CORNETT & HEXT

FAMILY COURT OF AUSTRALIA

CORNETT & HEXT

[2019] FamCA 235

FAMILY LAW – CHILDREN – Consideration of the length of supervised time the mother should spend with three young children, in the context of allegations of risk and a developing relationship between the mother and a four year old child, whether orders should be made restraining the husband’s partner and her child from spending time with the children.

Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61DA, 65DAA

APPLICANT:

Ms Cornett

RESPONDENT:

Mr Hext

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

5714

2018

DATE DELIVERED:

17 April 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

The Honourable Justice Williams

HEARING DATE:

1 & 2 April 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Stoikovska S.C.

SOLICITOR FOR THE APPLICANT:

Landers & Rogers

COUNSEL FOR THE RESPONDENT:

Ms Vohra S.C.

SOLICITOR FOR THE RESPONDENT:

Kenna Teasdale Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Brennan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

Paragraph 8 of the orders made 29 January 2019 and paragraph 13 of the orders made 28 June 2018 be discharged.

UNTIL FURTHER ORDER

The wife spend time with the children:
(a)       B born … 2011;
(b)       C born … 2013; and
(c)       D born … 2015 (“the children”),
supervised by the R Contact Service under the direction of Ms E as follows:
(i)every Saturday for four hours at times to be agreed with Ms E
commencing on the first Saturday after the conclusion of the term one 2019 school holidays;
(ii)such other times as agreed between the parties and Ms E.
The husband be at liberty to suspend the wife’s time with the children pursuant to paragraph 2 hereof, on one weekend every two months, subject to the husband providing the wife 14 days prior written notice.
In the event the husband elects to spend time with the children pursuant to paragraph 3 hereof, then the wife’s time with the children shall occur on Thursday of the week preceding her scheduled Saturday time, from 4:30 PM to 6:30 PM, supervised in accordance with paragraph 2 hereof.
The husband and the wife do all acts and things, including attending all intake interviews necessary to commence the wife’s time with the children in accordance with paragraph 2 hereof.
The husband pay the costs of supervision of the wife’s time with the children.
All extant interim applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cornett & Hext has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5714 of 2018

Ms Cornett

Applicant

And

Mr Hext

Respondent

REASONS FOR JUDGMENT

Introduction

The parties are the parents of the three young children B born in 2011 (aged seven), C born in 2013 (aged six) and D born in 2015 (aged four).

Issues in Dispute

The parents are in dispute about the following interim parenting issues:
a)the time the children should spend with their mother;
b)whether an injunction should be made preventing the husband’s new partner and her son from:
(i)staying overnight at the former matrimonial home;
(ii)having any contact with the children.
There was no dispute that the children should remain living with their father and that the wife’s time with the children should be professionally supervised.
At the conclusion of submissions the parties fortunately reached agreement about:
a)A range of injunctions;
b)Who would supervise the wife’s time with the children;
c)The children’s attendance upon a psychologist for therapy;
d)psychiatric assessments of the parties;
e)a further updated family report;
f)procedural orders.
A minute of proposed consent orders was prepared by the parties and orders were made accordingly.
In addition to parenting orders, the parties were in dispute about production of documents pursuant to a subpoena directed to the wife’s former treating psychiatrist. The husband sought production of a medical report from Dr F, psychiatrist, dated 21 June 2018, addressed to the wife’s criminal solicitors. The wife asserted legal privilege attached to the medical report and it should not be released to the husband and/or his lawyers.
Senior Counsel for the husband prepared written submissions in relation to the subpoena dispute. After hearing some oral submissions by Senior Counsel for the wife, the parties agreed to defer the subpoena argument to enable the wife’s criminal proceedings, arising from breach of the Intervention Order, to be determined.
The proposed consent orders, which were made by me, granted leave to the parties to apply to the court in relation to the subpoena dispute, in the event the wife’s criminal proceedings had not been determined prior to the trial.

Synopsis

I have determined that it is in the children’s best interests that:
a)they spend time with their mother for four hours each Saturday, subject to:
i)the wife’s time being suspended no more than once every two months, to enable the husband to spend a weekend with the children;
ii)time on a Thursday in lieu of Saturday, if the Husband elects to spend a weekend with the children;
b)injunctions should not be made preventing the husband’s partner and her son from staying overnight in the family home or having any contact with the children.
The reasons for my determination follow.

Agreed and Disputed Background Facts

Agreed Facts

The following facts are agreed:
a)The husband is aged 48 and is employed in the finance industry. The wife is aged 44 and does not work.
b)The parties commenced cohabitation in 2004 and married in 2008.
c)The wife has experienced considerable mental health problems, including post-natal depression. In November 2015, the wife had six sessions of electroconvulsive therapy (ECT) at the P Clinic for her significant depression and PTSD following an emergency hysterectomy after D’s birth.
d)On 10 March 2018, the wife attempted suicide in the family home by overdosing on Panadol. She left a suicide note on the back door of the family home. The husband called an ambulance and the wife was taken to O Hospital where she remained until 19 March 2018, prior to living in serviced apartments until 1 May 2018.
e)On 22 March 2018, the wife attended the family home without notice. The police issued a safety notice naming the husband and children as protected persons.
f)On 24 and 26 March 2018, the wife attended the family home and was charged with breaching the safety notice.
g)On 27 March 2018, an interim Intervention Order was made by consent without admission. The husband and the children were named as protected family members. On that day, the parties entered into a parenting plan.
h)In late April 2018, the wife was arrested and bailed in relation to breaches of the Intervention Order.
i)On 1 May 2018, the wife admitted herself as an inpatient at a clinic under the care of psychiatrist, Dr F.
j)On 18 May 2018, the wife insisted that her time with the children be professionally supervised.
k)On 14 June 2018, the wife was discharged from the P Clinic.
l)On 16 February 2019, the children arrived at the wife’s home with partially shaved heads.
m)On 8 March 2019, the R Contact Service made a notification to DHHS about the children’s inappropriate sexualised behaviour.
n)On 11 March 2019, the children arrived at the wife’s home with their hair having been cut off.
o)On 12 March 2019, the R Contact Service made a further notification to DHHS in relation to bruising on D’s bottom and further sexualised behaviour of the children.
p)On the evening of 14 March 2019 the husband was contacted by DHHS at around 10 PM and advised they had received a notification that D had blood in her underwear.
q)On 15 March 2019, the husband took D to the doctor who undertook a vaginal and perineum examination which did not reveal any signs of trauma, injury or bleeding. The explanation offered for alleged blood in D’s underwear was that she may have had an internal tumour.

Disputed Facts

The following facts are disputed:
a)The husband asserts that between 2002 and 2006 wife had a significant recreational drug addiction. This is disputed by the wife, however, she does acknowledge having extensively used prescribed medication for pain arising from IVF treatment and a post-partum haemorrhage.
b)The husband asserts that the wife has had a long-standing alcohol problem. The wife denies the extent of the husband’s allegations and has provided recent pathology testing which would indicate a current reduction in her alcohol consumption.
c)Which parent was the primary carer for the children during the marriage and the extent of the family’s reliance on nannies and au pairs.
d)The date of separation.
e)Whether injuries the wife alleges to have sustained as a result of the husband’s violence towards her were sustained by her in differing circumstances. The alleged injuries occurred in February 2016, May 2017, June 2017 and July 2017.
f)On 14 March 2019, the wife asserts that whilst she was changing D, after making a cake, she noticed blood in her underwear.
As the hearing before me was an interim hearing, it is not possible to make findings about disputed facts, nor test the evidence of either party.

Procedural History

On 24 May 2018, whilst an inpatient at the P Clinic, the wife filed proceedings in this Court, pertaining to parenting, property and spousal maintenance.
On 28 June 2018, at a Case Assessment Conference orders were made by consent as follows:
a)the wife have supervised time with the children on Mondays and Thursdays from the conclusion of school until 6 PM (supervised by an au pair engaged by the husband) and for four hours (12 PM to 4 PM) on Saturday (supervised by a professional supervisor at the R Contact Service);
b)the husband pay to the wife $100,000 as a partial property settlement;
c)the husband pay the wife periodic spousal maintenance of:
i)$800 per week into a nominated account;
ii)the cost of the wife’s rental premises up to $700 per week plus bond and first month’s rent;
iii)$500 per week on account of the wife’s medical expenses;
iv)Wife’s mobile telephone expenses and private health insurer premiums at the current level.
On 25 October 2018, the parties attended a Conciliation Conference, however no agreement was reached. On that day orders were made:
a)adjourning all extant parenting applications to the Senior Registrar’s duty list on 24 January 2019 for a defended interim hearing; and
b)the husband’s costs in the sum of $5,350 were reserved to the final hearing.
On 27 November 2018, the wife filed an affidavit stating:
a)that B’s behaviour was increasingly sexualised;
b)B had seen the father and his partner kissing and wanted to kill his father for doing so (at paragraph 120).
On 3 December 2018, the parents and the children attended Dr G for the family report interviews. The report was released on 21 December 2018.
On 18 January 2019, orders were made in relation to the wife’s objections to subpoenas issued by the husband.
On 23 January 2019, the wife filed an Application in a Case together with an affidavit. The parenting orders sought by her included:
a)an increase in time and that such time be unsupervised;
b)in the event supervision was necessary, her friends and family members, or other persons as agreed supervise.
On 29 January 2019, the husband filed a Response to the Application in a Case seeking the following parenting orders:
a)a variation of the wife’s time with the children, so that during the term the children spend time with the wife on Monday and Thursday from 4:30 PM until 7 PM, and during school holidays on Monday and Thursday from 3 PM to 6 PM, and each Saturday from 2 PM to 6 PM;
b)specific time on special occasions;
c)suspension of his time to enable him to travel interstate for up to 4 weeks per annum;
d)time be supervised by the R Contact Service;
On 18 February 2019, a report from the R Contact Service was released, which referred to the sexualised behaviour of the children.
On 15 March 2019, the wife filed an Application in a Case with a supporting affidavit. The orders sought by her included that the children live with her in the former family home. The application was issued the day after the wife asserted that she had observed blood in D’s underwear.
On 19 March 2019, orders were made in the judicial duty list for:
a)D’s bloodied underwear to be handed to the Independent Children’s Lawyer for DNA testing;
b)D to have a blood test for DNA matching;
c)a supervisor known to D accompany the husband when D’s blood test is to be undertaken, to ensure the husband does not take another four year old in D’s stead;
d)Parenting matters otherwise adjourned to 21 March 2019.
On 21 March 2019, the wife admitted to putting a blood like substance in D’s underwear and subsequent to 19 March 2019 orders, having destroyed that underwear. The matter was adjourned to 1 April 2019 for determination of the respective interim applications.

The proposals of the parties

The wife’s proposal

As previously referred to in these reasons, at the end of the second day and subsequent to lengthy and comprehensive submissions by both Senior Counsel for the husband and the wife and Counsel for the Independent Children’s Lawyer, agreement was reached in relation to most of the substantive issues between the parties, and orders were made by consent.
Apart from the orders which were made by consent, the orders which the wife sought from the court at the conclusion of submissions are set out in paragraphs 2 , 3 and 9 (a) and (b) of her written Minute of Orders.
The orders sought by her may be summarised as follows:
a)the wife spend time with the children professionally supervised as follows:
a)on Mondays from 4 PM to 7 PM;
b)on Thursdays:
i)from 10 AM until 7 PM with D; and
ii)from after school (or 10 AM with a non-school day) until 7 PM with B and C (and with the wife to collect B and C from school on school days).
c)on Saturday from 10 AM. to 5 PM;
d)at such other times as may be agreed between the parties in writing;
e)on special occasions including the children’s birthdays, mother’s birthday, Christmas day and Mother’s Day;
b)the husband be restrained by injunction from causing or allowing his partner and or her son:
a)to stay over at the former matrimonial home;
b)from having any contact with the children.

The husband’s proposal

The minute of proposed orders on behalf of the husband sought orders that he have sole parental responsibility and that there be no time between the children and their mother.
At the conclusion of submissions the husband sought orders in accordance with the amended proposal of the Independent Children’s Lawyer, so that the children would spend professionally supervised time with their mother for four hours each Saturday, subject to the proviso that he be permitted to suspend time on one occasion every two months, to enable him to have a weekend with the children.
The husband opposed the injunctions relating to his partner and her son, as sought by the wife.

Independent Children’s Lawyer’s proposal

The minute of proposed orders on behalf of the Independent Children’s Lawyer proposed the children spend supervised time with their mother every Saturday for four hours and every Wednesday from 4:30 PM to 7:30 PM.
At the conclusion of submissions, the orders sought by the Independent Children’s Lawyer changed, so that the orders sought were that the children spend time with their mother every Saturday for four hours at the R Contact Service, under the direction of Ms E.

Documents relied upon by the wife

The wife relied upon the following documents:
a)Amended Application in a Case filed 15 March 2019;
b)Affidavits sworn 15 March 2019 and 25 March 2019.

Documents relied upon by the husband

The husband relied upon the following documents:
a)Amended Response to an Application in a Case filed 20 March 2019;
b)Affidavits sworn 19 March 2019 and 1 April 2019.

Documents relied upon by the Independent Children’s Lawyer

The Independent Children’s Lawyer relied upon the following documents:
a)Family report of Dr G dated 21 December 2018;
b)Addendum letter dated 8 February 2019 from Dr G;
c)Affidavit of Ms H sworn 29 March 2019 which annexed the bundle of Observation Reports between 28 July 2018 and 16 March 2019.

The Applicable Law

Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The additional considerations are set out in s.60CC (3) of the Act. As this is an interim proceeding, many of the additional considerations are not relevant to the discrete issues for determination. I intend to have regard to all relevant additional considerations, in reaching my decision.
I will now address the two issues in dispute.

Wife’s time with the children

Wife’s Application

In her Application in a Case filed 15 March 2019, the wife sought that the children live with her and she be permitted to occupy the former matrimonial home.
The application was supported by her affidavit, filed 15 March 2019.
The wife’ application was predicated on her concerns that the husband was not able to provide a safe environment for the children. Her concerns are set out in her affidavit of 15 March 2019, and were the subject of oral submissions made by her Senior Counsel.
Subsequent to 19 March 2019, the wife amended the orders sought by her. She no longer sought the children live with her, rather she continue to have supervised time with the children although for longer periods than previously.
Senior Counsel for the wife submitted the allegations levelled at the wife were exaggerated, could not be substantiated and were denied by her. The focus of the risk to the children to date had been on the wife’s conduct and did not include any examination of the potential risk the husband posed to the children. In particular the wife:
a)Denied the allegations of recreational drug abuse and asserted that she had not used the drug for 12 years;
b)Asserted that the allegations of her alcoholism and drug abuse were exaggerated by the husband and she relied on her affidavit of 15 March 2019 and exhibits thereto. The exhibits were the results of the wife’s drug tests, including hair follicle testing;
c)Was obtaining treatment for her mental health and was compliant with treatment recommendations;
d)Had only spent time with the children since June 2018, professionally supervised.

Senior Counsel for the wife submitted the court should look at the risk the husband posed to the children in his household.
The necessity to focus on the husband and the children’s behaviour is apparent from the Observational Reports of the wife’s time with the children. Their behaviour recorded in the reports supports the wife’s assertion that there should be time between the children and her, and that a suspension of time, as initially sought by the husband, would not be in the children’s best interests.
The wife’s affidavit of 15 March 2019, refers to concerns about the language and behaviour of the children observed by her, her family and supervisors. The concerns are specifically:
a)The children reporting that they had observed the husband and his new partner kissing a lot and C’s statements that he will “kill dad… Because I don’t like watching them kiss all the time”[1]
[1] At page 26 of the Observational Reports.
b)The children’s sexualised behaviour, and in particular on 1 September 2018, B’s request to see the wife’s vagina and “boobies”.[2]
[2] At page 23 of the Observational Reports.
c)on 2 February 2019:
i)The wife observed B to state that D “always touches my penis”;
ii)D was talking about nipples and said that “[Ms J] lets us touch hers”;
iii)Whilst swimming B tried to grab the wife’s vagina and said “[Ms J] plays with my penis”;[3]
d)On 10 February 2019, the wife observed B to undress a Barbie doll, spread its legs and lick the place where her vagina would be. This is not recorded in the Observational Reports.
e)On 25 February 2019, the wife observed B lie down on the ground naked and attempt to push D’s mouth down onto his penis;[4]
f)On 2 March 2019, of the wife observed D scream repeatedly at B “I want penis”;[5]
g)On 11 March 2018, the wife observed C attempting to put his finger in B’s bottom and C attempting to put his hand on D’s vagina.[6]
[3] At pages 151, 153 and 154 of the Observational Reports.
[4] At page 180 of the Observational Reports.
[5] At page 185 of the Observational Reports.
[6]At pages 200 and 201 of the Observational Reports.
The Observational Reports also record the children’s disobedience, aggressive and out-of-control behaviour, including regular use of words such as “fuck”. The husband has suggested that the children behave in such a manner only whilst in the wife’s care and not in his household. The wife disputes the husband’s assertion in that regard and relies on a video taken by the husband’s au pair, Ms K, on 12 November 2018, which is exhibit C-08 to the wife’s affidavit sworn November 2018.
On 16 February 2019, the children arrived to spend time with their mother with all three having half of their heads shaved. This is recorded at page 166 of the Observational Reports. The wife engaged her solicitors to write to the husband’s solicitors seeking an explanation, however, as at 15 March 2019 no explanation had been provided.
On 11 March 2019, the children arrived at the wife’s home with the remaining hair on their heads cut off. The wife has expressed her concerns about the husband’s ability to care for the children, in the context of the unexplained haircuts and alleges that the children’s behaviour has significantly deteriorated and that they have evidently been left unsupervised.
The wife also asserts that:
a)The children have been exposed to the proceedings by the husband. At paragraph 32 of her affidavit of 15 March 2019, she refers to the specific incidents of the children’s involvement in the proceedings including comments by B on 18 February 2019, which are referred to at page 172 of the Observational Reports.
b)The comments of the children, as noted by Dr G in paragraph 33 and 44 of his report, substantiate the children’s involvement in the proceedings by the husband. The language of B and C is incongruent with their ages.
Senior Counsel for the wife submitted:
a)It was not contested that the children did not behave in an aggressive and sexualised manner during the relationship;
b)Notifications had been made to DHHS by contact supervisors;
c)The events and conduct referred to in the previous paragraph could not possibly emanate from the mother, as her time with the children is professionally supervised and scrutinised;
d)The recommendations of Dr G in his family report did not include a recommendation of reduction of time. To the contrary, an extension of D’s time with her mother would be appropriate and there is no reason why such time should not include the whole day;
e)The behaviours of the children directly implicate the conduct of the husband and his girlfriend;
f)A severing of the relationship between the children and their mother would put the children at risk.
Senior Counsel for the wife did not address the allegations in paragraph 16 of the wife’s affidavit, about the events of 14 March 2019, except that the wife did not propose to rely on that paragraph.
There was no explanation offered about the wife’s allegations and her subsequent conduct other than the wife’s right to remain silent in potentially incriminating circumstances.

Husband’s Response

On 20 March 2019, the husband filed an Amended Response to an Application in a Case. The orders sought by him in the Amended Response, in relation to the children’s time with their mother are as follows:
a)That order 13 of the orders made on 28 June 2018 be suspended until further order;
b)In the alternative the children spend time with the wife at a contact centre.
In support of the Amended Response, the husband filed an affidavit sworn on 19 March 2019 the further affidavit sworn on 1 April 2019 (“the April affidavit”).
In the April affidavit, at paragraph 2, he seeks that the previous orders for the children to spend time with the wife, including Facetime, be discharged, until such time as the wife has been psychiatrically assessed.
Paragraph 4 of the April affidavit sets out the events on 14 March 2019, subsequent to the notification to DHHS made by Ms L, arising from D’s bloodstained underwear.
On 19 March 2019, when the matter was listed in the judicial duty list, orders were made by consent providing for:
a)The forensic testing of the D’s underwear;
b)The underwear to be delivered to the office of the Independent Children’s Lawyer, as the mother had retained it after the children’s time with her on 14 March 2019;
c)D to undergo a DNA blood test.
At paragraph 8 of the April affidavit, the husband deposes that on 21 March 2019, when the matter was stood down, the husband was informed by his lawyers that the wife had admitted:
a)Destroying D’s underwear sometime after court on 19 March 2019; and
b)She had spread whatever substance was used on D’s underwear, so that it appeared that they were bloodied.
Prior to 21 March 2019, the husband had taken D for a vaginal examination and an examination of her perineum, by her general practitioner. Although the orders of 19 March 2019 provided for D to have a blood test, that had not occurred by 21 March 2019.
Senior Counsel for the husband submitted:
a)The wife had not sought to provide an explanation as to the events surrounding the alleged blood on D’s underwear;
b)The wife had not sought to apply for a certificate pursuant to section 128 of the Evidence Act 1995 (Cth);
c)In the absence of an explanation from the wife and expression of remorse, about the events of 14 March 2019, to require the husband to hand the children to the wife would seriously and adversely impact on his capacity to cope;
d)The wife has either acted malevolently or because of her psychiatric condition is unaware of the consequences of her actions, and either way, the children are at risk in her care even with supervision;
e)The extension of time sought by the wife was not logistically possible given the husband’s employment constraints and his continuing obligations to financially provide for the children and the wife.
In her oral submissions, Senior Counsel for the husband set out the wife’s psychiatric history, including the conclusions of her former treating psychiatrist, Dr F, at paragraph 2 of page 2 of his report dated 20 June 2018, which is exhibit A in the proceedings of 29 January 2019.
In his report Dr F describes the wife’s extensive psychiatric history as including:
a)Past recreational drug use disorder (dependence);
b)Several periods of prescription opioid use disorder (dependence);
c)Post-natal depression for the past 4 to 5 years, for which she has been treated with psychotherapy, antidepressant medication, and ECT, by her former psychiatrist and which contributed to her suicide attempt by overdose in March this year, following which she was treated at O Hospital as an involuntary patient;
d)Post-traumatic stress disorder following her emergency hysterectomy three years ago due to uncontrollable and near fatal post-partum haemorrhage;
e)Several periods of alcohol use disorder (abuse or dependence).
The wife disagrees with certain aspects of Dr F’s report.
Senior Counsel for the husband submitted the wife had:
a)Sought to blame the husband for his lack of support of her, when in reality he had managed the family since the birth of B due to the wife’s significant psychiatric problems;
b)Accused the husband of perpetrating domestic violence including exhibiting photographs of bruises and injuries, in circumstances where the wife had previously reported to others that the injuries had been sustained by her in the home gym and elsewhere;
c)Accused him of raping her which resulted in the conception of C;
d)Accused the husband of causing her post-partum bleeding;
And that such accusations were an attempt by the wife to undermine the husband’s parenting of the children historically and presently.
The Observational Reports of the contact supervisors referred to the wife’s parental incapacity and inability to control the children. The reports include the wife watching horse racing and the film, “The Hangover”, whilst the children are spending time with her.
Apart from visits to the pool in the apartment complex, and on two occasions only, the Observational Reports demonstrate that the wife has confined the children to her apartment during all visits. She is either unaware or does not have sufficient parental capacity to understand that three young children require management, control and some outlet during the time they spend with her.
In relation to the allegations of sexualised behaviour, uncontained language and behaviour, the husband asserts that the children do not behave in that manner in his household or at school or kindergarten.
According to the husband, the boys strive to be model students at school and there have been no reports from the school of any sexualised behaviour. The allegation of B’s conduct with the Barbie doll on 20 February 2019 is not referred to in the supervisor’s Observational Reports, nor is the conduct complained about by Ms M on 16 February 2019.
The husband’s lack of response in relation to the haircuts, was justified on the basis that he had focused on the allegations of sexual abuse levelled against him or someone in his household, arising from the events of 14 March 2019, and that issues to do with the children’s haircuts were not paramount.
In response to the allegation that the husband’s application to suspend time is an attempt to undermine the children’s relationship with their mother, Senior Counsel for the husband submitted that, despite the mother’s psychiatric problems and the allegations levelled against him, including serious domestic violence and rape, the husband did not seek to stop the mother’s time with the children until after the events of 14 March 2019.
The husband was highly distressed about:
a)The medical examination of D; and
b)The proposed blood test for D;
which both emanated from accusations made by the wife, which she knew to be untrue;
c)The police interviews of the children on 13 March 2019, in relation to an alleged bruise on D on 9 March 2019, when photographs of the alleged bruise were never provided.
Subsequent to the submissions of the Independent Children’s Lawyer, the husband was prepared to consent to orders in accordance with the proposal of the Independent Children’s Lawyer, namely that the wife spend four hours each Saturday with the children, subject to supervision by the R Contact Service of Ms E.
Understandably, the husband was not prepared to consent to the previous supervisors continuing to supervise the wife’s time, as that supervision, when viewed in the context of the events of 14 March 2019, could only be seen as a spectacular failure of supervision.

Orders sought by the Independent Children’s Lawyer

Subsequent to hearing submissions from both Senior Counsel for the wife and the husband, Counsel for the Independent Children’s Lawyer submitted that orders should be made for the children to spend time with their mother each Saturday for a period of four hours at the R Contact Service. Her initial proposal was modified to exclude weekday time, primarily due to the logistical difficulties for children travelling from the husband’s home after school and childcare on a Wednesday afternoon, and the late return of the children on a Wednesday evening.
The issues for consideration were correctly identified as :
a)The impact on the children if there was no time between them and the mother and if the time is limited; and
b)The impact on the primary carer if time were to resume.
The submissions predominantly focused on the nature of the relationship between the children and their mother, as identified by Dr G, in his family report. In particular, the developing relationship between the wife and D did not warrant a termination of time, even in the context of the wife’s conduct of 14 March 2019.
At paragraph 58 of his family report, Dr G states that the children need their mother, with the boys missing and yearning for a relationship with her. Regrettably D’s relationship with her mother has been impacted by the events of 2018 and in Dr G’s opinion requires an opportunity for repair.
Counsel for the Independent Children’s Lawyer made submissions about the vulnerability of the developing relationship between D and her mother and the submitted that it was in D’s best interest that the relationship be given an opportunity to continue and hopefully strengthen within the parameters of limited supervised time.
Whilst not initially adverse to the children spending two periods of time per week with their mother, the reality was the initial proposal would place onerous travel obligations on both the husband and the children. It would be extremely difficult for the husband to comply with the mid-week proposal, whilst working to support the family.

Discussion

The final parameters of the dispute between the parties was whether the wife’s should spend time with the children for four hours each Saturday, subject to the husband spending a weekend with the children on one occasion each two months, or whether her time should be extended in accordance with the orders sought by her in her Amended Application in a Case.
All parties recognised the necessity for time between the wife and the children to be professionally supervised, by a supervisor other than the R Contact Service.
Counsel for the Independent Children’s Lawyer submitted that the R Contact Service, run by Ms E provides for time to occur in a dedicated home-style environment, similar to facilities which would be offered at a contact centre. The husband and Independent Children’s Lawyer were in agreement that time should take place at that facility. The wife proposed either the previous supervisors or Ms E’s service should supervise her time with the children.
To suggest that the supervising service, which supervised the time on 14 March 2019, which resulted in the very dire consequences of a four year old being unnecessarily subjected to an invasive and private medical examination, demonstrates a lack of insight. There is no question that time between the mother and the children should take place at either a contact centre or a centre such as that run by Ms E.
In terms of the length of time between the wife and the children, I am of the view, that absent the events of 14 March 2019 and subsequent, it may have been appropriate for the wife’s time with the children to be increased.
However, there are consequences and ramifications of the wife’s conduct on 14 March 2019, and the orders which she consented to on 19 March 2019.
Apart from the submission of Senior Counsel for the wife that she did not intend to rely on paragraph 16 of her affidavit of 15 March 2019, there were no submissions contradicting:
a)The husband’s assertions at paragraph 8 of his affidavit of 1 April 2019;
b)The submissions of the husband’s Senior Counsel about the wife’s conduct on 14 March 2019 and her consent to orders on 19 March 2019.
As this is an interim matter, evidence is not tested and I am unable to make findings of fact. Consequently, I am unable to make any finding about whether the genesis of wife’s conduct on 14 March 2019 and knowingly subjecting her four-year-old daughter to an invasive and intimate medical examination, was malevolence directed at the husband or her mental health difficulties.
It is apparent that the wife did not consider the effects of her actions on the children nor on the husband, who at present is the children’s primary carer.
I accept the submissions of Senior Counsel for the husband that:
a)The husband’s capacity to effectively parent the children may be adversely affected by the continual allegations levelled at him by the wife;
b)The financial security of the children and the wife depends on the husband’s capacity to continue to earn a significant income;
c)The wife’s allegations arising from the events of 14 March 2019 may significantly impinge on his capacity to parent the children and to continue to earn income.
However, I do not consider the explanation of the husband about the conduct of the children in his household to be entirely satisfactory.
There is merit in the submissions of Senior Counsel for the wife that:
a)The video of the children in the husband’s household does not demonstrate calm and orderly parenting, but rather indicates an unexplained period of lack of supervision of the children;
b)The extraordinary haircuts of the children on two occasions is also indicative of lack of supervision in the husband’s household;
The issue of the children’s sexualised behaviour is particularly problematic. The husband asserts that the children do not demonstrate any such sexualised behaviour in his household nor at school. The only incident of any such behaviour was at D’s kindergarten. I was advised that the kindergarten teacher was so unconcerned about comments made by D that no notification was made to DHHS.
The wife submits that the genesis of the sexualised behaviour could not possibly be her household, as she has been professionally supervised for many months. That submission would have been more persuasive, had the wife not managed to engineer the events of 14 March 2019, when a supervisor was present in her household.
I am greatly concerned about the behaviour of the children, both in terms of their lack of respect and uncontained behaviour whilst in their mother’s care and their unexplained sexualised behaviour. I do not have any conclusive evidence about the cause of such behaviour. I intend to make orders providing for the children to attend upon a suitably qualified therapist to ascertain, if possible, the cause of such disturbing and unusual behaviour in young children.

The application by the wife for an increase in the children’s time with her, in the context of the events of 14 March 2019 and in the days following, cannot possibly be sustained.
The initial submissions of the husband’s Senior Counsel, that time should be suspended pending a psychiatric evaluation of the wife and an updated family report has merit.
However, the submissions of Counsel for the Independent Children’s Lawyer, and in particular, the submissions concerning the children’s attachment to their mother, as referred to in the family report are persuasive.
The wife’s time with the children requires a delicate balancing of the primary considerations set out in S60CC(2) of the Act.
I am satisfied that on an interim basis, the risk which the wife may pose to the children, whether that be her mental health, alcohol or substance abuse issues has been adequately addressed by her time with the children being professionally supervised by Ms E’s R Contact Service.
Ms E is a professional well-known to the court and I accept the submissions of Counsel for the Independent Children’s Lawyer as to the nature of the facility where time will take place.
The only objective evidence, which is as yet untested, of the nature of the children’s relationship with their mother, is as referred to in the family report of Dr G. Senior Counsel for the husband did not make any submissions disputing the comments and observations of Mr G in the family report pertaining to the children’s relationship with their mother.
In the context of the comments and observations of Dr G that the children need their mother and that the boys miss her and yearn for a relationship with her, I do not consider it in their best interests that time be entirely suspended.
According to Dr G, D’s relationship with her mother is still tenuous and developing and I do not consider it in her best interests to terminate the relationship on an interim basis.
Dr G’s comments about potentially increasing the wife’s time with the children predate the events of 14 March 2019. It is appropriate that the parties attend upon Dr G for an updated family report prior to the matter being determined on a final basis, and that Dr G be provided with copies of the affidavits filed by both parties in support of the current applications.
The time I propose to order between the wife and the children will provide regular weekly time between them, which hopefully will enable the relationship between the children and the mother to continue.
The initial proposal of the Independent Children’s Lawyer that time take place additionally on a Wednesday afternoon between 4:30 PM and 7:30 PM has some attraction, in terms of promoting the relationship, however, the practicalities of where time will now take place preclude any such arrangement.
In reaching my determination I have had regard to the husband’s consent to the proposal for Saturday time, subject to his ability to spend a weekend with the children once every two months.
I also consider it appropriate, to ensure continuity of the children’s relationship with their mother, that if the husband has a weekend with the children, then the children spend time with their mother on the Thursday prior to the husband’s Saturday time. If time on a Thursday was not ordered, then the children would not see their mother for a two week period which I do not consider to be conducive to the relationship between them and their mother.

Injunctions sought by wife

At the conclusion of submissions, all parties agreed that orders should be made by consent in terms of the injunction sought by the wife in paragraphs 13.3 to 13.6 (inclusive), of the wife’s Amended Application in a Case filed 15 March 2019, with some minor amendments. The husband’s consent was on the basis that he denied the necessity for the injunctions.
In addition to those orders, the wife seeks orders that I restrain the husband’s partner, Ms J and her four-year-old son, N, from having any contact with the children.
The basis for such an order may be summarised as follows:
a)Ms J has been complicit with the husband denigrating the mother to the children, involving the children in the proceedings and undermining the children’s relationship with the mother;
b)Either the husband, Ms J and or N, have caused or contributed to the sexualised behaviour of the children and their inappropriate, defiant and undisciplined behaviour in the presence of the mother;
c)Ms J has permitted the children to touch her inappropriately.
Senior Counsel for the wife referred to the comments of the children in the Observational Reports, as evidence that the children had been involved in discussions of the legal proceedings. In particular, page 172 of the Observational Reports which details B’s comments about lawyers which were made on 18 February 2019.
She also submitted that the B’s language, as reported by Dr G in paragraph 33 of the family report, was overly sophisticated for a seven year old, and an inference could be drawn that the source of such comments could be the husband or Ms J.
Ms J swore an affidavit which was filed in the proceedings on 20 March 2019. That affidavit does not provide any background information about Ms J, nor when she commenced a relationship with the husband, other than she describes herself as the husband’s girlfriend.
Ms J denies that she has engaged in any conduct as alleged by the wife, although she does explain that N and D have sometimes touched her breasts when they have been in the bathroom with her, when she has been naked.
The husband also denies that he has contributed or is responsible for the children’s sexualised behaviour. He maintains the children do not behave in a sexualised manner in his household.
Senior Counsel for the wife submitted that an injunction was necessary to protect the children from any risk that Ms J or N posed to them, as the probable source of the children’s sexualised behaviour was either the husband, Ms J or N. It could not be the wife, given the professional supervision of her time with the children.
Senior Counsel for the husband submitted that:
a)An injunction could only be made if there was sufficient evidence to satisfy the court, on the balance of probabilities, that such an order was warranted;
b)The wife’s evidence in paragraph 16 of her affidavit of 15 March 2019 could not be relied upon and put into question the whole of her evidence, including her allegations of domestic violence perpetrated by the husband.
I agree with the submissions of Senior Counsel for the husband referred to in the preceding paragraph. I cannot be satisfied on the balance of probabilities that the children’s sexualised behaviour emanates from Ms J and/or N. Furthermore, it is remarkable that the events of 14 March 2019 in relation to D’s underwear, occurred whilst the children were being professionally supervised.
As I have referred to previously in these reasons the conduct of the children, and in particular the sexualised behaviour is of extreme concern and requires further investigation. All parties agree with that proposition.
I have previously made orders by consent providing for therapy for the children and for an updated family report, both of which will hopefully shed light on the reasons for the children sexualised behaviour, and provide therapy to stop it.

Conclusion

I intend to make orders providing for the children to spend four hours each Saturday with their mother, supervised by Ms E’s organisation, subject to the husband electing once every two months to spend a complete weekend with the children. I do not intend to make the injunctions sought by the wife
I have fixed the matter for a 5 day trial on 28 October 2019.
If anything urgent arises from the children’s therapy or the family report, the parties are at liberty to file an urgent Application in a Case.

I certify that the preceding one-hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams.

Associate:

Date: 17 April 2019

[2019] FamCA 235

17 April 2019

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Injunction

Procedural Fairness