxious and regularly reported anxiety (which involved physiological hyper-arousal and cognitive rumination)
I note that Dr L outlined that, whilst the mother had the symptoms, presentation and concerns she summarised in her report, her opinion was that she was generally focused on her children and their wellbeing; whilst Dr L opined that the mother’s symptoms were not so prevalent as to significantly impair her parenting, it seems to me, given that the sessions at that time had all occurred via telehealth and that the vast majority of them had involved only the mother, that it is much more likely than not that Dr L’s opinion was significantly based on the mother’s reporting and her assessment of the same, as opposed to her own observations.
Given the mother’s approach to supporting the children having ongoing relationships with their father –as discussed elsewhere in these Reasons (including the various Schedules) - Dr L’s comment that the mother was “mindful” of supporting the children to establish their own relationships with him “if they desire to do so” should certainly not be interpreted as her being “supportive” of the same.
Dr L said that, due to her ASD and PTSD (which Dr L linked in a causative sense to the intimate partner violence to which the mother asserted she had been subjected by the father), the mother experienced difficulty establishing and maintaining routines and, at times, found general routine maintenance difficult. Again, Dr L’s assertion that the mother ensured that the children received appropriate physical and psychological care and had a safe environment can only really rest significantly on her acceptance of the mother’s assertions about the same.
Given the contents of Dr L’s notes[317], her reference to the mother ensuring that the children received “appropriate quality time attachment routines” seems to me to refer to the mother spending time each week with C watching a televisions show and, as the counselling progressed, spending more time with each child as they went to bed. The children’s recounting to Ms M about what was, at least, their perception of their interactions with their mother should not, in my view, be disregarded.
[317] Exhibit 106.
Dr L’s assertion that the mother was able to ensure the children are able to maintain the routines “beneficial for their mental health and in response to their routine needs” also rests significantly on her acceptance of the information the mother gave her about this – further, it needs to be seen against the background of B’s January 2021 comment to her (as recorded in her notes) that he was not able to do his routines because his mother was not organised enough.
Dr L’s assertion, in essence, that the quantity of family time occurring in the mother’s household had been impacted by the amount of work the mother had been required to complete (“NDIS audit, preparation for court including self-representation for significant periods”) is a further conclusion which, it seems to me, is also highly likely to be based on her acceptance of the mother’s reporting. The assertion that this issue had been addressed in treatment does not, it seems to me, suggest that it had been “resolved” in treatment – again, especially given the comments that both C and D made to Ms M when she interviewed each of them in October 2021.
I note that Dr L reported that the trauma work she had been doing with the mother, who she said was very motivated and engaged in the therapy, had been progressing well until October 2020 but, as a consequence of the impact on the mother of the NDIS review and the ongoing litigation in this court, the focus between the end of 2020 and the date of the report had been on supporting her in daily coping and “processing of present stressors and maintaining effective parenting during this time”. Given the relatively limited amount of direct interaction Dr L has had with each of the children in comparison to her interaction with the mother, her assessment and assertions about the degree to which the mother has been able to implement effective parenting is a further matter which, it seems to me, rests significantly on her acceptance of the mother’s recounting of what she had been doing.
Dr L’s recounting that the mother has implemented effective emotional regulation strategies suggests that she had assessed there to be a need for this, as is the case with her comment to the effect that the mother had “progressed” developing quality time and attachment routines with the children.
Dr L said that, given that two of the main diagnostic features of ASD are the need for ‘sameness’ and the need for repetition of established routines (with the lack thereof resulting in significant anxiety), all family members would struggle with any significant change to residential, parenting, and schooling arrangements. She said that all children had been home-schooled for the duration of their academics “due to the specialised education required with their diagnoses”.
Dr L’s comment in this respect provides a good example of the way in which information that can only have come from the mother has been accepted as accurately stating a causal link – which has then been restated as though it is an established fact. On the evidence before me, I am far from persuaded that the children being home-schooled was “due” to their specialised education needs and, as noted elsewhere, consider it to have been the result of the mother’s choice and determination that they would not attend mainstream schools. I have already expressed my conclusions about the manner in which the mother has approached the discharge of her chosen role as the children’s “tutor” and what I regard as the consequences for them of the same.
Dr L said that transitioning to a traditional school environment (even one where their specialised needs were able to be accommodated) would be quite anxiety-provoking for the children; she said that being in an environment where the sensory information is unfamiliar would create additional stress. Whilst she said that, at present, the children lacked the coping skills to manage such changes well, she did not, it seems to me, say that they could not manage them at all. Further, as Dr L noted, she could not comment on the father’s parenting skills because she not had any interactions with him and had not observed him interacting with the children.
Dr L said that: the children required a caregiver who had the skills, knowledge and motivation to parent them appropriately with consideration of their ASD; the mother was providing this responsive parenting and showed a good understanding and acceptance of the boys’ neurodivergence; the mother was responsive in her parenting. To the extent that Dr L proffered an opinion about the quality of the mother’s parenting of the children, the same must, again, rest largely on her acceptance of the mother’s recounting of her interactions with the children and the way in which she has managed the various tasks associated with their care.
Whilst Dr L outlined, amongst the matters she summarised in her discussion about the impact on the mother of a change to the children’s residential, schooling and parenting arrangements, that the children had reported to the mother and to her that one seatbelt in their father’s car has not been functional for a significant period, she did not specifically outline the content of the investigation she had undertaken with the children about this issue– as set out in her earlier report dated 15 October 2020[318] (discussed in [173] of the body of these Reasons).
[318] Exhibit 106 p.371.
Whilst Dr L noted that the mother had expressed very clearly to the boys that if they want to have time with their father, she was supportive and would work to achieve this (something which Dr L herself witnessed) and opined that she felt confident that the opinions the children expressed reflected their true wishes, her subsequent evidence about the influences of parental modelling on children and their expression of vies and wishes has already been discussed.
Dr L’s opinion that the mother’s diagnoses have no significant adverse impact on her parenting of the children needs, in my view, to be considered in light of the earlier opinion she expressed in her February 2021 report (as set out in [75] above) about the impact of the mother’s psychological symptoms on her daily functioning – especially given that so many of the imposts that Dr L recounted in February 2021 are relevant to mother’s parenting of the children. Given that Dr L’s most recent report does not assert that the impacts of the mother’s psychological symptoms on the mother’s daily functioning (as identified in the February 2021 report) have been rectified, I decline to accept her opinion that the mother’s diagnoses have no significant adverse impact on her parenting of the children.
Further, Dr L’s assertion that the mother interacts in a loving and supportive way with the children needs, in my view, to be considered with the benefit of the contents of her notes of the various sessions undertaken, Ms M’s recounting of the children’s reports of their interactions with their mother at home and their observed interactions with her on the day of interview.
[113] Affidavit of the mother filed 30 July 2018, Annexure Ms Collingwood 1, pp.41–44/91.
[155] Affidavit of the mother filed 27 October 2021, Annexure Ms Collingwood-4, pp.185–197/306.
[168]Affidavit of mother filed 21 January 2019, Annexure 2, pp.23–24/125.
[270] Affidavit of the mother filed 21 January 2019, Annexure 2, pp.90–95/125.
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