Gellar and Espinall

FEDERAL CIRCUIT COURT OF AUSTRALIA

GELLAR & ESPINALL

[2019] FCCA 3186

Catchwords:
FAMILY LAW – Parenting – trial part-heard – urgent interim hearing - two (2) female children of relationship – aged 10 & 11 – family violence between parents during relationship – mother is primary carer after separation – mother later obtains work at a legal brothel and is consuming methamphetamines – mother re-partners with seemingly violent dangerous men – father says he is threatened by one such man – father moves away leaving children with mother – mother subsequently moves to same locality as father – father has time with children – mother makes allegations of sexual abuse against father – father denies allegations – father’s time greatly restricted and then stopped altogether – mother’s evidence as to sexual assault allegations illogical and irrational – mother ultimately abandons sexual abuse allegations at trial – consideration of the evidence in context of “unacceptable risk” test and whether children at risk of systems abuse if they remain in mother’s care – best interests – orders made for father to have sole parental responsibility – mother to spend time with children as agreed pending further hearing – trial otherwise adjourned.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2), 60CC(2)(b), 60CC(3), 60CC(3)(ca), 60CC(3)(d), 60CC(3)(e), 60CC(3)(f), 61DA, 68B

Cases cited:

Goode & Goode (2006) FLC 93-286

M & M (1988) FLC 91-979
Salah & Salah [2016] FamCAFC 100

Applicant:

MS GELLAR

Respondent:

MR ESPINALL

File Number:

NCC 1494 of 2017

Judgment of:

Judge Betts

Hearing dates:

8, 9 & 10 April 2019

Date of Last Submission:

10 April 2019

Delivered at:

Newcastle

Delivered on:

11 April 2019

REPRESENTATION

Counsel for the Applicant:

Mrs Kearney

Solicitors for the Applicant:

Denise Clark Solicitor & Advocate

Counsel for the Respondent:

Mr Mueller

Solicitors for the Respondent:

Counsel for the Independent Children’s Lawyer:

Independent Children’s Lawyer:

Coppertree Family Law

Mr Murray

Intercept Law

ORDERS

All earlier parenting Orders are suspended.
That Mr Espinall (‘the father”) have sole parental responsibility for X (‘X”) born … 2007 and Y (‘Y”) born … 2009 (‘the children”), save that the children are to continue to attend Suburb A Public School.
The children live with the Father.
Immediately after the pronouncement of these Orders, the Mother is deliver the children to the Manager of Child Dispute Services, Level 2, Family Law Courts Building, 61 Bolton Street, Newcastle NSW.
Thereafter the Mother is restrained is restrained from communicating with the children or spending time with them, except as agreed in writing with the Father and the Independent Children’s Lawyer.
The Court directs that a Family Consultant, and specifically Ms C if available, and the Independent Children’s Lawyer if available, explain these Orders to the children and that the Family Consultant otherwise facilitate their changeover to the Father.
Pursuant to section 68B of the Family Law Act, the Mother and the Father are restrained by way of injunction from discussing with the children:
(a)These proceedings;
(b)Any NSW or Queensland Police Investigation involving the children; and
(c)Any allegations made (whether by the children and/or another person) of sexual harm perpetrated by the Father.
Pursuant to section 68B of the Family Law Act, the Mother and the Father are restrained by way of injunction from discussing with the children:
(a)In the Mother’s case, asking the children leading, suggestive or closed questions about the children being subjected to any inappropriate sexual behaviours or other acts capable of falling within the definition of “abuse” as defined within Section 4 of the Act (a copy of which is attached); and
(b)In the Father’s case, asking the children leading, suggestive or closed question about the children not being subjected to any inappropriate sexual behaviours or other acts capable of falling within the definition of “abuse” as defined within section 4 of the Act.
Pursuant to section 68B of the Family Law Act, the Mother and Father are restrained by way of injunction from:
(a)Denigrating the other party or his/her immediate family in the presence or hearing of the children and will immediately remove the children from the presence or hearing of any third party doing so; and
(b)Physically disciplining the children; and
(c)Assaulting, harassing or intimidating the other; and
(d)Exposing the children to “family violence” as that term is defined in section 4AB of the Family Law Act (a copy of which is attached).
The Mother and Father will do all acts and things necessary to ensure that the other parent is notified, as soon as practicable, if the children are hospitalised or required any emergency medical treatment whilst they are in their care and provide to each other, full details of any hospital to which the children attend the names and addresses of any treating medical practitioners.
Pursuant to section 68B of the Family Law Act, each parent is restrained from taking the children to D Sexual Assault Service. The Independent Children’s Lawyer is directed to advise that service as to the making of these Orders.
The Independent Children’s Lawyer is directed to provide a copy of these Orders to the school.
The Independent Children’s Lawyer is directed to provide a copy of these Orders and the Family Report dated 8 August 2018 to the Secretary of the NSW Department of Family and Community Services.
That within forty-eight (48) hours of receipt of a request in writing from the Independent Children’s Lawyer, the Mother shall undergo chain of custody urinalysis of a sample provided under observation to test for the presence of illicit drugs and alcohol at her own cost and shall provide a copy of the results to the Independent Children’s Lawyer within twenty-four (24) hours of receiving the results, with such requests to be made not more than once per calendar month.
That within forty-eight (48) hours of the receipt of a request in writing from the Independent Children’s Lawyer, the Father shall undergo chain of custody urinalysis of a sample provided under observation to test for the presence of illicit drugs and alcohol at her own cost and shall provide a copy of the results to the Independent Children’s Lawyer within twenty-four (24) hours of receiving the results, with such requests to be made not more than once request per calendar month.
The matter is adjourned to 2.15pm on 23 May 2019 for Hearing Directions, including updated trial directions and consideration as of formal restoration of the Mother’s time with the children on a supervised basis.
Pending the next hearing;
(a)The Father is to make the children available to the Independent Children’s Lawyer for an interview at any reasonable time and will facilitate the children contacting the Independent Children’s Lawyer if they request;
(b)The Independent Children’s Lawyer is to make urgent enquiries as to the availability of suitable contact centres or organisations who could facilitate the Mother spending supervised time with the children;
(c)Each parent is to cooperate with any reasonable requests by the Independent Children’s Lawyer to attend upon such contact centres or organisations so as to complete any necessary intake process in order to expedite supervised time between the children and the Mother if such Orders are made on the next occasion.

IT IS NOTED that publication of this judgment under the pseudonym Gellar & Espinall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1494 of 2017

MS GELLAR

Applicant

And

MR ESPINALL

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been revised from the transcript so as to make them more readable.

Introduction:

These are parenting proceedings brought pursuant to the provisions of Part VII of the Family Law Act (“the Act”). They relate to two (2) children, X born … 2007 who is presently eleven (11) years and four (4) months old, and her younger sister Y born … 2009, who is presently nine (9) years and seven (7) months old.
Relevantly for present purposes, the applicant in the proceedings is the mother of the children, Ms Gellar. The respondent to the proceedings is the father of the children, Mr Espinall. (The paternal grandmother initially instituted the proceedings but she has since withdrawn.)
Given the allegations made by the parents in this case and given the very high level of conflict that has existed, an Independent Children’s Lawyer was appointed to represent the children in the proceedings.
The matter originally came before me for trial on 8, 9 and 10 April 2019. Regrettably, the trial was unable to finish.
At the trial, the parties relied upon the following documents. For the applicant mother, represented by Mrs Kearney of counsel:
a)an Amended Initiating Application filed 8 April 2019;
b)a trial affidavit of the mother sworn on 6 April 2019 which she was given leave to read and rely upon; and
c)her Case Outline which was handed up on 8 April 2019.
The mother’s material was quite late. However, leave was granted to the mother to read this material and I have taken it into account.
For the father, represented by Mr Mueller of counsel, reliance was placed upon:
a)the father’s Notice of Risk filed 11 August 2017;
b)the father’s trial affidavit filed 20 March 2019;
c)the affidavit of the father’s partner, Ms E, filed 20 March 2019;
d)his Case Outline filed on 8 April 2019.
I have taken these documents into account as well.
For the Independent Children’s Lawyer, represented by Mr Murray of counsel, reliance was placed upon:
a)a Child Inclusive Conference Memorandum prepared by Family Consultant Ms C of 29 August 2017;
b)a Family Report prepared by Family Consultant Ms C on 8 August 2018;
c)an Outline of Case filed on 5 April 2019.
I have taken all of these documents into account.
The matter is before me in a somewhat unusual way at this time because, in the course of the trial it became apparent that the matter would not finish in the allotted three (3) days. Therefore, on day three (3) of the trial, the court effectively conducted an interim hearing on the evidence that it had before it, enabling each party to make brief submissions.
The trial is otherwise listed to continue on 23 and 24 October of 2019, where, hopefully, it will be concluded.
The matter comes before me, effectively, at a stage when I have heard the mother give her oral evidence, in that she has been cross-examined by both Mr Mueller for the father and by Mr Murray for the ICL. I have also had the benefit of seeing the father give evidence and having heard his cross-examination by Mrs Kearney for the mother and by Mr Murray for the ICL.
I should also add that the parties, in the course of the hearing to date, have tendered various exhibits which have been admitted into evidence and which have also been taken into account by me. I have also taken into account the submissions made by each party’s counsel, which I found to be helpful and on point in terms of the issues that I have to address.

Brief history:

By way of brief factual overview, the parents commenced a relationship around 2006 at the Region F. They relocated to the Queensland/Town H region around 2010/2011.
At this stage it is unclear exactly when their relationship ended.
It seems to me that there was family violence between the parties, and this is a matter upon which Mrs Kearney for the mother places some reliance. It also appears on the evidence that both parties used drugs during the relationship, most notably cannabis.
Following the parties’ separation, or prior to separation, depending on whose case is ultimately accepted, the mother remained the primary carer of the children and the father spent regular time with the children. This was at the City G area.
Each parent had issues in relation to drug-taking, although the mother appears to have been to some extent spiralling into increasing difficulties in terms of her own home circumstances and her social connections. Each parent nonetheless seems to have largely acquiesced in the other’s parenting deficits up until an event which occurred on the evening of 15 September 2015, when the mother accused the father of sexually abusing the children.
This allegation, in a sense, was the beginning of what has been a very conflictual set of circumstances between these parents and a very fraught situation for these two young girls.
The father did not subsequently spend time with the children for approximately the next two years.
It seems on the evidence before me that the mother was opposed to the father spending time with the children during that period, as she believed or appears to have believed (or at least convinced herself) that the father had, in fact, sexually abused the children.
It is not quite as simple, however, as blaming the mother for the father not seeing the children over that period, because it is also equally true that the father moved away to the Region F not long after these allegations were made - at which time he was pursuing a relationship with Ms E.
The paternal grandmother commenced these proceedings in May 2017 and the father gave evidence at trial that this was because she could obtain Legal Aid and thus for financial reasons it was easier for her to pursue proceedings than for him to do so.
Pursuant to orders of the court, a Child Inclusive Conference was conducted and, subsequently, interim orders were entered into whereby the father was to spend time with the children twice per week, supervised by Rekonnect (a private supervised contact service provider).
Regrettably, those supervised time arrangements broke down in October/November 2018 following another allegation of sexual abuse, apparently made to the mother by the child X. In particular, X allegedly told the mother that the father had raped her.
Following this event, the father’s supervised time was ceased and there were further investigations conducted in relation to the veracity of the complaint.

The situation at trial:

At the time the trial commenced, the father had not seen the children since October 2018.
At the commencement of the trial, his position was that it was essential that the court remove the children from the mother’s care because she was, on his case, fabricating the sexual abuse allegations against him and his case was that the allegations otherwise lacked any credibility. Further, it was suggested that the mother was coaching the children in relation to sexual abuse allegations, which suggestion finds some corroboration in the subpoenaed material before the Court. The father also raised issues in relation to the mother’s drug use and abuse and particularly in relation to her alleged criminal connections.
Essentially, the father’s case was that the mother posed an unacceptable risk to the children and that he was the only parent who could both:
· provide the children with a safe and stable home; and
· promote a relationship between the children and both parents.
The mother’s case, as originally advanced in her Case Outline, made the following assertion in relation to the 2015 sexual abuse allegations:
These allegations were reported to authorities but were unable to be substantiated.
In relation to the 2018 allegations, the mother’s Case Outline sought:
...[a determination] by the court as to whether an unacceptable risk is posed by the father to the children. If it is, then she seeks an order that the children spend no time with the father.
In her summary of argument at paragraph 17 of the mother’s Case Outline, she stated that the lack of substantiation of the 2015 allegations “is not an unusual occurrence when dealing with small children”.
The orders sought by the mother also included an order that the children “shall spend time with the father as agreed between the parents”.
Things changed immediately at the outset of the trial.
The mother indicated through her counsel prior to the commencement of evidence that she abandoned the sexual abuse allegations from 2015 and 2018. Further, she did not seek a finding of unacceptable risk against the father in relation to such allegations.
On that basis, the mother’s case was radically different to that originally presented by her. It is noteworthy that the father had spent twelve (12) months or so of supervised time with the children between October 2017 and October 2018, at least partly on the basis of the 2015 sexual abuse allegations.

The nature of the present hearing & the relevant law:

As I have indicated, this is something of a hybrid hearing, in the sense that it is not strictly an interim hearing, in that I have heard evidence from both parents. That said, I have not yet heard all of the evidence. It is not possible for me to make findings as to the disputed facts; however, I am better informed than I would otherwise be in relation to a determination made purely on the papers, and there are some matters which have come out in evidence which appear to now be common ground, or at least not capable of any serious dispute.
I am well familiar with the statutory pathway set out in Part VII of the Act and particularly the decision of the Full Court in Goode & Goode (2006) FLC 93-286. I am aware of the decision of the High Court of Australia in M & M (1988) FLC 91-979 in relation to the “unacceptable risk” test.
I am aware of the later Full Court authorities concerning the application of the “unacceptable risk” test at interim hearings. In particular, I would refer to the decision of the Full Court in Salah & Salah [2016] FamCAFC 100, in which the Full Court emphasised that, on occasions, the court, when faced with allegations of serious risk, has to make an interim determination without the luxury of waiting for all of the evidence to become available and for all of the evidence to be tested. It is not always possible for a court to wait until the last piece of evidence as to risk is available and tested before having to take action in the best interests of children, which of course must always be my paramount consideration in this case, having regard to section 60CA.
The primary and additional considerations relevant in making an order as to children’s best interests are set out in section 60CC(2) and section 60CC(3) and I am aware of and have considered same.
I am aware of and have considered section 61DA in relation to parental responsibility, and I am also well familiar with the definition of “family violence” set out in section 4AB of the Family Law Act.

The competing proposals:

At the end of the evidence on day 3 of trial, I was presented with two (2) possible ways forward in the interim. One way forward, as proposed by the mother in exhibit 15, is that the children continue to live with the mother but that they spend increasing periods of time with the father. The order that is provided is a detailed one and certainly a thoughtful and considered proposal. Essentially, it provides for the father’s time with the children to increase so that, by Spring of 2019, shortly before the trial resumes, the father will be spending quality holiday time with the children. On the basis of that proposal, he will be spending weekend time with the children in the near future.
The mother’s counsel submitted that such a proposal will, effectively, “test the mettle” of the mother in that she will have to ensure that the children attend the visits pursuant to the orders. The mother’s counsel makes the submission to me that the mother has a stable home, that the children have a much better recent school attendance and better educational outcomes in recent times, and that the mother has “changed tack”. She is going to facilitate the father’s time.

This has always, apparently, been the mother’s instruction to her counsel. In that regard I note that her counsel did not at any time suggest to the father that there was any substance to the sexual abuse allegations, which are a very strong basis for the father not having spent time with the children for something like two and a half (2 ½) of the last three and a half (3 ½) years - although not the only basis for him not spending time, with them as I have already noted that the father moved away to the Region F in 2015 and away from the children at that time.
This is a very big U-turn by the mother.
The question for me is whether such an order is in the best interests of the children and whether there is a capacity for the mother to, in fact, facilitate the relationship with the father if I make the orders she seeks.
The mother’s orders were supported by Mr Murray on behalf of the Independent Children’s Lawyer. His submissions in this regard were interesting and somewhat two-edged. He submitted that the most likely occurrence would be that, if I made the order the mother proposes, that the order would not work. Curiously, the ICL supports an order that the ICL seemingly believes will not work.
Nonetheless, the position taken by the ICL – and I should add also joined in by Mrs Kearney – is that it is better to leave the children with the mother in the interim than to consider a change of residence to the father which might result in substantial anxiety to the children. That is, leaving the children with the mother might be the course that potentially does the least amount of harm.
The alternative position put forward by the ICL is that the court make no orders at all. This is not at all an attractive proposition to me, as it leaves the parties in complete and utter limbo. The reality is that there are presently orders for supervised time that have, essentially, ceased being operative because of the increasing resistance of the children to attend visits with their father, which I will refer to shortly. Also in more recent times and most significantly, the father’s time ceased because of the allegation of rape - which is not now, in fact, pursued by the mother.
I do not propose to make “no order”.
Mr Mueller, on behalf of the father, points me to the Child Inclusive Conference Memorandum prepared in 2017 by Ms C. Relevantly, he takes me to this observation:
There is a risk of the children being aligned by the mother. At present, the children have positive things to say about the father and paternal grandmother but, if the mother is unable to accept the father has no case to answer regarding the alleged sexual assaults, then it is likely she will undermine the children’s relationship with the father and not comply with the orders.
Mr Mueller submits that history has proven this prediction right. He submits that, if I leave the children in the mother’s care in the interim, then they will be at unacceptable risk of being aligned to the mother and otherwise influenced by her against the father, particularly in relation to sexual abuse allegations.
The submission made on behalf of the father is that the children need to be removed as soon as possible and that time is of the essence.

Consideration of the evidence and section 60CC findings:

Primary considerations:

I am of the view that the children would benefit from a meaningful relationship with both parents. Indeed, both parents seem to make that concession. In the mother’s case, she wishes to facilitate a relationship between the children and the father, although her desire to do so comes expressed to me at the commencement of the trial. The evidence does not greatly support the view that she has been overly optimistic about facilitating the father’s relationship with the children, at least since the sexual abuse allegations were first raised in 2015. In that sense, her change of heart or perceived change of heart is very recent, coinciding with the trial. Nonetheless, she submits that the children would benefit from a meaningful relationship with the father.
For his part, the father contends that the children would benefit from a meaningful relationship with the mother, provided that it is safe.
Section 60CC(2)(b) looms large. I must consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Both parents pose some risks on the face of the evidence before me.
In the father’s case, the mother accuses him of past family violence towards her, including physical violence and at times coercive and controlling behaviour.
The father was indeed convicted in 2008 of an assault occasioning bodily harm upon the mother, and in 2010 a further assault occasioning bodily harm upon her. There was also a breach of a family violence order.
I have heard the evidence about this and I have not yet heard final submissions, but the reality is that the mother paints a picture, which is generally supported by the evidence, that the father did in fact assault her. He was convicted of both assaults.
His explanation as to the mother’s apparent injury to her nose and above her eye is difficult for me to accept, but I make no positive finding beyond that the father was convicted of an assault.
An assault is a serious matter.
The further assault alleged by the mother in 2010 relates to the father allegedly grabbing her and dragging her to a bedroom, putting his hands around her throat, grabbing a necklace from her neck and also damaging her mobile phone. The father was convicted in relation to these matters as well.
These are serious matters. Though the father denies being physically violent to the mother, it rather appears to me that he has significantly downplayed his actions.
However, the reality is that these events occurred some nine (9) and eleven (11) years ago respectively, at a time when the parents were in a conflictual and difficult relationship which would seem to have involved at least mutual verbal abuse as well as drug abuse.
The risks posed by the father in relation to family violence must be taken into account by me. That said, the father has re-partnered with Ms E and, although she has not yet been cross-examined, it appears clear enough that she works as an out-of-school-hours care supervisor and there is no evidence of any family violence between the father and Ms E before me. Indeed, Ms E’s stated position is that she would not tolerate family violence, having apparently been the victim of family violence previously from her ex-partner.
So, though there is evidence of family violence perpetrated by the father, it is somewhat historical in nature.
The father also abused cannabis for a long period during the relationship. He says that he stopped taking cannabis sometime around 2017, although the evidence is somewhat unclear about that because what he told the Family Report writer is somewhat different.
But, be that as it may, the father has been randomly tested for illicit drugs and has returned clean results since October of 2017.
So, while there are risks that the father might relapse in relation to cannabis, it seems to me that the risks are presently acceptable, as distinct from unacceptable.
On the evidence before me, the risks are more serious and more significant in my view in relation to the mother.
In terms of family violence, she is accused by the father of perpetrating family violence against him, although no questions were put to her about that and it would seem that, at worst, it may have been verbal abuse only. Although I make no final finding about it, on the evidence before me it is highly likely that I will find that the father’s family violence is far more significant than any family violence the mother may have inflicted upon him.
Turning to the issue of drug abuse, the mother has, on her own admission, had a long-term issue with abusing cannabis since she was either thirteen (13) or fifteen (15) years old. She said that she had stopped using cannabis in 2017; however a hair strand test, the results of which are before me as an exhibit, shows that in August 2018 she turned up a positive result for the presence of cannabinoids.
According to the hair strand test result, the mother’s result was consistent with regular use of cannabis during the three (3) month period in the lead-up to the hair sample being provided, that is, in the period from 29 May 2018 to 29 August 2018.
The mother gave evidence that she was, in a sense, “set up” in relation to this test result - in that a friend of the mother’s aunt[1] had provided the mother with a six-pack of bourbon and Coke (or something similar), and had then given her a lit cannabis “joint”.
[1] Ms M
On the mother’s evidence, this occurred in April 2018. Her version of events had rather a conspiratorial feel about it and it appeared to me rather to minimise what in fact occurred - although, to be fair to the mother, she did accept that what she had done was wrong.
Her difficulty, however, is she says that this event occurred in April, which is inconsistent with the test result, which suggests regular use of cannabis between May and August of 2018.
On its own, the cannabis reading is of concern, but it is not determinative of the matter. It nonetheless adds to the picture of risk that the court is confronted with because the mother’s use of cannabis is, potentially, exposing the children to risk of harm in a number of different ways.
However, at least equally significantly if not more significantly, the mother accepts on her own case that she was an habitual “ice” user and, indeed, on her case, essentially a full-blown “ice” addict in the past. It is clear enough on the evidence before me from the mother’s own admissions that she was using “ice” in 2015 at least, escalating as the year went on, and that she had become fully addicted to the drug in 2016.
On 28 October 2015, she was in fact pulled over by the police and charged with driving under the influence of “ice” (or methamphetamine) with the children in the car. It is also clear from the cross-examination of Mr Murray that the mother was, during the period 2015 up to mid-2016, living a lifestyle of “couch-surfing”, to use her terms, and that she had to make other arrangements for the children to be cared for, particularly when she was working at night, apparently, at a legal brothel on the City G, where she would work from 7 pm until 4 am. The children were left with a friend of the mother’s, but, listening to the mother give her evidence, one gains the distinct impression that the care arrangements for the children must have, at least on occasions, been somewhat haphazard given her own seemingly daily use of ice during this period, to which she admitted.
In relation to her use of “ice”, it is quite clear that the mother became involved in the “criminal scene” at this time, for want of a better word. She formed a relationship with a Mr J, who was apparently connected with a motorcycle gang. The father’s evidence is that Mr J pointed a gun at him on one occasion and, although the father refers to it being another person in the company of the mother on this particular day, it would seem more likely that it was Mr J.
At any rate, this event allegedly occurred at a handover.
I cannot make a positive finding about it, although I make the observation that the father certainly appeared in his demeanour to be speaking from memory – indeed, distinct memory – when he recounted in the witness box his fear and his seeming helplessness in that moment when he said that he felt unable to protect the children.
I should add here that there was also a family violence order in relation to Mr J protecting the mother from him, and it is clear from the exhibit before me tendered by Mrs Kearney that police were called to their premises on one occasion as a result of a minor family violence incident between them to which the children were apparently exposed.
The mother re-partnered later with a Mr K, who is the father of the mother’s younger child, O, who was born on … 2017 and is a half-sibling although probably, from the viewpoint of the children, a full sibling for all intents and purposes.
O’s father, Mr K, appears to have been a particularly dangerous criminal. He seemingly supplied the mother with “ice” on a daily basis. The mother did not even know how much the “ice” cost because he was providing it to her. He paid for her and the children to stay in hotel to hotel and he had, apparently, met the mother through her employment at the brothel.
One would think that Mr K posed a very serious risk of harm to these children, particularly noting that the mother was clearly involved in the drug scene and, as I have indicated, couch-surfing.
The fact that the mother turned up a positive result for cannabis in a hair follicle test of August 2018 has to be looked at against the backdrop that she has been a serious “ice” addict and that her credibility in relation to questions of drugs is a significant matter for me.
A concern I have is that, if the mother relapses into cannabis, then there must be at least the potential for her to relapse into “ice” use as well, although there is no strict evidence before me that she has done so, and I do not find that she has in fact done so.
But far and away the biggest risk in this case, as has been argued before me, is the risk relating to the mother coaching the children or otherwise encouraging them to believe that the father sexually abused them.
It was, essentially, this matter upon which the father placed most reliance and in many ways it became the most significant feature of the case.
The mother does not press the sexual abuse allegations anymore; however it is essential that I at least briefly canvass the allegations so as to put them into context as to what was going on in the children’s lives at this time.
In 2015, the parties were living on the City G/Town H region. There is some debate as to where the mother was living on the critical date, being the evening of 15 September 2015.
On the mother’s case, the children were temporarily staying with him in his secure unit and she attended on that particular night with Mr L. She says the father let her into the unit that night and that she went into the children’s room and, in her words:
There was a strong odour which I can only describe as a smell I would associate with sex. I found that quite disturbing. I sat down next to the girls and thought about it for a moment or two. I then pulled back the girls’ blanket (they were sound asleep) and noticed that each of them was wearing clean, fresh tights on the bottom half but were wearing filthy, soiled T-shirts on their tops. I then walked out to the laundry and found that their tights and knickers were in the bottom of the washing machine and had already been washed. There were no other clothes of any kind in the machine.
I then went back into the girls’ room and considered the situation. I was quite concerned. I then woke up X and said to her words to the effect, “Has Dad done the wrong thing to you?” X simply nodded her head. I put her back into bed and she went back to sleep. I then woke Y and asked her a similar question. She too said, “Yes,” and looked at me with a really concerned expression which she uses when she is likely to get into trouble. I comforted her and put her back into bed and sat there with them for the rest of the night. The following morning, I woke the girls and left the unit with them. Mr Espinall asked where I was taking them at such an early hour. I simply replied, “How dare you,” and walked out.
To pause at this point, the father’s case is that the mother did come to his unit that evening, which he agrees was a secure unit. He says the mother let herself into the home with her friend, Mr L, and I should record here that the mother agrees that Mr L was with her at the time.
There is a dispute as to whether or not the mother had a key to the father’s unit, and in the Family Report at paragraph 12 it is suggested that the mother was at least partly living in the father’s unit at that stage, which would be consistent with her perhaps having a key, although I am not able to make a final determination about that particular matter.
Certainly the father’s evidence is that it was a rental property and that he had more than one key, but it was suggested to him that he might only have been given one key. In any event, this is a matter that will have to await final submissions.
The father’s evidence is that the mother attended that night at a time when he was in fact asleep - and that he woke up at 2am or 3 am to the sound of voices in the children’s bedroom.
He went in to check on the girls and saw that the mother was in the bedroom with Mr L and that they were both smoking methamphetamines in the children’s presence.
He says he confronted the mother, telling her to get out of there, at which point she said something to the effect, “I’m going to be having words with you, you fucking paedophile” and she then left the next morning with the girls.
The mother’s version of events is bizarre. Even on her version of events, the girls and she had a form of extra-sensory perception or ESP. She did not ask them what their father had done. When they simply agreed with her that he had “done the wrong thing to them”, this was automatically presumed to mean that they were agreeing with her mindset that he had sexually abused them.
The mother admitted in cross-examination from Mr Murray that she was “in a drug haze” at the time and she said she may have taken “ice” the very evening before this alleged event.
On the father’s case, she was smoking “ice” on the very night in question.
In any event, things became more bizarre afterwards.
The mother takes the children to the police for an interview. Ironically, only the younger child, Y, is interviewed by police and not the older child, X. Y was at that time six (6) years old and X was approaching eight (8).
The interview between the police and Y was most unhelpful for the mother’s case. Y was interviewed on a DVD by the police and was questioned if she had seen the father in the bedroom and how she knew it was the father who had, apparently, touched her. Her response was that she did not see the father touch her but that the mother had told them that she had seen the father do it.
Police concluded that the mother had coached the child.
The mother gave an address for the police to follow her up. The address was either a false address or, at the very least, was a somewhat evasive address because police were later unable to locate the mother at the address and, apparently, they concluded that it was a false address.
The mother’s evidence was that her address was a place above a shop that was sometimes difficult to find.
In any event, the police were unable to find the mother to further prosecute these allegations – which allegations precipitated the father ceasing spending time with the children entirely.
The mother gave police a contact telephone number. She then never made contact with police again, nor were the police able to reach her on that number.
The mother’s evidence was that she wasn’t very good at answering the phone, but this would be consistent with the spiralling descent of her life into an amphetamine haze and a cannabis haze at that time. She was couch-surfing. She was associating with criminal characters, including bikies. She was working in a legal brothel.
It would seem likely that the mother was deliberately trying to be “under the radar” in relation to the police.
But, in any event, she did not in any sensible, child-focused, logical or proper way take any steps whatsoever to pursue this complaint after the police had decided that Y had been coached.
Her inactions in this regard need to be looked at against the background that, when she attended upon the Town H Hospital on 18 September 2015, according to exhibit 6, she told them that X had said that her father had got her to sit naked on top of him and that he would lie on top of her naked in bed.

Only Y was interviewed. It beggars belief that the mother would not have produced X to the police for an interview if she genuinely believed such allegations.
For his part, the father says that he was fearful of the mother and of her associates at this time, particularly being concerned about his safety and feeling that he was unable to protect the children. This is a matter that I have to make a finding about on a later occasion, but certainly there is evidence before me which could justify a finding that the father was fearful of the mother’s associates.
The father left Queensland not long after this allegation and he moved back to the Region F. He says he contacted the mother to try to see the children. She says he did not.
In any event, it was within a month or so of this event that the mother was then pulled over, again notably with Mr L, driving with the children in the car under the influence of “ice”.
The mother moved back to the Region F in mid-2016, initially living with her aunt, Ms M. According to reports by Ms M, which are disputed by the mother, the mother told her that she had, effectively, had to get out of Queensland, that she had gotten herself into real difficulty in terms of her connections, and that people she was living with were “cooking ice” in her house. The mother denies all of these allegations.
Interestingly, it would seem the father did not tell the mother that he had relocated back to the Region F when he left, nor did she seemingly make any endeavour to try to find him.
The paternal grandmother later brought these proceedings, after the mother had returned to the Region F area, and it was only after these proceedings were commenced that there was any positive step taken to restore the relationship between the father and the children, which had been progressing reasonably well and consistently right up until the sexual abuse allegation of 2015 to which I have earlier referred.
Certainly the father did not take any active steps to pursue his relationship with the children. This is something he expressed remorse about in the witness box and was indeed tearful about, admitting that he had let his children down. I agree.
That said, the mother also made it quite clear that she was not following up the father to spend time with the children, and indeed she appears to have taken no positive step to reinstate the relationship between the father until court orders were made.
As I have indicated, the mother was essentially taking the position that the father posed an “unacceptable risk” to the children based upon this 2015 disclosure, all of which comes back to the evidentiary foundation that she apparently detected a strange smell when she attended upon the children on that particular fateful evening in September 2015.
In the Child Inclusive Conference of 29 August 2017, the mother proposed that the children spend no time with the father due to the alleged sexual abuse in 2015.
The Family Consultant noted that those allegations had been unsubstantiated by the police, who had considered that the mother was coaching the children. The mother repeated her allegations to the Family Consultant that the father had sexually abused both children and said that the children were scared of him and did not want to spend time with him. She said she did not want to traumatise them by making them do so and did not want to drag the children (to see him) kicking and screaming.
The mother said the children did not want a relationship with the father but, interestingly, the Family Consultant observed, from speaking to the children, that they did want a relationship with him. Further, they spoke fondly about the paternal grandmother, who they had not been spending time with either.
Notably, both children were teary when speaking about the father, but one of the children was very upset and cried, saying she missed the father and wanted to spend time with him and with the paternal grandmother, though not necessarily together.
The children did not appear to be fearful when speaking about the father and the alleged sexual assaults; however, they appeared to the Family Consultant to be anxious when speaking about the mother and they appeared to be under a lot of stress.
The supervised visits which occurred following the making of the October 2017 orders were a “mixed bag”. Many of the visits, after an initial slow start, seemed to progress well. The children seemed happy to see the father. His evidence is that, on occasions, however, X in particular would catch herself having a good time and would then adopt a different, more reserved posture. He also gave evidence that Y would often look to X for approval when spending time with him.
The father had two (2) visits of two (2) hours per week and they were expensive. Because they were conducted by Rekonnect, the visits were able to occur at different locations.
There are some notable features of the visits and one notable feature is that the mother was late on a number of occasions. On another occasion, being 12 May 2018, the mother was allegedly overheard by the supervisor with the children in the car saying she was “sick of having to do this”. This was during a call made when the mother was running late.
The mother denies saying this and it is a matter for a final determination later; however, the notes record that the mother was running late on this occasion, that the mother was heard to be talking to the driver in an aggressive manner and that she appeared agitated, and the girls appeared quiet and confused when they arrived. Upon pickup, the supervisor states that the mother’s eyes appeared glazed and she was avoiding eye contact, her speech was slow and she appeared unsteady on her feet. The supervisor was concerned that the mother may have been affected by illicit substances. The mother denies these matters, but of course I also have the hair strand test which indicates that she was regularly using cannabis in the period 29 May to 29 August 2018, being a period shortly after this alleged event and which cannabis reading is unexplained on the mother’s evidence.
Certainly, the court cannot rule out that the mother may have been under the influence of drugs on that particular occasion. However, perhaps of equal if not more significance is that the mother was sending a clear message to the supervisor, to the children and perhaps indirectly to the father that she did not necessarily intend to promote the relationship to the maximum extent with him.
The Family Consultant conducted the Family Report interviews on 23 July 2018. She observed in the Family Report that, according to the supervision records from Rekonnect that were then available, the visits had generally been very positive, that the children were referring to the father as “Daddy” and usually smiling and laughing with him. On most occasions, at the conclusion of spending time together the father had asked the children for a hug but they had always refused and he had not forced them to hug him on those occasions.
The picture painted is that Y would look to X for permission to do things, which is consistent with what the father says, and that the visits were generally fairly positive, although not universally so.
There are a number of occasions when the children appeared to have a very good time with the father and overall, certainly as a general statement, the visits seem to have been positive, though as I say, not universally so.
Against that backdrop, it was somewhat surprising that, on the day of the Family Report interviews, the children did not want to see their father at all. They did not want to be interviewed in his presence. I would add here that the mother was continuing to hold the belief that the children had been sexually abused by the father and, according to the Report Writer, this view had seemed to have been rather reinforced to the children.
In interview, X was asked about the current parenting arrangements and said it wasn’t good and she didn’t like it. She didn’t feel safe; she didn’t feel comfortable. She started to cry and, when asked why, she said it was because of what had happened in Queensland and she thought it might happen again. When asked to explain what happened she said it was when the father “touched my private part”. When asked how old she was when it first started she said, “It started when I was a baby.”
The Report Writer noted that X had never made any such comments to authorities before.
X also expressed concern about the supervisor, complaining about the supervisor accusing X of stealing a key ring during a particular supervised visit.
X expressed the fairly strong view that she did not want anything to do with the father, that she had not worn a dress or a skirt around him because she did not feel protected and she did not want him to touch her. She also said that Y did not want to see her father either.
She did not want presents. She did not seem to want anything to do with the father.
The Report Writer considered that X was very stressed and that her view was that she could not spend time with the father because of what he had done.
The Report Writer noted that if X’s experience of the father was true then such views were developmentally appropriate as she had a right to feel safe and protected. However, if the mother had instilled those views in X then this would be a gross distortion and it may now be that X was starting to believe the mother’s story and was having difficulty differentiating fact from fiction.
In relation to Y, she came across to the Report Writer as quiet and anxious and somewhat unsure of what she wanted. When asked about why she was spending supervised time with the father she said she did not know why, but it could be because, “When I was little he touched my private part. When I was around five years old. It still worries me at night that he will do it again.”
She later elaborated, “I can’t really remember that myself … about what happened in Queensland. I think Mum was at her friend’s house.” She also apparently wanted the judge to know that she did not want to spend time with the father because she did not feel safe with him, but might spend time if the paternal grandmother was present.
In relation to the children not wanting to be observed with the father, the Report Writer drew the children’s attention to the fact that they had already been spending supervised time with the father since the orders of October 2017. The Report Writer explained that her observations would be no different. Nonetheless the Report Writer observed that “Both children stridently objected to the suggestion of supervised time to the point where X became very distressed and maintained that the father is a risk to her. Y was of the same view that the father is a risk to them and would not be observed with him.”
These observations were at odds with the general tenor of the supervised contact notes.
I would add that in the intervening period the mother was taking the children to Dr N, Clinical Psychologist at “All About Kids”. Before me as exhibit 7, is a report from Dr N of 28 March 2018 back to X's GP thanking her for the referral.
The letter goes on to say under the heading “Clinical Summary”:
X was initially reticent to speak about what had happened to her regarding alleged sexual abuse by her father. However, she became more open as she felt more settled within the therapeutic space and developed trust with me. She continued to experience significant levels of anxiety as she had been court ordered to speak by phone with her father twice a week and to attend supervised visits with him on weekends.
The report goes on to refer to X’s anxiety.
Implicit in this report is that it was a referral for sexual assault counselling or something of that nature and that the child had been sexually abused by the father. This is the very risk identified by the father and also referred to by the ICL in the course of this case.
The child is potentially at this time having reinforced to her that she has been sexually abused by the father. I would add that the report pre-dates the subsequent abuse allegation of October 2018, to which I will now turn and which, ultimately, resulted in the father spending no time with the children whatsoever since late October/early November 2018.
Turning then to the October 2018 allegation, the mother’s evidence is that X and she were watching the news on television together in early October 2018 when X asked her, “What is rape, Mum?” to which the mother responded, “Why do you want to know?” X allegedly said, “Because I think Dad raped me,” to which the mother replied, “Turn the telly off and I will explain it to you.”
The mother then said she explained that rape was when a man put his penis inside her body against her will or when she had said “no” to him. The mother says that, after being giving some examples, X went on to tell her, “I think Dad has raped me.” The mother’s evidence in her affidavit is that she was appalled and she then asked if that was what the father had done. X then burst into tears and indicated, “Yes”.
The mother contacted D, which is a sexual assault counselling service, the next day. The mother then contacted police. There was a subsequent JIRT interview. The Department of Families and Community Services became involved.
The matter went nowhere. The allegations were not substantiated.
The mother’s evidence in the witness box was somewhat different to her trial affidavit. She said that, in fact, she was in the kitchen when X asked her about rape - that is, the two of them were not watching the news together. This may be a significant difference because it seems to me that a child telling the mother that they have been raped is a pretty significant matter. One would think the mother might remember where she was sitting and what she was doing at the time, but she has given the court two different accounts.
In any event, the mother does not now press this allegation. But at the time it was made it was sufficient for her to suspend time with the father once again.
I should add that from the period around August 2018 onwards, not long after the Family Report interviews when the children had clearly expressed a real reluctance to spend time with their dad and be observed with him, the mother had agreed that the father’s partner, Ms E, could attend with him at Rekonnect supervised visits.
These visits with Ms E present seem to have gone reasonably well. However, they also coincide with a general increase in the resistance of the children to want to spend time with their father. It may be that it relates to loyalty issues that the children felt in that the father had a new partner and they may not have wanted to feel like they were letting their mother down, but in any event it seems that in the period from August to October 2018, although there were some positive visits, there were also some negative visits between the father and the children and, in particular, on one occasion X ran away from the supervisor and almost into the path of oncoming traffic to return to the mother’s care.
Alarmingly, on this last occasion when X spent time with the father, but prior to the allegation of rape to which I have referred, X said to her father that he was a “kiddy fiddler”. She told him she did not want to be in the same community as him, the word “community” apparently specifically being used by the child.
Y became upset at times during this visit and also went as far as to tell the father that she would not see him even if he bought a pony for her. In other words, he could not bribe her.
This was the last visit and within a very short period of time after that came the alleged rape allegation, to which I have referred and which again, as with the first allegation in 2015, was unsubstantiated.
The mother admits that the child, X, had referred to the father as a “kiddy fiddler”. She gave evidence that she had told X that she should not talk about her father this way and that she should “not have a potty mouth”.
Shortly after this came the rape allegation.
It is alarming to me that X would tell her mother that her father is a “kiddy fiddler” in circumstances where there is no basis for any allegations of sexual impropriety against the father whatsoever. I am greatly concerned about the mother’s attitude in relation to the sex abuse allegations including questions of coaching and questions of denigration of the father in that regard.
The mother admitted in the witness box that after this alleged disclosure of rape that she said to both children that she had always said something was “not right”. She told the children about her suspicions from 2015 when she had walked into the room and detected that strange smell, to which she made reference in her evidence. In other words, she told both children, or at least conveyed to both children, the impression that their father had sexually abused them. She did so against the backdrop of having showed no particular enthusiasm in facilitating the father’s time with them and in circumstances where things were coming to a head in terms of a Family Report and a looming trial.
The children became increasingly reluctant to want to spend time with the father.
The Family Report writer, at paragraph 191 of her report said this:
If the Court finds the mother is continuing to abuse alcohol and other drugs; if she has/is openly denigrated the father to the children; if she is placing the children at unacceptable risk of harm; then it is recommended that the children live with the father and spend no period of time with the mother for a period of six weeks.
It is quite clear that, although this recommendation is untested, the mother was continuing to abuse cannabis, at least, in 2018, as indicated by the hair strand test. She clearly, openly denigrated the father to the children by suggesting to them in October 2018 that she had always thought that something was “not right” and that their father had sexually abused them, primarily on the basis of something she has claimed to have smelled in 2015, but which, as I have already indicated, she grossly failed to prosecute in any serious way and, indeed, avoided a prosecution of the matter and a proper investigation by the police.
She denigrated the father at the highest level imaginable, in my view, by telling the children that he possibly sexually abused them. Her denigration is reflected in the child, X, calling her own father a “kiddy fiddler”.
I cannot emphasise the enormity of the harm caused by the mother’s actions. Her denigration is also consistent with the significant evidence that the mother has coached the children in relation to this matter, although I am not in a position to make final findings about such allegation, save to note that coaching was the police conclusion and that such a conclusion might be consistent with what the children told the Report Writer.
Despite proposing orders proposing for the father to spend time with the children at trial, the mother’s evidence in the witness box started out along the lines that something sexual may have happened. Eventually that position gave way and she said “I think it did happen.”
In her heart the mother believes that her children were sexually abused by the father. Her position is that because she does not have the evidence to support the allegation she considers that she essentially has to “make a deal” with the father for him to see the children - but this is against a backdrop that she genuinely believes that the father sexually abused them.
The mother is “caught between two stools”. It would seem that in her heart she wants a finding of sexual abuse because that is her honest belief, but she takes the strict legal position that she cannot prove it yet.
The great concern, one of many concerns here, is that the mother may construe an otherwise innocent or explicable injury, such as a bruise to the buttocks or a genital infection or any other innocent matter in a way that is sinister.

This is a concern. These children have already been exposed to interviews and examinations, none of which have established any sexual abuse whatsoever. My concern is that the mother may well be unable to contain herself in the event of any matter arising that may potentially suggest sex abuse and that it may result in yet another suspension of the father’s time and yet more allegations. Again, I emphasise that these matters all seem to date back to September 2015. This is the origin of when these allegations were made, at a time when the mother was in a drug haze.
The one witness she had to that event, Mr L, was not called by the mother to give evidence in this case.
The mother did not take any forensic evidence to police, such as the children’s shirts, at least. She did not have the police attend the home. She lost contact with the police. She made no effort to prosecute the matter.
I come back to this point because this is where it all goes wrong for these children. Up until that time the parents had been able to manage the co-parenting relationship reasonably effectively.
There are numerous other examples in mother’s oral evidence where she provides further detail as to alleged disclosures made by the children, which matters do not appear in her affidavit. For example, at one point in her evidence she referred to the child, X, saying that her father used to bath her to “wash the smell off her” before the mother arrived.
On another occasion she says X told her that the father would rub his penis between her buttocks.
These things do not appear in her trial affidavit, which is surprising given the case she was originally running - before she abandoned it on the very morning of the trial - was that the father potentially posed an unacceptable risk by reason of sexual abuse matters.
I have grave concerns about the mother and the risk she poses to these children. To do nothing and to leave the children in the present environment is not without risk. In my view it is not without unacceptable risk.
Even the ICL in supporting the mother’s proposed interim orders makes the tragic and somewhat sad submission that it is unlikely the mother will, in fact, comply.
I would add in this regard that a serious issue also arises in relation to the schooling of the children. This is referred to in the Family Report in some detail, but in summary it would be fair to say that when the mother had the care of the children in Queensland during the period that she was spiralling into drug abuse and addiction that the children missed an exorbitant amount of school. But to be fair to the mother, their attendance at school has recently significantly improved and the father conceded as much in the witness box. Nonetheless, it is a background matter to which I also am obliged to have regard.

Additional considerations:

Starting with the wishes of the children, I accept that at this time the children are expressing a strong view not to even spend time with the father, let alone live with him.
X has allegedly made threats of suicide. I note that the first such threat was around August 2018 just after the Family Report interviews which was at or about the time the mother turned up the positive hair strand test for cannabis. There is a real risk - though I cannot make a positive finding - that the child was experiencing enormous pressure at that time because of these proceedings and because of being torn between her two parents. This is certainly a real risk and would be consistent with the evidence.
The children do not want to live with their father at this time. I take that into account, but I also take into account that their views have been heavily influenced by their mother in a way that can only be described as emotionally harmful to them in relation to the issue of sex abuse, which allegations have gone nowhere. These are children who are torn.
In relation to s 60CC(3)(b), the mother has always been the primary carer of the children and that is not in dispute. The father says that he provided more care for the children at different times during the relationship, but relevantly, in the post-separation period, the mother has been their primary carer. The father’s involvement has been limited, primarily, though not exclusively, because of the sexual abuse allegations.
The children have a sibling in the mother’s care, O. He is a very important person and I have agonised over his welfare as well because, although he is not specifically the subject of these proceedings, I am very mindful that he is a precious little boy who has a relationship with both of his sisters which needs to be maintained.
The children have had a relationship with the father throughout their life. It is presently under huge strain. In my view, their relationship is at real risk at this time. I need to preserve that relationship. The Court does not consider that there is time to waste in this matter.
The children have a developing relationship with the father’s partner.
In terms of s 60CC(3)(c) the father was an absent parent from the children’s lives from late 2015 to late 2017. He expresses remorse about that and I observed that he explains that, at least to some extent, it arose due to his fear of the mother’s associates. This may be a finding open to me when the matter is finalised, but in any event he was an absent parent for that period and I take that into account.
In relation to s 60CC(3)(ca), the father was also not particularly forthcoming with child support. He effectively left the mother to fend for herself in a financial sense for a significant period knowing that her financial circumstances would have been difficult. He accumulated significant child support arrears, but, to be fair to him, it would seem that he has recently brought those arrears up to date. I also note that the costs that he has incurred for supervision at a contact centre, which supervision would appear to have been substantially unnecessary in the end result, was a significant impost upon him.
In terms of s 60CC(3)(d), the likely effect of a change in circumstances, I have no confidence that if the children remain in the mother’s care in the interim that they will be able to develop a relationship with the father.
On balance, I cannot accept the submission that the mother’s proposed interim orders will be able to be properly implemented. My conclusion is fortified by the ICL’s own submission.
The only basis for me to find that the mother could comply with her proposed orders are that she instructed her counsel and solicitor to hand them up to me. But in my view her proposed orders are unlikely to be complied or, at least, I am not satisfied at this time that they will be able to be complied with.
I am particularly mindful of the mother’s discussion with the children in October 2018, wherein she told them that she always knew something was “not right” and suggesting that they had been sexually abused by their father. They need to be protected from that influence, at least in the short term.
The Independent Children’s Lawyer submits that if I change residence of the children in the interim I may make the situation worse. The father’s case is that not doing so is, in a sense, also making a decision.
In my view, the court has a very difficult situation before it in which there is no easy option available. Moving the children will have an enormous impact on them in the short term. The Family Report writer’s untested evidence is that the initial impact on the children would be upsetting and quite possibly distressing and the father may have to take annual leave to be able to assist in settling the children. The Family Report writer also stated that the children may settle very quickly in his care, particularly if the mother has been coaching them, and that a change of their living environment may in fact come as a relief to them.
In that respect, the father has a stable home, he is in a stable relationship, his partner works as a supervisor for an out-of-school-hours care organisation. There is no suggestion other than that she seems to have a good and developing relationship with the children. Her adult daughter is also a member of their home. The children would have a bedroom.
They have not lived with the father for a long time. I accept Mrs Kearney’s submission that Y would have no memory of living with her father. To the extent that X remembers living with the father, she remembers arguments between her parents and that is probably true as well.
I do not suggest that moving the children into the father’s care on an interim basis is an easy option, but when I weigh up the competing risks in each parent’s household I consider that the risks involved in moving these children are worth taking or, to put it another way, they are acceptable.
In terms of s 60CC(3)(e) - the practical difficulty and expenses - transport is an issue, but the parties only live some 15 to 20 kilometres apart. The orders I propose to make will not, in fact, pose any difficulty in terms of practicalities between now and when the matter comes back before me.
In terms of parental capacity in s 60CC(3)(f), the mother’s capacity has been highly questionable as a parent over a great many years. In terms of her drug addiction, her inability to take the children to school regularly, but most significantly, her seeming inability to promote a proper relationship between the children and the father, and, particularly, her denigration of him in October 2018.
The father as a parent is somewhat untested. Certainly, he has the support of his family and his partner, and he has some past history in caring for the children, and, notably, he did so at a time when the parents were separated and living at the City G. His capacity as a full-time parent is untested, but he expresses the willingness to act in that role, and his evidence before me is that he has a sympathetic employer who is a long-term family friend, who will be able to afford him flexible work hours. He also refers me to his partner’s apparently flexibility of employment, however, I accept that there will be issues involved in the father maintaining the children’s schooling, and getting them to and from school, and on the orders I make, he is going to have to step up to the plate, and, in a sense, prove himself. I will give him that opportunity today.
I am aware of the maturity and sex of the children, and of their ages.
There are no cultural issues that arise.
In terms of attitudes to parenting, I have addressed these matters earlier. I don’t propose to re-hash those issues.
I have dealt with family violence already, and, again, I do not propose to re-address those issues. No-one suggested in evidence before me that family violence was a major or the major issue in this case.
It is unavoidable that the proceedings will have to come back before me, and, indeed, I will be bringing them back before me in the not-too-distant future, because this family needs the matter brought back before the court for reasons that will become apparent in the course of the orders that I intend to make.
I also have particular regard to paragraphs 173, 175, 176 of the Family Report, which refer to the sexual abuse allegations and the risk of emotional and psychological harm to the children, and alignment with their mother - all of which risks, at this time, on the evidence before me, are unacceptable.
In my view, the risk of the mother relapsing into drugs - in combination with the other matters referred to - adds to the level of risk that the mother poses.
I also have concerns about the mother’s associates, albeit to a much lesser extent.
The father wants to move the children, if successful in his application, to the Suburb B Public School, which is very close to his home. I understand why he wants to do this, and I have genuinely agonised over whether to make an order that permits him to do so. However, given the orders that I propose to make, which contain an inevitable level of disruption for these children, I do not wish to cause further disruption by moving them from the school. As I have indicated, the father will have to “step up to the plate”. His evidence is that he can get the children to and from school, consistent with his work hours, and he will have to do so.

Conclusion & Orders:

I will suspend all earlier parenting orders.
In terms of parental responsibility, these parents cannot communicate adequately. Whoever has the children in their care should have parental responsibility for them. The presumption does not apply, given the allegations of violence, and, in my view, the past serious neglect of the children, which would also constitute “abuse”.
The reality is that the person with the children’s care should have parental responsibility. This is the only sensible order for the court to make, consistent with the children’s best interest.
The children should live with the father. I had intended to order that the mother deliver the children to the manager of Child Dispute Services, however the mother is not yet here (at court) and I am not critical of her about that. I accept that notice of delivery of judgment was only given by this court to the mother’s solicitor this morning at about 11 am, but the mother still isn’t here, so I don’t know where she is, so I will have to hear a submission about how this is done.
But I want these children out of the mother’s care ASAP – today - and I want them back tomorrow at the Family Law Courts to be able to communicate with the Family Consultant and the ICL if available, so that the orders can be explained to them.
The temptation to leave the children with the mother overnight is a real one, because she could organise their clothing, etcetera. However, I have no doubt that this will be an absolutely traumatic outcome for her, and I am mindful of that, and I very much doubt that she would have the capacity, or indeed, I doubt many parents, frankly, would have the capacity to cope with such an order, without decompensating in some way.
I am essentially adopting most of the orders that are proposed by the mother and the ICL in terms of restraints, etcetera.
The court makes the orders set out at the commencement of these reasons.

I certify that the preceding two hundred and twenty-nine (229) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date: 6 November 2019

[2019] FCCA 3186

11 April 2019

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Injunction

Procedural Fairness

Remedies

Standing

Costs