Grossmann & Myles - [2023] FedCFamC2F 1492

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Grossmann & Myles [2023] FedCFamC2F 1492

File number(s): MLC 1762 of 2021

Judgment of: JUDGE HARLAND

Date of judgment: 22 November 2023

Catchwords: FAMILY LAW – parenting – allegations of family violence – allegations of sexual abuse of the children – mother’s mental health – mother’s time to be supervised or in substantial attendance – whether the parties should exercise equal shared-parental responsibility – mother’s lack of insight into the children’s needs – mother’s non-compliance with orders – importance of children maintaining their Country B culture

Legislation: Family Law Act 1975 (Cth) ss.60B(1), 60B(2), 60CA, 60CC, (60)CC(2), 60CC(3), 64, 65D

Cases cited:
Isles & Nelissen [2022] FedCFam1A 97

Oberlin & Infeld [2021] FamCAFC 66

Division: Division 2 Family Law

Number of paragraphs: 252

Date of last submission/s: 4 September 2023

Date of hearing: 3, 4, 11 August 2023

Place: Melbourne

Counsel for the Applicant: Mr Ambrose

Solicitor for the Applicant: Trapski Family Law

Counsel for the Respondent: Mr Radich

Solicitor for the Respondent Marcou and Associates Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Eley

Solicitor for the Independent Children's Lawyer: Bowlen Dunstan and Associates
ORDERS

MLC 1762 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GROSSMANN

Applicant

AND:
MS MYLES

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

22 NOVEMBER 2023

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the children, X born in 2014 and Y born in 2017 (‘the children’) provided that the father:
(a)Actively seeks the mother’s input in respect of any major long-term decisions in relation to the children prior to making any major long-term decisions in accordance with order 3; and
(b)Keeps the mother informed of all major long-term decisions made for the children.

3.For the purpose of order 2 herein, before any long-term decisions are made in respect of the children, save in the event of a medical emergency:
(a)The father shall advise the mother by AppClose of his proposal relating to the children;
(b)If the mother wishes to comment on the father’s proposal (or if she has any proposal she wishes to make relating to the children on this issue) she shall, within seven (7) days after the date of the Father’s AppClose message, advise the father via AppClose of her view;
(c)Upon receipt of any comment or proposal by the mother, the father shall give consideration to the mother’s views;
(d)After the father has considered the mother’s comments, he shall make a decision and advise the mother in writing (including via AppClose) of the outcome forthwith after making that decision; and
(e)If the mother does not respond by AppClose as provided for in order 3(b), the father shall be entitled to presume that the mother does not wish to be involved and he may decide the issue.

4.The children live with the father.
5.The children spend time with the mother as follows:
(a)In week one and each alternate week thereafter, each Sunday from 10.30am until 1.30pm;
(b)In week two and each alternate week thereafter, from the conclusion of school on Thursday (or 3.30pm if the children are not attending school on that day) until 6.00pm;
(c)On each of the children’s birthdays, if the children are not otherwise spending time with the mother on those days:
(i)If the children are attending school on that day, then from the conclusion of school until 6.00pm; and
(ii)If the children are not attending school on that day, then from 10.00am until 2.00pm.

(d)On Mother’s Day if the children are not otherwise spending time with the mother on that day from 10.30am until 1.30pm;
(e)On Christmas Day:
(i)In even numbered years, from 10.00am until 2.00pm; and
(ii)In odd numbered years, from 2.00pm until 6.00pm.

(f)For Easter:
(i)In even numbered years, on Easter Monday from 10.30am until 1.30pm; and
(ii)In odd numbered years, on Easter Sunday from 10.30am until 1.30pm.

(g)At such further or other times as agreed between the parties in writing.

6.Unless otherwise agreed between the parties, the time the children are to spend with the mother pursuant to order 5 shall be supervised by the maternal grandmother.
7.The time the children spend with the mother shall be suspended at the following times (and the children shall spend time with the father at such times) as follows:
(a)For Father’s Day;
(b)For Christmas:
(i)In odd numbered years on 25 December from 10.00am until 2.00pm;
(ii)In even numbered years on 25 December from 2.00pm until 6.00pm;

(c)For Easter:
(i)In odd numbered years on Easter Monday form 10.30am until 1.30pm; and
(ii)In even numbered years on Easter Sunday from 10.30am until 1.30pm.

8.The parents shall communicate about the children through the parenting app AppClose or other parenting application as agreed in writing, except in the case of an emergency where they are permitted to communicate by telephone and/or text message.
9.The mother be restrained by injunction from:
(a)Removing the children from school except as otherwise provided for in these orders; and
(b)Attending the children’s extra-curricular activities, including but not limited to the sports training and associated events.

10.Each parent is authorised to obtain from the children’s school any information usually disseminated to parents such as school reports, newsletters, photographic order forms and the like, at his/her expense.
11.Each parent is authorised to attend school events and functions that parents are ordinarily invited to attend, such as sports days, parent-teacher interviews, concerts and the like.
12.The parents keep each other informed of the following:
(a)The parents’ contact telephone numbers and email addresses and notify each other at least 48 hours prior to any change, or as soon as practicable; and
(b)All serious illnesses and/or injuries suffered by the children or either or them and/or all medical emergencies relating to the children or either of them, together with the names of and contact details for the medical and/or dental practitioners treating the children.

13.The parents by themselves, their servants and/or agents be and are hereby restrained by injunction from:
(a)Abusing. insulting, belittling, rebuking or otherwise denigrating the other party in the presence of the children or either of them and/or allowing anyone else to do so;
(b)Discussing these proceedings to or in the presence of the children or either of them and/or allowing anyone else to do so; and
(c)Exposing the children or either of them to parental conflict.

14.The parents are at a liberty to provide a copy of these orders to the children’s school, medical and allied health practitioners and extra-curricular activity providers.
15.To the extent that these orders are inconsistent with paragraphs 3 and 5 of the family violence order made in late 2023 at the Court at Suburb C, these orders are intended to prevail to the extent of any inconsistency in accordance with section 68Q of the Family Law Act 1975 (Cth).
16.The Independent Children’s Lawyer be discharged 30 days after the date of these orders.
17.All extant applications be dismissed.

AND THE COURT NOTES THAT:
A.Order 15 is inconsistent with the family violence order made in the Court at Suburb C in late 2023 in that:
a.Order 3 of the family violence order prohibits the mother from communicating with the father and the children by any means except through My Family Wizard Application; and
b.Order 5 of the family violence prohibits the mother from remaining within 200 metres of the property D Street, Suburb C, VIC, or any other place where the father and the children live, work, or attend school/childcare.

B.The Court is satisfied that the orders do not subject the children or any party to any unacceptable risk of harm.
C.In accordance with section 68P(3) of the Family Law Act 1975 (Cth), the Court will provide a copy of these orders to:
a.Victoria Police;
b.The Department of Families Fairness and Housing; and
c.The Registrar of the Court at Suburb C.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND

X, born in 2014, aged nine and Y, born in 2017, aged six, have been living with the father since 3 March 2022. Prior to this they lived in their mother’s primary care. The father is 31. The mother is 29. The parties commenced their relationship in 2013 and separated in 2019. The mother says she and the children have been subjected to serious family violence by the father. The mother believes her mental health has been weaponised against her in these and other Court proceedings. She believes that unfairly, there has been a focus on her rather than the focus being on the trauma she and the children have experienced and that the family violence she has experienced and that the risks to her children have been ignored. She is also convinced that the father sexually abused the children.
The father believes the children are at risk in the mother’s care due to her poor mental health and that her allegations of family violence lack veracity. The father says that at times during the relationship, the mother’s behaviour was concerning and that she was quick to anger and would be quite volatile. The father says that since they separated and throughout the proceedings, the mother’s behaviour has been unpredictable, which he believes is evidence of her mental health being unmanaged and that as a result, the children will be at risk if they spend unsupervised time with the mother. His concerns have been heightened by the mother’s fixed beliefs. In his trial affidavit, the father refers to X telling him that the mother told him that he had “tried to kill him and Y when they were in her stomach”. The father was not cross-examined about this. The mother does not address this allegation in her affidavit. The father’s evidence on this point is unchallenged.
The Independent Children’s Lawyer (‘ICL’) submits that the Court should find that both parties engaged in family violence and that the mother’s mental health continues to be a real risk to the children.
At the end of the trial, the ICL’s position and the father’s position largely aligned. The orders they sought are for the father to have sole parental responsibility for the children, but that he be required to seek and consider the mother’s views before making a decision and that he keep her informed about those decisions, and for the children to remain living with the father and that the mother’s time be supervised by the maternal grandmother. The mother’s position at the end of the trial was that the parties exercise equal shared parental responsibility and that the maternal grandmother or maternal aunt be in substantial attendance for the mother’s time, initially, before quickly progressing to a week about equal shared care arrangement.
For the reasons I shall explain, I am satisfied that it is in the children’s best interests that they remain living in the father’s primary care with the father exercising sole parental responsibility and the mother spending regular time with the children supervised by the maternal grandmother.
The mother will find this outcome very hard to understand and accept. The mother loves her children and wants what is best for them. She has experienced trauma and wants to protect the children from her experiences. A repeated theme throughout the mother’s evidence was that she has previously failed to protect the children and was determined not to fail them again. It must be very distressing for the mother to believe that. It is also wrong, she has not failed the children. No parent is perfect. They can only do their best.
I found the mother to be genuine in her beliefs but have also concluded that the children will be at risk, particularly of emotional and psychological harm if the children are in her unsupervised care due to her fixed and false beliefs, impulsivity, and poor decision making. Unfortunately, the state of the evidence is such that it is not possible to make orders progressing the mother’s time beyond supervised time, but that does not mean that this can never change. It was clear from her evidence that she firmly believes that the father has abused the children and that they are at risk in his care, but also says she has reconciled the fact that the authorities have not found this to be the case and therefore has reconciled herself to the children being in the father’s care 50% of the time. Nothing in the mother’s evidence suggests that the mother’s beliefs have changed. She is saying she has reconciled herself to the children being in an abusive household 50% of the time. This does not give the Court confidence that the mother would not take matters into her own hands again. This is particularly because the mother was adamant in her belief that she failed to protect the children and was determined not to fail them again.
THE TRIAL PROCESS AND EVIDENTIARY ISSUES
Due to the nature of the risk issues before the Court, the cross examination of the father was brief, but the cross examination of the mother was lengthy lasting well over a day. The process of cross examination is a stressful and difficult experience for anyone. For the mother, it meant being confronted with medical material including historical material and allegations of sexual abuse of the children and her actions in response to these allegations. They also involved speaking about trauma in her childhood. It may well have appeared to the mother that it was unfair that her Counsel and the ICL’s Counsel did not cross-examine the father for a lengthy period when she was cross-examined extensively. This however is not unusual and in part the mother’s cross-examination was lengthy because of the way the mother answered the questions put to her.
Throughout the trial, Family Law Support Services (‘FASS’) provided the mother with a support worker who sat next to her throughout the trial including as she was being cross-examined. I take this opportunity to express my gratitude to the FASS workers who were in the courtroom. During this trial at all times they were quietly giving the mother support which facilitated the running of the trial, particularly during periods where the mother became distressed and needed a break. FASS provide an important service and enhance the Court’s ability to deliver justice. Much of that work occurs outside the courtroom, but I always appreciate their quiet assistance in Court. The Court proceedings can be incredibly distressing and confronting for anyone, particularly in family law matters dealing with children and sensitive issues.
I also wish to assure the mother again as I did during the trial, the fact that the mother would become distressed particularly during lengthy and vigorous cross-examination and needed short adjournments, does not reflect poorly on her parenting or her case generally. It is important to state this again particularly, given the mother’s feelings about how her mental health has, in her view, been weaponised against her. The mother became distressed and tearful at various points during the trial, but at no stage did she lose her temper, be or become disruptive or disrespectful. I state this as it is common in cases such as these, that I need to assess the parties’ evidence and in some instances make findings about the parties’ conduct and credibility. The times that the mother became distressed, were completely understandable given the sensitive subject matter and the length of time she was in the witness box. My assessment of the risks the mother poses is not because of these matters, but because of her fixed beliefs, decision-making, and lack of insight.
Many people have mental health concerns at various times in their lives. Sometimes it is situational, sometimes it is more ingrained. Mental illness is often an invisible illnesses and is a common struggle that may at times apply to many people in a courtroom in various roles, although people would not be aware of it because it does not prevent those people from doing their jobs and doing them well.
If every parent with a mental illness, was by reason of their mental illness considered unable to parent, child protective services would be overwhelmed. It is common to see affidavits referring to a spouse disclosing the use of antidepressants or some other medication that the other parent is taking and drawing all sorts of conclusions about risk based on misinformed and misleading material found on the internet. A parent’s mental health is only relevant if by reason of their mental health that parent’s parenting capacity is compromised and they are a risk to the children. The unfortunate reality is that mental health still carries a stigma which makes people fearful of being open about their mental health, particularly in contexts, such as these. What is important is not the fact itself that a parent has a mental illness, but how they are addressing their mental health and whether or not there are resultant risks to the children, whether there are current or future risks due to a lack of insight and risk of relapse.
EVIDENCE RELIED UPON
The father relied on the following documents:
(a)Amended Application filed 10 July 2023;
(b)Trial affidavit of Mr Grossmann filed 10 July 2023;
(c)Outline of case filed 31 July 2023;
(d)Affidavit of Dr E, the father’s psychiatric assessor filed 9 May 2022;
(e)Notice of child abuse, family violence or risk filed 19 February 2021;
(f)Child Impact Report prepared by family consultant Ms F filed 11 May 2022;
(g)Family Report prepared by family consultant Ms G filed 31 January 2023;
(h)Updated Family Report prepared by Family Consultant Ms G filed 17 May 2023; and
(i)Closing written submissions filed 1 September 2023.
The mother relied on the following documents:
(a)Further Amended Response filed 28 February 2023;
(b)Trial affidavit of Ms Myles filed 17 July 2023;
(c)Outline of case filed 31 July 2023;
(d)Affidavit of the maternal grandmother, Ms H filed 28 February 2023;
(e)Affidavit of the mother’s sister, Ms J filed 28 February 2023;
(f)Affidavit of Dr E, the mother’s psychiatric assessor filed 11 May 2022; and
(g)Closing written submissions filed 4 September 2023.

The ICL relied on the following documents:
(a)Outline of case filed 01 August 2023;
(b)Affidavit of Mr K filed 28 July 2023; and
(c)Closing written submissions filed 24 August 2023.
The trial affidavit relied on by the mother, summarised the history of the proceedings but did not engage with very important aspects of the issues in the trial and most notably was completely silent about the allegations of sexual abuse which the mother maintained strongly during the trial that she still believes happened. Her trial affidavit also largely glosses over the issue of family violence and is more in the nature of submissions rather than evidence. The affidavit is that party’s evidence in chief. It is important then that it provides evidence to support the orders a party seeks.
The mother has been legally represented by various law firms during these proceedings and has been self-represented for significant periods. She changed solicitors again in the lead up to the trial. The mother’s current solicitors relied on the affidavits that had previously been prepared and filed by her previous solicitors of the maternal grandmother and maternal aunt. Presumably her solicitors had access to the affidavit of the mother filed 28 February 2023. One of the difficulties at trial was the fact that the family report placed some significant reliance on that previous affidavit and the annexures to that affidavit.
At the commencement of his opening address, the mother’s Counsel sought leave to rely on her previous affidavit, noting I expressed some concerns about this at the commencement of the trial. The father’s Counsel opposed the affidavit being relied on as he prepared his case on the basis of the material currently before the Court. The mother identified that she was relying on her case outline and significantly, the mother’s Counsel did not seek leave until after the father’s case was closed. It is important that procedural fairness be accorded to both parties. It also has to be seen in the context of the issue of the mother’s mental health and limited information she provided during proceedings despite several orders. I did not grant the mother leave to rely on her previous affidavit filed 28 February 2023.
In addition to the documents listed above, various documents were tendered as exhibits including s67z and s69zw material.
ISSUES IN DISPUTE
The issues in dispute are:
(1)the extent to which the father has engaged in family violence against the mother and the children;
(2)whether or not the mother has engaged in family violence;
(3)whether or not the mother’s mental health impacts on her parenting capacity and poses a risk to the children;
(4)whether or not the father should exercise sole parental responsibility or whether the parties should exercise equal shared parental responsibility;
(5)whether or not the mother’s time needs to be supervised or have someone in substantial attendance;
(6)the suitability of the maternal grandmother and the mother’s sister Ms L as suitable supervisors; and
(7)whether or not the mother’s time can progress to unsupervised time.
Before discussing the issues in dispute, I will discuss the relevant history of the proceedings and the applicable legal principles.
RELEVANT HISTORY OF PROCEEDINGS
After the parties separated, the children lived with the mother and spent time with the father most days after work and on weekends, although at times the mother refused to make the children available to the father. The mother then told the father that the children would stay with her until there were Court orders in place.
The father commenced these proceedings on 19 February 2021 after the mother refused to allow the father to spend time with the children. Interim orders were made on 18 May 2021 for the parties to exercise equal shared parental responsibility and for the children to live with the parties in a week about arrangement.
On 13 August 2021, the mother filed an application in a case seeking to have the children live primarily with her. On 28 October 2021, the Court dismissed the mother’s interim application and appointed an ICL.
In her trial affidavit, the mother says that she informed the father in early 2022 that she was moving with the children interstate due to family violence. She does not provide any evidence as to what she says occurred in the lead up to her making this decision. She says she spoke to family, friends, and family advice relationship hotlines and other services before doing so, but now understands that was not the appropriate course of action.
On 3 March 2022 the Court issued a recovery order and reserved the mother’s time. On 11 March 2022 the Court made orders for the mother to spend time with the children supervised by the maternal grandmother or maternal aunt. Further orders were made on 13 May 2022 for them to be in substantial attendance.
The mother stopped spending time with the children on 23 June 2022 after the maternal grandmother and maternal aunt advised they were no longer willing to be involved in supervising the mother’s time. With respect to the maternal grandmother and maternal aunt supervising the mother’s time, all the mother says in her trial affidavit is that it was a new and overwhelming experience for them, but they have now had discussions as to how to navigate it and it will not be a problem in the future. The father says the mother did not spend time with the children for the next few months as they could not reach an agreement. As a result, on 26 September 2022, the father filed an application seeking that the mother’s time be professionally supervised. Significantly, the father brought the application, not the mother. The father’s application was heard on 21 October 2022 where orders were made for the mother to have professionally supervised time and several injunctions were made restraining the mother from attending X’s sports practice and games and the children’s school.
The matter was initially listed before me for trial on 27 March 2023. It was necessary to list the matter for mention before me on 14 March 2023 after the mother’s then solicitors submitted to chambers a medical certificate from the mother’s general practitioner (‘GP’) dated 5 March 2023 wherein he stated that he believes that the mother is only “partially capable of undergoing cross examination in Court”, and refers her to a psychiatrist. At the mention I raised with the mother’s solicitor that the certificate fell well short of what would be required in order to adjourn the trial for any lengthy period of time.
On the morning of 27 March 2023, when the trial was due to commence, I was advised of an altercation between the mother and the former ICL which had occurred the week prior. The family report was also limited as supervised contact visit reports were not available to the report writer. It was necessary for her to update her report. In the circumstances, the ICL indicated they would be withdrawing from the proceedings. The trial was adjourned and an order for an addendum family report was made.
One of the significant issues raised before me at both appearances in March 2023 were concerns about the mother’s mental health and her lack of transparency about what treatments she was receiving, and the mother’s failure to comply with multiple requests made by the ICL for her to provide information. In addition, it is important to observe that this has been the subject of several Court orders. Order 8 of the Orders made 28 October 2021 required both parties to provide a list of treating practitioners they have seen. Further, order 4 of the Orders made on 21 October 2022 required the mother to provide the name of her treating practitioner with respect to the diagnosis of a mental illness. The mother did not comply with these orders.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Family violence is defined broadly at s.4AB recognising that family violence takes a variety of forms. In this case the need to protect the children from harm has been the focus.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs. Connections to culture is another important factor I must consider.
This case does not turn on the children’s views. The children are young. They clearly love both parents. The focus has been on risk of harm and parenting capacity to provide for the children’s physical, emotional, and psychological needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any Family Violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
The Full Court of the Family Court discussed the assessment the Court must make when considering whether or not there is an unacceptable risk in Isles & Nelissen [2022] FedCFam1A 97. Assessing unacceptable risk is a predictive exercise based on the facts and circumstances of the case. The Full Court clearly stated that the assessment of risk is an entirely separate task to making findings of fact. The Court must make findings of fact based on the balance of probabilities. The risk may be a possibility, probability, or a certainty. Risks of harm are not subjectable to proof given it is about prediction.
CULTURE
The issue of culture is also important in this case. The mother expressed concerns that if the children are to live with the father, they will have no connection with her family and will be traumatised by the loss of connection to the Country B culture which is strongly based on family connections. The father acknowledges that it is very important that the children maintain connections to their Country B culture which they have through the maternal family.
The father says he supports this through having the children attend the Suburb C sports club which is predominantly made up of Country B, Country M, and Country N players. X is a team member and practices on Wednesdays and plays games on Saturdays. The father says he brings Y and has encouraged Y to join the team. To date, she has been too nervous to play but comes along to the training and games each week, and often plays with her cousin O who attends the games as well.
I accept the submissions on behalf of the mother about the importance of the children being able to maintain connections to their Country B culture. However, the submissions go beyond the evidence before me. Cultural considerations cannot take priority over the need to protect the children from harm. I accept that the orders for the father to have sole parental responsibility and for the mother to have limited supervised time impinges on the ability of the children to be able to enjoy their culture with the maternal family. However, that does not mean that they will not be able to attend important events by agreement with the father.
The father is friends with the mother’s cousins, Mr P and Ms Q, and they see them and their children and other members of the extended maternal family regularly at sports matches. There are also family gatherings after home games at various family members’ houses and the children greatly enjoy attending those gatherings. The children also have sleepovers with their cousins from time to time. I am satisfied that the children will maintain connections to their Country B culture.
PARENTAL RESPONSIBILITY
The presumption that the parents should exercise equal shared parental responsibility does not apply because of the family violence. I am also satisfied that it is not in the children’s best interests for the parents to exercise equal shared parental responsibility. The parents have been unable to make decisions jointly to ensure Y receives the dental treatment they agree she needs. The parties have not been able to agree on the appropriate treatment resulting in the treatment being delayed over an 18 month period. Each party blames the other. It is an example of the parties being unable to exercise equal shared parental responsibility.
It is not about blaming either parent or punishing either parent. The level of distrust and conflict between them is so high that the parents do not have the skills to be able to effectively make those decisions. I am satisfied that the ICL’s proposed order for the father to have sole parental responsibility but with the obligations to inform the mother of decisions, enabling her chance to express a view is in the children’s best interests.
FAMILY VIOLENCE
Both parties make allegations of family violence against the other. Both parties have taken out Family Violence Intervention Orders (‘FVIO’) against the other and deny being the instigator of family violence. It is therefore necessary to examine the evidence about family violence in some detail.
The mother’s childhood trauma
The mother described her father as being abusive and having drug and alcohol issues and that she did not have regular contact with him. When aged 10 she stayed with him overnight and had phone calls before he died when she was 12.
The maternal grandmother gave evidence that she separated from the paternal grandfather when the children were young. There was no violence between them, but the children were exposed to family violence between the father and his subsequent partner which included verbal and physical abuse, excessive alcohol use, and drug abuse. There were occasions when she had to collect the children early due to the family violence in the home.
It was clear when the topic of her childhood experiences of family violence in her father’s home was raised that this has traumatised the mother. It is probably made all the worse for the mother because her father died when she was only 12. The loss of a parent at a young age can also be very traumatic and can leave a lasting imprint that the passage of time cannot erase.
During the relationship
Both parties during cross-examination described family violence being an issue during their relationship. However, both parties' trial affidavits provide little to no insight into the family violence they allege occurred during the relationship.
The father says that from 2017 whilst the parties lived together "there were numerous incidences of concerning behaviour…” from the mother and that her behaviour was "very confusing and concerning for [him] during our relationship". He says the mother would scream and yell in his face. He describes one occasion where he attempted to drive off but the mother jumped into the back of his motor vehicle whilst it was moving.
He goes on to describe an incident in 2018 when, himself, the paternal grandmother and paternal uncle took the children to R Venue. The mother attended causing a scene "yelling and screaming at [them]” to the point they had to leave. The mother continued yelling at them through the centre and back to the car. As they were leaving, the mother ran in front of the father's car and continued screaming through the window. The father was not cross-examined about this incident.
The mother says “there is a history of family violence during the relationship” however, her trial affidavit is silent beyond this statement and provides no examples of family violence during this period. Given the fact that her trial affidavit completely glosses over family violence during the relationship, it was necessary to press her in cross-examination to describe the abuse. She said that the father puts her down in front of the children, referring to her as a “dropkick mum” and saying, “your Mum is fucked" and that she is not safe.
The mother’s trial affidavit largely summarises the procedural history and orders made as well as the family reports, but does little to engage meaningfully with the issues of risk. She alleges that the father has long-term drug and alcohol issues, including with respect to illicit drugs, and says that the father often used drugs during the sports season. Apart from this generalised assertion, the mother does not provide any evidence to support her contentions. Both parties have undergone supervised random urine screens initially through the Department of Families Fairness and Housing (‘DFFH’) and then during these proceedings.
The mother also annexes to her trial affidavit an Application and Summons she made to the Court in early 2021 where she complains about the father manipulating and patronising her and frequently putting her down and isolating her, including in front of children.
At several points during cross examination of the mother, she was unresponsive to the questions being put to her and at several times would make comments about “trauma response” and that it is “tiring dealing with abuse” and referred to the father continuing to abuse her and the children. When asked about her engaging in violent or abusive conduct she would say she was in “reactive abuse”. At times there was a flavour of paranoia to the mother’s evidence but also defiance and an inability to accept a view different to her own. Some examples of this include the mother’s constant reiteration that the system is against her and her children and there is an unreasonable focus on her during these proceedings, her continuing to seek apologies from multiple members of the judiciary, medical professionals and the like despite the evidence that has been placed before her and being adamant she always believes what her children say particularly when they are criticisms of the father however when the children have made criticisms of her she adamantly denies them. These examples are addressed in further detail in my reasons.
Intervention orders

There is a history of cross intervention orders between the parties. The father says after a family violence incident that was instigated by the mother which occurred in front of the children in mid-2020, the police applied for an Interim FVIO application on his behalf listing himself and the children as protected persons. The mother then made a cross application in mid-2020 to which the father consented to without admissions for 12 months. The father was charged for breaching the FVIO for allegedly threatening to kill the mother during a telephone conversation in early 2021 for which he paid a fine. I will address this incident in more detail later in these reasons. A further FVIO on behalf of the mother was made in early 2021 which expired in late 2021.
In mid-2022, the mother was charged with several counts of contravening the intervention orders. She was placed on a bond/undertaking and the matter was adjourned to early 2023 and on that occasion it was dismissed as the mother had complied with the bond. When the mother was confronted with her actions in this regard, she would become unresponsive and repeat mantras of being caught in a “reactive abuse cycle”.
The father’s Interim FVIO was amended in early 2022 to include the restraint on the mother attending the children's school/day care and extra-curricular activities. The father's Final FVIO application was listed for a further hearing in late 2023. In his submissions the ICL also referred to the mother having a Court appearance in late 2023 with respect to her attendance at Y’s day care. I do not know what occurred at this hearing. A final intervention order was made in late 2023. I will refer to this further later in these reasons when discussing the injunctions sought by the parties and the ICL.
DFFH care plan
DFFH became involved with the family in 2020 when the mother was involuntarily admitted to the psychiatric ward of Suburb C Hospital. DFFH with the parties’ input, formulated a care plan that provided for the children to spend time in the parent’s care, equally. The father says that as soon as DFFH closed the case, the mother claimed that the plan was no longer in place. Despite the care plan providing an arrangement for Christmas Day to be shared, the mother withheld the children from the father. The father was able to spend some time with the children in January 2021 but says it was only on the mother’s terms.
There are a series of text exchanges between the parties annexed to the father’s affidavit in late January 2021 where they argue about the DFFH care plan. The mother made it clear that she was not going to make the children available until Court and refers to the father’s abuse and manipulation. They also argued about X’s first day of school. What comes across in these messages is an immaturity and inability to resolve conflict. Both parties clearly wanted to be there for X’s first day of school, but the flavour of both texts is that it is about the parents’ needs and not what it might be like for the children if both attended given the level of conflict.
The s67Z reports from DFFH to the Court records that DFFH substantiated both parents as being responsible for causing the children emotional and psychological harm. The evidence before me also supports that conclusion.
Incidents post separation
The father said that in early 2020, the mother asked the father to sign paperwork for the children’s passports so that she could take them to Country S for a holiday which he agreed to. He signed the paperwork at her house but realised after he left that he had left his phone inside. As he was putting the children in the car, the mother came outside holding his phone yelling at him, accusing him of texting other people and threw his phone on the ground, smashing it. He claims that as he picked up the phone the mother punched him in the back of the head. He says the children were in the car and could see this happening and he quickly drove away. The mother's trial affidavit is silent about this incident. The mother was cross examined about this incident which she initially denied and said she could not recall. The father was not challenged about this incident. I accept the father’s evidence on this point.
In early 2020, the father says the children were in the mother’s care when he realised that he had forgotten to exchange medications for X with the mother. He arranged to meet the mother to exchange them but when the mother attended she said she did not have the medication with her and that she would be taking the children which they had not discussed. The father says the mother tried to pull X out of the car but X yelled at her. The mother then went around the car to try and take Y from the car but the father had locked the doors. The mother became angry and grabbed a new bike that the father had bought for X from the back of his Motor Vehicle and threw it on the ground. The father called the police and drove to the police station with the mother following behind. He says he arranged for the paternal grandmother to meet them at the police station so she could stay outside with the children. He says the mother ran inside ahead of him and told the police she was afraid for her safety. The father was not cross-examined about this incident. His evidence about this incident is unchallenged.
The father alleges that the mother withheld the children from the father for two weeks and then only allowed him to see the children one night a week for several more weeks until they reverted to the previous arrangement. Again, the mother's trial affidavit is silent on this incident and she denied the incident occurring during cross-examination.
In mid-2020, the father says the mother turned up at his house claiming X had been naughty and that she did not know what to do with him. The father told the mother that he could not care for the children as he had work. The mother put her foot inside the doorframe to prevent him from closing the door. She started screaming at him and then proceeded to pick up rocks and throw them at his car smashing the window. The father called the police who attended and charged the mother and applied for a FVIO on the father’s behalf. Again, the father was not cross-examined about this incident.
The mother during cross-examination again initially denied this incident occurred and that she did not recall it as she was in a “reactive abuse cycle”. However, she then said the father called her “a piece of shit” as he knew how to provoke her and that she was verbally abused all the time. She had just undergone surgery during peak Covid and that she needed support and reached out to the father for help which he refused, and in that circumstance said "…so yeah I could not handle it". What is apparent is that both parties were somewhat immature in their approaches. I accept that the mother was under enormous stress and wanted the father’s help, but she acknowledged during cross-examination that the father had told her he could not take the children as he had to work but she turned up anyway. This is a repeated pattern with the mother which raises concern about her insight. Neither parent was able to protect the children from the conflict between them. Neither took any responsibility for their own actions.
In her trial affidavit, the mother again makes no reference to this incident however says "[in mid-]2020, I applied for an intervention order against the father" and "[in late] 2020, a final intervention order was granted". No context is given beyond these statements.
The father describes a further incident on or around late 2020 whereby he went to the mother’s home to collect the children. When X saw him, he ran over to the father and the mother tried to grab X to stop him. X sat on the father’s lap. The mother grabbed the car keys from the ignition and started yelling at the father calling him a stalker and saying that he was not going to take her child. The father then called the police. The mother proceeded to throw the father’s car keys on the bonnet of his car. The police advised him to leave with X. He was unable to spend time with Y that weekend.
The mother refers to this incident in her trial affidavit. She says that the father and his sister attended her home unannounced. She claims that the father’s sister was recording the children and her and that the paternal grandmother was on face time, and claims that X held up his middle finger at her and that the father and sister smacked X’s hand down and the paternal grandmother laughed. She then took the father’s car keys and insisted that X be let out of the car. She said he refused and the father continued to intimidate her and she gave him the car keys back and asked him to leave. He refused and the police attended and once she explained the situation to the police the father was asked to leave her property. The police record of the incident does not identify an offence by either parent and refers to it as being a custody dispute.
The mother insisted that the father created a situation where she threw his keys on the top of the car by turning up unannounced. She does not take any responsibility for her actions contributing to the conflict. Both parents have shown difficulties in accepting responsibility for their own behaviour and shown an immaturity. The police records of this incident referred to the father telling the police that he messaged the mother prior to attending, but did not receive a reply. The mother complained to police that the father had not told her he was going to collect the children and that she did not like the way the children returned from spending time with the father disrespectful and so she was not going to make the children available. The mother was either unable or unwilling to concede when cross-examined that the children may find transitioning between their parents difficult. During cross-examination it was put to her that transitions may be difficult for the children, but the mother would not concede that. What is clear is that neither party was able to de-escalate the situation and prioritise X or Y. Instead, X was exposed to his parents arguing, the mother taking the father’s keys, and the police attending the incident which does not reflect particularly well on either parent.
The father was cross-examined about a series of text messages he sent the mother in late 2020. He acknowledged sending a message to her at 7:20 AM where he referred to her needing to go back to the mental hospital because she was “fucked”. He acknowledged sending a further message to her at 11:00 AM where he refers to being able to have a good laugh in her face and then two minutes later added words to the effect of, “plus your father would be so proud of you”. He further acknowledged during cross-examination that he knew that the mother’s father had died when he sent this message. He conceded that he sent them, knowing it would cause her emotional distress, but sought to justify this by saying that he was under stress from not being able to see the children.
This does the father no credit as he was well aware of the mother’s mental health vulnerabilities. It reflects a level of immaturity on his part as well, particularly in mentioning her father which was insensitive and cruel.
Threats to kill
Three days later in late 2020 the father was on Facetime with the children. The mother says in her trial affidavit that:
[In late] 2020, the father threatened that he would one day kill me in the presence of the children.
She does not expand on this any further.
The mother says she was upset and ended the call. The father could not remember if he called back. He agreed he would have been annoyed at her terminating the call as it was the only communication he was having with the children at the time. He denied saying to the mother multiple times that he would kill her and laughing with the children in earshot. He also denied being angry at the mother but said he would have been upset, because of not being able to communicate with his kids. He said there was always a lot of tension when they tried to communicate and it was difficult. The father avoids taking responsibility for his own conduct.
When Counsel for the ICL cross-examined the father about the threats to kill the mother, the father denied ever threatening to kill the mother despite pleading guilty to that offence. He said there were two charges of sending texts with threats to kill and he said he was told he had to plead guilty to those. The ICL’s Counsel put to the father that he told Dr E only that he made threats to kill in 2020 and received a fine. The father denies this and that he plead guilty to the text messages alongside that period. Consequently, the father was taken to the police records which were tendered as Exhibit 2, which clearly identifies that he was charged and that is what he had pleaded guilty to while having had the benefit of legal representation at the time.
He conceded that he makes no mention of this in his trial affidavit and maintains his denials, despite pleading guilty and being fined. Again, this does the father no credit. Making threats to kill is unacceptable. It is family violence and is designed to cause fear. It does not matter whether or not the person making the threats intended to act on them. It was also clear from the father’s answers that he has not taken much time to reflect on his own behaviours and how his abusive and threatening behaviour has impacted on the mother and her mental health. Based on the police records, I am satisfied that the father did threaten to kill the mother.
The mother was admitted to a psychiatric unit at the Suburb C Hospital two days later in late 2020. The father conceded that his text messages may have contributed to the mother’s mental health episode and hospitalisation in late 2020. He also acknowledged that her recent health episode in late 2022 may have been triggered by her having limited time with the children, but as he pointed out this is not of his doing. The father said that if he was confident that the mother’s mental health has stabilised then he would be open to the children spending more time with her and says that this has been his position from the beginning. The mother’s Counsel asked him if he conceded that his proposition is somewhat of a ‘chicken and egg’ scenario where the mother would have better mental health if she was spending more time with the children, the father said he was not sure about that and that it could not be guaranteed.
The father conceded that he thinks the mother has mental health issues but is not sure which ones and that he acknowledges that he does not have any training in mental health but is relying on what the experts say and also his own experience of the mother and her outbursts in the past. He acknowledged her evidence about seeing a psychiatrist and psychologist and the courses that she has done.
Allegation of physical abuse by the father
In late 2021, the mother collected the children from the father and noticed X had a bruise on his back. The father says that X fell over on the bike racks. The mother says she was suspicious of the bruising she saw on X because it was so large. She did not ask X about it and did not take X to a doctor. Under cross examination she says she went to the police station by herself and that they told her to bring X in for an interview, which she did. No further action was taken. The s69ZW report refers to X being interviewed by police and telling them that he fell on the bike racks. The mother did not make the children available to spend time with the father in accordance with the spend time orders on Christmas Day. When cross-examined about this, she vaguely referred to there being something wrong with Y then claimed that she was on the way to the dentist on Christmas Day. There is no reference to this in her trial affidavit.
The mother contacted the father’s solicitor on 24 January 2022, alleging that she had photographs of bruises of the children and that she had obtained medical reports for them but despite requests, has never produced any photographs or medical reports. Given this, it is likely that they do not exist. The father expresses concern that the children may have been medically examined unnecessarily and X unnecessarily interviewed by police. On the balance of probabilities, I am not satisfied that the father has physically abused X.
Allegations of sexual abuse by the father and the removal of children to Queensland
The police records show the mother contacted the police in late 2022, claiming that in early 2022, the children said that whilst they were in a bath that the father would put a scrunchie on his penis and make the children take it off his penis. The police undertook disclosure interviews with both children. Neither disclosed any offence, and both stated that they felt safe around both their parents. The police explained this to the mother and that no further action was going to be taken. It was clear that being cross-examined about this topic was difficult for the mother. She referred to reliving trauma and trying to move on from it. I have no doubt that the mother has experienced significant trauma but the difficulty is that the mother appears to have focused on the father and demonising him and ignoring other possible sources of her trauma.
The father’s Counsel put to the mother that in December she caused X to be interviewed by police and then in early 2022 both children were interviewed. The mother said that whilst she could see what Counsel was saying, she had let the children down in the past and she had promised she would not do so again. This was a common theme of the mother throughout her evidence.
In early 2022, the mother unilaterally relocated with the children to Queensland. She messaged the father saying “to protect the children and I from further harm or suffering we have moved interstate.” The mother contacted the father’s solicitors the next day saying that the father could spend time with the children if there was no family violence. She also emailed his solicitors and in the email sent in early 2022 complained that the threats he made had interrupted X’s excitement about starting at his new school the next day.
The mother does not address the sexual abuse allegation in her trial affidavit at all. All she says in her trial affidavit is at paragraph 27 that in early 2022 she told the father that she and the children would be moving interstate due to his family violence. She says before making that decision she spoke to family and friends and family advice hotlines. She does not say what it was that prompted her to take that action.
The father’s solicitor emailed the mother telling her that if she did not comply with the current orders, an application would be made for an urgent recovery order. It was appropriate for his solicitors to do this. The mother responded saying they were welcome to do that. The mother then said that she did everything she could to respect the orders but then said that the father would not stop abusing her, and that she contacted the Courts and was told to file an application and get to safety. Court staff do not give legal advice and are limited to providing procedural advice. It is also unclear as to what the mother said the abuse was and to whom she actually spoke.
The mother believes the children were interviewed by police in Queensland although there is nothing in evidence about this. The mother emailed the father’s solicitors in early 2022 saying that if there is no family violence the children would be made available to the father but what was clear was that the mother had not thought through how this would occur. She suggested in cross-examination she could drive back down to Melbourne. She was then challenged about the fact that she enrolled X into a school in Queensland to which she said in cross examination that this was because this would keep the father in line. It is important to state the mother was in breach of orders made on 18 May 2021. The father’s solicitors were not threatening or harassing the mother. When challenged about X’s excitement regarding starting a new school, the mother claimed this was based on her own assessment and was not because she told him. I do not accept the mother’s evidence on this point. It is consistent with the mother’s behaviour at the supervised contact visits to which I will discuss in greater detail later in my reasons, that she would have talked to X about it, causing him confusion and uncertainty about what was going on.

The father filed an urgent application seeking their return in early 2022, which was heard in early 2022. The Court issued a recovery order and the children were recovered pursuant to that order the following day after the mother refused to return the children. The mother in cross-examination conceded at the urgent hearing that the Senior Judicial Registrar told her that if she did not voluntarily return the children the Court would issue a recovery order. The father had to travel to Queensland to retrieve the children and the mother was ordered to have supervised time with the children. The mother fails to take any responsibility for this situation and appears to not appreciate that it is her actions that resulted in the children now living with the father.
The mother reported the same abuse allegations to police and child protection in Queensland. During cross-examination, it did not appear that the mother had any real plans and that the move was rather impulsive, as she was referring to her intention to get away and give herself and the children time to enjoy their lives, experience travel and have time to heal. She had not considered how the children would maintain a relationship with the father. It is clear that the mother acknowledges on an intellectual level at least the importance of the children maintaining a relationship with their father and the loss that she continues to feel keenly as a result of her father dying when she was a child. She talks about just wanting to ensure that the children are not exposed to violence and abuse.
The maternal grandmother also gave evidence that she tried to stop the mother from taking the children to Queensland. She advised her not to go as there were current Court proceedings. The mother felt it was her right and that she had full custody of the children. I accept the maternal grandmother’s evidence that at the time she was not aware that the mother was breaching Court orders. During cross-examination, the maternal grandmother was able to show reflection and introspect. She went on to say that looking back, she could have managed that conversation better and said that she would tell the mother now and tell the father to come and collect the children.
Although the mother was self-represented at that stage in the proceedings, she had in the few months before made in interim application seeking to change the parenting orders which was unsuccessful. She was therefore aware of the process of bringing an application to the Court. I did not sense any acknowledgement from the mother as to the upheaval and uncertainty it would have caused the children to be taken from their schools and moved interstate without notice.
Under cross-examination, the mother said that a sexually inappropriate or abusive incident was enough for her to decide to move her and the children to a place of safety, being interstate. It was also apparent from the mother’s evidence that she maintains a belief that the father sexually abused Y in X’s presence. She struggled to reconcile this with her position that the children should be in an equal shared care arrangement with both parents. She spoke about 50/50 being fair to both parents and her being a fatherless daughter. She then said that the children have been returned to the father’s care so many times that it was difficult to navigate. The clear implication from this is that her view is that the children will not be protected and have not been in the past. She believes the children continue to be abused in the father’s care but when she has raised these concerns, her time has been restricted. She sees herself as powerless with her proposal for equal time because if she does not propose this, her time will continue to be restricted.
Whilst I am satisfied that there have been instances of family violence by the father, I am not satisfied that it is anywhere near as extensive and pervasive as the mother claims. Rather, it appears to me that it is highly likely that due to the mother’s childhood experiences of violence and trauma that she is particularly sensitive to certain behaviours. The difficulty is that the mother now has fixed views of the father being a violent abuser who is a risk to the children and does not allow for the possibility that her previous trauma has informed some of her reactions and that she is projecting some of these behaviours onto the father. There is insufficient evidence on which the Court can be satisfied that the children were sexually abused by the father and there is insufficient evidence that the children are at risk of sexual abuse from the father.
The mother’s criminal record
The mother was cross-examined about her criminal record. In late 2021 she was charged with offences and received a diversion.
The mother was also convicted of breaches of FVIO and placed on a good behaviour bond in mid-2022 as I have previously raised in these reasons.
The mother is facing further criminal charges with respect to the contravention of the intervention order by attending Y’s day care which is discussed at paragraphs 172 - 175. The mother says with respect to the criminal charges that in every instance, she and the children were victims of abuse and it was “reactive abuse” on her part. This is not correct. I am satisfied on the evidence before me that the mother was the aggressor in this instance.
X’s allegations of abuse
The mother was cross-examined about X telling the family report writer that he gets yelled at by the father and the mother pulls his ears and smacks him on the bum. Despite the mother saying she absolutely believes the children when they disclose abuse, particularly abuse allegedly caused by the father, she denied that she ever pulled his ears or smacked his bottom. She could not see the possibility of the children not accurately reporting each parents conduct. What is abundantly clear is that these children are acutely aware of the high level of conflict and distrust between their parents. This makes transitions difficult and not emotionally safe for them. Children in this position feel a conflict of loyalty between their parents. It can also lead to children censoring themselves with respect to what they say to each parent and being reluctant to comment on the positive things in the other parent’s care out of concern that they might hurt their other parents’ feelings or make them upset.
THE FATHER’S MENTAL HEALTH
The father referred to threatening to attempt self-harm in 2015 when he found out that the mother was cheating on him which he found out by looking at her phone. The report writer recorded the father stating that he had not suffered any mental health problems apart from self-harm ideation at the end of the relationship and that he had planned and the means to complete it, which would have put that behaviour at moderate risk of completing the self-harm and that he had not received any supports at the time. The father disputes the correctness of this and says there was only one time in 2015 that he had self-harm ideation and this is consistent with what he also told Dr E.
When cross-examined the father maintained the only time he had self-harm ideations was in 2015, and it was not at the end of the relationship as recorded by the report writer. When asked if he had ever received counselling, he says he had three sessions through his mother’s work however this was not until 2021 or 2022. I doubt that it related to self-harm ideations in 2015 but more likely the stress associated with these proceedings.
The father confirmed that he told the mother he was having self-harm ideations because of her cheating. This can be a cry for help or a form of family violence, depending on the context of pressuring a person to stay and making them feel responsible for the other adult’s wellbeing.
Dr E’s assessment of the father
Dr E psychiatrically assessed both parties and was not required for cross-examination. The father told Dr E that he had experienced self-harm ideations in 2015 after he found out that the mother had been unfaithful. He did not seek help. His plan in 2015 was to self-harm, but his brother stopped him upon hearing his distress. He denied having self-harm ideations in 2020.
The father admitted using illicit drugs socially on occasion during the relationship, but not recently. He denied engaging in any family violence and denied threatening to kill the mother. Dr E thought that the father had a mild social and generalised anxiety disorder.
THE MOTHER’S MENTAL HEALTH
One of the disputed matters in this case is the mother’s mental health diagnosis. One of the difficulties in this case is the limited information with respect to the mother’s previous mental health diagnosis and treatment. The impression from the mother is that she had an illicit substance induced psychosis, resulting in hospitalisation in 2013, of which she has no memory and then had no difficulties until her hospitalisation in 2020 which was precipitated by family violence, including the father’s threats to kill. It is not at all clear to me what diagnosis and treatment the mother received between 2013 and 2020 and whether any such treatment was necessary. The mother acknowledges having experienced mental health difficulties at times, but very much focuses on this being through the lens of having experienced significant trauma and family violence, which she attributes to the father.
The Suburb C Hospital records from late 2020 referred to the mother having previously been diagnosed in 2013 with a mental illness. This is a diagnosis that the mother challenges. The psychiatric assessment of the mother identified that she had illicit substance induced brief psychotic episodes in 2013 and 2020 and has a social and generalised anxiety disorder and a mental illness. The mother’s current psychiatrist identified post-traumatic stress disorder, anxiety and depression. The mother’s diagnosis is relevant, but not decisive as what is important in assessing risk is the mother’s conduct and beliefs and what impact they have on her parenting capacity, as well as what can ameliorate such a risk.
The mother’s hospitalisation in 2013
In 2013, the mother suffered a psychotic episode and was hospitalised following an illicit substance induced psychotic episode. The mother says she was well until 2020.
The mother’s hospitalisation in Late 2020
The mother was involuntarily hospitalised in late 2020 and was discharged eight days later. She was the subject of a community treatment order.
In his trial affidavit, the father says that DFFH contacted him on or around late 2020, informing him that the mother had been hospitalised and that the children were in her family’s care. The father says he spoke to the mother’s sister Ms J who had the children in her care and said she was happy for the father to have the children but had to make a few arrangements. The father says he was then contacted by DFFH a short time later who advised him that the mother had made allegations against him, which meant that the children could not be placed in his care.
In his trial affidavit, he says the mother fabricated allegations that he threatened to kill her during a FaceTime call. He says the mother made further allegations about him using drugs and that he was required to undergo supervised drug screens before DFFH would allow him to care for children.
In her trial affidavit, the mother says she was admitted as an inpatient at the psychiatric unit at Suburb C Hospital experiencing an acute relapse of psychiatric symptoms. She says she was stabilised with medication and released on a community treatment order.
She refers to DFFH’s involvement and says that time would be supervised and then evaluated after a few weeks, but that this did not occur. She claims the father’s behaviour escalated and she had to obtain a FVIO against him in early 2021.
The mother was comprehensively cross-examined about her medical records. The subpoenaed material is extensive, however only the particular documents that were the subject of cross examination have been tendered.
The patient progress notes tendered as Exhibit 4 with respect to the mother’s hospitalisation in late 2020 records that the mother acknowledges that she was previously admitted for a mental illness in 2013 and that she feels targeted by her family and others due to that experience, and was not sure what medication she had been prescribed as she pretended to take it.
A further progress note recorded that the mother had recently been admitted due to a deterioration in her mental health in the past six weeks in the context of relationship stressors and was taking psychotropic medications. She was taking her medications as she was on a Community Treatment Order due to expire in mid-2021, but disagreed with a diagnosis of a mental illness or the need for any psychotropic medications. She said she is compliant with the T Support Program but does not agree with it.
There is an entry in early 2021 which records a discussion with the mother where she said she was not happy with being on medication and only took her daily medication approximately once a fortnight. The mother was irritated by the services involvement and did not see the need for any compulsory treatment as a result of her non-compliance with medication.
It was extremely difficult for the mother being cross-examined about such records as on the one hand reading about non-compliance with medication raises concern. However, as the mother points out, she is also entitled to raise concerns about the appropriateness of particular medications, side-effects and to query her mental health treatment. One can see that the dilemma, particularly referring to somebody being held as an inpatient against their wishes that raising these concerns may be seen as evidence of a lack of insight. It is clear from the records that she took issue with the medication that she was being prescribed and the diagnosis. The mother appropriately exercised her rights to challenge the community treatment order and as a result, a review by another psychiatrist was carried out who confirmed the appropriateness of that order. The fact the mother raised these concerns is not the problem. The inconsistency in taking medication is a concern in that many medications are only effective when taken as instructed. What is also of concern are the reactions to the mother’s superficial and inconsistent engagement with services.
The mother had a review with a psychiatrist in early 2021 where she was reluctant to discuss her psychiatric history or compliance with medications and wanted to know how to revoke the order. The mother was evasive about her compliance, diagnosis and psychiatric history, saying that she knew what was best for her. Due to the mother’s non-compliance with medications, the medical practitioners were considering requiring her to have injections.
The ICL’s Counsel put to the mother that her mental health has been a key issue in this case. The mother agreed that it was but only according to the father. That is not fair nor is it accurate. The mother’s mental health is a key issue in this case because of the risk issues arising from the mother’s erratic and at times uncontained behaviour and impulsivity. The mother’s refusal to be forthcoming about her mental health and her concerning behaviours during the proceedings has made her mental health more of a focus. It is entirely appropriate in the circumstances and is not as a result of either the father, the ICL, or the Court weaponising her mental health against her. The mother’s mental health problems negatively impact her parenting capacity.
Again, a particular diagnosis is not the issue. It is the behaviour that presents the risk. One positive development is the fact that the mother feels well supported by her current medical treaters and feels heard. This is a protective factor.
Incident in mid-2021
In mid-2021, the mother sent the father a text message saying that the father could have full responsibility for the children immediately, and that she was withdrawing from the family law proceedings. The mother was due to collect the children from school and day care that day but did not do so. The mother told Y’s day care that she was handing over responsibility to the father. However, because of the interim family law orders and intervention orders this meant they could not release the children into the father’s care, but the mother was also refusing to collect Y. The father was able to arrange for one of the mother’s sisters to collect Y as she was noted as a contact on the day care forms.
The mother could not recall contacting Y’s day care and telling them that the father would have full responsibility for the children. The father’s Counsel put to the mother that on her case, she was putting the children in the abuser’s full-time care. The mother said it was tiring being abused and she could see that she was continuing to be abused and it is traumatising and asked what else she could do.
The mother turned up to X’s sports game the next day and went over to speak to Y. The father says that Y said to the mother, “you do not care about us”. He says he does not know why Y said this, but the mother walked away after she said this and then came over a short time later and grabbed Y and tried to walk away with her. The father grabbed Y back and called the police after the mother continued to follow him and refused to leave. The mother sent a further text later that day, telling him to ignore her previous text as given Y’s comment it was clearly not in the children’s best interests for her to give him full responsibility for the children and that she would collect the children as usual the following day.
For the first time in cross examination, the mother claims that Y said that "daddy said you do not care about me and big brother". The mother says hearing this made her realise that she had made a mistake the previous day. The mother denies trying to grab Y and says that she was playing with Y and the father grabbed her around her arms. The mother claimed that the police told her to stay away from the paternal grandmother and father and that they were nasty people and to protect herself. The mother texted the father later that day telling him to disregard the text from the day before, saying it was not in the children’s interests for him to have them full time and that she would be there to collect the children. It is a significant omission not to refer to Y allegedly saying that her father told her that. I find it is more likely that Y made the comment about the mother not caring about them and she has assumed that the father told her that. This could have been Y’s perception.
The mother’s self-harm attempt
In late 2022, the mother attempted self-harm after the interim hearing following orders made in these proceedings for the children to live with the father. The mother was referred to the Suburb C Hospital team, which provides clinical interventions for psychiatry, psychology, and therapy. The mother referred to them giving her a personalised after-care plan. The mother did not disclose this self-harm attempt for several months. Whilst it is understandable from the mother’s perspective, particularly with her feelings that her medical information has been misused and misunderstood and that her time with the children therefore has been limited, it is relevant to the issue of risk. It is important to note that there were orders in place requiring the mother to provide information about her mental health and her treaters. The mother has been resistant to providing that information.
It is a delicate balance as medical records are highly sensitive and personal. Solicitors are not doctors and medical records and in particular therapeutic records can be open to misinterpretation, but these orders were made because the issue of the mother’s mental health and any resulting risk continues to be a central issue in this case. As noted earlier in these reasons, many people experience mental health challenges and the fact that a parent is experiencing or has recently experienced these challenges is not a disqualifying factor in itself.
Dr E’s psychiatric assessment of the mother

Ms G completed the family reports dated 31 January 2023 and 17 May 2023.
First Report – 31 January 2023
At the time of the first family report dated 31 January 2023, the records of the supervised visits at the contact centre were not available. One of the issues Ms G identified in her first report was whether or not the mother had received appropriate mental health care, and whether her parenting capacity was negatively impacted by her current mental health. She also noted that there were questions as to whether either parent continued to use illicit substances or alcohol and the impact of those substances on their parenting capacity.
The mother reported that there had been family violence by her father towards the maternal grandmother. Ms G observed that the family violence expressed in her childhood likely negatively impacted on her and whether or not it impacts on her parenting capacity may be related to her history of illicit substance use and her mental health history or the intersections of these. The mother gave mixed reports about her relationship with her family.
When X was interviewed he spoke positively about both parents and could not think of anything that he thought they needed to change about themselves. He thought his father would be upset if he and Y lived with the mother. X said he did not know how he would feel if he lived with his mother. He was not sure how Y would feel. He thought living with his father and seeing his mother on alternate weekends would be good. Ms G did not interview Y as she assessed that Y did not have sufficient developmental maturity to understand the family report interview process.
During the observation of the father with the children, Ms G noted that he had an invitational parenting style that was flexible when required and appeared to have a gentle, warm and affectionate relationship with the children. She also observed a warm and affectionate relationship between the mother and the children.
Ms G suggested that X’s initial hesitancy to see his mother and his regression, using a baby voice towards the end of the visit could reflect the reality of the children struggling with having very limited time with the parent that they formerly lived with and relied on for the safety and security needs and being suddenly removed from the home, interstate away from significant adults.
Ms G noted that if the mother’s narrative about her relationship with the father was accepted, it could be that:
Any level of family violence driven expressions of anger or frustration from him may have been a trigger to [Ms Myles] given her childhood history. The diagnosis by [Dr E] of [Ms Myles] having [a mental illness] would complicate her dynamic with [Mr Grossmann].
She expressed concern about the father expressing self-harm because of the grief of a relationship and that the father avoided seeking any professional assistance and that he may avoid seeking such assistance for the children but that the children would benefit from appropriate counselling support given the changes they have experienced.
With respect to the mother, at paragraphs 116 and 117, Ms G said:
[Ms Myles] has reported that she attends ongoing psychological support. Her diagnosis by [Dr E] would likely require ongoing treatment over a significant period of time for her to be able to learn how to deal with triggers and emotional distress without self- medicating with [illicit substances]. It is unknown whether [Ms Myles] is currently prescribed medication, but she was reported during her hospitalisation to be strongly against medication and to prefer lifestyle methods to manage her mental health. There were also indicators that [Ms Myles] became less open about her mental health while hospitalised and there are concerns, she may not be particularly open in a legal setting if she thought it would negatively impact the possibilities of the children being with her unsupervised.
The Impact on the children If they lived with [Ms Myles] and If she were to continue to self- medicate with [illicit substances] and consequently suffer psychoses would be of them periodically needing to be placed in the care of either [Mr Grossmann] or the extended maternal family while [Ms Myles] is treated. It is not unknown for children to live with a parent who has recurring psychoses, but the experience for the children can be very unsettling and destabilising at the least and there can be more serious psychological impacts such as affective disorders if the children are exposed to the psychoses for any length of time.
Ms G observed that the children have a warm and affectionate relationship with their mother, which is a protective factor for them. The mother’s actions in relocating interstate with the children whilst proceedings were on foot appears to be an impulsive act, possibly, whilst she was mentally unwell.
Ms G thought that it was possible that X was confused about his mother’s behaviours that whilst he loves her he has strong feelings about what has occurred over the past couple of years.
The mother denied instigating family violence and denied being violent towards the previous ICL.
With respect to her self-harm incident in 2022, she said she felt defeated and distressed after the Court hearing and the children not being able to spend more time with her and that her despair was related to the father’s family violence and use of the Court system to obstruct her relationship with the children rather than any psychiatric condition.
Ms G spoke to the mother’s psychologist who said that their primary focus was on the impact of the violence by the father on her and her distress about only seeing the children a few hours a fortnight.
Ms G also spoke to the hospital psychiatrist who had not seen the mother since 2021. The psychiatrist noted that in 2022, the mother had been assessed as not meeting the criteria for admission by her team and given this, the mother would need to seek a referral to a private psychiatrist where she would have to pay significant gap fees which is often not feasible for patients.
The mother’s focus at the interview was primarily with respect to the emotional abuse, her mental health and the father weaponising the children. The father minimised any responsibility and denied instigating family violence and instead chose to focus on the mother’s mental health. He presented information about the mother that she became violent and verbally abusive inexplicably unprovoked due to her mental health.
Second Report – 17 May 2023
In her second report, Ms G expressed concerns that the father did not appear committed to facilitating the children having a meaningful and restorative relationship with the mother. This observation is somewhat significant given the history of the matter. It is also clear that the report writer placed a lot of emphasis on the material in the mother’s affidavit filed 28 February 2023 which is not in evidence before the court and her conversations with the psychologist and psychiatrist, where she is emphasising the difficulty in accessing mental health supports as a public patient. This is new information that had not previously been available due to the mother’s reluctance to disclose information about her mental health. The report writer accepted the mother’s narrative after speaking to the psychologist and psychiatrist and accepted that the mother had attempted to obtain suitable supports but that was not financially affordable for her and that it was not about avoidance by the mother but initial affordability and access. She also noted that in contrast to the father’s beliefs, she had not been diagnosed with a serious mental health disorder but with anxiety related to family violence. Again, this is not an accurate summary of the evidence which I have discussed.
The mother’s previous reported experiences of family violence as a child would have caused her trauma and anxiety and made her vulnerable to future experiences of trauma. The mother told the report writer that she believes the father had misrepresented her to the Court and was engaging in systems abuse, preventing her from being able to spend sufficient time with the children and maintaining a relationship with them and that she believes the children would be expressing a high level of distress at having been separated from her so suddenly. What is absent from that narrative is any recognition by the mother of her own actions in causing that situation.
Ms G said that whether the mother’s suicide attempt is seen as an act of violence or an act of hopelessness turns on whether she is characterised as having experienced systematic violence. The father’s allegations appeared focused on identifying the mother having mental health condition that caused her to be violent. Ms G made the following observations about family violence at paragraph 85:
Violence is a parenting choice, when it is systematic, for the purpose of control such as in family violence. Sometimes there is retaliatory violence from the person who has been the subject of the ongoing systematic family violence, but that is usually in defence or out of complete loss of coping reserves, rather than being an instigation and is not motivated to systematically control other people. A violent act is often misidentified by professionals to mean that the person is the instigator of violence rather than the victim within the overall context. [Ms Myles]’ description of her distress was indicative of a build-up of the effects of perceived abuse and gaslighting to which she may have sometimes strongly retaliated.
Ms G thought that the father did not recognise his behaviours when ending the relationship as being controlling or a form of family violence but minimised them due to being inexperienced with relationships and that whilst his verbal abuse appeared to be the less serious end of family violence behaviours, it could have been triggering behaviours to the mother given her lived experience of family violence during childhood. The evidence does not support the father subjecting the mother to a continuation of gaslighting behaviour or systemic abuse. The mother’s actions cannot be explained as simply the mother retaliating.
This however does not explain the children’s presentation of appearing prepared for the interview and making comments that appeared incongruent with how they interacted with the mother.
Y spoke about her understanding of what the interview is about and if she would see her mother and immediately volunteered that the mother pulled her hair which Ms G noted she had also said to the contact worker at the commencement of professionally supervised time. Ms G had the impression that Y was struggling to remember what she was supposed to say and that she was happy and would be happy if her time with the mother was professionally supervised, which are words that were unlikely to be Y’s own given her age and stage of development and that her wishes were incongruent with her presentation in the previous observation and also the professionally supervised visits. She assumed that the father influenced her but it is clear from the child impact report that X had been telling Y what to say. It is not uncommon to see this dynamic in sibling relationships particularly where they have experienced such high conflict and turmoil.
Ms G observed that both children had clear strong connections with the father and expressed concern that X appeared unable to express his genuine feelings because of his awareness of his father’s abuse. Ms G attributes responsibility for the children being influenced by the father but in doing so she ignores the children’s lived experiences of the mother’s unstable mental health and sudden move to Queensland. At paragraph 91 of the family report, Ms G gives a false impression of the mother’s presentation of supervised visits and her inappropriate discussions with the children as shown in the supervised visit reports for the visits on 4 February 2023, 18 February 2023 and 4 March 2023.Notably, during the visit on 4 March 2023 X asked the mother to stop asking all these questions.
Ms G was also told that the mother stands by the allegation of sexual abuse perpetrated by the father notwithstanding the police investigation, the lack of disclosures and the nature of the allegation itself being somewhat improbable.
Ms G accepted that in the context of all of this and the father’s knowledge of the mother’s psychiatric admissions to hospitals it was reasonable for him to be concerned about her mental health and that he has raised it properly as an issue and has not weaponised it as the mother perceives.
The mother’s Counsel asked Ms G whether that by virtue of the mother’s presentation during cross-examination, her difficulties with managing cross-examination due to trauma and being triggered with flashbacks, whether that affects her parenting capacity. She said trauma is complex and if the mother at times behaves in an erratic and at times aggressive manner and not coping, then yes, that impact on her parenting capacity negatively and as I want to make clear the fact that the mother found cross-examination difficult and required breaks and at times broke down, is not of concern to me. It is the substance of her evidence and her lack of insight that causes me concern.
Ms G made several concessions under cross-examination when the evidence in the case was put to her. Her second report was also qualified at paragraph 97, where she referred to if the mother was to be found to be the instigator of family violence or had made fabrications against the father, then alternate recommendations would need to be considered. She said in cross-examination that it would be more along the lines of the father’s proposal but that she thought it was important for the children to spend regular time with their mother, which is for the mother to spend six hours a week with the children supervised by the maternal grandmother.
Ms G had referred to concerns in her second report that the children had been coached by the father to have a fear of the mother and was concerned that the father was not supportive of the mother’s relationship with the children and would seek to minimise it. Neither of these concerns are supported by the evidence. Rather the children have their own lived experiences of the mother’s unpredictability, withholding the children from the father, poor emotional regulation, inappropriate questioning of the children and causing the children to be interviewed by multiple authorities. The father’s concerns about the mother having unsupervised time and his being at a loss to suggest how the mother’s time can progress unsupervised is well founded and appropriate. This is clear when one considers the expert material evidence, supervised visit and the mother’s own evidence about her attitudes and beliefs.
I do not agree with Ms G’s assessment that the children have been inappropriately influenced by the father and her explanation for forming that view was not convincing. She appears to have assumed that it is the father placing pressure on the children and not accounting for the children’s lived experiences and the stress and uncertainty the children have experienced as well as the pressure at the supervised visits with the mother questioning them.
INJUNCTIONS SOUGHT BY THE ICL AND THE FATHER
The final orders sought by the ICL include an order requiring the mother to continue to attend upon her psychologist. This is a free standing order and is not conditional, providing for a pathway for the mother’s time to become unsupervised and is the type of order that the Full Court in Oberlin & Infeld [2021] FamCAFC 66 warned against. The father’s final orders sought seek the mother’s time be conditional upon her remaining engaged with her treating psychologist and psychiatrist and following their recommendations. There would be some attraction to this type of order if the mother’s time with the children was proposed to be other than supervised.
The ICL also seeks several injunctions including restraining the mother from attending the children's extra-curricular activities including the Suburb C Sports training and that the mother not take illicit substances prior to spending time with children.
Taking illicit substances at any time is illegal and although such an order is common it is ineffective. Both parties make allegations against the other with respect to illicit substances however the evidence does not establish that this is an ongoing issue for either party. I decline to make an injunction with respect to illicit substances.
The issue of the mother being restrained from attending the children’s school and extra-curricular activities was canvased at trial.
The ICL and the father also seek an order be made pursuant to s. 68Q. I directed my Chambers to write to the parties on 9 November 2023 to receive a copy of the most recent FVIO. The Independent Children’s Lawyer provided the final FVIO made in late 2023 to Chambers on 13 November 2023. I have marked this as Exhibit 9.
Paragraph 5 of the family violence order is stated in the following terms:
[The court orders that the respondent must not] Go to or remain within 200 metres of [D STREET, SUBURB C], VIC or any other place where a protected person lives, works or attends school/childcare.
This restrains the mother from attending the children’s school but does not restrain her from attending extra-curricular activities. The mother did not attend the Court hearing. The family violence order expires in late 2024.
Earlier in these reasons I referred to the incidents at sports training and the day care and fallout from those events. The father was asked about his views about the mother attending school events and extracurricular activities. The father stated that that extracurricular activities are the children’s favourite things to do and that he did not want to put them in jeopardy and cited the events that occurred in mid-2021 as an example. Although I have some concerns about the mother attending the children’s school given the incidents that have occurred there, I am mindful that it is an order that the father and the ICL seek. I will give her an opportunity to be involved in their school. Both parents can show the children they can be in the same place without incident.
The orders I have made allows for the mother to attend school events and functions that parents are ordinarily invited to attend, such as sports days, parent-teacher interviews, concerts and the like. The restraint on the mother attending extracurricular events and sports training remains in place. I am satisfied that this is necessary to protect the children given the incidents which occurred at sports and the mother’s unwillingness or inability to take any responsibility for her part. It is an important outlet for the children but also an opportunity for the children to interact with other extended family members. These orders are inconsistent with paragraph 5 of the family violence orders made in late 2023.
CONCLUSION
This has been a distressing and difficult case particularly for the mother but also the father and the children. Although the mother genuinely feels that these proceedings have been brought with malice and her mental health has been weaponised against her, this is not true.
It is apparent to me that both parents have minimised their own roles and responsibilities for their actions preferring to present this situation as being outside of their control due to the unpredictability of the other party.
The mother acknowledges her mental health vulnerabilities and has taken positive steps to address it. There is also no doubt that her mental health difficulties have been worsened by the stress of the proceedings and by previously being the children’s primary carer to having limited supervised time with them. I must make orders which ameliorate risk to the children and which are proportionate to that risk.

The mother’s Counsel’s submissions place much emphasis on the recommendations of Ms G and the mother’s recent engagement with mental health providers and the conversations the report writer had with those treaters. The submissions are silent about the allegations of sexual abuse and the allegations that the mother was violent and the mother’s allegations of sexual harassment and other concerning behaviour.
The mother includes in her orders sought that the parents receive counselling and/or mental health support and that the children be permitted to receive counselling or support. These orders are so vague they are meaningless.
The submissions on behalf of the mother do not engage with the evidence. The written submissions made at paragraphs 6 and 7 with respect to equal shared parental responsibility do not reflect the evidence at all. This is not a case of both parents having fixed views in the context of “messy parenting” proceedings. It completely ignores the allegations the mother has made about family violence and sexual abuse and the mother’s behaviour. Furthermore, the submissions refer to the father engaging in family violence and being punished by the criminal Courts but ignores the fact that the mother has also committed family violence, has been punished by the criminal Courts and is facing further charges. I accept the ICL’s submissions that both parents have engaged in family violence.
I reject the submissions of the mother’s Counsel that giving the father sole parental responsibility will enable him to continue to exert control and family violence against the mother.
Furthermore, I am not satisfied that the father will cut the mother out of the children’s lives if he is given sole parental responsibility, and as I noted earlier, it was the father who made the interim application for the mother to have professionally supervised time with the children after they had reached an impasse, resulting in the mother not seeing the children for a few months. His concerns about the mother spending unsupervised time with the children has been justified.
I am unable to accept the mother’s submissions about her mental health. The current diagnosis for the mother is unclear. Dr U’s assessment is not reliable as he had incomplete and inaccurate information. The cross-examination about the historical treatment of the mother’s mental health was necessary because of the mother’s failure to provide information about her mental health. Whilst it is positive that the mother has recently re-engaged in mental health supports including a psychiatrist and re-engaging with a psychologist, I am not able to find that the mother is having appropriate treatment to ameliorate the risks as it is clear that her psychiatrist has made his diagnosis on incomplete and inaccurate information. The mother’s engagement with these supports is positive but also very recent. The mother has three more sessions with her psychologist before the psychologist is going on maternity leave. There is no evidence as to what kind of treatment she is engaged in with her psychologist and what information has been made available to the psychologist.
The mother’s Counsel submits that much of the cross-examination of the mother about her historical mental health records is irrelevant and seeks to understandably emphasise the positive recent engagement by the mother with her supports.
The mother’s submissions are silent about several of the concerning instances of uncontained behaviours of the mother and impulsivity that both the ICL and the father identify regarding whether the mother’s behaviours are due to her mental health or some other factor the risk to the children is the same. Of most significance is that the mother showed no insight into her concerning behaviours. Whilst the mother has shown some recognition of her mental health vulnerabilities, she attributes much of that to being subjected to sustained violence and abuse by the father which has not been established on the evidence.
The mother’s Counsel places much emphasis on Ms G’s opinions in her second report but ignores the significant concessions Ms G made when informed of the evidence at trial. The mother’s submissions ignore the fact that her recommendations for a week about arrangement was based on a series of assumptions and information that has not been proven correct. Ms G made it clear in cross-examination that the proposals by the ICL and the father were appropriate in light of the evidence before the Court.
At times the mother’s answers in cross-examination did not make sense and it is difficult to reconcile aspects of the mother’s evidence. The mother was very keen to justify her actions and would just repeat statements about being abused with respect to aspects of her evidence. There is a rigidity in the mother’s responses and an inability to consider that there could be other explanations. Particularly with respect to the sexual abuse allegations where she simply repeated that she believes her children and that they would not lie. Whilst it is not suggested that the children are lying, the mother gives no evidence as to what they actually said and it could be that she has taken it out of context or misinterpreted what was said. It is clear that the mother does not take any reassurance from the fact that the police investigated and that the children did not make any disclosures.
Similarly with respect to the bruising she saw on X shortly before Christmas, it is concerning that the mother’s first response was to contact the police and to have X interviewed rather than asking X what happened or seeking medical attention. I do not accept that the mother could not take X to a doctor because he was in the father’s care as she was able to take him to see the police. What is concerning about that type of conduct is what kind of message it gives to the children, which may be entirely unintentional, but could result in the children feeling that they are in trouble and hence have to talk to police.
For the most part, the mother was unable to articulate the violence and abuse she says she and the children were subjected to by the father. Rather throughout her evidence, she repeated the mantras of having a trauma response and taking actions that any protective parent would. A common response to trauma is to attempt to block it out to avoid being re-triggered. This is an element of what is happening for the mother but I also find that the mother has become fixated on the father and paternal grandmother being abusive and ignores how her childhood trauma has impacted her. The mother confirmed that she experienced family violence as a child and understandably, she does not want her children to have the same traumatic experiences that she has had. She agreed with the proposition that her experiences makes her very sensitive to these issues.
It is clear that the mother feels that she has failed to protect the children in the past and is determined not to let the children down again. Her views of the father being abusive and violent have not changed. What the mother has experienced is that when she has raised allegations, her time with the children has been restricted. My impression is that she seeks an equal shared arrangement because she thinks that is what is achievable, not what is in the children’s best interests.
I accept that the mother feels that her mental health has been weaponised but the mother’s view of this is unreasonable given her conduct, aspects of her evidence and responses. The troubling aspects of the mother’s evidence is her fixed narrative that the children are at risk in the father’s care. which raises the concern that the mother might take unilateral actions as she has previously. The mother says she has broken the cycle by getting help but it is not clear to me that is the case given her fixation on a particular narrative.
There are multiple decisions of the mother that causes concern about her decision-making and insight and the impact on the children. What is more concerning is that the mother maintains the validity of her position. She has a fixed view that her perception is truth and any other version is not. Some examples include:
(a)Her beliefs that the father sexually abused Y in the presence of X;
(b)Her belief that she wholly believes what the children say however when Y raised the fact the mother has pulled her ears she denies it;
(c)Her mental health has been weaponised against her;
(d)Her taking the children to Queensland in breach of orders;
(e)Her turning up at Y’s day care in breach of orders;
(f)Her belief that inappropriate comments have been made to her by judicial officers;
(g)Attending her sister’s home to confront her without waiting for her mother;
(h)Her belief that the father caused the bruises on X’s back; and
(i)The public posts and demands for public apologies.
It is also concerning that the father refers to the mother alleging to have photographs and reports of further bruising to the children which she has never produced. I infer this because they do not exist. It is also apparent from her evidence that she is unable or unwilling to accept perspectives that do not accord with her own.
When the mother was given opportunities to reflect on her behaviour, the mother became defensive and said that she knows herself and her children better than anybody else. This raises real concerns that the mother will engage in that kind of conduct again and expose the children to emotional harm with her impulsive decision making and may continue to make allegations that the father and maternal grandmother abuse the children. It appears too that the mother is unable to consider what impact particularly her social media posting and actions at the day care and sports game might have had on the children considering they occurred in front of the children and parents that the children knew. Again, it is concerning that the mother lacked any insight about this and all she could say was that she would not do it again because it was not worth it. She continues to see the past events and her current circumstances in black and white terms.
Whatever the details are, it is concerning that that the mother has also had confrontations with the former ICL and with her sister. The mother was unable to reflect on her own conduct and her contribution to the conflict in those very different scenarios which means there is a real risk of her being in that situation again, including in front of the children.
I certainly accept that the children have a strong connection with the mother and it is not a question of the children needing to be reintroduced to the mother. However, the risks are such that, in my view, substantial attendance will not sufficiently ameliorate the risk as it was clear that the mother maintains her views that the children have been sexually abused by the father, that she and the children have been subjected to severe ongoing family violence by the father, and that the mother does not take responsibility for any of her actions in the conflict and any of her poor decisions. Based on the state of the evidence as it is currently, unless the mother’s time is fully supervised, the children are at risk of being exposed to further ongoing emotional and psychological harm by the mother being unable to separate her needs from the children’s, and her emotional distress as well as involving the children in adult issues and placing pressure on them by inappropriate questioning which is evident in the recent supervised reports. In particular, substantial attendance would not protect the children from the mother inappropriately questioning them and exposing the children to adult issues.
It is not established on the evidence that the children are at risk of physical, emotional, or psychological harm in the father’s care. It is established on the evidence that the children are at risk of harm of emotional and psychological abuse in the mother’s care. It is not intentional by the mother and I have no doubt that she will find it extremely confronting and difficult to hear that view, but there are many instances established on the evidence which have led me to reach the conclusion that the risk to the children cannot be ameliorated by the maternal grandmother being in substantial attendance and requires the maternal grandmother to fully supervise the mother’s time to prevent the children being put under inappropriate pressure by the mother and subjected to adult conversations and issues. It is also necessary for the mother’s time to be supervised so that there is a consistent and calming presence particularly if the mother becomes too overwhelmed or distraught, as that can be frightening for children as they rely on their parents for their physical, emotional and psychological and intellectual needs.
Whilst I am satisfied that some family violence by the father to the mother occurred including making threats to kill, it is not as extensive as she alleges. It is clear that the mother’s exposure to her father’s family violence as a child has caused her significant trauma. I am also satisfied on the evidence that there have been violent and confrontational incidences which based on the evidence before me cannot be explained as being a victim of family violence reacting and pushing back to protect herself. It is concerning that there have been incidents where the mother has been confrontational and uncontained in a variety of situations including recently with one of her sisters. It is also concerning that the mother has been unable to restrain herself in front of the children and has not been able to acknowledge the impact on the children. It is also troubling that the mother maintains her beliefs and her actions which are not limited to targeting the father but judicial officers and demands for public apologies from victim support services are justified. The only regrets the mother expressed was for the consequences to herself in her time with the children being restricted. I am cognisant of the Full Court’s discussion of the nature of and assessment of risk in Isles & Nelissen. Given the strength of the mother’s fixed beliefs, her lack of insight and impulsivity in order to protect the children the mother’s time must be supervised.
I am satisfied that the father can provide for the children’s physical, emotional and psychological needs. Unfortunately, I am not satisfied that the mother is able to provide for the children’s physical, emotional and psychological needs because of her fixed and false beliefs and lack of insight.
I am not satisfied that the children are at risk from either parent due to excessive alcohol or drug use. There is no evidence that either parent is currently using drugs or has in recent times.
The orders I am making for the mother’s time are limited being three hour visits once a week. I have considered whether the Saturday time should be increased but I am mindful of the requirements for supervision and the fact that only the maternal grandmother is suitable unless the father agrees in writing to an alternate supervisor who understands the obligations and nature of the visits. The orders also provide for the parties to be able to agree to variations to the arrangements in writing.
Given the mother’s lack of insight and fixed views, I find that in order to protect the children from emotional and psychological harm when in the mother’s care her time must be supervised. Substantial attendance would not sufficiently ameliorate the risk of harm as the other has not demonstrated any insight in the harm to the children and also has continued to make impulsive decisions. I am satisfied that the maternal grandmother is well-equipped to supervise the mother’s time. The supervised will be more positive and meaningful than professionally supervised time. The proceedings being at an end will also remove an additional layer of stress for everyone. If these visits are positive and there are no incidents between the parties, hopefully some of the distrust between the parents and extended family can be repaired. The children also need a period of stability and predictability. As hard as this decision will be for the mother circumstances can and do change. Fortunately, mother has found supports and has engaged with them.

I certify that the preceding two hundred and fifty-two (252) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Associate:
Dated: 22 November 2023

File number(s):	MLC 1762 of 2021
Judgment of:	JUDGE HARLAND
Date of judgment:	22 November 2023
Catchwords:	FAMILY LAW – parenting – allegations of family violence – allegations of sexual abuse of the children – mother’s mental health – mother’s time to be supervised or in substantial attendance – whether the parties should exercise equal shared-parental responsibility – mother’s lack of insight into the children’s needs – mother’s non-compliance with orders – importance of children maintaining their Country B culture
Legislation:	Family Law Act 1975 (Cth) ss.60B(1), 60B(2), 60CA, 60CC, (60)CC(2), 60CC(3), 64, 65D
Cases cited:	Isles & Nelissen [2022] FedCFam1A 97 Oberlin & Infeld [2021] FamCAFC 66
Division:	Division 2 Family Law
Number of paragraphs:	252
Date of last submission/s:	4 September 2023
Date of hearing:	3, 4, 11 August 2023
Place:	Melbourne
Counsel for the Applicant:	Mr Ambrose
Solicitor for the Applicant:	Trapski Family Law
Counsel for the Respondent:	Mr Radich
Solicitor for the Respondent	Marcou and Associates Pty Ltd
Counsel for the Independent Children's Lawyer:	Mr Eley
Solicitor for the Independent Children's Lawyer:	Bowlen Dunstan and Associates

MLC 1762 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR GROSSMANN Applicant
AND:	MS MYLES Respondent

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	22 NOVEMBER 2023