Erlbaum & Catley
[2024] FedCFamC1F 635
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Erlbaum & Catley [2024] FedCFamC1F 635
File number(s): BRC 16653 of 2021 Judgment of: BRASCH J Date of judgment: 19 September 2024 Catchwords: FAMILY LAW – PARENTING – Where the children have not seen the mother for several years – Where the father and ICL propose the children spend no time nor communicate with the mother – Whether the mother presents an unacceptable risk of harm to the children – Where the mother sends appalling communications to and posts about the father, his wife, the children’s school and church – Where the mother committed an act of physical violence against a child - Where the children’s exposure to the mother’s emotional dysregulation and lack of pro-social boundaries would cause trauma to the children - Where the mother fails to follow court orders – Order made for the father to solely have responsibility for making decisions about major long-term issues in relation to the children and the children spend no time and do not communicate with the mother – Section 68B restraints made Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65D(1), 65DAB, 68B, s 68LA(5A), 114Q
Domestic andFamily Violence Protection Act2012 (Qld) s 51
Cases cited: Bondelmonte & Bondelmonte (2017) 259 CLR 662
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Hickson & Matthew [2022] FedCFamC1A 161
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Isles & Nelissen (2022) FLC 94-092
Scott & Scott (1994) FLC 92-477
Whisprun Pty Ltd v Dixon [2003] 234 CLR 492
Division: Division 1 First Instance Number of paragraphs: 188 Date of hearing: 12 and 15 August 2024 Place: Brisbane Counsel for the Applicant: Mr Nelson Solicitor for the Applicant: Slade Waterhouse Lawyers Counsel for the Respondent: Mr Duplock Solicitor for the Respondent: Brisbane Line Lawyers Counsel for the Independent Children’s Lawyer: Ms Wardle Solicitor for the Independent Children’s Lawyer: Gary Rolfe Solicitors ORDERS
BRC 16653 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ERLBAUM
Applicant
AND: MS CATLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
Parental Responsibility
1.The applicant father be solely allocated responsibility for making decisions about major long-term issues in relation to the children X born in 2010, Y born in 2012 and Z born in 2016 (“the children”), save that:
(a)The father inform the mother of all major long-term decisions made regarding the children, after such decisions are made; and
(b)The father be at liberty to de-identify the names, locations or other identifying features of any service providers used by him in implementing such decisions.
2.Pursuant to s 114Q of the Family Law Act 1975 (Cth), the father has leave to provide:
(a)A copy of these orders to the children’s school/s, police, child safety, and health providers; and
(b)A copy of these orders and Reasons to any professional rendering therapeutic support to the children, the father and/or his wife Ms B.
Living and communication arrangements
3.The children live with the father.
4.The children spend no time with the mother.
5.Save for the following order, the children have no communication with the mother.
Gifts and the like
6.The mother be at liberty to send to the father, at his last known business address, gifts, greeting cards, letters and photographs for the children on their birthdays and for Christmas.
Section 68B restraints
7.Pursuant to s 68B of the Family Law Act 1975 (Cth), and until each child turns 18 years of age, the mother is restrained and an injunction hereby issues restraining the mother from:
(a)Contacting or approaching or attempting to approach the children in any way;
(b)Attending or contacting the children’s educational facilities, sporting or extra‑curricular activity providers, counsellors or medical practitioners, the father's home, the father’s and/or Ms B’s workplaces, colleagues, friends or family in any capacity whatsoever;
(c)Disseminating, whether directly or indirectly, any identifying information about the father, the children or Ms B to anyone; and
(d)Allowing, causing, suggesting or permitting any other person from doing any of the matter above.
Passports and international travel
8.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the father is authorised to obtain Australian travel documents for each of the children without requiring the mother’s consent or signature.
9.The children’s passports will be held by the father.
10.Pursuant to s 65Y of the Family Law Act 1975 (Cth), this order permits the father to take the children out of the Commonwealth of Australia.
Contact information and other information
11.The parents shall keep each other informed at all times of their current email address.
12.The father shall, not less than each six (6) months, email the mother with a report as to the children’s health, educational progress and general social activities, provided that if the mother directly or indirectly disseminates any such material other than to her immediate family members, this order shall thereupon be discharged.
13.The father shall authorise the children's school to provide school photograph codes to the mother, at her request, for the mother to purchase school photographs at her cost.
Emergencies
14.In the event of an emergency or illness requiring hospital admission for any of the children, the father will notify the mother in writing within twenty-four (24) hours.
Social media, s 114Q and s 114(3)
15.Within seven (7) days from the date of these orders, and on an ongoing basis, the mother is to use her best endeavours to remove any material she has previously uploaded to or communicated via the internet (including all social media accounts) or any other website or platform), which identifies the children, the father, the Independent Children's Lawyer, the Family Report Writer or Ms B as parties to, or as being involved in, these proceedings.
16.The mother is restrained and an injunction issues restraining the other from uploading to or communicating via the internet (including all social media accounts) or any other website or platform), anything which identifies the children, the father, the Independent Children's Lawyer, the Family Report Writer or Ms B as parties to, or as being involved in, these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Erblaum & Catley has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J:
The three children in this matter have not seen their mother since November 2021 and, according to the mother, last had a FaceTime call with her in February 2022 (mother’s Case Outline filed 11 August 2024, “mother’s Outline”). The father records various phone calls and texts after that (Father’s affidavit filed 15 July 2024 paragraphs 167-169 and 173-193), but on 20 July 2023 orders were made suspending communications between the mother and the children.
The children are X born in 2010, Y born in 2012 and Z born in 2016 (“the children”).
The applicant father, Mr Erlbaum, was born in 1980 (“the father”). He proposes the children spend no time nor communicate with the mother, and that parental responsibility for major long-term decisions be solely allocated to him. He seeks orders for international travel with the children, s 68B injunctions restraining the mother from, amongst other things, contacting or approaching the children, that the mother receive information about the children from the father each six months, and that she be able to mail birthday and Christmas cards, gifts and letters to the children.
The Independent Children’s Lawyer (“ICL”) supports the father’s orders. Both also sought orders requiring the mother to remove any social media posts which identify the children, the father or his partner, the ICL, or the Family Report writer as parties to, or as being involved in, family law proceedings. The father seeks an additional order that the Marshal of this Court monitor the mother’s social media posts, which offend s 114Q of the Family Law Act 1975 (Cth) (“the Act”).
Both the father’s and ICL’s proposals rest on their contention that the mother poses an unacceptable risk of harm to the children and no orders can be fashioned to mitigate that risk. Looking at the language in s 60CC of the Act, both say their proposed orders promote the safety of the children including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm. Both also say the mother lacks capacity to provide for the needs of the children.
The respondent mother, Ms Catley (“the mother”), was born in 1980. She proposes the children live with the father and after a short period of supervised time, the children then spend unsupervised time with her graduating to five nights a fortnight. She proposes the parties be jointly allocated parental responsibility and they attend family therapy. The mother proposed a parenting co-ordinator be appointed, but in submissions, the mother’s counsel appropriately did not advance that matter with any gusto. He properly acknowledged there was no evidence before the Court about the terms of any proposed contract of any co-ordinator, or the cost.
The mother had an alternate proposal if I concluded the father be solely allocated parental responsibility, being that he consult with her about any major long-term decisions he intends to make prior to making the decision.
The mother denies she poses an unacceptable risk of harm to the children, and only proposes supervised time in the initial phase of her time-with orders because the children have not seen her for several years.
BACKGROUND
The parties met in 2005. Each moved to City C in early 2006 and commenced cohabitation thereafter. They married in 2007 and moved back to Queensland in 2008.
The parties separated on a final basis on 1 May 2019. From then to May 2020, the children spent roughly equal time with the parents. The parties divorced in late 2020.
In mid-2019, the mother applied for a domestic violence protection order. In mid-2019, the father consented without admissions to a five-year protection order. The mother was listed as the aggrieved and the children were named. Pursuant to s 51 of the Domestic andFamily Violence Protection Act2012 (Qld), a without admission order is only proof of the court’s satisfaction that a relevant relationship existed between the aggrieved and respondent.
From May 2020 to November or December 2020, the mother withheld the children. In her Case Outline (albeit not evidence) the mother said X told her “[d]addy grabbed me by the shirt and pushed me against a wall and hit my head against the wall. It really hurt.” At paragraph 9 of his affidavit filed 15 July 2024, the father deposed that when he announced his new relationship with now wife Ms B, the “Mother falsely alleged that I was violent and had physically assaulted our son, [X], making [X] (then 9) endure an interview with Queensland Police, before the case was closed with no charges laid. I had to apply for a recovery order”. There is no cogent evidence before me to find the father did as the mother alleges in her Outline.
Exhibit 5 is the mother’s solicitor’s letter to the father alleging physical abuse by the father against X and Y, witnessed by Z. The letter also said (amongst other topics) that the mother will report the allegations to the appropriate authorities.
The mother contends that she offered the father supervised time with the children in May or June 2020 (mother’s Outline).
At some unknown point, the father was charged with breaching the domestic violence protection order. In late 2020, the charges were dismissed with costs against the Queensland Police Service. In late 2020, further breach charges were brought against the father. The father pleaded guilty to three breaches with no conviction recorded. I do not know the facts upon which the convictions were entered.
In December 2020, final Orders were made by consent for equal shared parental responsibility and for the children to spend week about time with each parent, along with various other special occasions and specific issue orders.
In early 2021, the mother was voluntarily admitted to the D Clinic at E Hospital for an anticipated three week stay (mother’s Outline) to review her medications in light of an apparent diagnosis of ADHD. It seems she may have stayed for two weeks instead (Family Report filed 13 April 2022, paragraph 5.5).
The father deposed that the mother asked him to care for the children during her admission, and that she discharged herself early (Father’s affidavit filed 15 July 2024, paragraphs 6 and 7). Nothing turns on whether the voluntary admission was two or three weeks, suffice to say the admission marks the start of the mother’s spiral into anti-social behaviour and emotional dysregulation often directed at those with whom she does not agree, or those she perceives as opposed to her.
Between May and August 2021, the mother left messages on the parties’ parenting App and other communications threatening to: make complaints about the ICL and Family Report writer in earlier proceedings; report the father and his bookkeeper to the ATO for “your collusion with [Mr Erlbaum] in tax evasion, customs fraud, insider trading, FBT and the like - I will report to Fair Work as well and whoever else I figure out to”; report the father to police when he offered to send the mother photos of the children at his wedding; report a health professional to the ombudsman if they saw Z who was ill; and, instigate police action against the father over school uniforms.
The father deposed that in mid-2021, the mother called the father’s new wife and said her brother was a person of interest in a police investigation, a worker used by the father was associated with a high profile murder, and the children’s school and church were associated with this killer.
The following day, the mother withheld the children from school and changeover to the father’s care (mother’s Outline). The mother said:
... "I do not feel the kids are safe at all with the current arrangement they have being and are being seriously psychologically harmed by your ongoing psychological abuse .... (sic)" and that she was going to apply to change the orders.
(Father’s affidavit filed 15 July 2024, paragraph 19)
On 29 August 2021, the mother told the father she would return the children if he agreed to a play therapist for Z and the orders were changed to a four- or five-day fortnight with the father (Annexure MRE-9 to the father’s affidavit filed 15 July 2024, page 86).
Only a few days later, on 3 September 2021, the “mother asked the father to keep the children” (mother’s Outline), although looking at the father’s affidavit, it may be that her request was only to last for a few days.
Relevantly, the mother’s Outline (albeit not evidence but some insight into her position) then lists the following:
[Late] 2021 Father applies for protection order
24/09/21 Children again refusing to go to father’s house.
7/10/21 Mother asks the Father to assist with [Z]’s [medical condition].
19/11/21 [X] contacted Father, asked to collect children and take to school because Mother could not do so (according to Father)
19/11/2021 Father withholds children from Mother. Last time children have face to fact contact with their Mother (according to Mother)
23/11/21 Mother raises concerns regarding children’s safety at church and school.
25/11/21 Mother messaged the Father asking him to keep the children
[In] 2021 Mother messaged and called the Father during [Z]'s birthday party. Mother contends she wanted to say happy birthday to [Z] and Father refused to allow this.
[In late] 2021 Mother messaged the Father saying she was unwell and at [E Hospital], later messaged demanding children be returned
29/11/21 Mother emailed the school regarding her concerns about the children being at risk
29/11/21 Father withholds children.
30/11/21 Mother emailed childrens' school and their psychologist, [Mr F].
1/12/21 Father notified the Mother that he was commencing proceedings and proposed supervised time with children; shortly after, the Mother attended at the school to collect children. The Mother denies assaulting the Father.
[Late] 2021 Father’s files application for domestic violence order against mother after mother allegedly tries to forcibly remove [X] from school (according to father).
(Errors in the original) (emphasis added)
It is observed that the father withheld the children from face-to-face time with the mother on 19 November 2021.
On 20 November 2021, the mother then messaged the father asking him:
Hi [Mr Erlbaum], thanks for that. I am likely going to need you to keep the kids longer on this rotation. I am barely able to get a little bit on top of my health in the week off and with all the stress and ongoing issues with kids and their behaviour and legal pressure - I get them back and I then get sicker and symptoms get worse again and intensify.
(Annexure [MRE]-15 to the father’s affidavit filed 15 July 2024, page 115).
In the same very long message, the mother took issue with the children’s counsellor including that he was negligent, colluding with the children’s school and ignoring “red flag sexual behaviours with [Y] and his friends”. In a phone call in November 2021, she also linked the school and church with a criminal.
As for the last entry in the extract above (from the mother’s Outline about X at school), the parties agree that the mother attended the children’s school in December 2021. The father deposed that he received a call from the school stating that “[Ms Catley] is at the school, and she is trying to forcibly remove [X] and he is scared and screaming that he doesn't want to go. You'd better get here” (Father’s affidavit filed 15 July 2024, paragraph 53). The father deposed the classroom had been evacuated and that:
[X] said to me, "mum was pulling my wrists and forearms bending them back and it really hurt, I didn't want to go with her". I could see red marks and an existing scab he had was bleeding.
(Father’s affidavit filed 15 July 2024, paragraph 56)
The father’s wife (who was also at the school) deposed:
I went into check on [X] who was in the office crying. He said to me “can you come in and lock the door and close the blinds, I am scared, Mum was trying to make me go with her and I don't want to go, she was pulling my wrists and they really hurt”. I saw that both his wrists were red, and he was bleeding from an existing sore.
(Affidavit of [Ms B] filed 15 July 2024, paragraph 46)
In her Outline, the mother said she attended the school to collect the children after the father advised he was commencing proceedings and proposed the children’s time with her be supervised.
I find the mother did attend the school with a view to taking the children into her care; the mother says as much in her Outline. I also conclude she was inappropriately physical with X, because the father’s and Ms B’s descriptions and reports of what X said are consistent with the phrase “forcibly removed” attributed to the school.
The father filed an Initiating Application on 15 December 2021. The mother filed a Response on 4 February 2022. The mother’s Response was voided by the Court on 6 December 2022 and she was given leave to file an Amended Response by 4.00 pm 6 January 2023. The mother failed to file a Response by this date. A further Order was made on 27 February 2023 for the mother to file an Amended Response. The mother again failed to file an Amended Response by 4.00 pm 21 April 2023.
On 8 February 2022, Orders were made for the children to spend supervised time with the mother at G Centre, but she did not take up this arrangement. The parties disagree whether this was because the mother refused to be vaccinated or was not triple-vaccinated. I do not need to determine the vaccination dispute because it is unnecessary. Instead, I find, first, the impasse was not the father’s doing, second, the mother failed to fix whatever the problem was and consequently, third, the children’s reality is that whilst supervised time orders were in place, the children did not see their mother. The father told the Family Report writer that the children struggled with not seeing her and Y and X were angry that the mother does not do what she says she will (Family Report, paragraph 8.39).
The 8 February 2022 Orders also provided for the mother to call the children every night between 5.30 pm and 6.00 pm, and, for the mother to provide the ICL with the name of her psychologist/psychiatrist. The ICL said the mother failed to do so. The mother contended the ICL was aware her treating practitioner was a Dr H.
The mother also said this in her Outline:
On 15 February 2022 the ICL directed the mother to provide a hair follicle drug test. The mother responds that she will fail due to [illicit substance] use (according to other parties).
The ICL’s Amended Case Outline said the mother responded saying "I have thought about this and I can tell you what will be on a hair follicle test it will be [illicit substances]" but the mother’s actual reply is not in evidence before me.
Arising out of the mother’s physical interaction with X at school in December 2021, a final protection order was made in early 2022 for the benefit of the father, his wife and the three children, naming the mother as respondent. It may be the order was made without admissions, and if so, I have already referred to the effect of without admission orders under the relevant Queensland legislation.
On the following day, the “ICL directed the mother to attend appointment with Psychiatrist Dr J in August 2022, pursuant to orders made on 8/2/2022. She failed to attend” (mother’s Outline).
Orders were made in Division 2 of the Court on 21 July 2022 that granted the father sole parental responsibility for major long-term issues, and provided that the children not spend any time with the mother. The mother was at liberty to call the children on Tuesdays and Thursdays between 6.00 pm and 6.30 pm.
The mother filed an Application for Review of the Division 2 Order; it was dismissed.
The day after the no time Division 2 Order, the mother’s Outline lists the following:
22/7/22 Mother email to Father's solicitor suggesting entire legal profession is corrupt and incompetent (according to other parties).
I do not understand what the mother means by “according to other parties” in the extract just above because that is precisely what she said as annexed to the father’s affidavit at annexure MRE31, page 252, and I find accordingly.
The final Protection Order was varied on 26 July 2022 restraining the mother from using any communication device to make adverse comments concerning the father or his wife. However, as the mother’s Outline (and actual evidence attached to the father’s affidavit) makes plain, that restraint did not deter the mother:
[Early] 2023 Mother posts photos of the children on [social media] with statement, "This ends 2023. No more"
[Early] 2023 Mother posts name and photos of [Z] posts photos of [Y] and [X] suggesting that FCFCOA proceeding was to cover up financial fraud and was sanctioned by the Court, criticising judicial officers. Mother sent message to childrens phone, "my ex will go to jail"
...
[Early] 2023 Mother posts on [social media] a copy of a complaint that she made to the LSC about [Ms B] and alleges various misdeeds during DV and FCFCOA proceedings. Mother contends she was arrested in watchhouse for filing a notice of risk and changing her ATO ABR profile
The mother’s reference above to being arrested in 2023, may be her first but not only arrest and stay in a watchhouse for breaches of the Protection Order. She was again arrested and retained in a watchhouse overnight twice in early and mid-2023. In early 2024 she was placed on remand.
Picking up from the mother’s Outline extracted just above, her social media posts continued:
[Early] 2023 Mother publishes allegations on [social media] denigrating the Father, the Court and the ICL
…
[Early] 2023 Mother posts on [social media] regarding FCFCOA “Throw a match on it”
[Early] 2023 Mother posts on [social media] identifying [Ms K] as Family Report Writer and attaching information about ICL and [Ms K].
[Early] 2023 Mother posts on [social media] information about [Ms K] and ICL, suggests the Father is in a cult.
[Early] 2023 Mother posts photo of [Ms B]’s driver license and passport as well as RP data report showing Father’s address. Mother posts on [social media] identifying [Y] and [Z] involved in family courts
I will give some examples of what the mother actually said later in these reasons.
In early 2023, the “ICL directs mother to undertake drug test but she did not comply” (mother’s Outline). The mother did provide a voluntary drug test in mid-2023, but that was months after the ICL’s January 2023 request (Exhibit 9).
On 20 July 2023, Orders were made suspending the mother’s communication with the children unless otherwise agreed by the parties and the ICL. The Court also ordered the mother be restrained and an injunction issue prohibiting the mother from publishing or attempting to publish material that identified the parties in the matter, experts, the children or relevant participants in the proceeding.
Nevertheless, by reference to the mother’s Outline, the posts or threats to post continued:
16/10/23 Mother threatens to publish widely
3/11/23 Mother threatens to publish
8/11/23 Mother emails widely, seriously denigrating the Father, [Ms B], lawyers, ICL, witnesses, judicial officers
10/11/23 Mother threatens to publish
In late 2023, the “ICL directs mother to undertake drug test. Mother emailed ICL suggesting he was a paedophile (according to other parties)” (mother’s Outline). I do not know what the mother means by “according to other parties”. The mother’s email is in evidence before me, which makes it plain (and I find) she not only called the ICL and his firm paedophiles, but also intended to let “everyone in Qld know” (Annexure MRE32 of the father’s affidavit filed 15 July 2024, page 259-60).
The mother’s Outline about posts and communications continues:
18/11/23 Mother emails ICL, childrens school and Father's solicitor, suggesting they were all child abusers (according to other parties)
[Late 2023] Mother publishes commentary about FCFCOA and 45 photographs of the children
[Late 2023] Mother publishes on [social media] denigrating the Father, Ms B, the Father's solicitor and barrister, the FCFCOA, the childrens school and church, QPS and AFP
[Late 2023] Mother email to Father's solicitor, attempts to blackmail for return of children by midday, likens [Ms B] to [an infamous criminal] and suggests she will contact British and Australian military to "go after" the Father's barrister (according to other parties). Mother does not agree.
I will give better particulars of some of the mother’s florid, threatening and/or defamatory communications later in these reasons.
In early 2024, the mother was arrested and held on remand until mid-2024. It was common ground that the mother’s sentencing was to occur after the trial concluded.
On her release, her social media posts continued; see Exhibit 1 albeit not specifically about the parties.
MATERIAL RELIED UPON
The applicant father relied upon the following documents set out in his Case Outline filed 19 July 2024:
(a)Amended Application for final orders filed 15 December 2021, but overtaken by his Minute of Order dated 13 August 2024;
(b)Notice of Child Abuse, Family Violence or Risk filed 15 December 2021;
(c)Affidavit of Mr Erlbaum filed 15 July 2024; and
(d)Affidavit of Ms B filed 15 July 2024.
The ICL relied upon the following documents set out in his Amended Case Outline filed 23 July 2024:
(a)Family Report dated 12 April 2024, filed 13 April 2024;
(b)Psychiatric Assessments by Dr L dated 2 December 2022 and 20 October 2023, filed 22 July 2024; and
(c)Affidavit of the ICL, Gary Rolfe filed 19 January 2024.
As for the mother, filing directions were made on 5 February 2024 and required the parties to file one affidavit of evidence in chief, one affidavit of each witness intended to be relied upon and a Case Outline by 4.00 pm on 15 July 2024. The mother said in her Case Outline (filed late on 11 August 2024) that she became aware of the trial directions in April 2024 when in prison – that is well before the filing date. However, the mother filed her affidavit on 9 August 2024. There was no doubt the mother was in default of the Order to file material. For the reasons given at the time, I was not persuaded to grant the mother’s oral application to adjourn the hearing or to grant the mother leave to rely on her affidavit filed on the eve of trial – orders are not options, guidelines or recommendations.
Ultimately, the mother relied upon her:
(a)Case Outline filed 11 August 2024; and
(b)Minute of Order dated 14 August 2024.
Despite her lack of evidence, I permitted the mother to cross-examine via her counsel, be cross‑examined and make submissions. Her counsel was also free to tender documents subject to any evidentiary objections.
After a short break on day one of trial, all counsel confirmed no lay witnesses were required for cross-examination. That was Monday, 12 August 2024. The two experts were not scheduled to give evidence until Thursday, 15 August 2024 (Wednesday being a public holiday in Brisbane). The matter was therefore adjourned, and the parties were required to circulate any updated Minute of Order by close of business Tuesday, 13 August 2024.
When the matter resumed on the Thursday, the parties advised neither expert was required for cross-examination. The parties moved onto submissions. The mother had several verbal outbursts during the ICL’s submissions and at the very start of the father’s. She left the courtroom twice. Ultimately, she preferred to sit in a separate courtroom and observe electronically via Microsoft Teams.
Nine exhibits came into evidence at the hearing.
The standard of proof is the balance of probabilities (see s 140 of the Evidence Act 1995 (Cth)).
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial (Whisprun Pty Ltd v Dixon [2003] 234 CLR 492, Gleeson CJ, McHugh and Gummow JJ [62]and Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA).
LEGAL PRINCIPLES
Best interests
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper (subject to s 65DAB, which is irrelevant in this matter). Section 60B of the Act sets out the objects of Part VII of the Act, and they are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA provides that the child’s best interests are a paramount consideration in making a parenting order. Section 60CC addresses those best interests and provides:
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
The children are not Aboriginal or Torres Strait Islander.
Unchallenged evidence
Before I turn to the s 60CC factors, it is observed that the father’s affidavits of evidence in chief and the reports of the experts came before me without challenge. Forensic decisions were obviously taken by each counsel who determined to proceed without cross-examination of anyone.
However, that is not to say that I must, in a mandatory sense, accept what the father and experts said for lack of challenge. In Scott & Scott (1994) FLC 92-477 (Baker, Lindenmayer & Bell JJ) at 80,729 the Full Court of the Family Court said:
There is, in Australia, no rule of law that a Judge must accept evidence which is unchallenged: Cross on Evidence, 3rd Australian ed. (1986) - footnote 483 para.9.66 at 440; and Ellis v. Wallsend District Hospital (1989) Aust. Torts Reports 80-289 at 69,090; (1989) 17 NSWLR 553 at 588 (per Samuels, JA). However, a number of authorities establish that it may be "wrong, unreasonable or perverse to reject unchallenged evidence" (per Samuels, JA., Ellis v. Wallsend District Hospital, supra at Aust. Torts Reports 69,090; NSWLR 587) and that if an appellate court concludes that it were so, in the particular circumstances of a given case, it may overturn the decision of the primary Judge on the basis of an error of fact, rather than an error of law.
(Emphasis added)
So, whilst I am not mandated to accept the father’s unchallenged evidence, it may be “wrong, unreasonable or perverse to reject unchallenged evidence”.
Section 60CC
I now turn to the s 60CC(2) considerations.
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
Section 60CC(2)(a) is informed by s 60CC(2A), which provides:
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
Both parties have been respondents to domestic violence orders, and both have been convicted of breaches. However, I have no idea of the facts upon which the convictions were entered which makes it impossible to do anything other than note they have both been convicted of breaches.
The mother has had much to say about the father’s apparent failings and alleges he has abused the children and been physically violent to them (e.g. mother’s letter to father dated mid-2020 alleging physical abuse by the father to X and Y and witnessed by Z, Exhibit 5). But she cannot challenge the children’s safety in the father’s care, because she seeks orders that the children, ultimately, spend nine nights a fortnight with him. There is no cogent or objective evidence before me that would allow a finding that the children’s safety will not be promoted by the father and his wife.
I turn to the mother.
I have already concluded that the mother tried to forcibly remove X from school in December 2021. That constituted an act of family violence by the mother against the child.
Both the ICL and father submitted the mother posed an unacceptable risk of harm to the children (Isles & Nelissen (2022) FLC 94-092), or in the words of s 60CC(2)(a) that the children’s safety (as inclusively explained in the subsection) would not be promoted by time or communications with the mother. Both submitted the risks she poses cannot be mitigated due to the very nature of the risks themselves (i.e. being the mother’s dysregulation) and because the mother has proven herself unable to comply with court orders or requests by the ICL for drug testing.
Section 140 of the Evidence Act1995 (Cth) (“the Evidence Act”) guides my findings of past facts. Then, a separate future looking and predictive consideration - not governed by findings on the balance of probabilities - is whether the mother poses an unacceptable risk of harm to the child. Or as neatly said in Isles& Nelissen (2022) FLC 94-092 (“Isles”) at [47]:
47....The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
At [51] the Isles Full Court adopted what Austin J said in Fitzwater & Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”) at [139] including this useful elucidation of the concept of unacceptable risk:
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
In summary, the father submitted the unacceptable risk posed by the mother came from the following combination of sources:
(a)Ongoing and significant risks to the children because of her substance abuse including alcohol or overuse of prescription drugs;
(b)The mother “has a delusional and paranoid lens, as [Dr L] says, through which she sees the world, the father, the church”, along with her emotional dysregulation, entrenched negative views about the father and unwillingness to facilitate a proper relationship between the father and the children;
(c)That the mother struggles to prioritise the children’s needs over her own. For example, the children’s attendance at school was woeful when living with the mother. For example, the mother delayed consenting to Z’s need for an operation and that only occurred when the court allowed the father to solely make that decision. The father also submitted the mother was to blame for the children suffering medical conditions when in the mother’s care; and
(d)Her suicidal ideation and the risk that if the mother is spending time with the children, she would do something “to them as well as herself”.
Drugs and alcohol
Starting with (a), there is little if any cogent evidence before me that the mother’s use of drugs and alcohol is problematic to the point of being an unacceptable risk to the children or being one part of a wider overall picture of unacceptable risk.
The mother mentioned substance use in a reply to the ICL’s request she undertake a drug test in early 2022, but (a) the actual message is not in evidence before me and (b) even if I accepted what the ICL said in his Outline, I cannot discern if the mother was simply being unhelpfully defiant in response to the ICL.
True, there are messages from her to the children which included a reference to verification code for an alcohol delivery service in early 2023 (Annexure MRE-67 to the father’s affidavit filed 15 July 2024, pages 425-426).
True, the mother has not helped herself by not complying with the ICL’s requests for drug tests.
True, the psychiatric assessment and Family Report refer to the mother taking anti-depressants, prescribed medication for sleep, anti-anxiety medications, and more recently, stimulant medications for an apparent mental health diagnosis (a diagnosis heavily doubted by the psychiatric expert and medications questioned too).
However, I cannot be satisfied that using an alcohol delivery service (if that was in fact what the mother was doing) is an indicator of a wider, deeper alcohol problem. The evidence also suggests the mother took prescription medications as prescribed by her treating medical professionals, even if the psychiatric expert in this matter doubted the mental health diagnosis and consequent medications. I am also not satisfied that the mother’s failure to comply with ICL requests for drug testing is anything more than the mother’s contrary and oppositional approach to anyone she considers against her.
Emotional dysregulation
As for (b), I do accept the mother has a delusional and paranoid lens and sees the father, his wife, their church and school in a negative light. I also accept she is emotionally dysregulated leading to anti-social conduct and is unable to contain herself to pro-social boundaries. I reach those conclusions by reference to various things the mother has written herself, only a smattering of which is extracted below, and, her efforts to forcibly remove X from school when the father withheld the children.
The mother’s communications with adults
In the following, the mother (Ms Catley) told the father and his wife (Ms B) in a recorded and transcribed phone call in mid-2021:
[Ms Catley]: Do you know there's-
[Mr Erlbaum]: Wh- where ... What are you alluding to?
[Ms Catley]: I can't say, right now. I'm waiting on a call back from a, a Magistrate and and a QC, and an inspector, right now, because this is really serious, okay?
[Mr Erlbaum]: What is serious? I'm not exactly sure what you're alluding to.
...
[Ms B]: [Ms Catley], weren't you saying to me that you were not wanting to return the kids 'cause you thought [a third party] had a link to [a known criminal]?
[Ms Catley]: Yes, I had- ... He does have a link. It's his [relative]. We know that already.
…
[Ms Catley]: There's no fucking [Town M]. They live- they're from [Town M]. There's some crazy farm out in [Town M] in [City N], where there's people killed. No, I'm serious. I'm serious. I- I found it all. I've looked at it all.
...
[Mr Erlbaum]: But I think it was only a little while ago that [X] was telling me that you thought that [Ms B]'s brother was a murderer.
[Ms Catley]: Yeah, he- he's a person of interest in a Missing Persons case.
(Annexure [MRE]-7 of the father’s affidavit filed 15 July 2024, pages 75-77)
Similarly, after long complaints about child protection policies not being followed by the school (according to the mother) and other teachers she told the father in November 2021:
[Ms Catley]: ... let alone all the shit with [a known criminal] at that school, and [Mr O] [a pastor] was there.
[Mr Erlbaum]: What do you, what do you mean with [Mr O]?
[Ms Catley]: He was at that church before he could, he, [committed a crime], right? [Mr O] was the pastor back then. I didn’t know that. [Mr O] and [Ms P] were the head pastors ... There was a girl, a 15 year old girl, who reported to [Mr O] that [a known criminal] sexually assaulted her on the way to [a location] in [Town Q]. He didn't do shit. He's still oversees the church, the church overseas the school. They're dodgy.
…
[Ms Catley]: ... I rang, um, the Minister for Education and she gave me this number, and I spoke to them, and then she got someone else to call me from the office and I talked to him about a few things including the [known criminal] thing, and I- um, including like, what's going on with [Y] and that teacher, he's, he was said this is really, really serious. He wanted me to go to the police ....
…
[Ms Catley]: [confirms she read the coronial documents for [a murder]]
[Mr Erlbaum]: But, but, why, wh- why did you read that?
[Ms Catley]: Because of the involvement, how church, you serious? How on earth if they had dealt with it, they, they knew what he'd done in [City C], [a known criminal]. They knew. He [assaulted] that boy in [City C]. They let him stay in the church, get married. They didn't report him assaulting another girl and then, it wouldn't have, that wouldn't have happened to [the child] if they'd done the right thing, that church, [name of Pastor].
(Annexure [MRE]-16 of the father’s affidavit filed 15 July 2024, pages 130-133)
The mother continued her views about the church and a school’s involvement with a known criminal in early 2023 posting on social media:
[R Church] and attached School – the church that allowed [a known criminal] free access to the congregation prior to him [assaulting a child].
This [religious] school in [Town S], Queensland protects paedophiles and child abusers and helped my ex husband abduct our three kids after I sent this email.
(Annexure [MRE]-41 to the father’s affidavit filed 15 July 2024, page 302; see also page 304)
The mother has also spoken in an unacceptable and derogatory manner to other people, including when she contacted a Judge’s Associate (not my chambers). When the Associate appropriately suggested she seek legal advice, she replied:
Seek legal advice ?
Yeah okay as that works so well for me. The entire legal profession- oh wait that's all if you – are corrupt and incompetent and cover each other's arse.
(Annexure [MRE]-31 to the father’s affidavit filed 15 July 2024, page 252; see also page 385)
When asked to do a drug test in late 2023, she replied to the ICL:
What the fuck?
As if I can do that.
So the father fails two tests and i don't and only I'm ordered to?
I have no money and can't even get to [Suburb T] to do that.
You don't request the father disclose under the rules and you are part of the family law corrupt cartel and then this?!
It's not possible for me to do this but this more evidence to go to the NACC and in my application so thanks.
I'll be letting everyone in Qld know that [ICL] and his firm are Paedophiles.
(Annexure [MRE]-32 to the father’s affidavit filed 15 July 2024, pages 259-260)
The mother’s distain for the father’s lawyers and the ICL is one she freely posted about irrespective of the defamatory nature, for example in early 2023:
The kid's father's corrupt lawyers – [names included] from [firm name and location] - defamation lawyers - and his Barrister [another name] - know, and have perpetuated severe and fraudulent legal abuse for over three year now. It has cost me $350,000 to try to protect my kids - for nothing.
The ICL [name] has colluded and done nothing.
(Annexure [MRE]-44 to the father’s affidavit filed 15 July 2024, page 328)
And similarly in late 2023:
[barrister’s name]
[solicitor’s name]
Give my my children, you are fraudulent and abusive and should be struck off and in jail.
(Annexure [MRE]-50 to the father’s affidavit filed 15 July 2024, page 355)
The mother has also sent numerous threats including the following to the father’s solicitor and other undisclosed recipients in late 2022:
You are responsible for this. My 9 year old son - photos attached with him staring traumatised with a swollen [face] where he has been assaulted.
... [sets out a list of lawyers and court people]
YOU ARE ALL RESPONSIBLE FOR THE SEVERE HARM AND TRAUMA TO MY CHILDREN FOR STANDING BY AND TAKING MONEY AND DOING NOTHING! NOT ONLY NOT DOING YOUR JOB BUT ACTUALLY BEING PROFESSIONALLY NEGLIGENT!
NONE OF YOU SHOULD BE PRACTICING. I SINCERELY HOPE YOU ARE ALL GIVEN SERIOUS REPERCUSSIONS FOR ALLOWING AND FACILITATING THE ABUSE OF CHILDREN! YOU DESERVE IT.
IF SOMETHING IS NOT DONE ABOUT THIS BY 5PM TODAY THIS IS GOING TO THE INTERNATIONAL NGO'S . IT IS GOING TO GO ALL OVER [SOCIAL MEDIA] SO YOU CAN SEND THE FEDERAL POLICE FOR ME BREACHING SECTION 121 . I WILL FORWARD A COPY OF ALL OF IT .
I MEAN TO THE FBI, TO FEDERAL POLICE, QLD POLICE, CHILD PROTECTION, EVERY SINGLE MP, TO CHILD PROTECTION AND LEGAL REFORM ORGANISATIONS AND CONTACTS IN THE US, IN THE UK, IN EUROPE, TO EVERY DV ORGANISATION I HAVE CONTACTS WITH, TO EVERY LAWYER I HAVE CONTACT WITH, TO EVERY STATE AGENCY AND COMMISSION AND EVERY FEDERAL AGENCY AND COMMISSION. I WILL SEND IT TO EVERY HUMAN RIGHTS COMMISS ION I CAN ACCESS.I WILL SEND IT TO EVERY ACADEMIC I HAVE CONTACT WITH. I WILL SEND IT TO EVERY SINGLE JOURNALIST I HAVE CONTACT WITH INCLUDING THE GUARDIAN, THE ABC, INTERNATIONAL JOURNALISTS AND LOCAL BRISBANE PUBLISHERS.
I WILL PUBLISH THIS ENTIRE STORY AND I WILL DO IT NOW - ON A GLOBAL PLATFORM AND REQUEST IT BE SHARED.
THIS WILL ADD UP.
I WILL NAME EVERYONE IF SOMEONE DOESN'T DO SOMETHING TODAY!
THIS IS A DISGRACE!! I HOPE THE MONEY WAS WORTH IT!!
(Annexure [MRE]-43 to the father’s affidavit filed 15 July 2024, pages 310-311)
In early 2023 the mother posted “[Companies] support DV perpetrators” and named a specific man alleging he conspired with the father and coerced the mother into certain financial arrangements and that the company illegally allowed the father to conduct “relentless stalking [of her] for years” (Annexure MRE-30 to the father’s affidavit filed 15 July 2024, page 209).
In a truly appalling disregard for another person’s safety and privacy, in early 2023, the mother posted on social media photos of the father’s wife’s drivers’ license, her passport and RP data on where they live (a real property database) (Annexure MRE-37 to the father’s affidavit filed 15 July 2024, page 283). The menace is even more so when the mother also has posts from some supporter saying he (the supporter) would like to meet the father with a baseball bat (Annexure MRE-42 to the father’s affidavit filed 15 July 2024, page 306). Even without that baseball bat post, the risks to the father, his wife and therefore the children from the mother’s post only has to be stated to be appreciated.
On 16 October 2023, the mother emailed the father’s solicitor and ICL further threats and character assessments as follows. The reference to the “POIs sister” is a reference to the father’s wife and her middle names:
Oh and I forgot.
You can let [Ms B] know that a major news outlet finished filming [on a person]’s disappearance/murder[…].
I think I'll let them know that the primary POIs sister happened to work at [a government organisation] according to public record.
All for naught wasn’t it.
…
If something happens to my children or I, there will be zero doubt as to who is involved.
I am sending this to [Ms B]'s classmate who also happened to witness [Mr Erlbaum]'s false affidavits for these proceedings. You are the most vile, greedy, evil and corrupt bunch of individuals I've encountered and even communicating with you makes me sick!
I am done, fix this before Friday's hearing or I'll take this to not just the NACC, AGs, Police, AFP and internationally but to the media.
...
[ICL], I hope you choke on your afternoon muffin.
(Annexure [MRE]-46 to the father’s affidavit filed 15 July 2024, pages 339-340)
On 10 November 2023, the mother sent the following to the Court, ICL and father’s solicitor confirming she would engage in criminal conduct to the father and his wife if the children were harmed:
Oh and while I haven't read the latest script for the Conspiracy episode, I'll clarify the following:
1. I did absolutely say that if my children have been harmed that I will give the Father and his wife something to have me charged for.
2. I did absolutely say that if [father’s barrister] has laid a hand on any of my children I will devote my life to making him suffer.
As a disclaimer, I will add to that - or if any of the Father or Father's wife's associates has harmed my children - I will spend my entire life committed to making them suffer.
Let me list the ways ...
I stand by and mean what I said.
It's only a threat if you have harmed my children.
If you have, law enforcement had better get to you before I do.
(Annexure [MRE]-56 to the father’s affidavit filed 15 July 2024, page 388)
The mother had previously texted the father with the following threat, “If anything has happened to any of them I will give you and [Ms B] a reason to have me charged” (Annexure MRE-52 to the father’s affidavit filed 15 July 2024, page 370).
The mother followed up the late 2023 email with other appalling communications including:
[Ms B] is so luck I am not violent by nature or behaviour – I would have beat her to death by now if I was. You also.
I would seriously take both of you on at the same time and I’d kick you in the nuts and her in the vagina. Then I’d punch you both so hard right in the face that your nose cartilage would penetrate your brains.
If I was violent i would have done that a long time ago. Or something like that. Maybe a baseball bat.
Or a machine gun drone.. a Russian one.
Wake the fuck up.
(Annexure [Ms B]-57 to the father’s affidavit filed 15 July 2024, pages 393-394)
The children’s school has also not been spared the mother’s threats for example in late 2023 she emailed the ICL, the father’s lawyers and the children’s school:
I want to speak to my children and I mean today!!
If anything has happened to any of them you will deeply regret it and you will have a serious problem on your hands.
(Annexure [MRE]-58 to the father’s affidavit filed 15 July 2024, page 396)
The mother has also:
(a)Emailed the father’s solicitor and ICL “you dumb arse” and “you evil cow” (Annexure MRE-53 to the father’s affidavit filed 15 July 2024, page 372);
(b)Emailed the court, ICL and father’s solicitors “Have a great weekend, losers” (Annexure MRE-56 to the father’s affidavit filed 15 July 2024, page 386);
(c)Emailed the school, ICL and father’s solicitors in late 2023, “You are all child abusers” (Annexure MRE-33 to the father’s affidavit filed 15 July 2024, page 272);
(d)Posted in 2023: “Happy 7th birthday to my daughter [Z]. Suddenly witheld against federal parenting orders by her father and Barister/LNP/Qld Government/Public Official new wife in [late] 2021 to cover up financial fraud and then sanctioned child stealing ordered ex tempore through the corrupt Federal Circuit & Family Court of Australia in February 2022” (Annexure MRE-34 to the father’s affidavit filed 15 July 2024, page 275);
(e)Posted, “Happy New Years to my children .... This ends in 2023. No more” (Annexure MRE-34 to the father’s affidavit filed 15 July 2024, page 276);
(f)Posted, “Throw a match on it.. it's beyond repair!! #familycourtabuse #murder” (Annexure MRE-36 to the father’s affidavit filed 15 July 2024, page 281);
(g)Emailed the father’s solicitor calling her “dodgy” and “losers” (Annexure MRE-47 to the father’s affidavit filed 15 July 2024, page 343).
The mother also made menacing demands, if not blackmail/extortion of the father and his wife in an email to the father’s lawyers and ICL on 7 December 2023:
I've got you over a barrel and I'm going to never give up.
Your call, I was the kids urgently and before Christmas however that works.
You can keep your blood money but child support will be paid at $2000 a week for 12 months then I'll negotiate.
If [Ms B] wants to keep her house (that she stole as she attempted to steal my life and my energy) then I want the children now and I want full custody of them.
Your call.
Otherwise it's going to be financial proceedings, Child support proceedings, criminal proceedings, civil torts for damages and a massive defamation lawsuit.
I will end you all.
...
I do lot care if [Ms B] ends up in prison like [aninfamous criminal] or if you guys continue on in your life doing what you do.
She will never be around my children ever again, and I mean ever.
Literal single white female.
...
I am going to contact British and Australian military next to go after you [name of barrister]. Perhaps […]? Special forces?
...
You are going to have to humble yourselves and consider yourselves blessed beyond measure that I am merciful.
...
If you allow this to go on, giving satan a free pass to destroy and kill our Children and to stop God's purposes, then God will stop you anyway but at the end there will be no mercy.
I'm going to file the federal prosecution I just filed in the High Court. It's not that hard.
(Annexure [MRE]-59 to the father’s affidavit filed 15 July 2024, pages 398-400).
Two months after that, the mother was again charged with breaching the Protection Order, but I do not know if the above communication is a particular of any charge. Nevertheless, notwithstanding being on remand in prison for charges of breaches of the Protection Order between early and mid-2024, the mother resumed posting or reposting comments about the courts and police; see the father’s summary at paragraph 207 and the posts at Annexure MRE‑69 to the father’s affidavit filed 15 July 2024, pages 438-443).
Exhibit 1 consists of posts also made by the mother since her release from prison in 2024. Whilst they did not name the father, his wife or children, they continued a familiar theme:
Never in my wildest dreams, did I believe anyone could take a child from a quality mother! … And then there’s Family Court.
…
IMAGINE BEING AN ADULT & KNOWING THAT YOUR PARENT TOOK YOU AWAY FROM YOURE OTHER PARENT AND USED YOU AS A PAWN TO HURT THE OTHER PARENT AND TO GET MONEY. IMAGINE. THAT.
(Exhibit 1)
The mother’s communications with the children
Lest it be thought the children were spared the mother’s views or lack of boundaries, they were not. Indeed, she has also communicated with the children in the following completely inappropriate terms in late 2022:
I love you more. I’ve tried to call heaps darling. I will call Tuesday and Thursday at 6pm. If I don’t call from now on it is because daddy and [Ms B] have told police and the courts horrible lies about me too and they believed them because [Ms B] works for the [government]. People who work for [the government] and suppose to be very honey and not lie. I am trying my best to show them the truth ...
Love you all so much. Don’t give up. You will be coming home soon.
(Annexure [MRE]-62 to the father’s affidavit filed 15 July 2024, pages 410-414)
On another occasion the father described Y talking to the mother, but that he was repeatedly looking away and looked upset. He deposed, “I thought he had finished his call, so I walked over to ask him what was wrong. I saw [Ms Catley] was still on the phone and she was crying. I heard her saying very sternly to [Y], "you look at me, look at me now, don 't you turn away from me you look at me." I had to terminate that call and then comfort [Y]” (Father’s affidavit filed 15 July 2024, paragraph 172). I have no reason to doubt what the father said.
Similarly, the father described a call with the children in June 2022 where the mother was crying and questioning X whether he was seeing “anyone like [Mr F]” (the boys’ former psychologist). X said no even though he was. Y asked his father to put the phone on speakerphone to which the mother said, “it must be so hard for you when you can't talk freely, and they make you put it on speaker” (Father’s affidavit filed 15 July 2024, paragraph 177). Again, I have no reason to doubt the father’s description.
A little later in June 2022, the mother questioned Y about a medical conditionbut added things like, “it hurts, it hurts so much”, “you should not be going through this, no kid should”, “I have lost so much weight I am now wearing [X's] pyjamas" and is “Dad giving you warm socks or putting the heater on for you at night?”. The father said he interjected and asked the mother to stop fishing for information. She responded, “oh my God, go away [Mr Erlbaum], you are making him scared and me. Go away. You are allowed to have privacy [Y], its ok, fishing, oh my gosh, wow ... " [Ms Catley] then went on a bizarre tangent about the sport of fishing” (Father’s affidavit filed 15 July 2024, paragraph 178). Again, I accept what the father said.
In December 2023, the mother texted the children, “... Love you three with my whole heart [emojis] sorry your father won't let you even see me” (Annexure MRE-63 to the father’s affidavit filed 15 July 2024, page 41).
In 2023 (Z's birthday) the mother texted the children:
My ex will go to jail
(Annexure [MRE]-66 to the father’s affidavit filed 15 July 2024, page 422)
In early 2023 the mother messaged the children as follows:
I’m also pissed as fuck about your comments about a sex check! How dare you!
I don’t sleep around you history in your marriage is clearly different and how dare you project your shit into me!
False accusations are a confession in my experience and yeah I’ll be getting one!
You are awful!
I am so pissed off!
(Annexure [MRE]-67 of the father’s affidavit filed 15 July 2024, pages 427-430)
I can only hope the father or his wife were able to intercept that message and quarantine the children from some dispute the mother may have been having with someone else. It was grossly careless of the mother to send that to the children’s number.
It comes as no surprise that orders were made on 20 July 2023 suspending communications between the children and mother, nor that the Family Report writer expressed “concerns with respect to her mental and emotional functioning and the impact this may have upon the children” (Family Report filed 13 April 2022, paragraph 7.4).
Discussion of emotional dysregulation
The mother committed an act of violence against X when she attended the school. I also conclude – on the strength of the mother’s own emails, texts and posts as extracted above - that her threats and derogatory taunts to the father and his wife were acts of family violence as defined in s 4AB of the Act. I also accept – again on the strength of the mother’s own words – that she is unable or otherwise struggles to regulate her emotions and contain herself within pro-social boundaries. I also conclude that the mother’s communications with the children have, at times, lacked child focus including when she blamed the father for her them not seeing her, said her “ex” will go to jail, or told the father he was scaring her and the child.
The Family Report writer held the view that if the children were exposed to the mother’s current level of emotional dysregulation, even in a supervised setting, then they will be exposed to harm that will likely impact upon their emotional wellbeing (Family Report filed 13 April 2022, paragraph 11.6). She added:
Parental mental illness has been shown to affect attachment formation and the cognitive, emotional, social, and behavioural development of children. Children whose parents have a mental illness are at risk of developing social, emotional and/or behavioural problems. The environment in which a child grows affects their development and emotional well-being as much as their genetic makeup does. Providing responsive and consistent care for a child can be particularly challenging for a parent or other carer who has mental illness, even when the person is committed to the child's wellbeing. If mental illness disrupts the early years of the adult-child relationship, it is less likely that the child will have a secure attachment style or optimal social and emotional development. Children whose parents have a mental illness are at higher risk than other children of having emotional, behavioural or mental health problems at some stage in their lives.
It is the writer's view that if the children are exposed to the Mother's current level of emotional dysregulation, even in a supervised setting, that they will be exposed to harm that will likely impact upon their emotional wellbeing.
(Family Report filed 13 April 2022, paragraphs 11.5 and 11.6)
Dr L, psychiatrist, said the mother’s risks:
... are associated with her pathological personality construct and maladaptive coping skills (that are pervasive and enduring) and will impact on multiple areas of her functioning across many spheres of her life. She has a tendency of understanding everything in a conspiratorial manner which significantly impacts on her own functioning but had impacted on other professionals and her children. She had demonstrated that she would often refuse required treatment and would solicit unnecessary assessment and treatment for her children. She appears to harbour significant delusional beliefs about the church, professionals, her children's school, and her ex-husband [Mr Erlbaum]. Although there was no direct risk of physical harm to the children identified, there was potential of risk of emotional abuse and neglect.
(Dr L’s report filed 22 July 2024, page 26).
I accept the opinions expressed by both experts because they are well borne out of the factual matrix of the mother’s anti-social and dysregulated conduct – only a sample of which I have included in these reasons.
The mother’s florid posts and communications continued to be expressed even after she was restrained from doing so by orders of the Magistrates Court and this Court. That allows me then to conclude that the mother’s views of the father, his wife and others in the children’s lives, and her expressions of same, are not views that can be constrained by court order. That also leads me to conclude that I cannot be satisfied that the mother would quarantine her negative views of others from the children; indeed, her texts to the children reveal the opposite approach by her.
The mother’s inability to prioritise the children over herself
As for (c), I am not prepared to find the mother is an unacceptable risk to the children due to their medical conditions – there could be many reasons why these things came to pass.
However, the father deposed without demur from the mother:
In the end of term for 2021, the school informed me that when the children were in [Ms Catley]’s care:
A. [X] missed 25 out of 80 days (31.25%).
B. [Y] missed 29 out of 80 days (36.25%); and
C. [Z] missed 31 out of 80 days (38.75).
The Children’s current semester 1 2024 report shows:
A. [X] missed only 3.5 out of 98 days (3.57%);
B. [Y] missed only 4 out of 98 days (4.08%);
C. [Z] only missed 4 out of 98 days (4.08%).
(Father’s affidavit filed 15 July 2024, paragraphs 213-214)
If those school absences were the only ‘mark’ against the mother’s parenting, then I might be more relaxed about them. However, I conclude that the children’s poor attendances at school when living with the mother were (and I find) part of a wider picture of chaos and instability that the mother presents, as is evident from the disorder and delusion of her communications to which I have already referred.
I will consider the mother’s attitude to the children’s medical/health needs under capacity to parent. However, I do not consider the mother poses a future risk about her approach to the children’s medical issues because orders will be made for the father to be solely allocated parental responsibility.
Suicidal ideation
As for (d), I accept the mother has had moments of suicidal ideation. See for example the Queensland Corrective Services documents when the mother was incarcerated in early 2024:
Prisoner [Ms Catley] presents with a history of [self-harm] ideation in 2023, whereby she had plans to [harm] herself and actively commenced engagement in this plan in response to DV and child custody matters.
(Exhibit 2)
Prisoner [Ms Catley] stated that yesterday she experienced fleeting [self-harm] ideation while at the watchhouse whereby she reported looking around the room thinking of ways she could [harm] herself.
(Exhibit 3)
As for the risk to the children, the father deposed:
[In mid] 2022, my wife [Ms B] messaged me to urgently go to the School as she had received a call suggesting that the children were at risk of being abducted by [Ms Catley]. [Ms B] told me and I believe the caller said:
"She is telling me that she can just take the children and that no recovery order could be done and the Police can't get involved because I can just legally take the children, and "I am reaching out to you, which is not something I do lightly, but I do not want to be making this call in hindsight" ... . [Ms Catley] is in my professional opinion ... and I can't diagnose ... there is a very real risk that if [Ms Catley] has nothing to lose she will kill herself and her children."
(Father’s affidavit filed 15 July 2024, paragraph 198)
I can understand why the father and his wife would be deeply concerned about this. However, I have no idea who the caller was and what led them to conclude as they did. There is insufficient evidence before me to accept the father’s submission that the mother might kill herself and the children.
Instead, Dr L opined:
[Ms Catley]’s risk to self and others was assessed as significantly increased in comparison to her peers in view of her ongoing mental health issues, paranoid personality disorder trait and current symptomology. ...
…
Although there was no direct risk of physical harm to the children identified, there was a potential risk of emotional abuse and neglect.
([Dr L]’s Report filed 22 July 2024, page 26)
In other words, the risk to the children is emotional abuse and neglect from the mother’s symptomology, not a risk to them of being killed.
ICL’s submissions on unacceptable risk
The ICL’s submissions were of similar nature to the father’s, highlighting the mother’s emotional dysregulation which “is undebated and continuing, and persistent, and so that would still be the case today”. For the reasons already given, I accept that to be so. I also accept the submission that the children’s exposure to the mother’s emotional dysregulation would cause trauma to the children if exposed to it; that really is a matter of commonsense when regard is had to how the mother communicates and the content of same.
I also accept the ICL’s submission that the mother’s mental health difficulties see her “irrationally lashing out at or making outrageous comments about those who do not agree with her, including the father, his barristers, the school, the government, the courts, and court officials, examples of which have been set out in the mother’s Case Outline”. Things written by the mother (some of which I have extracted in these reasons) give ample foundation to that submission, which I accept.
Discussion of promoting the children’s safety / unacceptable risk
Unacceptable risk need not come from just one factor but can be drawn from an accumulation of factors (Hickson & Matthew [2022] FedCFamC1A 161 at [39(2)].
To that end, I find the mother’s emotional dysregulation, which sees her irrationally lashing out in truly appalling, menacing and threatening communications to and about the father, his wife, the school, the church, officers of the court and others, has seen her conduct herself in anti-social ways, unconstrained by socially acceptable limits, child-focused conduct and court orders. I have also concluded the mother committed an act of family violence on X when she went to the school in late 2021. I also accept that the children’s failure to attend school when living with her were part of the mother’s general chaos and instability, neither of which are incubators allowing a child to thrive and grow into their best selves. The mother proposes the children spend five nights a fortnight with her; that would include school days and the mother’s past record gives me no confidence the children would attend school when with her.
I have no confidence that the mother, looking to the future, could curtail her anti-social ways and in that regard I have already accepted the risk analyses of the two experts in this matter. Accordingly, for those reasons, I consider that on the continuum of risk, the mother’s conduct is such that the risk to the children of being exposed to the mother’s emotional dysregulation and chaos is sufficiently grave to be unacceptable.
In terms of mitigation, I do not see how supervised time would promote the children’s safety. First, it has been previously ordered but the mother failed to take whatever steps she needed to engage. Second, given how the mother disparaged the ICL, court officers and others, I have no confidence she could contain herself with supervisors if she perceived them as against her. Third, the mother’s failure to follow court orders (both family violence and family law orders) or requests by the ICL for drug testing, gives me no confidence she would follow directions by supervisors. Fourth, once the mother made a disparaging, delusional or paranoid comment to the children or in their hearing, then it has been said, and cannot be ‘unsaid’; the damage has been done. Correction by a supervisor after the fact is precisely that – after the fact.
For similar reasons, I do not see how communication orders could mitigate the risk of the children being exposed to the mother’s dysregulation and strident views about those who (she perceives) stand in her way. Even if the father or his wife ended an inappropriate call, the inappropriate words have already been said.
(b) any views expressed by the child
The children were interviewed for the Family Report on 2 April 2022, being some time ago now.
X was asked what it was like living with his mother; he responded that it was “okay”. Whilst he did like spending time with his mother, he also felt unsafe and scared with her “a lot recently”. He said she had something wrong with her thinking (Family Report filed 13 April 2022, paragraphs 10.8 and 10.9).
There is ample evidence to support X’s view that there is something wrong with the mother’s thinking.
He also said he did not want to see the mother and does not want to speak to her on the phone (Family Report filed 13 April 2022, paragraph 10.6).
Y said he “enjoys spending time with his mother” but added he felt “unsafe with her sometimes” and scared that “his mother will take him and not let him see his father, which has happened in the past” (Family Report filed 13 April 2022, paragraph 10.17). Y’s views also have a factual basis to them.
Z - Grade 1 at interview - said that she likes living with her mother and her father, feels safe with each and has never felt unsafe with either parent (Family Report filed 13 April 2022, paragraphs 10.26 and 10.27). She does not like it when her mother calls too late, which has certainly occurred.
The Family Report writer acknowledged (at paragraph 11.12) that the children’s views should be considered, however stated that:
it is the writer’s views they should not be determinative in this matter. It is the writer’s view that they are not of an age or level or maturity where they understand the likely impacts upon them of having substantial time with their Mother at this stage.
Such a sentiment finds resonance in cases such as Bondelmonte & Bondelmonte (2017) 259 CLR 662 where the High Court reminds that a child’s views are not determinative.
However, one thing said by the children brings with it a sad reality for the children when the parents were communicating:
It is clear that there is a very high level of conflict between these parents that is having an adverse effect upon the children.
...
they wanted their parents to stop arguing
(Family Report filed 13 April 2022, paragraph 11.10)
As is required by s 68LA(5A) of the Family Law Act 1975 (Cth), the ICL informed the court at trial that the children’s views:
have moved since the family report, and the father gives evidence that the children don’t wish to see their mother anymore.
(Transcript 15 August 2024, page 14 lines 16-19)
I do not know what that means in terms of the children’s actual and contemporaneous views. In any event, I have the children’s views from two years ago, but balance that against ample evidence to support my findings about unacceptable risk.
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
These two matters go hand in hand.
To grow into their best selves, the children need stability, routine and consistency. There is no evidence before me that the father is lacking in those regards. They are doing well enough at school and their attendance rates have dramatically improved (Annexure MRE-70 to the father’s affidavit filed 15 July 2024, pages 449-483).
Z’s Year 3 mid-year 2024 report describes her as:
a delight to have in our classroom .... Bubbly and always bringing positive energy to the classroom, [Z]'s insightful questions and comments enrich the learning experience for everyone. I am looking forward to seeing her continued growth and success next term. With her dedication and effort, I am confident that [Z] will achieve outstanding results.
(Annexure [MRE]-70 to the father’s affidavit filed 15 July 2024, page 450)
Y’s Year 6 mid-year 2024 report refers to “partnering with you both” which must be the father and his wife Ms B:
It has been great to share this semester with [Y] and see him improve in all areas of school life. [Y]'s quirky personality and sense of humour has been warmly embraced by his peers and make him a well-liked member of the class. He has settled well into routines and is performing well in all subject areas. [Y] is a deep thinker and curious learner. ... I have appreciated the opportunity to partner with you both to keep [Y]'s behaviour in check this year. It really helps him focus on achieving his potential and develop more positive habits in his learning. I look forward to sharing the last phase of [Y]'s learning journey in Primary School.
(Annexure [MRE]-70 to the father’s affidavit filed 15 July 2024, page 462)
X’s Year 8 mid-year 2024 report does not seem to include a free flow narrative summary but describes a young man who is consistently polite and courteous, respectful and participates and contributes (Annexure MRE-70 to the father’s affidavit filed 15 July 2024, page 475).
In contrast to the father, stability, routine and consistency are not factors within the mother’s skill set. For example, I have already mentioned the children’s school absences when living with the mother and her inability to engage with supervised time.
It is also the case that the mother’s actions delayed Z’s medical condition being tended to. When the father was able to get Z into a quicker appointment with his long-term GP in mid-2021, the mother wrote to the GP:
Please confirm that the kids will no longer being attended to at your clinic [sic].
I am concerned for my children safety at this point due to their father's erratic and unpredictable behaviour.
... I will make an urgent complaint to the Queensland Health Ombudsman.
This is a completely reasonable request and in your treatment of me you are actually colluding to perpetuate further family violence.
The children are also listen on a five year Domestic Violence Protection Order which I have attached for your records. (sic)
I would appreciate a prompt response to this request for simple information about my children (sic)
(Father’s affidavit filed 15 July 2024, paragraph 12(f))
The father said – and I have no reason to doubt – that the clinic initially declined to see Z straight away. In other words, the mother put her views about the father over Z’s access to prompt medical care.
Z’s medical condition continued to be a problem, such that by early 2022 a specialist, Dr V, was still recommending surgery. The father deposed that he brought each incident of Z’s medical condition to the mother’s attention, including four instances in the space of a month in mid-2022. But despite that, the mother did not return the consent paperwork for surgery (Father’s affidavit filed 15 July 2024, paragraph 73). I accept the father and mother conducted themselves as just described.
Ultimately, on 21 July 2022, a Senior Judicial Registrar granted the father sole parental responsibility for the major long-term issues with respect to the children. In late 2022, Z finally had surgery.
The mother’s actions had the consequence of delaying treatment, and consequent symptoms and pain relief, for Z. I find that was neither child focused nor evinced a positive capacity to parent.
The mother also took exception to the psychologist who had being seeing X and Y from 2019. The final consent orders of 2 December 2020 (order 22) also required the boys receive psychological counselling from the practice in which Mr F worked.
X had started with Mr F in mid-2019 for a mental health condition. Y commenced with him in late 2019 for toileting issues and went on to help him with anxiety and another issue. On all accounts the boys were well engaged with Mr F and received benefit from him.
Notwithstanding, in November 2021 the mother told the father:
I do not want the boys seeing [Mr F] due to his gross negligence in following ethical standards and total lack of communication in regards to informed consent – his experience, treatment competencies and his absolutely useless ongoing circular and confusing engagement with the boys. [Mr F] should have made it clear that he is unable to conduct assessments and provide appropriate trauma care whilst in proceedings but definitely upon the referral back to him from [Dr U]. In my opinion he is acting in collusion with [Ms W] who has told me personally that they are good friends.
…
I have open complaints with the office of the health ombudsman against [Dr U] and [Mr F].
(Annexure [MRE]-15 to the father’s affidavit filed 15 July 2024, pages 115 and 118)
Then, in November 2021 the mother sent the father an email she sent to Mr F and the children’s school including:
Hi [Mr F] and [Ms W],
Please accept this email as me revoking any and all consent for the boys to see [Mr F], or [Ms W] for counselling.
…
[Mr F]’s close relationship both personally (as advised by [Ms W] on the phone and recorded) and professionally, with [Mr F] undertaking paid work at [AA School] is a detrimental conflict of interest in my view.
...
You then advised child safety that I was "heightened" on the phone to you and reported me to them for non attendance and mental health concerns.
…
I am making the relevant reports to the non state schools accreditation board and have been advised to provide any and all relevant information relating to the conduct of the school, it's lack of compliance with internal policies and of the church and the appropriateness of the church to be a governing body for the school, considering the history of serious child protection issues surrounding the church.
…
[Mr F] my concerns about your conduct are with the Office of the Health Ombudsman. In my view your conduct is deplorable and has resulted in ongoing serious psychological harm to [X] and [Y]. I put my trust in you, despite my serious reservations and what has transpired has been truly horrifying.
(Annexure [MRE]-29 to the father’s affidavit filed 15 July 2024, pages 201-203)
Consequently, the psychologist declined to continue seeing the boys.
Again, the mother’s scattergun, conspiratorial view of the psychologist saw the boys’ therapeutic relationship end. I find that was not child focused and does not speak positively of the mother’s capacity to parent.
Dr L’s opinion in the psychiatric assessment was that the mother has a “pathological personality construct, and maladaptive coping skills” and “she’s not able to prioritise the needs of her children above her own (Dr L’s report filed 22 July 2024, paragraphs 22 and 23). Dr L added:
[Ms Catley] was assessed as having limited capacity to parent and meet the needs of her children. She had struggled to understand the medical needs of her children and had refused to accept medical opinions as a consequence of her impaired mental health.
([Dr L]’s report filed 22 July 2024, page 27)
Dr L further said that from the mother’s own reporting she “would not be able to prioritise the needs of the children and her judgement was affected by her delusional thinking pattern” (Dr L’s report filed 22 July 2024, page 27).
I accept the expert’s opinion because it sits entirely on all-fours with the evidence before me. For example, the mother delayed Z’s medical treatment and caused the boys’ long-standing psychologist to disengage from them. Similarly, whether it was no vaccination or not triple vaxxed, the children did not see the mother at supervised time because the mother did not take steps to correct whatever the problem was. The mother’s strident and paranoid views of and communications to the father, his wife, the school, the ICL, the psychologist, the GP who could quickly see Z, do not evince a stability and child focus in which the children would thrive. Similarly, her texts messages to the children were no doubt important for her to have her say, but (if received by them) would be emotionally damaging.
I am well satisfied the father has ample capacity to meet the needs of the children; the children’s 2024 school reports speak to this. By implication the mother must accept the father’s capacity too given she proposes the children primarily live with him.
I am also well satisfied that the mother is not able to meet the needs of the children; her mental health challenges and florid unconstrained symptomology prevent her from doing so. I do not need to conclude whether the mother has “delusional disorder generalised anxiety disorder and major depressive disorder – mild intensity” as opined by the single expert psychiatrist, or a mental health condition as seems to have been diagnosed be her treating psychiatrist. The labels matter little for the children. Rather the mother’s conduct from whatever diagnostic label is applied is of far greater relevance to the children if exposed to the mother.
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
Both the ICL and father propose the children do not have a relationship with the mother.
The mother proposes the children have an ongoing relationship with her, the father, and by implication his wife and their wider families.
As for others of significance, the father deposed that he intends to “continue to facilitate the children spending time with the Maternal grandparents, in a public place, as long as I can be assured that [Ms Catley] will not attend” (Affidavit of Mr Erlbaum filed 15 July 2024, paragraph 197). He gives some examples of this occurring. Nothing was put before me that would cast doubt on his future intentions.
At the end of the day, no one made any particular mention of wider familial relationships in submissions.
(f) anything else that is relevant to the particular circumstances of the child.
No other matters were ventilated by the parties under this heading.
DISPOSITION
This is a matter where promoting the children’s safety and protecting them for harm is acutely in the children’s best interests. Whilst I have considered the children’s views and wider relationships, for the reasons given I consider the mother presents an unacceptable risk to the children. Aligned to that is my conclusion that she lacks the capacity to meet and provide for the children’s various needs. Suffice to say, I have no concerns about the father’s and his wife’s capacity to care and provide for the children.
Further, and for the reasons already articulated, because of the very nature of the mother’s symptomology, I cannot see how to mitigate the unacceptable risk that comes from the mother’s belief system and consequent unconstrained, anti-social conduct.
I have therefore concluded that the children’s best interest will be served by a no time and no communication order with the mother.
The father and ICL had very similar Minutes of orders, with the main differences being the father asking for the Marshal of this court to monitor the mother’s social media for two years and take steps to pull down anything offending these orders. I am not satisfied I have power to require the Marshal to do so and will not make that order. I will however make the other orders sought by the father and ICL about the mother’s social media posts because the mother has used that medium to defame and threaten the partes in this matter and others associated with it.
I will not make an order that parental responsibility be jointly allocated to the parents as primarily sought by the mother; that would be a recipe for disaster and more likely than not ensure the children’s needs are not met because of the parties’ inevitable disagreements. The mother has previously proven she will exercise her power of veto to decline medical treatment for Z and withdraw consent for the boys to continue with their long-standing psychologist.
Instead, I will make an order that parental responsibility for major long-term decisions be solely allocated to the father. The mother proposed in the alternate that if I made a sole parental responsibility order then the father give the mother seven days’ notice of his proposed decision and allow her to make comment. That will be fraught with danger; first, the mother’s proposal delays the actual implementation of decisions by seven days, which may be contraindicated for the child’s actual needs. Second, I have no confidence the mother would be able to constrain her input to the issue at hand. Third, I have no confidence that the mother could contain herself from threatening the proposed service provider/s (as she has done) thereby jeopardising the service providers’ engagement with the children.
In submissions, I asked the father whether he would consider telling the mother of major long-term decisions after such decisions were made. He was agreeable. I will require him to do so but allow him to not include the names or other identifying material of the service providers or entities because the mother has a proven herself adept at contacting the children’s service providers and derail or delay the children’s treatments and care (for example, when Z had a medical condition and the boys’ long-term therapist). I am of the view that that was implicit in the father’s proposed order, but will make that explicit. It therefore follows that I will also not make the order sought by the mother (order 24(a)) to the effect that she receive copies of reports about the children within 14 days of the father receiving such documents; she has proven herself adept at skuttling the children’s treatment needs.
Both the ICL and father sought s 68B restraints against the mother. The mother sought mutual restraints. In submissions, it was accepted these injunctions could only endure to each child turning 18 years. I will make the s68B order proposed by the father and ICL until each child turns 18, but only against the mother as she is the one who does not respect acceptable pro‑social boundaries. Further, I do so because X told the father, “Mum knows where we live, she has been looking up the house on the maps, what if she comes there to try and take us?" (Father’s affidavit filed 15 July 2024, paragraph 59). The children need peace of mind that the mother is not to approach them and the father (or via a therapist if so engaged) may tell them that.
I will not make the orders sought by the ICL under the heading “Parents Further Obligations” (order 9), because the proposed orders are aspirational and unenforceable, or not supported by evidence to support some of the restraints sought, or redundant because of the allocation of parental responsibility and no time and communication orders.
I will make most of the passport and travel orders proposed by the father and adopted by the ICL. The children ought have the opportunity to enrich their understanding of the world and its many cultures, history, food and languages through travel. I will not require the mother’s consent to secure passports or permit travel because I have no confidence she would participate in that process in a helpful, productive, child focused way. To the contrary, requiring her consent would give her the power of veto at the expense the children’s enrichment. However, I will not make the orders proposed by the father that he not travel with the children to countries where the Australian Department of Foreign Affairs and Trade has issued travel warnings for either “reconsider your need to travel” or “Do Not Travel”. There is no evidence before me that the father would be so reckless.
Suffice to say, for the reasons given, I am not persuaded to make the orders sought by the mother. There is no need for a parenting coordinator given my no time and no communication orders and, in any event, there is no evidence before me about the contract for any such coordinator and the costs of same. Again, due to my decisions about no time and no communications, there is no need to order family therapy as the mother sought. Further, given the mother’s dealing with a GP, the school and the boys’ therapist, I have no confidence such therapy would work if the mother perceived the therapist was against her.
The mother proposed orders that she engage with counselling services and secure a mental health care plan from her GP to facilitate this. I do not need to make these orders proposed by the mother – she is perfectly entitled to do so if she wants.
I prefer the timing of the father’s and ICL’s orders about the mother being able to send gifts, cards, letters and photos on the children’s birthdays and Christmas, as opposed to the mother’s proposal for monthly gifts. I consider the ICL’s and father’s proposals give the children the freedom to get on with their lives but still have a link to their mother on these special occasions if she send gifts and so on to them. Put differently, I consider the mother’s monthly proposal to be too frequent and potentially intruding on the children’s ability to get on with their lives.
It ought go with saying (but I will say it anyway) that in the exercise of parental responsibility, the father will not be required to pass on any inappropriate gifts, cards, letters and the like to the children. I will not make that as an order because I do not consider it necessary given the allocation of parental responsibility, which I have ordered.
I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 19 September 2024
0
3
3