DOBBS & MOORE
[2015] FCCA 2282
•28 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOBBS & MOORE | [2015] FCCA 2282 |
| Catchwords: FAMILY LAW – Interim parenting – where the children should live – whether time with mother should be supervised or unsupervised – where mother has mental health and alcohol issues – where mother’s partner has mental health issues – where violence in the mother’s relationship – where the mother’s evidence is inconsistent with the objective material before the Court – supervised time ordered. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode [2006] FamCA 1346 MRR v GR [2010] HCA 4 |
| Applicant: | MR DOBBS |
| Respondent: | MS MOORE |
| File Number: | WOC 243 of 2012 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 21 July 2015 |
| Date of Last Submission: | 21 July 2015 |
| Delivered at: | Wollongong |
| Delivered on: | 28 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Doosey |
| Solicitors for the Applicant: | Rossi Simicic Lawyers |
| Solicitors for the Respondent: | Williamson & Isabella Lawyers |
| Solicitors for the Independent Children’s Lawyer: | Johnson Horsley Lawyers |
THE COURT ORDERS PENDING FURTHER ORDER THAT
The Children, X (born (omitted) 2006) and Y (born (omitted) 2007) live with the Father.
The Children spend supervised time with the Mother at CatholicCare (omitted) on a day and at times nominated by CatholicCare (omitted).
The Mother be restrained and an injunction hereby granted preventing her from bringing the Children or allowing the Children to come into contact with her Husband, MR F.
The Mother be restrained and an injunction hereby granted preventing her from consuming alcohol within 24 hours of spending time with the Children.
The Mother be restrained and an injunction hereby granted preventing her from consuming any non-prescription drugs or medication.
The Children’s time with the Mother be suspended on Saturday 22 August 2015 to enable the Children to travel to (omitted) with the Father for that weekend.
THE COURT FURTHER ORDERS THAT
The matter be stood over to the four day Final Hearing commencing on 15 August 2016 at 10:00am.
Both parties file and serve any Amended Application and/or Response upon which they intend to rely by no later than 1 August 2016.
Each party is to file and serve one consolidated Affidavit in support of the orders sought by them, together with any other witness’s affidavits by no later than 1 August 2016.
Neither party may rely on any documents filed after 1 August 2016 without leave of the Court, and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.
Each party is to file and serve a Case Outline document by no later than 4:00pm on 8 August 2016, setting out:
(a)a list of documents to be read in their case;
(b)a precise Minute of Orders Sought;
(c)a list of objections to evidence and the basis for such objection;
(d)a brief summary of argument touching upon the matters set out s.60CC of the Family Law Act 1975, with reference to the relevant evidence relied upon;
Both parties and the Independent Children’s Lawyer are granted leave to issue such Subpoena as they consider relevant to the issues before the Court, provided they consult prior to issuing such subpoena to avoid duplication.
THE COURT NOTES THAT:
A.A party’s trial Affidavits will not be read until the Case Outline document has been filed and served in accordance with these directions, which may result in the Final Hearing dates being vacated, other matters being listed with priority, or the matter becoming part-heard.
B.The Court requests that the Independent Children’s Lawyer give consideration to whether an Expert’s Report would be appropriate in this matter.
IT IS NOTED that publication of this judgment under the pseudonym Dobbs & Moore is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 243 of 2012
| MR DOBBS |
Applicant
And
| MS MOORE |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the Interim Orders that I have made in relation to two children, X who is nine, and Y, who is seven. The girls currently live with their father, who is the Applicant in this case and spend time with their mother at a supervised contact centre pursuant to Consent Orders made on 21 April 2015. The Court had to decide whether the girls should continue to spend time with their mother on a supervised basis, or whether her time with them should be unsupervised.
Background
The Father, who is the Applicant, is 34 years old. He describes himself as a (occupation omitted) and lives in the (omitted). The children’s Mother is the Respondent. She is 37 years old. She also lives in the (omitted). The parents were in a relationship between 2004 and 2010. They married in that time. Between 2010 and 2 April 2015, the children were in the primary care of their mother, but spent time with their father. On 3 April 2015, the children came into their father’s care. Shortly thereafter, on 21 April 2015, Interim Consent Orders were entered into that provided for the children to live with their father and spend supervised time with their mother.
The Independent Children's Lawyer for X and Y, Mr Horsley, prepared a very comprehensive and helpful chronology of relevant events, facts and assertions. The chronology is reproduced in the first schedule to these reasons. The Court expresses its gratitude to the Independent Children's Lawyer for preparing such a helpful document, drawing as it does not just on the evidence filed by the parents, but also on the substantial quantity of subpoenaed document produced to the Court.
The impression formed is that the parental relationship was a difficult one, with each making quite serious allegations against each other. The Mother remained in the (omitted) with the children and shortly re-partnered to her current partner, Mr F. The Father moved out of the (omitted) for work purposes, but returned permanently to live in the (omitted) in March of 2014. There is no issue that he continued to see the children throughout this period.
The Father asserts, and the evidence tends to establish, that the Mother has struggled with mental health and alcohol issues and that her relationship with Mr F, who himself has mental health issues, has exposed the children to the risk of harm. Indeed, in many respects, the exercise presently undertaken by this Court is an attempt to assess the risk to the children. There was a substantial quantity of evidence before the Court relating to these issues.
The competing proposals
The Father’s proposal was, in effect, that the existing arrangement continue, i.e: that the children live with him and spend supervised time with their mother at the supervised contact centre at (omitted) operated by CatholicCare. He also sought an injunction that restrained the Mother from bringing the children into contact with Mr F.
The Mother’s proposal is that there be an order for equal shared parental responsibility, that the children live with her and spend time with their father each alternate weekend from after school on Friday to before school on Monday, as well as each alternate Wednesday afternoon, together with special occasions.
The Independent Children's Lawyer’s proposal was that the children continue to live with their father but spend unsupervised time with their mother each Saturday between 9:00am and 4:00pm, and each Wednesday afternoon until 7:00pm. The Independent Children's Lawyer also proposed a number of injunctions.
The evidence
In the Father’s case, he relied on his Affidavit sworn 16 July 2015, the Affidavit of his de facto partner likewise sworn 16 July 2015 and the tender bundle that became Exhibit A1. This very useful document came into evidence without objection and appears to be a comprehensive collation of the relevant documents extracted from those documents produced on subpoena to the Court by a number of person and authorities, including the Department of Family and Community Services, New South Wales Police, hospital records produced by (omitted) Hospital and the (omitted) Health Service and the (omitted) Medical Centre.
The evidence in the Mother’s case consists of the following affidavits:
·Response to Initiating Application, filed 19 June 2015;
·Affidavit of Ms Moore, sworn 24 October 2014;
·Affidavit of Ms Moore, sworn 17 June 2015;
·Affidavit of Ms A, sworn on 6 July 2015;
·Affidavit of Mr A, sworn on 6 July 2015;
·Affidavit of Ms K, sworn on 9 July 2015; and
·Affidavit of Ms A sworn on 13 July 2015.
The mother also relied on the documents that had been tendered to the Court referred to in the previous paragraph, together with Exhibit R1, being a letter from the (omitted) Drug and Alcohol Service, a division of the (omitted) Local Health District. This document was a letter from the drug and alcohol counsellors with whom the mother had been seeking support.
In the Independent Children's Lawyer’s case, reliance was also placed on the documents referred to above, but also the Child Inclusive Conference Memorandum of 10 December 2014.
The applicable law
In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) 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).
Primary considerations
(2) 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) 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).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance on interpreting the Act and how the Court should proceed in interim matters:
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Outline of arguments advanced
Ms Doosey of Counsel appeared on behalf of the Father at the interim hearing. The Father’s argument was set out in the Case Outline document of 16 July 2015, together with Ms Doosey’s short written submissions of 20 July 2015. The Father’s argument can be neatly summarised using the heading adopted by Counsel in her written submissions:
·The Mother has entrenched unresolved issues incompatible with her being appropriately child focused.
·The Mother’s issues are largely denied and unaddressed, particularly her alcohol issues (and mental health issues) and her denied and unaddressed concerns arising from the difficulties experienced by her husband, Mr F.
·The Mother diminishes and conceals the extent of her husband’s violence, abuse and difficulties.
·The Mother has actively concealed and continued to tolerate her husband’s violence and misconduct.
·The children cannot be expected to act self-protectively.
·The Mother’s hostility to the Father
·Lack of supervision exposes the children to the risk of harmful conduct.
By way of a summary, Ms Doosey urged the Court to consider the evidence carefully and to proceed cautiously. On behalf of the Father, concern was expressed about the Independent Children's Lawyer’s proposal that involved unsupervised contact between the Mother and the children. In the Father’s case, emphasis was placed on the historic and ongoing difficulties (asserted) about the Mother’s ability to contain her behaviour, and the risk of ongoing difficulties with her present relationship.
The Mother was represented by her solicitor, Mr Robinson. His submissions are summarised in the Mother’s Case Outline filed 20 July 2015. The Mother’s case emphasised that she had been the primary caregiver for the children, all of their lives until recently. The Mother has acknowledged, indeed made admissions, about her use of alcohol, but asserts that the concerns are historical, and that she is engaging in support services in a positive fashion. In relation to the acknowledged difficulties in her relationship with Mr F, again the assertion is that these are historical and have been satisfactorily addressed. In the Mother’s case, the family violence which she asserts the Father perpetrated on her raise concerns about the children living with him.
As the interim hearing progressed, Mr Robinson, who is no doubt well aware of the evidence contained in the subpoenaed documents, proffered that if the Court were not prepared to make the orders that the Mother proposed, her next alternative would be substantial and significant time with the children, with or without overnights, but certainly on an unsupervised basis. He submitted that the Court would be reassured by the making of various injunctions against the Mother, which would be adequately protective of the children.
The Independent Children's Lawyer’s argument acknowledges the arguments made by both parents. Whilst the Mother has indeed been the primary carer of the children, the Independent Children's Lawyer (quite accurately, as it turns out) submits that the Father’s concerns are supported by the subpoenaed material and thus there was a risk to the children in their mother’s care. However, the Independent Children's Lawyer has submitted that the risk could be adequately managed by limiting the Mother’s time to daytime only and imposing appropriate restriction on the Mother’s behaviour.
The Independent Children's Lawyer acknowledged that the Mother may well be minimising her past and possibly ongoing, problems about alcohol use, her mental health and the violence in her relationship with Mr F. Nonetheless the available evidence, particularly the Child Inclusive Conference Memorandum, suggest these children were resilient, loved their mother very much and were manifesting no signs of trauma as a result of their exposure in the past to their mother’s behaviour and problematic relationship with Mr F.
Discussion of the evidence
The Child Inclusive Conference Memorandum of 10 December 2014 raises a number of interesting issues. The Father expressed concerns about the Mother’s mental health and the Mother’s relationship with Mr F. The summary of what the Mother responded is: “The mother admits to having experienced periods of anxiety and depression and said she has had individual counselling. She did not wish to discuss any issues in relation to her partner.” The Father raised issues about the Mother’s consumption of alcohol. The summary of the Mother’s response is: “These allegations are denied by the mother, who described herself as a regular but social ‘drinker’.”
As it turns out and as will be apparent from a study of the chronology which is the first schedule to these reasons, as at December 2014 the Mother was significantly minimising both the nature and extent of her past mental health issues and likewise in relation to her partner, Mr F, and her alcohol problem. Indeed, a strong impression formed from this case is that even the Father did not become aware of the full extent of these issues until after he had caused subpoena to be issued. In any event, certainly as at December 2014, the Mother was greatly minimising her issues and it is of great concern to the Court that, even in the context of the limited assessment that can be undertaken in a Child Inclusive Conference, the Mother was by no means forthcoming in providing relevant information to the Family Consultant.
The positive thing about the Child Inclusive Conference Memorandum, however, is that both X and Y seem to be doing well and were certainly open to spending more time with their mother. If there were problems in their household with the Mother, they did not say anything. Of course, the risk is that because the Mother had so greatly minimised her issues, the Family Consultant did not know that there was a line of inquiry to be pursued with the children.
In the present context, of course, there are limits on what findings the Court can make. As it turns out, the Court’s concerns about the Mother, and her household, are satisfactory grounded on the Mother’s own evidence, when compared to the independent material before the Court.
The mother deals with her alcohol issues at paragraphs 58-66 of her Affidavit of 17 June 2015. When her evidence is compared to the more objective facts presented in the subpoenaed documents, the overwhelming impression created is that the Mother has been not only minimalist, but plainly misleading about the nature and extent of her alcohol issues.
For example, at paragraph 63, she says: “After Z’s birth, I have consumed alcohol socially, but have not abused alcohol as I did previously.” Z is the child born to her relationship with Mr F on 18 July 2011. The problem with the Mother’s representation that she has “not abused alcohol” in that period is that the objective evidence indicates, for example, that the police had to be called on 22 April 2014 because of her intoxication, the context being an argument with Mr F. On 15 May 2014, she told her own doctor that her partner was being physically and verbally abusive and she was drinking alcohol to escape from stress. On 15 August 2014, she was admitted to (omitted) Hospital after an overdose at a time when she was drunk and fighting with Mr F. On 28 February 2015, consistent with the evidence of her own stepfather, and mother, in their Affidavits of 6 July 2015, she was “behaving in a drunk and abusive manner”.
It is true that she has engaged with services to assist her. When one has regard to the report provided by the (omitted) Drug and Alcohol Service dated 15 July 2015 (Exhibit R1), the concern becomes that if she disclosed to them her true history, it is not recorded in the report. Indeed, as it is apparent to the Court that she has not disclosed to the Court her true history of problems with alcohol, why would the Court even infer that she has been frank in her disclosure to her own counsellors?
This is a case where both the Mother and the Independent Children’s Lawyer have submitted that the children can be adequately protected if appropriate orders are made restraining the Mother from doing certain things or bringing the children into contact with certain people. But if the Mother cannot be relied on to present an accurate version of her past problems in a sworn document, why would the Court have confidence in her ability to abide by Court Orders?
At paragraphs 67-74 of her Affidavit, the Mother provides evidence as regards her relationship with Mr F, her husband. To give the Mother some credit, she does appear to be more forthcoming about the problems with Mr F’s mental health and to a lesser extent about violence in their relationship. The independent documents produced on subpoena refer to events that are set out in the chronology that suggest that, notwithstanding an attempt by the diligent, there is much detail she has left out. Her own role in the violent incidents, particularly related to her own intoxication, is not mentioned. The police records suggest that there was violence, including probably a physical assault of the Mother, but she declines to give details. She makes no mention of a number of significant incidents, e.g. 18 July 2013. On 26 October 2013, the Mother told her own doctor that Mr F does hit her at times, and she herself described the relationship as “destructive”. In the notes taken when she was admitted to (omitted) Hospital on 15 August, she said that she wanted to kill herself due to the physical abuse perpetrated by Mr F.
Again, and regrettably, the only inference that the Court is able to draw is that the Mother has minimised the nature and extent of the problems associated with her relationship with Mr F, and implicitly, the risks to the children in this regard.
There are other concerns about the Mother’s evidence. For example, at paragraph 77, she refers to the Father’s evidence about what her stepfather, Mr A, said to him. The statements in question are set out in the Father’s Affidavit of 13 April 2015 (paragraphs 10-11). The Mother asserts at paragraph 77 that she has spoken to her stepfather since the Father’s affidavit and deposes, “I understand that Mr A has since contacted Mr Dobbs to let him know those conversations been not true.”
The problem with this evidence is that it is inconsistent with paragraph 3 of her stepfather’s Affidavit sworn on 6 July 2015 (several weeks after the Mother’s Affidavit). In this Affidavit, he confirms that he called the Father to come and collect the girls. He says, “I was in a high state of anxiety as Ms Moore was behaving in a drunk and abusive manner towards her husband in front of our family. I admit that I told Mr Dobbs that ‘she is a raging alcoholic’.”
In the next paragraph, he does not retract the comment but merely acknowledges that, “I do not believe it is for me to label Ms Moore as an alcoholic.”
Even the maternal grandmother, Ms A, in her Affidavit of 6 July 2015, at paragraph 10, refers to what she describes as the mother’s “lapse” on 28 February 2015, “being a day during which she abused alcohol”.
When one has regard to this evidence, the Court would have quite significant concerns about the Mother’s evidence at paragraph 77. Finally, for present purposes, the Court is concerned about paragraph 78(d) of the Mother’s affidavit in which she sets out evidence about the night when she was admitted to (omitted) Hospital on 15 August 2014. Without going into detail, the Mother’s account is plainly inconsistent with the other independent records of what she told those at the hospital on the night and even what she told her doctors later. Moreover, for her to inferentially blame the Father for this event is plainly disingenuous in circumstances where the independent material suggests that she wanted to kill herself due to physical abuse by Mr F.
In her closing submissions on behalf of the Father, Ms Doosey referred the Court to the Mother’s lack of candour, as revealed in her own evidence. Indeed, at one point, she raised the issue about whether the Mother’s evidence was a highly fragmented, selective account of what happened, or whether indeed, it simply lacked reality. When one has regard to the objective material, Counsel’s submissions are found to have substance.
From the Court’s perspective, the dilemma is as outlined above. If the Mother cannot be relied on to be candid to the Court, why would the Court take a risk on her having unsupervised time with her children? How would the making of injunction be adequately protective when the Mother cannot even be relied on to present accurate historical accounts of significant events in her life, even comparatively recent ones?
There are further concerns. The risk of relapse for the Mother must be a risk that the Court takes into account in a meaningful way. She has relapsed before, even at times when she has been supported.
Orders in the best interests of the children?
Having regard to the matters set out above, the Court assesses the risk to these children to be such that their time with the Mother needs to be supervised in a professional facility. Once there has been a more thorough assessment of the Mother’s mental health, drug and alcohol issues and any issues arising out of her relationship with Mr F, this arrangement can be reconsidered.
The Court notes that a Family Report has been ordered and will be shortly available. It is by no means a foregone conclusion that this Report will necessarily lead to a reconsideration of the Orders. The Court’s concern here is that there are issues before the Court of concern that were not necessarily apparent at the time the Family Report was ordered and thus further expert evidence might be needed. In the meanwhile, the Orders proposed by the Father are adequately protective and child‑focused. It is the best that can be achieved for these children, in the unfortunate circumstances of this case.
The Father supported and adopted Order 3 of the Independent Children’s Lawyer’s Minute, i.e. that the Mother’s time with the children be suspended on Saturday, 22 August 2015 to enable the children to travel to (omitted) with their father for that weekend.
The matter has been set down for hearing on 15 August 2016. Trial directions will form part of the orders made.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 28 August 2015
Schedule One
| Date | Event | Reference |
| (omitted) 1977 | Mother was born (now aged 37) | |
| (omitted) 1980 | Father was born (now aged 34) | |
| (omitted) 1999 | Maternal half-sibling B is born (now aged 15) | |
| (omitted) 2001 | Maternal half-sibling A is born (now aged 14) | |
| 2004 | Parties commence relationship | |
| 2005 | Father alleges mother threatened to stab him in his sleep if he took the car to work the next day | F’s affd filed 17.7.15 para 17 |
| July 2005 | Mother says father physically assaulted her after drinking too much (threw her to the ground and slammed her against a door) | M’s affd filed 27.10.14 para 11 |
| (omitted) 2006 | Child X was born (now aged 9) Father says X was breastfed for 6 weeks, after which she was bottle fed and he was extremely active in her care Mother acknowledges father was “good dad” and helped when he could | F’s affd filed 21.8.14 para 12 M’s affd filed 27.10.14 para 17 |
| Sept 2006 | Mother says parties moved to (omitted) at father’s insistence | M’s affd filed 27.10.14 para 18 |
| Oct 2006 | Mother alleges father accessed money from her property settlement without telling her, and this placed the parties in financial difficulty | M’s affd filed 27.10.14 para 20 |
| Jan 2007 | Mother discovers she is pregnant and is unhappy, mother agrees to marry father | M’s affd filed 27.10.14 para 21 |
| Mar 2007 | Mother alleges she discovered father was having an affair, which he denied. Mother alleges she went through with the wedding as she could not get her money back | M’s affd filed 27.10.14 para 22 |
| (omitted) 2007 | Parties marry | |
| Jun/Jul 2007 | Mother alleges father pushed her to the ground while she was pregnant, then she hit his car with a hammer Father denies he threw mother to ground, but admits she hit his car with hammer | M’s affd filed 19.6.15 para 29 F’s affd filed 17.7.15 para 133 |
| July 2007 | Mother alleges she went to doctor as she was depressed and having anxiety attacks | M’s affd filed 27.10.14 para 23 |
| (omitted) 2007 | Child Y was born (now aged 7) Father says Y was breastfed for 6 weeks, after which she was bottle fed and he was extremely active in her care Mother alleges she was responsible for housework and children without any help from father | F’s affd filed 21.8.14 para 12 M’s affd filed 27.10.14 para 24 M’s affd filed 27.10.14 para 24 |
| April 2008 | Mother alleges that on Easter Sunday, father yelled at her, threw her to the ground with X in her arms, tried to hit her, then twisted the mother’s leg til it snapped. Mother did not report incident to police Father admits that he pushed mother but alleges it happened after she kicked him in the back and he did not realise she was holding X, father denies twisting mother’s leg | M’s affd filed 27.10.14 para 26 F’s affd filed 17.7.15 para 134 |
| 2008 | Parties move to Brisbane Mother alleges it went well at first, but father became aggressive and controlling after a few months. Mother alleges father would slap (omitted) and leave welts. Mother alleges father lived out of the home most of the time Mother alleges father became sexually abusive towards her, and she was vulnerable due to developing a drinking problem because of persistent depression Mother alleges she asked father to leave as she “could not have a rapist for a husband”, but father returned to the home and “attacked” her Father alleges mother followed him into bathroom with a knife in her hand after an argument | M’s affd filed 27.10.14 para 27 M’s affd filed 27.10.14 para 28 M’s affd filed 27.10.14 para 29-30 F’s affd filed 17.7.15 para 18 |
| Sept 2009 – Jan 2010 | Father alleges he became increasingly concerned about mother’s mental health and observed her drinking in excess Mother agrees her drinking was problematic in Brisbane, but alleges she asked father for help and he was unwilling. Mother alleges she had liver scans, blood tests, was given Campral and was talking regularly with AA 24 hour line | F’s affd filed 21.8.14 para 21 M’s affd filed 27.10.14 para 35 |
| April 2009 | Mother says that her two oldest children were too scared to come back from (omitted) after visiting their father for the holidays. Mother agreed for them to remain in (omitted) and alleges she flew back to see them as much as she could | M’s affd filed 27.10.14 para 30 |
| Sept 2009 | Mother alleges she flew to (omitted) to see older children, and applied for house with father’s consent. Mother was advised she got home on 15 Sept and moved back on 25 Sept. Mother alleges father “hated” the home and left for Brisbane after one night | M’s affd filed 27.10.14 para 31 |
| Oct 2009 | Father alleges agreed for mother to relocate back to (omitted) with children Father alleges he has a number of conversations with maternal grandmother about his concerns over mother’s alcohol intake | F’s affd filed 21.8.14 para 18 F’s affd filed 21.8.14 para 22 |
| Jan 2010 | Parties separate Mother says parties separate 27 December 2009 Father says he continued to financially support mother and children | F’s affd filed 21.8.14 para 3 M’s affd filed 27.10.14 para 32 F’s affd filed 21.8.14 para 20 |
| Feb 2010 | Mother commences relationship with new partner Mr F | F’s affd filed 21.8.14 para 29 |
| Feb 2010 – Jan 2011 | Father alleges he spent time with children as agreed between him and the mother, but generally for 3-4 nights per month in the (omitted) | F’s affd filed 21.8.14 para 28 |
| March 2010 | Father alleges mother is admitted to (omitted) Psychiatric Ward for about 2 weeks after overdosing on tablets, children are in father’s care in Brisbane at the time Mother alleges she asked father to care for children for 2 weeks so she could go to detox, but father refused. Mother alleges she was desperate for help and told hospital she had overdosed and was suicidal so she could be scheduled for at least 3 days to safely detox. Mother alleges she was in hospital 2-7 March 2010 and successfully detoxed Father alleges children remained in his care until June 2010 Mother alleges children were returned to her care on 7 April and X was in pre-school 2 days per week | F’s affd filed 21.8.14 para 23-24 M’s affd filed 27.10.14 para 35 F’s affd filed 21.8.14 para 25 M’s affd filed 27.10.14 para 36 |
| 04.03.2010 | Mother admitted to (omitted) ED after overdosing on prescription drugs, mother discloses this was due to alcoholic liver failure Mother alleges he took the tablets to be admitted so that she could safely detox from alcohol | Subpoena material ICL10 M’s affd filed 19.6.15 para 78(h) |
| June 2010 | Father alleges mother asked for children to be returned after finishing counselling, and he flew to the (omitted) to check her progress before agreeing for the children to return to her care Mother denies this occurred, and alleges father moved to Melbourne on 17 April 2010 | F’s affd filed 21.8.14 para 26-27 M’s affd filed 27.10.14 para 36 |
| Mid 2010 – mid 2011 | Father relocated to Melbourne for work Father alleges he spent time with children for entire term 1, 2 and 3 school holiday periods in Melbourne, 5 weeks over Christmas holidays in Melbourne and on weekends in the (omitted) on average about every 5-6 weeks Mother denies that father ever had girls for entire school holidays or for longer than 2-3 weeks at Christmas | F’s affd filed 21.8.14 para 30 F’s affd filed 21.8.14 para 31 M’s affd filed 27.10.14 para 37 |
| (omitted) 2011 | Maternal half-sibling Z was born Mother alleges that she did not drink throughout her pregnancy and resumed drinking only socially afterwards | M’s affd filed 19.6.15 para 64 |
| Mid 2011 – late 2012 | Father relocates to (omitted) for work Father alleges he spent time with children for entire term 1, 2 and 3 school holiday periods in (omitted), 5 weeks over Christmas holidays in (omitted) and on weekends in the (omitted) about once every month Mother denies that father ever had girls for entire school holidays or for longer than 2-3 weeks at Christmas | F’s affd filed 21.8.14 para 30 F’s affd filed 21.8.14 para 34 M’s affd filed 27.10.14 para 37 |
| 01.03.2012 | Mr F taken to (omitted) ED by police after mother called them and reported she had received text messages stating he would be “gone” in 20 minutes. Mr F found in cemetery and denies he wants to die. Mr F disclosed he took 5-6 valium and 5 cans of bourbon Following day, mother claims Mr F is not welcome back in her home, claims he is sending her messages threatening self-harm, Mr F denies this and shows medical staff his phone | Subpoena material ICL2 – ICL3 Subpoena material ICL4 |
| 07.03.2012 | Mother reports to her psychologist that Mr F has been violent, but the kids didn’t see violence | Subpoena material ICL21 |
| 19.03.2012 | Mother and Mr F attend couples session with mother’s psychologist, tell psychologist “kids didn’t see throwing against the wall” | Subpoena material ICL22 |
| 09.04.2012 | Mother says Mr F was violent towards her for first time. Mother says father was fully aware of incident and they would speak about Mr F’s treatment from time to time Father denies mother ever spoke to him about incident | M’s affd filed 19.6.15 para 70 F’s affd filed 17.7.15 para 50 |
| 10.04.2012 | Police are called after Mr F gets drunk and attacks mother. He forces his way into the home and attacks mother with broken piece of wood from the front door. Two of mother’s other children are present at the time. Mr F is charged and convicted (receives section 10 and section 9 bond) and AVO is applied for | Subpoena material ICL33 |
| 11.04.2012 | Mr F admitted to (omitted) ED due to thoughts of self harm | Subpoena material ICL1 |
| 17.04.2012 | Mother admitted to (omitted) ED after maternal grandmother calls ambulance due to her aggression | Subpoena material ICL9 |
| 10.11.2012 | Mr F taken to (omitted) ED by police after mother reports he sent her a picture of a noose. Mr F discloses he attempted suicide in December 2011. When speaking to staff, mother discloses that children witness domestic arguments During mental health assessment, Mr F states he is not living with mother and they separated in April due to DV Mother reports to police that Mr F threatened to hang himself, and police find noose hanging from beam in toilet Mother alleges that Mr F was experiencing psychosis at this time | Subpoena material ICL5 Subpoena material ICL7 Subpoena material ICL8 Subpoena material ICL32 M’s affd filed 19.6.15 para 78(f) |
| Late 2012 – early 2014 | Father relocates to (omitted) for work Father alleges he spent time with children for entire term 1, 2 and 3 school holiday periods in (omitted), 5 weeks over Christmas holidays in (omitted) and on weekends in the (omitted) “as often as possible” Mother denies that father ever had girls for entire school holidays or for longer than 2-3 weeks at Christmas | F’s affd filed 21.8.14 para 30 F’s affd filed 21.8.14 para 35 M’s affd filed 27.10.14 para 37 |
| 20.12.2012 | Mother calls police after domestic incident, Mr F not present but mother distressed and reluctant to provide disclose any offences. AVO in place | Subpoena material ICL25 |
| 21.12.2012 | Father alleges he received a call from maternal grandmother advising mother’s partner Mr F was being violent, that he sent mother a text and mother replied “It was not Mr F…you know what I’m like” Mother alleges in December 2011 Mr F suddenly slipped in psychosis state, had not been aggressive before then, but they worked together to get him help and he was diagnosed with Manic Bipolar Disorder. Mother alleges Mr F’s behaviour then greatly improved Mother denies her mother told father that Mr F was violent Father alleges he collected girls for the holidays a few days later and spent time with them for 6 weeks, before returning them to mother. Father alleges mother told him the incident was a “one off” Mother alleges this conversation did not happen | F’s affd filed 21.8.14 para 36-38 M’s affd filed 27.10.14 para 41 M’s affd filed 27.10.14 para 42 F’s affd filed 21.8.14 para 40 M’s affd filed 27.10.14 para 43 |
| 25.12.2012 | Police attend mother’s home for domestic incident, mother refuses to provide details but police notice her top is ripped. Mr F present and intoxicated, arrested as AVO provides he is not to be around mother when he is drinking | Subpoena material ICL31 |
| April 2013 | Father commences relationship with new partner Ms B | F’s affd filed 21.8.14 para 41 |
| June 2013 | Father alleges he spent time with children, Ms B and her children (R and L) for long weekend and it went well Father alleges that after returning the girls home, he received an abusive text and phone call from mother accusing Ms B’s children of being violent towards the girls Mother alleges the girls would return home with bruises and scratches from the boys, and they would be yelling in the background when she spoke to them. Mother alleges she raised this with father, he told her to mind her own business Father alleges mother then became increasingly difficult towards him spending time with girls Father alleges he was only permitted to spend time with girls for one week and not two weeks during June/July school holidays | F’s affd filed 21.8.14 para 42-46 F’s affd filed 21.8.14 para 47-49 M’s affd filed 27.10.14 para 39-40 F’s affd filed 21.8.14 para 50 F’s affd filed 21.8.14 para 51 |
| June 2013 – Dec 2013 | Father alleges he continued to spend time with children about every 6 weeks in (omitted), with Ms B and her children present | F’s affd filed 21.8.14 para 52 |
| 18.07.2013 | Mr F hits mother across face, gets on top of her, calls her a slut, yells and then leaves after reading text on mother’s phone while she is sleeping. Mother’s friend encourages her to report it next day, mother provides brief details, refuses to let police photograph her injuries, tells police she only wants AVO and no charges. Mother states she is scared of Mr F because he has been physically violent their whole relationship and she is scared he will kill her one day Mother denies that she said Mr F was violent the entire relationship or she feared he would kill her one day, mother alleges this was dismissed by the Courts and retraction put in after mother was placed under duress by the officers | Subpoena material ICL24 M’s affd filed 19.6.15 para 78(t) |
| Sept 2013 | Father alleges he was only permitted to spend time with girls for one week and not two weeks during September school holidays | F’s affd filed 21.8.14 para 51 |
| 26.10.2013 | Mother admits to GP that Mr F “does hit her at time” and she “is aware the relationship is destructive” | Subpoena material ICL14 |
| 25.11.2013 | Mother reports father to police after he threatens to “belt” her. Police form view father is frustrated by mother withholding kids | Subpoena material ICL29 |
| Late 2013 | Father and Ms B commence cohabitation | F’s affd filed 21.8.14 para 41 |
| Dec 2013 – Jan 2014 | Father alleges he collected the girls on 23 December 2013 and spent time with them until 23 January 2014 | F’s affd filed 21.8.14 para 53-54 |
| Feb 2014 | Father alleges he requested to spend time with girls for weekend commencing Friday 28 February, but mother refused | F’s affd filed 21.8.14 para 56 |
| March 2014 | Father returns to live in (omitted) Father alleges children become upset when leaving his care and ask to stay with him | F’s affd filed 21.8.14 para 55 F’s affd filed 21.8.14 para 83 |
| 16.03.2014 | Father alleges X is admitted to (omitted) Hospital and he visits her daily and stays overnight on 3 occasions. Father alleges he also cares for Y for 2-3 nights Father alleges he did not see children for about 2 weeks after X’s admission | F’s affd filed 21.8.14 para 67-69 F’s affd filed 21.8.14 para 79 |
| 22.03.2014 | Mr F presents to (omitted) ED after thoughts of suicide Mother denies that Mr F was admitted to hospital on this date | Subpoena material ICL11 M’s affd filed 19.6.15 para 78(e) |
| 27.03.2014 | Mother admits to GP that Mr F is abusive at times and has hit her in front of the children | Subpoena material ICL15 |
| April 2014 | Father alleges he recommences time with the children in mid April 2014; each Saturday afternoon until 5:30pm Sunday and each alternate Wednesday afternoon Father alleges Y told him “Dad, do you know that mum had to call the police on Mr F? We were all told to go upstairs and be quiet when the police came” | F’s affd filed 21.8.14 para 80 F’s affd filed 21.8.14 para 39 |
| 22.04.2014 | Mother calls police after argument, police attend and mother refuses to tell them name of child present. Mother clearly intoxicated, swaying, slurring words | Subpoena material ICL28 |
| 15.05.2014 | Mother tells her GP that Mr F is physically and verbally abusive and she is drinking alcohol to escape from stress | Subpoena material ICL16 |
| 29.05.2014 | Parties attend (omitted) Mediation Centre | F’s affd filed 21.8.14 para 81 |
| 15.08.2014 | Mother taken to (omitted) ED by ambulance after an overdose. Mother drunk and fighting with partner about an affair. Mother states to staff that she wanted to kill herself due to physical abuse by Mr F. Mother later embarrassed and states she did not want to die Mother denies she deliberately overdosed and states she was anxious and stressed over the father returning to the (omitted) | Subpoena material ICL12 – ICL13 M’s affd filed 19.6.15 para 78(d) |
| 20.08.2014 | Mother attends GP following admission to hospital, tells GP that there is a history of DV but Mr F is more supportive since her admission | Subpoena material ICL17 |
| 21.08.2014 | Father files Initiating Application seeking equal time arrangement | |
| 27.10.2014 | Mother files Response seeking for children to live with her and spend alternate weekends with the father | |
| 03.11.2014 | First return date, Orders made for parties to attend CIC, for the father to spend time with the children during the Christmas school holidays, and a notation that the current arrangement would continue (live with mother and spend time with father Wednesday afternoons and alternate weekends) | Orders dated 3.11.14 |
| 10.12.2014 | Parties attend CIC, FC recommends that the children would benefit form more time with the father | CIC Memo dated 10.12.14 |
| 18.12.2014 | Father files Amended Initiating Application seeking for children to live with him and spend alternate weekends with the mother | |
| 14.01.2015 | Mother tells GP she is no longer drinking, has no current depression or suicidal thoughts | Subpoena material ICL18 |
| 13.02.2015 | Father alleges he received text message from mother advising she was moving and the children were staying with her mother and step-father. Father alleges he was later told by maternal step-grandfather that the mother’s home was dirty | F’s affd filed 15.4.15 para 9 |
| 28.02.2015 | Father alleges maternal step-grandfather told him the mother was in a “blackout” from drinking and in a rage. Father alleges he spoke to girls later that night and Y disclosed she saw the mother, maternal step-grandfather told father mother is “full-blown alcoholic” who drinks all day and does practically nothing around the house or for the kids Mother denies she was in a blackout or is a full-blown alcoholic or does practically nothing for the children Maternal step-grandfather admits he had conversation with father but says he does not believe it is for him to label mother as an alcoholic and that mother is fit to see children without supervision Father alleges both children have told him they cry when the mother and her partner hit each other and that it used to happen a lot Mother denies the children have ever witnessed her and Mr F hit one another | F’s affd filed 15.4.15 para 10-11 M’s affd filed 19.6.15 para 78(a)-(b) Affd of Mr A 6.7.15 para 3-6 F’s affd filed 15.4.15 para 12 M’s affd filed 19.6.15 para 78(c) |
| 03.04.2015 | Father collects children for school holidays and does not return them due to his alleged concerns | F’s affd filed 15.4.15 para 56 |
| 05.04.2015 | Mother alleges father took children to Victoria without telling her, and after she texts him to confirm arrangements for X’s birthday he advises he won’t be returning children | M’s affd filed 19.6.15 para 41 |
| 09.04.2015 | Mother alleges she drove to Victoria to locate children and asks police to do welfare checks at 5 different locations before being advised that Ms B had taken to children into the station in (omitted), Victoria | M’s affd filed 19.6.15 para 42 |
| 11.04.2015 | Mother alleges she was finally able to speak with children for a few minutes each Father alleges mother had regular telephone contact with the children | M’s affd filed 19.6.15 para 43 F’s affd filed 17.7.15 para 114 |
| 13.04.2015 | Father alleges he received a call from maternal step-grandfather alleges mother had another “episode” a few days ago | F’s affd filed 15.4.15 para 13 |
| 14.05.2015 | Mother alleges she attended father’s home, on police advice to check on the children. Mother alleges children attempted to come out the front door, but were stopped by paternal grandmother, then father arrives home and lies to the police and tells them there are no Court orders. Mother alleges she left the home and contacted her solicitor for a recovery order Father alleges he was called by his mother who told him the mother was screaming at the girls to open the door and they did not want to | M’s affd filed 19.6.15 para 44-45 F’s affd filed 17.7.15 para 115 |
| 15.04.2015 | Father files Application in a Case seeking for children to live with him and spend supervised time with the mother Mother alleges father advises her the children were “holidaying” again and then refuses to answer her calls | M’s affd filed 19.6.15 para 46 |
| 21.04.2015 | Orders made by consent for children to spend supervised time with the mother, urgently appointing an ICL and setting the matter down for interim hearing; however contact does not commence in accordance with the orders | Orders dated 21.1.15 |
| 22.04.2015 | Mother calls school and organises for children to see school counsellor | M’s affd filed 19.6.15 para 52 |
| 29.04.2015 | Children commence seeing school counsellor | M’s affd filed 19.6.15 para 52 |
| 10.05.2015 | Children spend time with mother for Mother’s Day, mother alleges they did not want to go back to father’s home. Mother also alleges that Y was sick and father neglected to take her to the doctor Father alleges he spoke with Mr A (maternal step grandfather) and discovered that he was not properly supervising mother’s time Father alleges he received phone call from Mr A later that night advising he did not want to supervise anymore | M’s affd filed 19.6.15 para 48-49 F’s affd filed 17.7.15 para 121 F’s affd filed 17.7.15 para 122 |
| 19.06.2015 | Mother files Response to Application in a Case seeking for the children to live with her and spend time with the father each alternate weekend and Wednesday afternoons | |
| 21.07.2015 | Interim hearing |
Key Legal Topics
Areas of Law
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Standing
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Procedural Fairness
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Natural Justice
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Abuse of Process
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