Haering & Willis
[2023] FedCFamC1F 672
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Haering & Willis [2023] FedCFamC1F 672
File number(s): BRC12158 of 2020 Judgment of: JARRETT J Date of judgment: 18 August 2023 Catchwords: FAMILY LAW - PARENTING - Where first respondent mother will not support a relationship between child and second respondent father - Where the mother has a history of non-compliance with orders for child to spend time with the father - Where the mother has been primary carer for child - Where there will be short-term harms to child if change of residence ordered - Where child will benefit from a meaningful relationship with the father - Where long-term benefits of meaningful relationship outweigh short-term harms - Change of residence ordered Legislation: Family Law Act 1975 (Cth) ss 11F, 61C, 61DA(1), 61DA(2), 62G Cases cited: Bottoms v Rogers (2006) 27 QLR 43 Division: Division 1 First Instance Number of paragraphs: 153 Date of hearing: 26 & 27 July 2023 Place: Brisbane Counsel for the Applicant: Mr Hartwell Solicitors for the Applicant Lander Solicitors QLD Counsel for the First Respondent: Mr Thwaites Solicitors for the First Respondent: Sterling Law (QLD) Counsel for the Second Respondent: Ms Earl Solicitors for the Second Respondent: VM Family Law Counsel for the Independent Children’s Lawyer: Ms Bertone Solicitors for the Independent Children’s Lawyer: ELR Law ORDERS
BRC12158 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HAERING
Applicant
AND: MS WILLIS
First Respondent
MR HAERING
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
18 AUGUST 2023
THE COURT ORDERS THAT:
1.All previous parenting orders in respect of X born 2016 are discharged.
2.The second respondent have sole parental responsibility for decisions concerning the major long-term issues for X.
3.X live with the second respondent.
4.Should the first respondent return to live within a 50 kilometre driving distance of the City B Central Business District, X shall spend time and communicate with the first respondent as agreed between the first respondent and second respondent and failing agreement as follows:
(a)during the school term, each alternate weekend from 3:00pm or after school Friday until 9:00am or the commencement of school Monday;
(b)commencing with X’s first term school holidays in 2024, for half of all X’s school holidays, being the first half in even-numbered years and the second half in odd-numbered years;
(c)from 5:00pm Christmas Eve until 2:00pm Christmas Day in odd-numbered years and from 2:00pm Christmas Day until 5:00pm Boxing Day in even‑numbered years;
(d)on X’s birthday, if X is otherwise not spending time with the first respondent pursuant to these orders:
(i)from 9:00am until 1:00pm if X’s birthday falls on a weekend; or
(ii)from 3:00pm or after school until 6:00pm if X’s birthday falls on a school day;
(e)on Mother’s Day, if X is otherwise not spending time with the first respondent pursuant to these orders, from 9:00am until 6:00pm; and
(f)by telephone or digital communication, each Wednesday between 6:00pm and 7:00pm, with the first respondent to initiate the call to a mobile telephone number and/or internet address which the second respondent shall provide to her within 48 hours of the date of these orders and with the second respondent to make X available to receive each call.
5.Should the first respondent not return to live within a 50 kilometre driving distance of the City B Central Business District, X shall spend time and communicate with the first respondent as agreed between the first respondent and second respondent and failing agreement as follows:
(a)during the school term, on the first weekend of each month from 3:00pm or after school Friday until 9:00am or the commencement of school Monday;
(b)commencing with X’s first term school holidays in 2024, for half of all X’s school holidays, being the first half in even-numbered years and the second half in odd‑numbered years;
(c)from 5:00pm Christmas Eve until 2:00pm Boxing Day in odd-numbered years;
(d)by telephone or digital communication on X’s birthday between 6:00pm and 7:00pm, with the first respondent to initiate the call to a mobile telephone number and/or internet address which the second respondent shall provide to her within 48 hours of the date of these orders and with the second respondent to make X available to receive the call;
(e)from 3:00pm or the conclusion of school on the Friday immediately prior to Mother’s Day until 9:00am or the commencement of school on the Monday immediately following Mother’s Day; and
(f)by telephone or digital communication, each Wednesday between 6:00pm and 7:00pm, with the first respondent to initiate the call to a mobile telephone number and/or internet address which the second respondent shall provide to her within 48 hours of the date of these orders and with the second respondent to make X available to receive each call.
6.Changeovers shall occur:
(a)if pick-up and drop-off times coincide with the commencement or conclusion of X’s school day, then at X’s school; otherwise
(b)at McDonald's Town C, Queensland.
7.Notwithstanding any other paragraph of these orders, X spend time with the second respondent:
(a)for half of all X’s school holidays, being the first half in odd-numbered years and the second half in even-numbered years;
(b)if the first respondent returns to live within a 50 kilometre driving distance of the City B Central Business District, from 5:00pm Christmas Eve until 2:00pm Christmas Day in even-numbered years and from 2:00pm Christmas Day until 5:00pm Boxing Day in odd-numbered years;
(c)if the first respondent does not return to live within a 50 kilometre driving distance of the City B Central Business District, from 5:00pm Christmas Eve until 2:00pm Boxing Day in even-numbered years;
(d)on Father’s Day from 9:00am until 6:00pm;
(e)during X’s school holiday time with the first respondent, by telephone or digital communication each Wednesday between 6:00pm and 7:00pm, with the second respondent to initiate the call to a mobile telephone number and/or internet address which the first respondent shall provide to him within 48 hours of the date of these orders and with the first respondent to make X available to receive each call.
8.These orders shall be sufficient authority to X’s treating doctors and schools and the like to the effect that the first respondent or second respondent be able to contact same and be advised of X’s treatment and/or progress and obtain reports, school photographs or newsletters at the requesting party’s expense.
9.The first respondent and second respondent forthwith each advise the other of their residential address, contact telephone number and a user ID to facilitate digital video calls and advise the other of any changes to same within 48 hours of the change.
10.The first respondent and second respondent shall notify each other as soon as practicable in the event that X suffers a serious accident or illness whilst in their respective care.
11.The first respondent and second respondent shall be at liberty to attend any school activities which would ordinarily attract a parent’s participation.
12.No party shall denigrate another party or the other party’s family in the presence or hearing of X and shall remove X from the presence or hearing of any other person who is doing so.
13.No party shall discuss issues of the adult dispute with X.
AND UPON NOTING THAT ON 15 AUGUST, 2023 THE COURT MADE AN ORDER FOR THE CHILD TO BE DELIVERED TO COURT CHILD EXPERT MS D, THE COURT FURTHER ORDERS THAT:
14.Immediately upon the making of these orders, the first respondent shall vacate the Central Business District of City E.
15.Immediately upon the making of these orders, the terms of these orders and the reasons for making them be explained to X by a Court Child Expert of the Federal Circuit and Family Court of Australia (Division 1).
16.Upon the completion of order 15 by a Court Child Expert, X may be removed from the presence of the Court Child Expert only by the second respondent, his servants and/or agents.
THE COURT FURTHER ORDERS THAT:
17.Within 30 days of the making of these orders, the first respondent shall cause to be delivered to the second respondent at his address or such other place as might be nominated by him in writing, all of X’s personal belongings, including her clothing, personal chattels and school items.
18.Otherwise dismiss all outstanding applications and responses not otherwise dealt with by the preceding orders.
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
JARRETT J:
Presently X, 6 years of age, lives with her mother (the first respondent) at an undisclosed location in New South Wales. Despite there being orders in place for X to spend time with her paternal grandmother (the applicant) and her father (the second respondent) there has been no face-to-face time between X and the applicant or the second respondent since 29 October, 2022, and prior to this date no time had occurred with the second respondent since 3 July, 2021.
These proceedings were commenced by the applicant on 4 September, 2020 seeking orders for X to live with the first respondent and to spend time with the applicant every fourth weekend from 11.00am Saturday until 3:00pm Sunday, as well as every Monday by Facetime between 5.00pm and 5.30pm.
In his response filed on 30 October, 2020 the second respondent sought orders for he and the first respondent to have equal shared parental responsibility for decisions for X, for X to live with the first respondent and spend time with him on a basis increasing to week-about by X’s sixth birthday. However, on 12 November, 2020 the second respondent filed an application in a case seeking for X to live with him and for him to have sole parental responsibility for decisions for her, with the first respondent to be restrained from removing X more than 50km from Brisbane.
By her initial response filed on 4 December, 2020 the first respondent sought orders for:
(a)sole parental responsibility for decisions for X;
(b)X to live with her;
(c)X to spend unsupervised time with the applicant on four occasions per year for six hours each; and
(d)X to spend supervised time only with the second respondent for two hours per day on three consecutive days, four times per year.
By her amended response filed on 9 March, 2023 the first respondent changed her position so as to seek orders for sole parental responsibility for decisions for X, for X to live with her and only spend time with the applicant and the second respondent by telephone for 30 minutes each alternate week. This remained her position at the trial before me.
The second respondent amended his response on 23 March, 2023 to seek that he have sole parental responsibility for decisions for X, that she live with him and spend time with the first respondent each alternate weekend and half of her school holidays if the first respondent returns to the City B area, or if she does not, then the first weekend of each month and half school holidays. This was his position at the trial before me.
By the time of the hearing, the applicant was seeking that X spend time with her for one weekend per month, half of X’s school holidays, and by telephone once per week. Her proposal was more fully articulated in a minute of proposed orders handed up to me by her counsel at the commencement of the trial. However, in his final submissions her counsel confirmed that in the event that the court was minded to make the orders sought by the second respondent, her application should be dismissed. That was because it was accepted, as between the applicant and the second respondent, that X would spend time with her according to agreements between her and the second respondent from time to time.
At the commencement of the hearing, the independent children’s lawyer sought orders essentially in line with the first respondent’s proposal. However, by the conclusion of the trial, her position had changed such that, more or less, she supported the orders sought by the second respondent for X to live with him and spend time with her mother depending upon where the first respondent might live from time to time.
THE ISSUES
Having regard to the evidence of the parties, their submissions and the matters raised for consideration by the provisions of Part VII of the Family Law Act 1975 (Cth), the significant issues for determination necessary to inform the orders to be made are as follows:
(a)will X benefit from a meaningful relationship with each of her parents and in particular her father, the second respondent?
(b)is there a need to protect X from harm by reason from being exposed to:
(i)abuse from the second respondent;
(ii)family violence from the second respondent;
(iii)family violence from the first respondent?
(c)what is the nature of X’s relationship with her parents, her paternal grandmother and her half-siblings in her mother’s household?
(d)what is the likely effect of any changes in X’s circumstances, including the likely effect of any separation from the first respondent and her half-siblings?
(e)what is the extent of the second respondent’s capacity to provide for X’s needs including her emotional and intellectual needs?
(f)what is the extent of the first respondent’s capacity to provide for X’s needs and in particular her emotional needs?
(g)has there been any family violence involving X or a member of X’s family that is relevant to these proceedings and if so, what significance are those matters to the outcome of these proceedings?
BACKGROUND AND FINDINGS OF FACT
The applicant is the second respondent’s mother. The first and second respondent’s relationship commenced in 2013. X was born in 2016. There is a dispute about when the parties separated which I have dealt with more fully later in these reasons.
The applicant paternal grandmother lives in Region F, Queensland. She is 72 years of age and is employed in the health sector. She works 3 days per week. Her occupation is not in evidence.
The first respondent is 50 years of age. She was born in New Zealand. She has two other children from a previous relationship. The oldest is G, who is 15 years of age. Her second child is H, who is 14 years of age.
During the parties’ relationship the first respondent did not work outside of the home. She now works as a “sales assistant” although what that means is not described in the evidence. Her working hours are not described in her evidence. She has not re-partnered.
Presently X and H live with her at an undisclosed address in New South Wales. G lived with her until 31 January, 2023 but now lives with his father. In that respect, the first respondent’s trial affidavit says:
17.… [X] has been referred for additional learning and wellbeing support and the school is working with her regarding ‘her sadness over [G] no longer living with us.’ …
18.[X] enjoys playing with her older siblings, [H] and [G] and has a very special relationship with them and they enjoyed playing together daily. As [G] is not living at home currently, [X] is very attached to [H].
The first respondent gives no evidence about the circumstances in which G no longer lives in her household. That was left to cross-examination. It emerged that G had been struggling emotionally or psychologically for some time and that the first respondent had not attended to G’s needs in that respect such that their relationship had deteriorated to the point that G had become physically abusive to the first respondent (he punched her in the face), had been charged with assault and according to the first respondent had not been allowed to return home by “the judge”. It turned out upon further enquiry that the first respondent had organised for G to live with his father in Western Australia because of this fracas. That G might go and live with his father is not particularly remarkable except for the fact that neither H nor G have spent much time with their father since the first respondent had separated from him (which was at least as long ago as 2013). As to that, in her trial affidavit, the first respondent records:
59.At this stage, [which seems to be about December, 2020], [G] and [H] did not spend any time with their father as he had re-partnered and had a young baby and had elected to not see the children. Their father also smoked marijuana, which I have concerns about the children being around.
At her interview with Mr J, a consultant social worker who prepared a report pursuant to s 62G of the Family Law Act 1975 (Cth) in this application, the first respondent mentioned the relationship between H and G and their father. Mr J recorded that the first respondent had said:
44.[G] is in Year 9 and [H] is in Year 8. It was difficult to ascertain the nature of their relationship with their father. They have no contact with him, which is his choice, but ‘he has only just made contact now because he wants [G] and [H] to meet his Dad”.
Given these statements, it is surprising that G would go to live with his father, someone with whom he had no contact and about whom the first respondent harboured “concerns”.
In any event, it is clear from the answers given by the first respondent in cross-examination that she sought to minimise the trouble that G had caused in her household and her inability to effectively deal with G and his needs. Her evidence demonstrated her to be sorely wanting in capacity to recognise and meet G’s needs. Rather, she seemed to be intent upon sheeting home the blame for G’s difficulties to the second respondent.
So too, H. Despite her age, the first respondent’s evidence was that H was not attending school, essentially because she chose not to do so. This is concerning, especially in the absence of any proper evidence about the reasons for H’s refusal to attend school and some objective evidence about what the first respondent was doing to address this issue. Her own evidence in cross‑examination about the “support” she was giving H was unconvincing.
The lacuna surrounding the care of both H and G in the first respondent’s evidence leads me to approach the evidence of the first respondent with a measure of circumspection. These are important matters because they speak to the first respondent’s capacity to meet the emotional and psychological needs of the children in her care. Yet, the first respondent’s evidence barely mentions these issues let alone her response to them.
The second respondent is 53 years of age. He lives at Town C in Region K, Queensland and has re-partnered with Ms L. He has been in relationship with her since approximately 2021. Ms L has two children from a previous relationship, aged 15 and 13, who live with the second respondent and Ms L.
Ms L did not give evidence in these proceedings. The second respondent swore that she did not want to give evidence in the proceedings because she feared that the first respondent “will make claims against her as she has done with me”. However, when asked about his failure to call Ms L to give evidence, the second respondent said that she could be made available “if the court wanted her”. It is not for the court to run the case of any of the parties. The parties are responsible for running their cases and calling the witnesses they wish in support of it. Reluctant witnesses can be the subject of a subpoena if they choose not to provide an affidavit.
At the conclusion of the first day of the hearing, counsel for the second respondent sought leave to call evidence from Ms L. I directed that a draft of her evidence be prepared and circulated to the other parties. I directed that there be submissions about the reception of the evidence from Ms L the next morning. At the commencement of the second day of hearing, counsel for the first respondent confirmed that he had received a draft affidavit of the evidence of Ms L and he objected to its reception. The basis of the objection was that the material was late and that it appeared that a tactical decision had been made to not rely upon the evidence because the draft affidavit had been prepared some time earlier than the day before. Counsel for the second respondent confirmed that to be the case. I concluded that the second respondent having made a tactical decision not to call his now partner, should be held to that decision notwithstanding that it left a lacuna in his case. This too, is a significant matter.
During his relationship with the first respondent, the second respondent worked in the transport industry and typically worked long hours. The first respondent’s evidence suggests that the second respondent was unstable in his employment but I reject her evidence about that and prefer that of the second respondent. He says that he generally worked between 6.00am to 6.00pm, seven days per week. However, by the middle of 2018 his hours reduced such that by December, 2018 he was working as follows:
(a)approximately two days per week he would commence work at 10:00am;
(b)approximately two days per week he would finish work at 2:00pm;
(c)on Saturdays he worked from 6:00am until midday; and
(d)he no longer worked on Sundays.
It is likely to be the case and I accept that the lion’s share of caring for the three children in the parties’ household fell to the first respondent. That is particularly so before the second respondent’s working hours settled into the pattern I have described immediately above. However, I do not accept her evidence that the second respondent’s involvement in X’s care was limited to changing an occasional nappy and playing with X on occasion when he was home. On this point her evidence and prior statements were contradictory. She told Mr J:
She would supervise, as [X] was in nappies and “ he wouldn’t change nappies, he’s not a hands-on father”, and although “it was his child, that was it” and that “he didn’t do anything with her”. If he was in public he might pretend to be the perfect dad, but behind closed doors, he was disinterested.
However, in her trial affidavit she swore:
25.The Respondent Father’s involvement in [X’s] care was limited to changing an occasional nappy and playing with [X] on occasion when he was home.
These statements do not sit together well. The first respondent does not give evidence about how often the second respondent was home and, if I accept her evidence about his work history, it seems that he may have been home more regularly than his evidence might suggest. But as I have said above, I prefer the second respondent’s evidence about his working history and hours.
The second respondent’s case is that on the days he finished work at 2:00pm, or when he was not working on a weekday, he and the first respondent would often collect G and H from school and X from day care. He swears that throughout the parties’ relationship, he involved himself in all three children’s lives as much as possible. He describes what he would do for X following her birth where his work hours permitted. He swears that he cooked meals for the family and when X commenced kindergarten, he took her to and from kindergarten from time to time. There is no dispute that he cared for the children in the absence of the first respondent despite her now expressed concerns about his capacity to do so and their safety in his care. I accept the second respondent’s evidence that G or H would sometimes accompany the second respondent to work. The second respondent describes in his evidence attending sport events to watch G and H compete and looking after X while he was there.
I prefer the evidence of the second respondent to the first respondent about the level of care and involvement that the second respondent had with X, G and H. I am satisfied that the first respondent has minimised the extent of the involvement of the second respondent in the care of the children and in particular X.
There is a dispute about when the relationship ended. The first respondent says that the relationship ended on 18 February, 2019. The second respondent says that it ended in December, 2019. However, not much turns on whether the parents separated in February, 2019 or December, 2019. To the extent that it is thought to be relevant, and whilst each parties’ version about their living arrangements and separation in February, 2019 (temporary only on the second respondent’s version) is confused, I prefer the evidence of the second respondent on this point and I find that the parties’ relationship ended finally in December, 2019.
At the time of separation, the parties were living together in a rented premises at Town M, Queensland. Upon separation the second respondent moved out of the property to another property across the road from that which he formerly occupied with the first respondent. The first respondent remained at the former home with X, G and H.
I accept the second respondent’s evidence that between separation in December, 2019 and the middle of January, 2020 the second respondent spent time with X almost daily for 30 minutes to one hour. That is consistent with what the first respondent reported to Mr J. I accept that the second respondent would go down to the fence line of the first respondent’s property when he would hear the first respondent and the children feeding animals. I accept his evidence that upon the children seeing him, they would come over to the fence line and speak with him. I accept his evidence that X would often run towards him and shout excitedly, saying “Daddy! Daddy!”. I also accept that the first respondent often invited him on to her property and the adults and children would go and sit by the dam.
In early 2020 an incident occurred between the parties. The first respondent says that at around midday, the second respondent came uninvited to her property through a locked gate and threatened to “have the kids taken off me” and accused her of being an “unfit mother”. She says that he left the property after realising that she had a friend at the house who had witnessed his behaviour. Fearful that he would return, she says that she contacted the police and made a statement. Importantly, according to the first respondent’s evidence, the second respondent did not make any threats to physically harm her or the children on that occasion.
Of this incident, the second respondent says that he was at his house and was working with a friend on his motor vehicle. He needed to get some tools and tyres off a different motor vehicle that was being stored in the first respondent’s yard. It is uncontroversial that a motor vehicle that belonged to the second respondent was in the yard of the first respondent’s rented property. It had been there since before the parties separated in late 2019. The motor vehicle was damaged and subject to an insurance claim.
Upon attending at the property, he says the gates were locked with a padlock. He says that he stepped over the gate and started walking up the driveway to where he thought his motor vehicle was parked. But upon entering the property he was confronted by the first respondent who screamed loudly at him, “Get off my property”. He says that he replied by saying “I will call a solicitor”. He says that he turned, went back over the gate and left.
The second respondent says that at approximately 6.45pm that same evening a police officer attended his home. The officer informed him that the first respondent had made a complaint against him. He says that she complained that he had threatened her by telling her that she “had a beating coming”. The second respondent denied the accusation. The police left.
I prefer the version of this incident given by the second respondent. It is more fulsome and detailed. In cross-examination, the first respondent accepted that the second respondent came to her home looking for his motor vehicle and that it was not there, but there is no mention of that in her evidence-in-chief. The impression created from her evidence-in-chief is that the second respondent had come onto her property to cause trouble for her. Her evidence-in-chief is much more brief and bereft of detail. Moreover, it seems inconsistent with her subsequent allegation about what occurred two days later. The complaint that the police brought to the second respondent on the evening in early 2020 seems to relate to the incident that the first respondent reports as occurring two days later. I turn to that incident now.
The first respondent says that in early 2020 G and H informed her that the second respondent was at the fence of her property and was calling out to X to come over to him. The first respondent says that she was afraid that he might hurt X and so she asked X to come to her and told the second respondent to come to the front of the property. She says that the second respondent refused to listen to her and started to swear at her in front of the children. She says that he called her a “fucking idiot” and told her to “come up here so I can give it to you”. The first respondent says that he hit his fist into his hand and said “You have a beating coming your way” (the words used by the police to the second respondent two days earlier). She says that she observed the second respondent to kick her dogs who were barking at him. She does not say how many dogs were present or how many times he kicked the dogs. The first respondent says that she called the police and they attended at her property. She says that the children were all too scared to talk to the police and indeed so scared was she and the children that the second respondent would come back to the property uninvited that they all slept in the one bedroom together and pushed a couch up against the door for the night.
As to this incident, the second respondent says that on or around early 2020 the first respondent delivered some of his personal belongings to the front gate of his residence. He says that he received a text message from the first respondent containing words to the effect of, “I am dropping your fucking your (sic) stuff at your fucking gate.”
The second respondent says that he began to walk down his driveway, which was approximately 400 metres long. So as to avoid a confrontation with the first respondent he only walked far enough down the driveway to see what she was doing. He saw her unloading his belongings from a trailer attached to her vehicle onto the median strip in front on his gate. The children were with her.
The second respondent says that after he watched the first respondent drive away from his gate he rang his mother and told her what he had seen. He ended the call with his mother but she soon called him back. His mother told him that she had called the first respondent and told her that she (the applicant) was no longer prepared to pay for X’s tuition fees to attend N School as she had been doing. The applicant did not give evidence about these matters in her trial affidavit.
The second respondent swears that at approximately 4.30pm that same day, he heard the first respondent’s vehicle, which usually indicated to him that the first respondent and the children would be feeding the animals. He says that he went “up to the road” to where the first respondent and children were and he called out to X using a pet name that he has for her. He says that X heard him, called back and began to run to him.
The second respondent swears that the first respondent yelled to X words to the effect of “Come here [X], I will take you to him” but as soon as she picked X up, the first respondent yelled to the second respondent words to the effect, “Tell your mum to sort fucking things out about the school or I’ve got some tricks up my sleeve for you”. The first respondent did not take X to the second respondent but instead took her away from him.
The outline for the independent children’s lawyer refers to some police records of their interaction with the parties on these dates and in particular the second date in early 2020. For reasons that are not clear, those records were not tendered to prove the facts set out by the independent children’s lawyer in her case outline and I have not taken into account what is set out therein as part of the chronology of the case.
What is clear from the evidence of the first respondent is that she called the police on two days in early 2020. On her own evidence on both occasions she says that she was fearful that the respondent would return and that he had threatened her with physical harm. Notwithstanding that, it seems that the police did not apply for a protection order on her behalf but rather, that was left for her to do. I find that unusual. The first respondent’s evidence was that the second respondent clearly made threats to her and she was fearful of him. It is highly unlikely that the police would not have taken action to protect her had they considered that she was at risk of harm from the second respondent. The obvious step for them to take was to make an application for a protection order on the first respondent’s behalf. That they did not tends to suggest that they formed the view that she was not in need of protection from the second respondent.
In any event, I prefer the evidence of the second respondent about the second incident to that of the first respondent. As with the first incident in early 2020 the second respondent’s evidence is far more fulsome than that of the first respondent. Moreover, for reasons that I have given throughout, I am satisfied that the second respondent’s evidence is generally more reliable than that of the first respondent. Moreover, there is an additional reason I prefer the evidence of the second respondent.
The first respondent in fact applied for a protection order against the second respondent on another date in early 2020. The application is not in evidence before me and so the basis for the application asserted by the first respondent is not clear. It seems that there was a temporary protection order made upon the filing of the application, but it is not in evidence before me either.
The protection order application was dealt with dealt with at a trial which took place in or about July, 2020. The reasons for decision and the findings of fact made by the presiding magistrate are not in evidence before me. The only evidence before me about the basis upon which the protection order was granted is that of the second respondent in his trial affidavit, as follows:
72. To the best of my recollection, the findings made against me at Trial were :
a.On […] 2020, I had entered [Ms Willis’s] property and [Ms Willis] had found this intimidating; and
b.That I sent a number of text messages to [Ms Willis] during the period of 11 February 2020 and 17 March 2020 and this amounted to harassment.
This evidence was not challenged. I accept it. The findings say nothing about threats made by the second respondent on either the two dates in early 2020. The relevant text messages are in evidence. They appear as MH – 01 to the second respondent’s trial affidavit. Far from representing a series of text messages that might be said to be harassing, they represent text messages that record and request the second respondent’s attempts to make telephone contact with X. At the time telephone calls were attempted and the text messages sent, there were no parenting orders in place in respect of X. Both the first respondent and second respondent retained parental responsibility for her (see s 61C of the Act). Contact with the first respondent by text messages for the purposes of discharging his parental responsibility under the Family Law Act by maintaining contact with X could hardly be described as harassment of the first respondent by the second respondent. It seems surprising that these messages formed the basis for the making of a protection order (see generally Bottoms v Rogers (2006) 27 QLR 43). Be that as it may, what the second respondent’s evidence demonstrates is that there were no findings made by the Magistrates Court consistent with the versions of events now given by the first respondent for the incidents in early 2020.
The first respondent alleges that the second respondent breached the temporary and then the final protection order on a number of occasions. I will deal with each allegation in turn but, it is uncontroversial that the police never took any action against the second respondent for any of the matters alleged against him by the first respondent.
In early 2020, the first respondent made an allegation to police that the second respondent had killed an animal that was in her possession. The first respondent alleges that the animal was owned by G and the second respondent alleges it was his animal, but nothing turns on a determination of that issue.
The first respondent says that she and the children were away and a friend was staying at her home. When the friend returned home she found that the animal had been “beaten in the face and head, and had an injured foot from dragging itself, being unable to walk properly”. She says that her friend fed the animal that night and checked on it in the morning but found that it had passed away “before a vet was able to attend to check on him”. The first respondent annexes to her affidavit photographs of the animal but I am unable to discern any injury to the animal on the documents that have been filed by the first respondent. The first respondent called no evidence from her friend who observed the injuries to the animal, nor explained her inability to lead evidence from that person.
The second respondent denies that he injured the animal in any way. He says that after he found out that it was deceased, he went to the local police and spoke directly to the police officer involved with the investigation. He says that he was informed by the investigating officer that it appeared that the animal had caught himself on something in the yard and there were no signs of foul play.
There is no evidence before me about the cause of death of the animal. That it appears to be the case there was an animal on the first respondent’s property that passed away does not appear to be in dispute but beyond that, I can make no findings. It is remarkable that the first respondent’s friend who came upon the injured animal did not immediately cause a veterinarian to check the animal especially given that it had appeared to be beaten about its head and had an injured foot “from dragging itself”. The failure to obtain veterinary care on an urgent basis for an animal that was clearly suffering is the worst kind of neglect.
The first respondent’s allegations about the death of this animal demonstrate her proclivity for hyperbole and constructing a narrative to suit her own agenda. She accuses the second respondent of killing an animal that was on her property after separation. However, there is no evidence that the second respondent killed the animal. There is not even evidence of the cause of the animal’s death. At best the first respondent’s case amounts to speculation by her that the second respondent killed the animal. Speculation suits her purposes because it plays into her narrative that the second respondent is a violent person. But there is no basis for her speculation. I reject the first respondent’s speculation that the second respondent was responsible for the death of the animal.
The first respondent alleges that in January, 2020 a neighbour informed her that the second respondent had been enquiring about her. The first respondent’s neighbour, however, declined to give the first respondent any evidence to support her protection order application other than sending her a text message. The first respondent exhibits to her affidavit a copy of the text message she says she received from her neighbour in February, 2020. However, given that the maker of that statement was not available to be cross examined in the proceedings before me and it is not sworn, I afford that evidence no weight.
The first respondent alleges that in early 2020 she arrived home to find that her power had been turned off. She had installed closed circuit TV cameras to record the toing’s and froing’s around her property but she says that they were off as a consequence of the power being cut off. She called the police who attended. The police gave her some advice about repositioning some of the cameras that she had installed which, she says, she followed.
The first respondent alleges that it was the second respondent who turned off her power, presumably as some form of harassment of her. He denies that he had anything to do with it. There is no evidence that the second respondent was involved at all and there is no evidence that the police made any investigation of these allegations (for example by taking fingerprints of the first respondent’s meter box where it seems the power was shut off). I am not satisfied the second respondent had anything to do with this incident.
The first respondent alleges that two days later, she was driving back to her home at approximately 8.30am and she was run off the road by a motor vehicle. She says that she was forced sharply right into the bank of a hill. She says that her car was written off as a result. She says that she met the police at the gate of her property. She told the police that she had positioned a “hunter’s camera” close to the entrance to her property but it appeared that the camera had been cut out of the tree in which it was mounted and the power to the house had also been cut.
The first respondent asserts that it was the second respondent who was in the motor vehicle or that it was being driven by a person that the second respondent had organised. She alleges that it was the second respondent who either removed or organised to have removed the camera and cut the power to her house. However, in cross-examination her description of the incident was unpersuasive. Her description of the vehicle even more so given that she insisted that all of its windows were tinted, including the windscreen, so darkly that she could not observe the identity of the driver driving directly at her and who passed very close by her. Asked whether she was able to observe the registration number of the oncoming vehicle, she replied that the vehicle had no number-plates.
I am not satisfied that there was any incident as the first respondent describes with a motor vehicle. Moreover, even if there was, I am not satisfied that the second respondent had anything to do with that incident or the removal of the “hunter’s camera” or the cutting of the power to the first respondent’s home if that indeed occurred.
The first respondent alleges that at the end of the 2020 term three school holidays (the second respondent says the date is around September, 2020) the second respondent took her dog, killed it, and returned the carcass and placed it onto her driveway. The second respondent denies the allegation.
The first respondent says that she noticed that the dog was missing on Friday night and throughout the weekend. She says that the dog reappeared on Monday morning when she and the children went to leave the house. She called the police who attended and “they identified that there were no scrape marks on the ground” that would indicated the dog struggling with mobility. She says that the police officer in attendance considered “that it was likely that [the dog’s] neck had been snapped” although she does not say how the officer considered the neck had been “snapped”. She further extracts in her affidavit part of a record produced by the Queensland Police Service under subpoena which she says “supports that [the dog] was met with foul play”. The extract is as follows:
The deceased canine did not have any obvious signs of trauma which would indicate that it had been hit by a passing vehicle. Nothing around the dog on roadway/driveway to suggest it had been moving around prior to death. The Aggrieved has cameras set up facing the driveway however these are motion sensored and appeared to have limited range, so do not pick up any movement from the area on top of the driveway where the dog was located. First footage showing the deceased and [redacted] on the driveway. Was after sunrise […] after it had presumably been placed there. No vehicles, persons sighted on footage.
It was not explained in submissions or otherwise how this passage supported the proposition that the deceased canine had met with “foul play”. There was no evidence placed before me about the cause of death of the dog apart from the opinion from a police officer that the dog’s neck had been “snapped”. The basis upon which the police officer reached that conclusion is not in evidence before me and it seems to me to be no more than speculation as was the “presumption” that the dog’s carcass had been “placed” on the driveway.
I do not accept the first respondent’s case that the dog met with “foul play” or that the second respondent had anything to do with the death of the dog. It is yet another example of the first respondent’s proclivity to manufacture a narrative to meet her own ends.
I consider that it would be reasonable to think that if the police harboured any suspicions whatsoever that the second respondent was responsible for either the death of the animal or the death of the dog, the police would have made investigations into those deaths including obtaining advice as to the cause of death for those animals. That is especially so when there was apparently a protection order in place between these parties. There is no evidence before me of the police conducting any such investigation which is more consistent with the death of the animals occurring either naturally or by means unconnected with the second respondent.
The first respondent alleges that since separation, the children “have disclosed to me that the Respondent Father used to make threats towards them, telling them that if they tell me the things he has been doing to them that he will hurt them. They have disclosed to me certain incidents which occurred involving the Respondent Father which they felt too scared to tell me during our relationship. Some such incidents include:”. The first respondent then goes on to give evidence about those incidents. I have chosen to set the first respondent’s evidence about these incidents out in full because these are serious allegations and it is necessary to set out the first respondent’s evidence so as to understand the extent of her evidence about what, in some instances, amounts to criminal offences by the second respondent:
46.In or around 2019, [G] informed me that whilst riding their [vehicles], he accidentally flicked mud on the Respondent Father who then pushed [G] off the [vehicle] at speed in the paddock and left him to walk back to the house. [H] was also on the [vehicle] at the time.
47.In October 2019, [H] travelled with the Respondent Father to New South Wales to collect a car. The Respondent Father indicated that they would be gone for approximately 12 hours. The journey in fact took 24 hours, and [H] presented as different when she returned home. I remember asking [H] if everything was ok, and a friend of mine also asked [H] independently. In July 2020, [H] finally confided in me that the Respondent Father had forced her hand on his penis while driving. [H] said that he asked her to move closer to him, and hit his leg if he fell asleep. [H] disclosed that ‘‘he took my hand, put it on his penis and squeezed my hand’.
48.These matters were reported to Police [in] July 2020 and were included in the material produced under subpoenaed to Queensland Police […]. The Respondent Father was not “cleared” or “found innocent”, however the Police did deem that the matter ‘fails the sufficiency of evidence and public interest test, but the matter remains filed.
49.In or around 2017, I was informed by [H] and [G] that an incident occurred when [G] and [H] were brushing their teeth and the Respondent Father grabbed [G] by the back of his head and hit his head onto the bathroom sink. I had observed [G] to have tears in his and a red mark on his face. When I asked [G] he told me did not know how the red mark got there and I observed the Respondent Father was standing behind him.
The second respondent provided an explanation for the incident described in paragraph 46 of the first respondent’s trial affidavit. I accept his evidence about that. What occurred was no more than an accident. So too, I accept the second respondent’s denial of any wrongdoing in relation to the matters alleged in paragraph 49 of the first respondent’s trial affidavit.
As to the matters set out in paragraphs 47 and 48 of the first respondent’s trial affidavit, I have in evidence the interview between Queensland Police and H conducted in July, 2020.
H told the police that she accompanied the second respondent on a journey in his motor vehicle to Sydney to collect a vehicle. She said that on the return journey they stopped at a service station. She says it was about 10.00pm – 11.00pm but and they arrived home about midnight. Once they were moving again after the stop, she says that he asked her to sit in the middle seat of his motor vehicle and put his hand on his leg and tap it to keep him awake. In doing so he placed her hand on his penis, outside of his clothing. She took her hand away but he put it back. After she removed it a second time she moved away from him, although at various parts of the interview she said that it happened more than twice. Nothing was said about the incident between the two of them afterwards.
The timing of the incident in the motor vehicle is curious. H told the police that it happened in October, 2019, with the trip beginning two days earlier. H was able to fix the date by reference to an injury she had sustained and an x-ray that had been taken of her injured bone. The first respondent on the other hand claims that the trip to Sydney during which the incident allegedly occurred took place in June, 2019. Although the first respondent originally swore that the event occurred in October, 2019 the second respondent was able to pinpoint the trip to Sydney as June, 2019 by reference to photos that he had taken on the trip. That seems to have prompted the first respondent to change her evidence about the date of the incident.
In any event, whatever is the case, the trip took place after the date by which the parties had separated according to the first respondent. Her evidence was that the second respondent showed no interest in her children or X for that matter (at least that is what she told Mr J when interviewed for the purposes of his report). It is beyond strange then, that following separation H would accompany the second respondent on a trip to Sydney in his motor vehicle. There is no evidence about why the trip was undertaken with H from the first respondent. Her evidence simply does not deal with it. When I asked her why H went, she said that H wanted to go and she could not stop her. H was aged 12 years at the time. The first respondent’s answers to these questions beg more questions, but none of which are answered by her evidence.
H also told the Queensland police that the second respondent would touch or fondle himself while she was getting dressed and that he would watch her walk from the laundry to either her bedroom or the bathroom while she was naked, looking at her private parts.
H’s statement to police about the second respondent watching her getting ready for school is not persuasive. Her statements are confused and confusing. It is entirely unclear whether she saw the second respondent at all or if it was G who saw something and told her about it. She says that she saw it happen once, but in the next breath said that she did not see it happen. She claims her mother saw it happen once, but the first respondent does not give any evidence about seeing such behaviour happen. H’s description of the second respondent having holes cut in his boxer shorts so as to expose his genitals was not credible. The first respondent gave no evidence of the second respondent having boxer shorts that had holes cut in them. One would expect that she would have noticed such a thing, and if so, would have given evidence about it. Moreover, it was clear from H’s interview with the police that she had discussed these matters with the first respondent. For example, her use of the word “frisky” to describe the second respondent while he was apparently watching her and rubbing his penis came from the first respondent, who gave no evidence of ever seeing the second respondent do the things that H claimed.
Remarkably, there is no complaint from H about these matters to her mother at the time they occurred and then not for a considerable time after the parties had separated. I do not accept that these matters occurred as H reported them to the police in her interview with them.
The second respondent was informed by a letter to his solicitors dated 23 November, 2020 from the Queensland Police Service that they would not be pressing charges in relation to the allegation of his indecent treatment of H.
Although her evidence-in-chief does not deal with it at all, the first respondent also caused H and X to be interviewed by New South Wales police in June, 2021 after she had moved to New South Wales with the children. It was put to the first respondent that the reason she took the matter up with the New South Wales Police Force was because the Queensland Police Service took the matter nowhere. She denied that was the case.
In her interview with New South Wales police, H complained about three types of behaviour by the second respondent. First, she says that on a return trip to Sydney, the second respondent asked her to tap his leg to prevent him from falling asleep while he was driving and while doing so he forced her hand onto his penis. Second, she said that he would pull her onto him when she was saying good night and squeeze her bottom. The third type of behaviour concerned the second respondent laying on a couch with X (when she was apparently a small baby) and having H lie next to him and placing her hand on his penis. She did not mention the matters that she mentioned to the Queensland Police (save for the motor vehicle incident).
As to the first matter, the second respondent denies any wrongdoing towards H and he emphatically denies the incident that she describes happening in his motor vehicle on the trip home from Sydney. He says that she has “got it all wrong” and that the timing of her account does not add up. However, comparing the timing of the version given by the second respondent with that of H, there is not much difference. Again, in her interview with New South Wales police, H said the offending happened after she and the second respondent stopped at a service station. She says it was about 10.00pm – 11.00pm but the second respondent put it at about one hour earlier. She says that he asked her to put his hand on his leg and tap it to keep him awake. In doing so he placed her hand on his penis, outside of his clothing. She took her hand away but he put it back. After she removed it a second time she moved away from him, although at various parts of the interview she said that it happened more than twice. The second respondent says that he made no such request of H and that the middle seat of his motor vehicle had a backrest that folded forward. It was folded forward and had items on top of it such that H could not have moved over to him so as to reach his leg.
It is difficult to be satisfied to the requisite standard that the events, or any of them, described by H occurred as she described to NSW police. Her accounts were confused and inconsistent and having regard to her interview with the Queensland Police and the indication there (by use of the word “frisky”) that she had talked to her mother about these events, it is likely, I find, that these events simply did not occur. Whilst a trip to Sydney with the second respondent did occur, the timing of the trip in relation to the date of separation according to the first respondent’s evidence is more that passing strange. She had no persuasive explanation for that anomaly.
As to the second matter H raised with the New South Wales police, this bears a remarkable similarity to something the first respondent told Mr J. She said that she would observe the second respondent grab H on the buttocks and squeeze them when he was saying good night to her. The statements made by H in the police interview about this type of behaviour were confusing. There was no clarity in her statements about either the number of occasions this behaviour occurred or what in fact occurred. As counsel for the applicant submitted, there was a complete lack of detail. I am not satisfied on the balance of probabilities that anything untoward occurred between H and the second respondent when she was saying good night to him.
As to the third matter raised with the New South Wales police, H’s statements to police were again confused and confusing. I am not satisfied that she was describing events that in fact occurred.
I find that it is unlikely that the events described by H – any of them – actually occurred. I am not satisfied on the balance of probabilities that they did. I consider that it is more likely that these matters have been raised with H by the first respondent for the purpose of H repeating them to the authorities.
In addition to the above matters, the second respondent gives evidence that in the first respondent’s affidavit filed on 14 December, 2020 at paragraph 33, she alleges that H came to her because she was concerned about how the second respondent had been bathing X. The first respondent alleged in that affidavit that she “observed [X] to be raw and red in her private areas the following morning, and from that time on she personally attended to bathing [X]”. However, no evidence was given by the first respondent about this allegation at the trial before me. The allegation was not mentioned to Mr J for the purposes of the family report interviews and nor did X mention it during the course of her police interview. The absence of evidence about this allegation tends to suggest that it is untrue. What it does indicate is that the first respondent is prepared to allege serious matters against the second respondent in a haphazard way and without any evidence whatsoever. The same can be seen from the allegations in her Notice of Child Abuse, Family Violence of Risk filed in late 2020. According to the second respondent’s unchallenged evidence, the first respondent alleged in that document that someone disclosed to her that the second respondent had inserted fingers into X while changing her nappies. Again these allegations were not pursued at trial before me and were not mentioned to Mr J in circumstances where one would have expected that if such allegations had any basis in any observations by the first respondent or other evidence, they would have been raised.
To return to the chronology, on 4 September, 2020 the applicant commenced these proceedings because she could not spend any time with her granddaughter. X had not spent any time with the second respondent since January, 2020. I have set out the responses to the application by the first and second respondents at the commencement of these reasons.
The second respondent filed an application in a case filed on 12 November, 2020 in which one of the orders sought was a restraint on the first respondent relocating X’s residence more than a 50 km radius from Brisbane. His application was based on the idea that the first respondent intended to relocate X either to New Zealand or to Western Australia.
On 26 November, 2020 the first respondent by her solicitor assured the other parties and the court that she did not intend to relocate to either Western Australia or New Zealand and on the basis of that assurance, the second respondent consented to the dismissal of the part of his application in a case that sought the restraint. Cross-examination of the first respondent before me revealed that her assurance was disingenuous because whilst she did not intend to relocate to Western Australia or New Zealand, she did intend to relocate to New South Wales and had put in place arrangements for that to occur. She did not mention that intention or those arrangements to the second respondent or the court.
A report pursuant to s 11F of the Act was ordered and the second respondent attended an interview via telephone link with a family consultant during which he was informed by the family consultant that the first respondent had moved away from Queensland with X and her other children.
Under the heading “MY NEED TO RELOCATE” in her trial affidavit, the first respondent sets out her reasons for “relocating”. None of her reasons set out therein have anything to do with the second respondent. She says that she was given a notice to vacate the property she was in and set about finding an alternative that suited her and the children. She does not say where she was looking but by implication it must have been interstate because she says that she moved to New South Wales in late 2020. She gives no evidence of searching for properties in regional Queensland.
An interim hearing was conducted on 17 March, 2021. Orders were made by the court for the parties to participate in intake in preparation for supervised time between the second respondent and X at the O Contact Centre. Judgment was reserved in relation to time between X and the second respondent, although an order was made for telephone time between the applicant and X each Monday between 5.30pm and 6.00pm.
On 31 March, 2021 judgment on the interim hearing was delivered and an order was made for X to spend supervised time with the second respondent on two consecutive days each month, as might be arranged by the contact centre.
Those arrangements were not easily made. A series of dates were proposed by the centre commencing on 8 May, 2021 and accepted by the second respondent but the first respondent could not agree to the first date in the series.
In any event, the first supervised contact visit occurred on 22 May, 2021 at the O Contact Centre. That was the first time X had spent time with her father since January, 2020. The notes kept by the contact centre during the visit are comprehensive and some are worth setting out:
[X] made the following comments during conversation:
•My mummy is a meanie, she smacks my bottom and gets up me all the time and gets up my siblings. Father and grandmother did not respond to this comment and redirected the conversation.
•Remember the time mummy told you (referring to her father) to leave the house. Father reassured [X] and told her that he only left the house he never left her, and he always thinks about her.
•My mummy said I can’t talk to you (referring to her grandmother) on the phone anymore. Grandmother reassured [X] that she can talk to her on the phone on Monday.
•I heard you (referring to her father) talking when I was talking to [Ms Haering] on the phone last time. Father told [X] that he wasn’t at [Ms Haering’s] house when she talks on the phone, as [Ms Haering] lives a long way away. Grandmother told [X] that it could have been her uncle, [X] responded WTTE that’s who it was’.
•My mummy has lots of new friends. […] is my friend but he punched me in the nose. Grandmother and father reassured [X] appropriately and redirected the conversation.
•My mummy said I am going to have a new daddy. Father reassured [X] that he was her daddy, however [X] repeatedly said to her father WTTE ‘No, my mummy said I’m going to have a new daddy, my mummy said I’m going to have a new daddy”. Father became upset by these comments and started to cry. [X] responded by immediately cuddling her father, grandmother redirected the conversation and father composed himself within a couple of minutes.
•Remember when you killed [the dog] with your car. Father told [X] that he didn’t kill [the dog] and he was very upset when he died.
•[X] spoke about a man with a gun and demonstrated how the man was holding the gun. [X] said that the man with the gun was killing the foxes and she could hear the bangs on the hill when the man was killing the foxes. Grandmother and father redirected this conversation.
It is noted that these comments made by X were unprompted and often said in the middle of other conversations. Both the father and grandmother redirected these conversations appropriately and staff intervention was not required.
The second respondent’s evidence is that at the conclusion of the visit, he gave X three sunflowers as a gift.
In mid-2021 the O Contact Centre received a telephone call from the first respondent summarised in the centre notes as follows:
Mother advised she has concerns about the previous visit:
•Mother advised [X] has had a sore, itchy and red vagina, mother has been applying cream however as it hadn’t got better she took [X] to the doctor
•The doctor examined [X] and advised the mother that it appeared to him that [X] had received trauma to her vagina
•The mother asked [X] what happened during the visit, [X] told her mother the following:
•[X] sat on her father’s lap whilst [Ms Haering] on the other side of the table and they put dad’s big blue jacket on her because she was cold.
The notes record the centre informing the first respondent of the interactions during the visit and that X did not appear to have hurt herself during the visit.
Two more visits occurred at the O Contact Centre in mid-2021. The notes of these visits kept by the Contact Centre are not in evidence, but the second respondent’s evidence is that during the first visit X said to him, “Mummy took my flowers and threw them out of the [motor vehicle]”. I accept the second respondent’s evidence about that. I am satisfied that X would not have said those words if the event she described did not happen. I find the event described by X in fact occurred.
In mid-2021 the second respondent took a gift (a toy dog) to the visit for X. When he gave the gift to X, she said to him “Daddy I can’t take the dog home. My Mum won’t let me keep it because it’s from you”. I accept that X said these words to the second respondent and that they represented her experience of the first respondent when she had taken a gift from the second respondent (the sunflowers) at the first contact visit.
No further visits took place at the O Contact Centre. That is despite visits being scheduled on nine occasions between mid-2021 and early 2022. To the extent that the first respondent relies upon interstate border closures due to the COVID-19 pandemic as a reason to excuse her non-compliance with the orders, her reasons are hollow. All parties agreed that I could take notice of the fact that interstate border restrictions during that time permitted the transit of people across borders for the purposes of complying with orders for children to spend time with parents.
In the meantime, a series of procedural orders were made by the court in the context of an application by the second respondent for an order to return the residence of X to an area within 50 km of City B. On 9 June, 2021 the court made orders on that application that provided, in broad terms that:
(a)the applicant pay $5,000.00 towards the first respondent’s relocation and/or accommodation costs, with such monies to be paid directly to a provider of a service in relation to such costs;
(b)the second respondent pay $3,000.00 of child support arrears within 14 days of the orders; and
(c)the first respondent must return X’s residence to within 50 km of City B within 14 days of receipt of the $3,000 from the second respondent.
The second respondent did not pay the $3,000 within 14 days of the order but paid it in October, 2021. No arrangements were made for the purpose of the payments required of the applicant. The first respondent did not return X’s residence to within 50 km of City B.
On 1 December, 2021 the orders of 9 June, 2021 were varied at the first respondent’s request so that her obligation was to return X’s residence to within a 200 km radius of City B. That was on the basis that she had trouble securing rental accommodation within 50 km of City B. The purport of her cross-examination before me, however, was that she did not look for accommodation near City B at all and that she had no intention of returning to the City B area, let alone Queensland. She also told Mr J that during the interviews for the family report. She did not return X to within a 200 km radius as ordered and she remains living with X in New South Wales.
A further order for supervised time between X and the second respondent to take place at the O Contact Centre was made on 4 February, 2022 but as I have recorded above, that time did not occur. The contact centre withdrew its service in May, 2022 because the parties were not attending, but the second respondent had it reinstated for a visit in June, 2022. However this visit and three others in mid-2022 were cancelled by the first respondent.
The first respondent gave evidence about why she cancelled these visits. Her reasons are unpersuasive. For one visit she says that X was unwell and she took a PCR test that was negative. She does not describe X’s symptoms, if any (save for in an email to the contact centre, the truth of which was not sworn to). For another she says that G broke a bone and required surgery in early 2022. However, the annexure to her affidavit does not bear out this evidence. At best it shows an appointment at the “[…] clinic” at 12.30pm in early 2022. There is no mention of surgery and the referral is dated some time later. One might think that if surgery was required it would have been scheduled more quickly and if not, the appointment could have been moved forward or back a couple of days to accommodate the first respondent’s obligation to comply with the court’s order. The instructions on the annexure demonstrate that these conclusions are likely correct. Nor does the first respondent give any persuasive evidence that other arrangements could have been made for his care. Her reason for not attending another visit in early 2022 is even more disingenuous. She says that her mother was ill in hospital in New Zealand and she was on “stand-by” in case she needed to travel to New Zealand. Cross-examination revealed that she did not have a current passport. I do not accept her evidence that she could have secured a new passport urgently within the space of a weekend.
The final hearing of this application was listed for 5 October, 2022. However, for reasons that are not now relevant, the application was adjourned. The parties reached an agreement for interim orders for X to spend supervised time in City E with the applicant and the second respondent.
In late 2022 the applicant and the second respondent travelled to City E and spent time with X in accordance with those agreed orders. Another visit was scheduled for a short time later but the first respondent cancelled that visit because she was hosting a birthday party for G. When that was explored in cross-examination, it again demonstrated the first respondent’s disingenuity and her resolve to prevent X from spending any time with the second respondent. It was clear from her evidence that the time between X and the applicant and the second respondent could have occurred because the party was not until 6.00pm that evening.
The orders agreed on 5 October, 2022 also provided for X to spend time with the applicant on the last Friday of each month in Brisbane. None of that agreed time has occurred.
CONSIDERATION
In this case there are certain incontrovertible propositions. They are:
(a)the first respondent has not complied with orders for X to spend time with the second respondent or the applicant on most occasions because she simply chose to not comply;
(b)the first respondent did not comply with orders made on 9 June, 2021 and 1 December, 2021 for her to return X’s residence to a place that was within 50 km of City B and then 200 km of City B because she chose not to;
(c)the first respondent does not intend to comply with any orders for X to spend time (supervised or otherwise) with the second respondent;
(d)the first respondent does not consider that X should have a relationship with the second respondent at all and that he has nothing to offer her as one of her parents; and
(e)the first respondent will not support a relationship between X and the second respondent.
To the extent that the first respondent suggests that she would facilitate a relationship between X and the second respondent if X chooses for there to be such a relationship, I do not accept that evidence. As is clear from the circumstances in which G has come to reside with his father, a relationship between the children and their respective fathers will only occur if it suits the first respondent’s purposes.
According to the evidence of Mr J, it is generally accepted that children will benefit from a meaningful relationship with each of their parents. Here, I am satisfied that the second respondent considers that X will benefit from a meaningful relationship with each of her parents including the first respondent, notwithstanding the way in which she has attempted to prevent X from having a relationship with the second respondent. I am not satisfied, however, that the first respondent considers that there will be any benefit to X from a relationship with her father, the second respondent.
In my view, however, X will benefit from a meaningful relationship with each of her parents. There is nothing in the evidence to suggest that either of these parents do not have anything to offer X as her parents and I proceed on the basis that subject to all other considerations it would be to X’s benefit for there to be a meaningful relationship between she and each of them.
One aspect of the first respondent’s case is that X is at an unacceptable risk of sexual abuse in the second respondent’s household. The basis for the first respondent’s case are the complaints that H made to her and repeated to the police. For the reasons I have given above, however, I do not accept that the statements made by H to her mother, the Queensland police or the New South Wales police demonstrate that there is a risk of sexual abuse to X in the second respondent’s household. I find that there is no need to protect X from a risk of abuse in the second respondent’s household.
The first respondent asserts that the second respondent has been physically and sexually violent to her throughout their relationship. I presume that this evidence is said to be relevant as it demonstrates a propensity on the part of the second respondent to physical violence and that represents an unacceptable risk of harm to X, especially when taken together with her claims about the second respondent killing the animals. However, I reject the first respondent’s evidence about those matters. Specifically, I reject her evidence in paragraphs 10 – 13 of her trial affidavit. That evidence is ill-particularised and impossible for the second respondent to answer save for a general denial, which he makes. Moreover, her evidence is inconsistent with her statements to Mr J about the parties’ relationship. She makes no complaint to Mr J about sexual violence at the hands of the second respondent. She makes no complaint about the second respondent’s conduct more generally other than he could be “gruff with the kids”. She told Mr J that when she fell pregnant with X she felt that she “knew I was going to be controlled” and that “I didn’t want to be around him and I just didn’t feel safe. It was him just controlling us and the kids”. However, the difficulty with this evidence is that there is no evidence of the second respondent controlling the first respondent or the children, at least in a way that was inappropriate.
Another reason to doubt the evidence of the first respondent is that she has demonstrated herself to be given to saying whatever it is that she considers suits her case. It is uncontroversial that the first respondent was ordered to return X’s residence to a place within a 50 km radius of City B. She did not do so and she sought that the radius be extended to 200 km because of difficulties that she swore she encountered securing a rental property in that region. But she told Mr J and she repeated before me that she never had any intention of returning to the City B area as ordered. Her complaints about rental accommodation were nothing more than a ruse. She had no compunction in misleading the court when seeking the order to extend the radius to 200 km. I have recorded above some of the respects in which I have found the first respondent’s evidence disingenuous. I am satisfied, and I find, that the first respondent has no compunction misleading me when she thinks it might suit her purposes. Unless I have otherwise said I accept her evidence in particular respects, I view it as unreliable and prefer the evidence of the second respondent.
I am not satisfied that there is a need to protect X from a risk of physical, emotional or psychological harm by reason of being exposed to abuse, neglect or family violence the second respondent’s household.
I am satisfied that there is a need to protect X from harm by reason of being exposed to family violence in the first respondent’s household. That violence takes the form of the first respondent preventing X from spending any time with some members of her family, namely her father and her paternal grandmother. The first respondent’s reasons for refusing to permit X to have any time with her father are not genuine. I do not accept that she genuinely believes that X (or she for that matter) are at a risk of harm from the second respondent. It cannot be that she genuinely believes that the second respondent represents a risk of harm to X because she said that if X wanted to see her father she would facilitate it. That is entirely inconsistent with a genuine belief that the second respondent represents a risk of harm to X. Moreover, she told Mr J that if “my kids said they wanted to move back here [Queensland] I would be putting in to apply for houses” although she said that would be putting X in harm’s way.
The magnitude of the risk that X will be exposed to family violence in the way I have described by the first respondent is almost a certainty. She has told Mr J and me in this hearing, that she will not comply with orders for X to spend time with the second respondent. The significance of that risk being realised for X was explained by Mr J. I accept his evidence about that.
No party has suggested that X has expressed any views about her living arrangements that I should afford any weight.
X’s primary attachment is with the first respondent. She has been cared for by her primarily while the parties lived together and exclusively since separation. She has a good relationship with the first respondent.
She also has a bond with the second respondent. Despite the things that X has been told by the first respondent about the second respondent, she retains an emotional bond with him. Mr J put it this way in his report:
135.[X] presented as a child with problems, some of which may be unattended. She recites a narrative that her father has killed [an animal] and killed a dog and that there is nothing positive about him.
136.The only source of this belief can he her mother, probably reinforced by her siblings but there are obviously few if any filters in the family. It presents as central to her concept of her father.
137.The anomaly is that [X] has not processed the meaning of what she says, and this explains her joyous response when she saw both her father and her grandmother.
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140.Clearly conceptually, these things are separated in her mind such that what she hears about her father, she is not able to emotionally link to the reality of when she sees him, and I think that this is because that memory of her father is evoked when she sees him physically, rather than what she hears about in his absence.
It is clearly the case, however, that X’s relationship with the second respondent is not well developed and since early 2020, X has spent very little time with him. This is a significant matter.
X also has a good relationship with the applicant, despite not having spoken to her for some time. Mr J observed that X’s meeting with the second respondent and the applicant for the purposes of his report was “joyous”.
X has a relationship with H. Mr J recorded in his report remarks made by H in respect of her relationship with X. Although X might have a relationship with G, he no longer lives in the first respondent’s household.
The first respondent alleges that the second respondent has been tardy in meeting his child support commitments to her. As part of her evidence there is what purports to be a statement of arrears owing by the second respondent to her as at 25 November, 2020 totalling $3,542.06.
However, also part of her evidence is an objection to the child support assessment made by the second respondent dated 24 June, 2021. In that objection, the second respondent records (errors as per the original):
[Ms Willis] has made a Fraudulant Child Support Claim against me. [Ms Willis] is claiming from 18/12/2016 up till now. Our Relationship was from the 2/2013 to 14/12/2019. There is 3 years she is Fraudulantly claiming. Knew absolutely nothing about it, till first contact 2020.
In the same form as he sets out his reason for delaying making the objection as follows (errors as per the original):
I was contacted in 2020 by a Child Support officer (Lady). I explained to her the situation, she said it had to be reviewed. I contacted Child Support twice about the matter in 2021. First spoke to a man and then the other call was a lady. Wasn’t until my third call last week that I was told about this – OBJECTION Form & to show it was a FRAUDULANT Claim.
Attached to the objection form was a typewritten statement by the second respondent setting out the date of separation of the parties and the dates of separation claimed by the first respondent in various documents signed by her.
This evidence, which forms part of the first respondent’s case, is consistent with the second respondent’s evidence that on or about February, 2020 he was contacted by an officer from the Child Support Agency and informed that in December, 2016 the first respondent made an application for a child support assessment for X. The application had been accepted in January, 2017 and child support had accrued since then resulting in arrears of over $3,000. The second respondent was informed by the officer that the first respondent was seeking payment of the arrears. The second respondent’s evidence is that in mid-2021 (the delay being explained in the paragraph I have extracted above from the objection decision) he made an objection to the child support assessment issued against him for X.
As is apparent from the above, before the objection decision was dealt with, the second respondent was ordered to pay to the first respondent arrears of child support fixed in the sum of $3,000 as part of one of the orders made for the first respondent to move back to the City B area with X. He paid that amount although, rather churlishly, the first respondent complains about the length of time taken by the second respondent to pay it.
For reasons that are not explained, the first respondent did not put into evidence the result of the objection decision. She seemed content for the court to consider the second respondent as a person who avoided his lawful financial obligations to his former partner and child and who does not pay child support unless forced to do so.
A copy of the objection decision is included in the second respondent’s evidence. The objection decision records that the second respondent’s objection and supporting material was supplied to the first respondent but she provided no evidence in response to it. The objection was allowed and a decision was made to refuse to accept the first respondent’s application for child support assessment for X from 18 December, 2016. Consequently, any child support assessment issued against second respondent was withdrawn. On the evidence before me, there is not and has not been any legitimate child support assessment in respect of X by which the second respondent has been liable to pay child support to the first respondent. The order for payment of the arrears of child support secured by the first respondent from the Federal Circuit Court of Australia (as it was then known) was seemingly secured by the first respondent knowing full well that her application for child support was based upon false information given by her to the Child Support Registrar. That must have been so because it has never formed part of her case that the parties separated as early as 2016.
The first respondent purports to annex to her affidavit a statement demonstrating that as at the date of the swearing of her affidavit she is owed $914.76 by way of child support for X. I do not accept that evidence. There is no child support assessment in evidence before me demonstrating that the second respondent has been assessed to pay child support to the first respondent. Moreover, it is not clear from the annexure to the first respondent’s affidavit just what it is that the annexure purports to be. It is not on its face self-explanatory. I reject evidence that the second respondent remains liable to her for child support.
The evidence demonstrates that the first respondent has maintained X but to the extent that her obligations include an obligation to foster and encourage the relationship between X and the second respondent she has failed miserably. She has not given the second respondent an opportunity to engage in decision-making about major long-term issues with X and as I have indicated above, she has unreasonably obstructed X’s time with the second respondent. She has also obstructed X’s opportunity to communicate with the applicant.
In the event that X remained living with the first respondent, it is clear, in my view, that X will be unlikely to have a relationship, let alone a meaningful relationship, with the second respondent. That will not be to her benefit. According to Mr J’s evidence, remaining in her mother’s care and with the first respondent’s attitude to X’s relationship with her father unchanged, there would be created an internal conflict for the X. She would have to and has had to suppress her feeling for her father over time. According to Mr J, children tend to do that, particularly young children, but they cannot do it for long. The internal conflict will likely pose additional challenges to her development as she moves through life and particularly in adolescence. I accept Mr J’s unchallenged evidence that children who do not have a relationship with one parent generally have added difficulties adjusting to the things they need to as they progress through life such as forming their own relationships with others and developing resilience in those relationships. Their emotional growth is generally harder.
In the event that X was to live with the second respondent, she would experience trauma from being removed from the care of the first respondent. I accept Mr J’s evidence about the short‑term effect upon X if she was to leave the care of the first respondent and reside with the second respondent. His evidence was that a change of residence would be a crisis for X and cause her significant distress. Her relationship with H would suffer significantly. She would be required to make a major adjustment in her life and initially it would be difficult for her to think that she could trust her father. This is a significant matter to which I attached much weight. According to Mr J, how she coped would depend on other supports such as continuing contact with her mother, her relationship with her grandmother, the availability of her father to her, the quality of the relationship that the father now has with her and his insight into her needs. However, having regard to the long-term advantages for X if she was to live with the second respondent, those short-term disadvantages spoken of by Mr J in his oral testimony are outweighed. The most significant advantage that will flow to X from living with the second respondent is that she will have the opportunity, I find, to have a relationship with both of her parents not just one of them. She will avoid the long-term detriments identified by the evidence.
As I have indicated already, if X is to remain living with the first respondent, somewhere in New South Wales, she will be unlikely to have a relationship with the second respondent facilitated for her notwithstanding any orders for time between her and the second respondent (or the applicant for that matter). In those circumstances, questions of practical difficulty and expense of her spending time with or communicating with the second respondent become theoretical.
If X is to live with the second respondent, I do not foresee any practical difficulty or any particular expense of X spending time with or communicating with the first respondent. The first respondent may choose to move back to the City B area closer to where the second respondent and X might live in which case regular and frequent time could be achieved. Alternatively, there is nothing in the material before me that would suggest that the first respondent would not be able to meet the expense of spending time with X on a regular basis notwithstanding that there would be a significant geographical distance between them.
The second respondent’s capacity as a parent who has the full-time care and control of the child is untested. Whilst he says that he has the support of his current partner, there is no evidence that corroborates that. His working commitments mean that he will need assistance to properly care for X and meet her physical needs. I am satisfied, however, that the second respondent, if X was to live with him, would ensure that those needs are met.
I am also satisfied that the second respondent has the capacity to meet X’s emotional and intellectual needs. I am satisfied that he properly understands the significance of X’s relationship with the first respondent to X and he would act in a way to promote that relationship. So much can be seen in the relief he sought in these proceedings when he first filed his response. That relief was measured and appropriate at the time and reflect an eye upon X’s best interests.
I consider that the first respondent’s capacity to meet the needs of the children in her care is impaired. She failed to deal effectively with G’s difficulties and she appears to be failing H who is no longer attending school. Dealing specifically with X, it is apparent from Mr J’s report that X may have certain developmental failings that are not being met by the first respondent. Moreover, it is clear from the evidence that the first respondent is unable to meet X’s emotional needs and in particular her need for a proper relationship with her other biological parent. Mr J’s report records these matters concerning information given by the first respondent to X:
102.She [X] was not anxious about seeing her father but she did want to talk about the [animal], saying that her father killed the [animal] and ‘did bad stuff’.
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107.Asked what makes her sad, she said ‘only [Mr Haering] who makes me sad sometimes cause he killed our [animals]. He punched the [animal] in the nose and he killed the dog’ and she thinks the car ran over it, but she didn’t see this. She said ‘we saw it when we got home from school’.
108.Her mother told her about it. She said, ‘she was just dead’. She said that she felt ‘very sad for him’.
109.Another time when they were on the hill, her father said that he was ‘going to bash you’ to her mother. She didn’t hear this, but her mother told her this. She said, ‘I didn’t see it’. She said it made ‘my heart go boom boom’ and ‘it makes our hearts go broke and we stayed at home for a couple of days’. I asked her why she called her father [Mr Haering]. She said it makes her confused too as ‘my family calls him [Mr Haering] and I always say dad and then I say [Mr Haering]’.
110.She said ‘it makes me sad when I have nightmares from him’. She couldn’t say what the nightmares were. As to whether she knew any good things about her father, she said ‘he didn’t even do good things. He did bad things. He says I’m going to bash you and he bribes me with lollies’. I asked her what the word ‘bribe’ meant and she said ‘he will make my teeth go yucky’.
111.Of her father, she spoke in third person, saying ‘[Mr Haering] will say get out of here [Mr Haering], you hurt our families and just drive off and we leave’.
112.She said she didn’t like [Ms Haering] because she yelled at her on the phone ‘when I talk to her’. She said ‘no, [Mr Haering] didn’t kill the [animal] or the dog and that made by heart go boom boom’.
The evidence is replete with reference to the first respondent informing X that the second respondent has committed atrocities on animals in circumstances where there is not a scintilla of evidence to demonstrate that to be so. X’s remarks to Mr J about her father bear those matters out. X told the New South Wales police officers who interviewed her in 2021 that her father had never hurt her when she was in Queensland. Notwithstanding that, it seems clearly to be her view that the second respondent “is a bad man”.
X has no major health issues but has suffered from tonsillitis regularly according to the first respondent. She has been on a waiting list in New South Wales for a tonsillectomy and has apparently been on a waiting list for that surgery since late 2022. Mr J, however, thought that X demonstrated developmental delays in her language and conceptualisation.
I have set out above the history of the protection order application between the first respondent and second respondent. I am not satisfied on the evidence that the second respondent has perpetrated the family violence alleged by the first respondent in her trial affidavit. That is so, notwithstanding the making of the protection order.
CONCLUSIONS
The first respondent’s proposal for X carries with it the advantage of stability. It will continue what it is that X has been used to until now. She will maintain her relationship with her mother as it has been up until now and she will maintain her relationship with H. However, that is about all that can be said of the benefits of the first respondent’s proposal. There are disadvantages to the first respondent’s proposal, the most significant being the near certainty that X will not have a relationship with the second respondent nor the applicant if she remains in the first respondent’s care. She will continue to be delivered a narrative that the second respondent is a bad person with whom X should have no truck. She will be denied the benefits of a relationship with each of her biological parents and that will be attended by long-term difficulties for her. It may also be the case that X would not have some of her developmental difficulties attended to as Mr J has identified. If G is any example, it seems the first respondent lacks the capacity to properly meet the emotional or psychological needs of her children as and when they need her to do so.
The second respondent’s proposal carries with it the advantage of an opportunity for X to have a proper relationship with both of her parents. I consider that he will meet X’s physical, emotional and intellectual needs, including her need for an ongoing and meaningful relationship with her mother and half-siblings H and G. There is nothing in the evidence to suggest to me that he will not be able to do so or that he is not interested in doing so. It will, however, have disadvantages for X, the most significant of which will be a change to her current arrangements. That will carry with it trauma for X that cannot be underestimated. However, I am satisfied that the second respondent will meet X’s needs to deal with that trauma. That short-term trauma will be, in my view, outweighed by the long-term advantages for X that I have identified.
On balance, I consider that the second respondent’s proposal overall carries with it more advantages for X than disadvantages compared to the first respondent’s proposal.
Section 61DA(1) of the Act requires me to presume that it is in X’s best interests for her parents to have equal shared parental responsibility for decisions concerning major long-term issues for X. Section 61DA(2) provides the circumstances in which the presumption does not apply. Moreover, I am not required to apply the presumption where I do not consider that it is in X’s best interests for it to apply. Here, I do not consider that it is in X’s best interests for the presumption to apply because her parents have no co-parenting relationship whatsoever. There is no communication between them whatsoever. Such is the antipathy held by the first respondent towards the second respondent that in my view, no order for equal shared parental responsibility could work. I am of the firm view that the parent with whom X should live should be the parent who has sole decision-making responsibility for major long-term issues in X’s life.
Having regard to my view that there are greater advantages in the second respondent’s proposal than the first respondent’s, I find that it is in X’s best interests that she live primarily with her father, the second respondent. She should no longer live primarily with the first respondent.
I was not addressed on the arrangements that might be made for X to spend time with the first respondent in the event that I considered that she should live with the second respondent. The orders proposed by the second respondent in that regard, however, are unremarkable and in my view, properly meet X’s need for regular and frequent time with the first respondent. How that might occur, of course, will be a function of the geographical distance between the parties and the second respondent’s proposal take account of such.
I have made an order for the school holiday time to commence at the conclusion of term 1 next year so as to give X some time to settle in the second respondent’s care before there are periods of more than a weekend away from his care and in the care of the first respondent.
Mr J’s opinion was that if X was to leave the care of her mother and reside with her father that change should happen forthwith. Accordingly, the orders that I will pronounce will be to that effect.
I make the orders set out at the commencement of these reasons.
ADDENDUM
Since preparing these reasons and reaching my conclusions, I caused an order to be made for the first respondent to produce X to Court Child Services at the Brisbane Registry of this court when judgment was to be delivered. For reasons given by the first respondent, I discharged that order and in its stead ordered that she produce X to the another Registry of this court. Given the outcome of the application I considered it important for X’s welfare that her father be immediately available to take her into his possession once orders were pronounced. That approach is consistent with the evidence given by Mr J. For that purpose I caused an email to be sent by my Associate to the solicitors for the second respondent and the independent children’s lawyer suggesting that it would be in X’s best interests if the second respondent was present when the orders were pronounced. I determined that the first respondent should not receive a copy of that email until after orders were pronounced and these reasons have been delivered. I have now made arrangements for my Associate to send to the applicant and first respondent a copy of that email.
I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 18 August 2023
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