Handley and Gault

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANDLEY & GAULT

[2019] FCCA 2860

Catchwords:
FAMILY LAW – Children – 2 children of parents’ relationship – whether the time the children spend with the respondent should be supervised long term – parental responsibility.

Legislation:

Family Law Act 1975, ss.60B, 60CC(2), 60CC(3), 61DA, 61DAA

Cases cited:

MRR v GR (2010) HCA 4

Applicant:

MS HANDLEY

Respondent:

MS GAULT

File Number:

BRC 5821 of 2013

Judgment of:

Judge Spelleken

Hearing dates:

17, 18 and 19 September 2019

Date of Last Submission:

19 September 2019

Delivered at:

Brisbane

Delivered on:

11 November 2019

REPRESENTATION

The Applicant appeared on her own behalf

Counsel for the Respondent:

Mr Waterman

Solicitors for the Respondent:

Page Provan

Counsel for the Independent Children’s Lawyer:

Ms Oakley

Solicitors for the Independent Children’s Lawyer:

CNG Law

ORDERS

That all previous parenting orders be discharged.
That the Applicant have sole parental responsibility for the children X born … 2007 and Y born … 2009 ("the children").
That the children live with the Applicant.
That the children shall spend time and communicate with the Respondent at the O Consultancy Centre (or such other centre or service as may be agreed between the parties in writing) as follows:
(a)On two (2) occasions in each QLD gazetted school term for a period of up to six (6) hours;
(b)On Mother's Day in each year for a period of up to six (6) hours;
(c)On two (2) occasions in each December/January QLD gazetted school holiday period for a period of up to six (6) hours on each occasion;
(d)the time to be off-site if that service can be provided, or otherwise onsite;
(e)the cost of the supervision be met in the following proportions – the Respondent 80% and the Applicant 20%;
(f)With Ms A to attend no more frequently than each-second occasion;
(g)With other family members having liberty to attend provided that the children have the opportunity to spend time with the Respondent only on each second occasion;
(h)With the contact service being at liberty to facilitate the Respondent attending any school event at the children's schools ordinarily attended by parents;
(i)By the children being provided with cards and presents on special occasions by the Respondent and other members of the children’s family through the services of O Consultancy, or other service utilised by the parties.
That at the conclusion of each school term the Applicant shall provide the Respondent with an extensive written summary of the children's progress including information relating to their education, health, general development, interests, peer relationships and milestones.
That the Applicant shall provide the Respondent with a copy of each child’s school report and NAPLAN results within seven (7) days of same being received by the Applicant.
That the Applicant shall provide the Respondent with a copy of any medical reports relating to each child within seven (7) days of the same being received by her.
That save for an emergency any communication as between the parties shall occur by means of the use of a parenting application, the specific application to be used to be agreed in writing within seven (7) days of the date of the orders and failing agreement, they shall use the Talking Parents Application.
That each party is restrained by injunction from;
(a)making derogatory or critical comments about the other party; or
(b)making derogatory or critical comments about the relatives and spouses of the other party; or
(c)discussing any allegations of abuse made by the other party in the proceedings or that were traversed in the evidence in the proceedings; or
(d)discussing the evidence received in the proceedings; or
(e)discussing the conduct of the proceedings, the evidence or behaviour or the submissions made by any party or any witness in the proceedings;
In the presence or hearing of the children.
That save for the Respondent attending the children's schools in accordance with Order 4(h) herein, the Respondent be otherwise restrained from being present at any school attended by the children without the written consent of the Applicant.
That the Independent Children's Lawyer be granted leave to provide to Mr B and to O Consultancy a copy of the Family Reports of Ms C and the final orders and Reasons for Judgment of Judge Spelleken.
That upon the Reasons for Judgment being delivered, the Independent Children's Lawyer shall arrange for the children to attend upon Mr B to explain the orders.
That upon orders 11 and 12 being implemented, the Independent Children's Lawyer shall be discharged.
That all outstanding applications be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5821 of 2013

MS HANDLEY

Applicant

And

MS GAULT

Respondent

REASONS FOR JUDGMENT

The Court is asked by the Independent Children’s Lawyer in this matter to make an order the effect of which would be that the two children the subject of these proceedings, X, 12, and Y, 10, would be limited at best to spending supervised time with the respondent four or five times per year. I am also asked to make an order that the applicant have sole parental responsibility for the children. The applicant supports the orders proposed by the Independent Children’s Lawyer. The respondent, however, seeks an order for equal shared parental responsibility and a graduation in the children’s time with her from supervised time to unsupervised time progressing to overnight time and, after 12 months, equal time.
It is not in dispute that X and Y have been the subject of litigation since shortly after their parents’ physical separation in December 2012. Between then and 3 June 2013 by agreement, they spent equal time with each parent. On 3 June 2013, however, there was an incident at changeover after which the respondent withheld the children from the applicant and X from school until October 2013 when the first of the applicant’s three applications filed 18 July 2013 came before her Honour Judge Turner.
On 9 October 2013, Judge Turner put back in place the equal time arrangement and X was returned to prep. Her Honour also ordered the preparation of a family report and the first of four by Ms C was released on 25 February 2014. In interview for the preparation of that report the applicant proposed a continuation of equal time but the respondent proposed that the children live with her and spend supervised time with the applicant.
Ms C recommended that the week about arrangement should continue, she was highly critical of the applicant, respondent and the respondent’s partner Ms A’s behaviour on 3 June 2013. It was her view that all three knowingly involved the children on that occasion. She was also critical of the respondent’s decision to withdraw X from school.
The next event of any significance occurred on 4 April 2014 when the respondent alleges Y returned home with an injury to her vagina, which the respondent referred to in her material and in interview with Ms C as a perineal tear. The respondent took a photograph of the child’s vaginal area and the next day took her to Dr D, her general practitioner, who referred Y to the F Hospital. Y was taken to the F Hospital that afternoon after which a registrar prepared a letter dated 5 April 2014, which does not refer to a perineal tear but rather to Y presenting with vaginitis.
In interview with Ms C for her second report on 12 January 2015 when discussing this event the respondent said she was alarmed when Y returned home with the alleged injury because to use her words “all sorts of things go through your head when you see that”. When asked why the Registrar’s letter did not mention a perineal tear she said the Registrar explained that the type of injury she described heals quickly. When asked whether she had concerns about sexual abuse she is quoted at paragraph 38 of that report as saying “She (the respondent) was adamant that she had no such concerns”.
Ms C gained the impression after her interview with her that the Respondent continued to criticise the applicant’s behaviour and parenting and was devoted to the task of collating material in this regard.
Despite those concerns after taking into account that the children presented as healthy and bright, X was excelling at school, and that it is not unusual for children of Y’s age to find changeovers emotionally difficult she still, believed it was in the children’s best interest to spend equal time with each parent. At paragraph 79 she said this:
Overall I have formed the view that the current arrangement should continue. While it would be preferable for the children if the parents could manage points of disagreement and conflict better, this is not at a level where the children’s best interests would be served by reducing time with one of their mothers.
The respondent acknowledged, under cross-examination from Ms Oakley for the Independent Children’s Lawyer, that after reading this report, she was clearly aware and understood Ms C’s concerns that the children’s exposure to adult conflict was a significant issue in this matter, that it was having an impact on the children and if it was ongoing it could affect their relationship with each parent. She also acknowledged that as a parent she needed to do more to protect the children from her conflict with and her views of the applicant’s parenting.
Final orders were ultimately made by consent many months later, on 20 November 2015, which again provided for equal time and equal shared parental responsibility. The orders were also very detailed in relation to when, where and who was to attend at changeovers and how the respondent and applicant were to communicate with each other. It was, I understand, the parties’ intention, indeed the Court’s intention that detailed orders which reduced the likelihood of the parties and Ms A coming into contact with each other might address Ms C’s concerns.
Equal time continued until December 2016 when the respondent again withheld the children from the applicant, she says because she was not physically able to get X into the car to return him to school or to changeover.
In January 2017, the applicant filed her second application and on the first return date of that application although her Honour did not make this order, I understand she expressed the view that equal time should be reinstated.
The respondent acknowledged that she told the children Judge Turner had indicated they should return to the applicant and spend equal time with her. She claims that upon hearing that news both children became increasingly anxious about returning to the applicant the following Friday.
Between early February until Judge Turner made an order on 24 April 2017 for the children to start spending time with the applicant initially for two hours increasing then to four hours, the respondent says the children’s distress and resistance to returning to the applicant became even more heightened. She describes during this period both children screaming, Y clinging to her, X hiding under the bed and telling her that he was going to kill himself and run away from school. She also describes, to use her words, X experiencing a “cognitive shut down”.
She was often unable to get X in the car to attend school and for a time he would only attend between Monday and Thursday in the weeks the applicant was to collect the children from school on a Friday. For another period the children were withdrawn from school all together. Eventually, she says on the advice of Dr G, she removed X from school and with Y attended upon the J Hospital Acute Assessment Team to have the children assessed. I was not convinced by the respondent’s claim in answer to a question from Ms Oakley that the reason she withheld the children from school was to arrange counselling for them to address their distress. In my view after reading the notes of the children’s attendance at J Hospital it was more likely that it was done to prevent the applicant from collecting the children from school and taking them back into her care.
Again under cross-examination from Ms Oakley the respondent conceded that although she told J Hospital staff that X was expressing thoughts of suicide he had not expressed those thoughts earlier that day. She also agreed that despite being unable initially to get X out of the car she was, with the assistance of school staff, able to settle him in his classroom but later that day removed him to take him to the hospital.
By 23 May 2017 when Ms C released her third report she recommended that the week about arrangement be abandoned. She expressed significant concern that the underlying dynamics between the applicant and respondent had not altered but in fact had deepened. She was particularly concerned that despite the respondent’s argument that the children had decompensated and were experiencing debilitating anxiety at the prospect of returning to the applicant, she observed the children to be joyous when they were reunited with her at the interviews for the preparation of that report.
Further it was her view that the respondent interpreted the children’s resistance to returning to the applicant as some form of anxiety on their part or other illness or trauma. Ms C accepted that both children would struggle separating from the respondent at changeovers, particularly X given his cognitive issues which would make him more vulnerable to distress. She expressed concern however that whilst the children had come to believe that the applicant was unsafe for them at the same time they were happy, spontaneous and affectionate with her. These disparate thoughts and feelings about the applicant were Ms C feared, likely to be profoundly emotionally destabilising for them.
By May 2017 Ms C had formed the view that it was the applicant who was the parent more capable to facilitate the children’s sound life adjustments and whilst she might minimise X’s difficulties to an extent, she was the parent who was better able to encourage him to achieve and had a more rounded view of both children’s development and needs.
On 1 August 2017, the applicant and respondent reached, what was hoped to be the second and final order. It provided for the applicant to have sole parental responsibility, for the children to live with her and to spend alternate weekends and half school holidays with the respondent.
I pause here to note comments made by the respondent to Ms C in interview for the fourth family report some 18 months later on 7 November 2018 when she said she would never have agreed to the orders if she felt she had any other option available to her. She explained that by the second day of the hearing her new lawyers who had very limited time to prepare, had advised her that she had two choices, either to continue the trial with the prospect of not seeing the children for six to nine months or to accept the orders for sole parental responsibility and time on alternate weekends.
A few short weeks after the orders were agreed to, on 18 August 2017, the respondent deposes to Y calling her into the toilet complaining of a sore stomach. Upon entering the toilet, she saw glitter putty in Y’s underpants and, when she asked her how it got there, she said she had put it on her vagina before leaving for school. When asked why, Y responded that she didn’t know and wouldn’t discuss it further.
On 18 January 2018, the respondent saw Y in the bath with her friend, P, engaged in a sexual act. After witnessing the incident, she contacted P’s mother, Ms H and Ms A, and later that day, spoke with Y and P about the incident. It is not in dispute however, that the respondent did not inform the applicant.
On 22 January 2018, the respondent raised the incident with Dr D. His consultation notes which are before the Court record as follows,
Sat night Y had a friend stay over (same age) - they were in the bath together. Ms Gault overheard P say ‘Go on do it’. Y said ‘I don’t like it’.
Ms Gault went in to investigate and P was propped on edge of bath and Y was licking the girl’s vagina.
Ms Gault called P’s mother to come over and talk.
Y admitted to Ms Gault that it was her idea. P had already licked Y.
Ms Gault told Y she was concerned how she knew about this. She said they ‘random ideas that come into my head’.
Y shutdown and wouldn’t talk.
Ms Gault said to Y that she believes someone is doing something to her. Y looked terrified and just said ‘sorry’ and ‘I don’t want to talk about it’.
There was then reference to buying school books and then this comment is made in the notes “Ms Gault distraught as she was abused age 8”.
Dr D notified the Department and the Department’s notes recording the notification say this: “There are concerns Y is doing this due to something Ms Handley is doing to her”.
It is the respondent’s case that around this time both children but particularly X were again resisting going to school and were expressing distress and anxiety before changeovers back to the applicant’s care. On the advice of her counsellor and after giving X the option of either returning to the applicant or speaking with professionals at the hospital about his distress he chose to attend Suburb E Hospital. The first of two attendances there occurred on 20 August 2018.
The notes of the Suburb E Hospital record the respondent and Ms A on that day raising the following concerns in relation to the children:
·    X was experiencing suicidal ideation;
·    X’s reluctance to leave their home was increasing along with his anger;
·    X had run away from school;
·    X was having panic attacks which involved him rocking backwards and forwards whilst saying he does not want to return to the applicant.
The notes also record that the applicant and Ms A raised concerns that Y had experienced sexual abuse but denied her making any disclosures, that she was observed to be with another young girl in a sexual act in about February/March 2018 and that the applicant had been a victim of sexual abuse by her father.
Both Y and X also met with staff that day and other than disclosing that the applicant had hit them both once last year and that they preferred the parenting arrangement be reversed, they did not express any fear of returning to the applicant and X did not express any suicidal ideation or appear to staff to be particularly distressed.
Both children are also recorded as disclosing that they missed the applicant and X specifically requested to speak to her. In relation to any reluctance to attend at school X was recorded as denying any school concerns and said he enjoyed playing with his friends and Y stated the only problem she had with school was with another student who wanted to be her friend. She expressed joy at her art classes and playing with friends.
I also refer to the progress notes of the family’s attendance on that day which indicate that the respondent and Ms A took the opportunity to raise concerns about the applicant. These include allegations of domestic violence during the relationship and the children’s exposure to same, the applicant using the parenting order to manipulate the children to cause the respondent emotional harm, and that the children were reluctant to disclose their own worries to the counsellor because he (the counsellor) reportedly breached their trust by disclosing that information to the applicant who minimised their concerns.
In relation to the parenting order current at that time, the notes indicate that the details of the order but not the order, were provided to the social worker.
I also note that comments credited to the respondent seem to be unrelated to the reasons given for the children’s attendance that day. For example:
Ms Gault states the parenting order was completed with no evidence, e.g. her solicitor at the time had withdrawn representation on the Friday and the hearing was scheduled for the Monday. She advised the new solicitor was unprepared and unaware of her evidence prior to the hearing and she was not provided with her legal rights to adjourn the matter. She reported at that time she was only given two options, to handover full custody immediately or nil contact with her children for a period of 9-12 months. Ms Gault stated that she had sought family mediation which Ms Handley refused to participate in.

Under the heading “Social Work Impression” this comment is made:
X is an 11 year old boy and his sister Y is a 9 year old girl who have presented to the Emergency Department with school refusal which appear to be in the context of contact arrangements. Both children are under a current parenting order with primary responsibility is provided by Ms Handley. Their primary presentation of social and emotional difficulties appear to be in this context and parental discord and legal support advice has been discussed to facilitate support for the children on discharge.
(emphasis added)
On 22 August 2018, the applicant commenced the current proceedings.
On 27 August 2018, after the children’s presentation at Suburb E Hospital in response, it seems, to an enquiry by the Department, Ms K, the deputy principal of the children’s school, explained that in the last 12 months X had been in the best place he had been in for a very long time, that he is was more resilient and no longer ran away from class.
On the first return date of the current application on 29 August 2018, Judge Turner did not make any changes to the living arrangements for the children but appointed an Independent Children’s Lawyer and adjourned the matter.
It is the respondent’s case that after X returned to the applicant’s care his distress became even more pronounced. On the evening of 28 September 2018 when he was due to return to the applicant the next day, he told the respondent he didn’t want to go. The next morning he threatened to cut his wrists, he was cold and clammy and was experiencing a panic attack. That day, although Y returned to the applicant’s care, X was taken for the second time to the Suburb E Hospital.
The notes of X’s attendance on that day under the heading “Ms Gault and Ms A’s perspective” to summarise say this:
·X is always telling them the applicant yells at him and gets angry and he doesn’t want to go back to her;
·X often says he wishes he was never born and wants to die;
·That morning, whilst sitting on the kitchen floor he was having a panic attack and was rocking back and forth saying he didn’t want to return to the applicant;
·The respondent had been the subject of domestic violence when residing with the applicant and she believes X and Y are also subjected to the same violence. When it was pointed out by the social worker taking the notes that X had denied this allegation, she explained that this was because he was being manipulated by, what she referred to as, “the perpetrator”.
It is not in dispute that the applicant was called to the hospital and under the heading “Ms Handley’s perspective” to summarise, the notes record as follows:
·She is concerned about the respondent’s parenting capabilities because she has mental health issues;
·She is concerned that the respondent and Ms A had taken X to the emergency department rather than managing the situation themselves;
·She is concerned that some of the things X has said such as “I want to hurt myself” actually came from the respondent;
·X’s upset is the result of the respondent’s inability to handle changeover properly, rather than an indicator he didn’t want to return to her, X didn’t behave in this way when she manages the changeover;
·Y had told her the previous evening the respondent and Ms A had an argument and were swearing in front of them and that X was upset and believed it was his fault they were fighting;
·She has no concerns for X’s mental health, he is happy when he is with her and never mentions harming himself to her or any counsellors and professionals he is engaged with.
The notes made by staff who met with X on that day to summarise say this:
·He wasn’t sure why he said he wanted to cut himself but he had no intention of doing so. He has made this threat several times before but had never and would never do such a thing. He had no thoughts of wanting to kill himself and currently denies any such thought or intent;
·He prefers to stay with the respondent and Ms A and wishes the living arrangement was reversed so he could spend more time with the respondent;
·He acknowledged he did not want to go back to the applicant because he had a nice week with the respondent and Ms A. It had been harder to go back to the applicant this time because he had spent longer than usual with the respondent;
·He doesn’t mind being with the applicant however, it is more fun with the respondent and he also gets to spend more time on his video games at her home;
·Apart from the applicant yelling at times and smacking him on the bottom twice, but not for the past year, he denied any abuse in the applicant’s home;
·He reported sleep and appetite as good, he enjoys school but does get easily distracted and bored at times.
There are additional notes made in relation to X’s presentation that day and the hospital’s assessment of him, summarised as follows:
·X engaged well with the assessment team and was warm in interactions;
·He presented as calm and reactive in affect reporting feeling happy;
·His speech was normal in rate, flow and volume;
·He denied any thoughts to harm himself or end his life;
·He denied thoughts to harm others;
·There was a high risk of vulnerability due to ongoing pervasive conflict between his parents with the children feeling caught in the middle with no voice;
·X said he was feeling calmer now after being in ED and wanted to go home with the applicant as they are going to see friends and stay over for 2 nights and he will have fun.
Under the heading “Impression” the notes are as follows;
Emotional instability and an inability to be heard in the context of parents’ complex and hostile separation which X and his sister are caught in the middle of. Nil acute mental health concerns at this point.
Later in the notes under the heading “Rationale is as follows” this was recorded:
Serious consideration was given to screening this report for emotional harm and the continued risk posed by Ms Gault’s behaviour. The subject child X has been diagnosed with a processing disorder and this creates anxiety in him – this has likely been exacerbated by his exposure to the long term conflict and in particular the repeated presentations as EDs on handover days. However pre notification check showed that overall the legal actions taken by Ms Handley have resulted in reduced time with Ms Gault and an overall increase in stability for the children. This has resulted in overall improvement in X’s emotional presentation in the last 12 months. Ms Handley has taken legal action to raise the best interests of the children before the Court and in this sense she continues to be a protective parent. If Ms Gault gets increased access to the children and/or presents at an ED with them claiming suicidal ideation again then the risk of serious emotional harm to X in particular warrants investigation. The outcome of this assessment will be forwarded to the Federal Circuit Court registry so the Department’s stance can be taken into consideration by the Judge at the next hearing. A CCR will be recorded.
(emphasis added)
After the applicant spent some time with X, he left the hospital in her care. The applicant then retained both children until orders were made on 12 November 2018 for the respondent to spend supervised time with them.
Supervised time commenced at O on 4 December 2018 and continued up to the final hearing of this matter. The notes from O are mostly very positive when referring to the interaction between the children, the respondent and Ms A. An issue arose, however, after birthday cards were provided by the respondent and friends and family of the respondent to the contact centre which were then edited by the applicant. I accept having heard from the applicant and Ms L from the contact centre in this regard that the cards were edited after a meeting between the applicant and Ms L to discuss the appropriateness of same.
Unfortunately, it seems that X overheard a conversation between the applicant and her brother discussing the birthday cards on the evening before the contact visit on 13 August 2019 and at that visit he raised amongst other things his upset about the cards. It is also clear from the contact centre notes of that visit that inappropriate comments were made to X mainly by Ms A but also by the respondent about the applicant.
The respondent is recorded as asking X about his birthday and his birthday party and when discussing his presents she asked him to elaborate on the presents he received. X responded “stuff and more stuff”. Ms A is then recorded as saying:
I’m over the stuff conversation. We don’t have to come and visit you if you don’t share and just say I don’t remember or stuff. You’re basically saying I don’t want to talk to you. Is that what you want or our relationship to look like?
X is recorded in response as shrugging to that comment and then Ms A is recorded as saying “Well you think about it”. X then said “It’s so hard to keep this relationship when you give us photocopied cards with cryptic messages in them.
He then refers to overhearing the applicant discussing the cards, the notes say with Aunty Ms M, but it is clear that the reference should be to the applicant’s brother.
X is then recorded as saying “Also you’re influencing other people in the family”. Ms A then asked “What else have you heard?” The respondent is recorded as saying “It’s obviously playing on your mind and making you angry”. X then responded “A lot of the stuff in the cards will make Y sad as it was written that people miss her and can’t wait to see her when she comes home.” The respondent is then recorded as saying “It’s important that this time is used to talk because as you said how else do we keep a relationship. You’ve heard one side of the situation that you shouldn’t have actually have heard. How does that make you feel in the head” X responded he was fine about it. Ms A then asked “Do you think it’s ok that your biological family miss you?” X then said “I miss them but I’m talking about you guys.” The Respondent said “What have we done?” X responded “Everything.” The respondent asked what and he responded “a lot of things”. Y then talked about being taken to the hospital. X then referred to the respondent keeping them away from the applicant and said “You say now that we aren’t old enough to make our own decisions so why did you keep us away from momma even if we said we didn’t want to at the time?”
The Respondent is then recorded as saying:
This sounds like a conversations that you have had with somebody. What concerns me is that you seem to have a lot of anger inside you at the moment”. X answered “I’m angry because you make it really hard. All the things that you do. You don’t understand everything. Everyone in your family thinks mother is a horrible beast. Everyone’s mean to her and stuff. We’ve heard things that grandma has said about momma.
The respondent then asked “Did grandma speak to you about that and apologise? Do you remember that?” X answered “Yes she apologised but you can’t take things like that back.” The Respondent then said “That was my mum being worried and scared for me” X responded “Momma has said that you and Ms A have been mean to her. I have ended up trusting Momma more than you.” X went on to say “You always tell me to trust my own truth and now my truth is whatever momma tells me. You told me that you think momma is horrible.”
The respondent answered “We’ve never said that.” X responded “It’s the stuff you have said in Court.” The respondent replied “You should never know what goes on in Court it’s for adults.”
The respondent then referred to the cards and said “These cards were here last week before you come in. Because of the situation we have to photocopy cards. Last year when you got your cards they were all thrown out.” X then referred to “his friends being in the car the other day which is why I didn’t want to speak.” At that point the supervisor intervened and motioned to the applicant that the conversation needed to be changed and the applicant left the room to go to the bathroom.
Ms A then spoke to the supervisor and asked what she had said to the respondent and the supervisor explained that she advised her that the conversation should be changed. Ms A disagreed, but the supervisor suggested that because X was getting distressed it would be a good idea to do something else that was fun and relaxing. At that point X started crying and the respondent came back and consoled him.
There was then an exchange of cards and gifts, but X continued to be somewhat distressed and at one point said that his “tummy doesn’t feel very good” and he was observed to be deep breathing again. He was described in the Contact Centre notes as looking quite pained and then started talking in a babyish voice.
I note page 82 of Exhibit 1 is an email from Ms L from O to the respondent which amongst other things informs her that Ms A was no longer to attend supervised visits at O, the reason given was to reduce the level of heightened emotion especially after the 13 August 2019 visit.
In the last family report dated 18 November 2018, Ms C opined that from the subpoena and other material provided to her by the Independent Children’s Lawyer she had formed the impression that service providers such as the children’s school and health professionals had been drawn into the dispute. She expressed concern that a polarising and divisive dynamic was developing which risked pitting service providers against one another in a cause that ought to be about the children but which was more about which parent was right or wrong.
After speaking with the children and considering the information referred to above from their school and counsellor she also formed the view that there had been a general improvement in the children’s wellbeing in the 15 months that they had lived in the primary care of the applicant and spent limited time with the respondent. She opined that this opportunity provided the children with structure, routine and predictability.
In comparison however Ms C expressed a view that the respondent in that same period had used the children as a centrepiece in the ongoing drama which was toxic to their ongoing development. Ultimately, she recommended that to maintain the positive equilibrium that had developed in the applicant’s care, the children’s time with the respondent should be limited to four occasions per year supervised at a contact centre. In making that recommendation she acknowledged that whilst the children would suffer profound distress by such limited time with the respondent they would also suffer distress if unsupervised time was reinstated.

Issues to be decided in this matter

I pause before turning to the relevant issues that need to be determined in this matter to decide between the competing proposals, to indicate that I have placed significant weight on Ms C’s evidence, both in her reports and under cross-examination for several reasons, not the least of which is that she has had the benefit of meeting with this family for five years and over four family reports. In that time she has sadly seen the impact of the parents’ conflict on the children and has been able to assess which parent has developed sufficient insight to protect the children moving forward. It is also my view having considered again the evidence she gave at trial, that other than questions put to her by Mr Waterman for the respondent referring to examples of when and how she had exposed the children to conflict since the 2017 orders, her opinions, observations and even her recommendations were not really challenged.
Many of the issues raised by the applicant and respondent and/or arising out of Ms C’s reports, are in my view, having heard the evidence, no longer in dispute and therefore do not need to be considered in any detailed way or at all in these reasons.
It is clear, for example, from all four family reports, and both the applicant and respondent concede to their credit, that the children have a close and loving relationship with both parents and that Y has a close relationship with Ms A. I also accept that both children would benefit from maintaining that close relationship with their parents, if they could be protected from harm.
Ms C in her evidence opined and the applicant did not challenge her evidence in this regard, that it would be difficult for the children to maintain the relationship they currently have with the respondent by an order which limited their time with her to only a few supervised visits a year.
The applicant acknowledges that the children have both expressed a wish to spend more time with the respondent. The respondent also agreed that, at his age, X is becoming bored with time at a contact centre. Ms C in answer to a question from Mr Waterman also acknowledged that as Y gets older she will most likely also become bored with the restrictions of supervised time.
Given the close relationship the children have with the respondent and their wish to spend more time with her I accept Ms C’s view that it will cause the children significant distress to reduce their time, as proposed by the Independent Children’s Lawyer and supported by the applicant.
Importantly and significantly in this matter it is also not in dispute however that both the applicant and respondent along with Ms A have to varying degrees continued to involve the children, health professionals and the school in their conflict. This has and will continue to have, if it hasn’t already, a significant impact on the children’s emotional development.
It was also acknowledged at trial by both the applicant and respondent that the impact on X has been more significant than on Y. In this regard Ms C in her family reports described X as less resilient than Y in coping with his parents’ dispute. In this respect when I asked her to explain her concerns for the children and whether there was an age at which they could self-protect, she said:
… there’s a big difference between these two children. Y is a much more resilient child. She seems to be able to maintain a level of autonomy away from these dynamics. I mean, she has been pulled into it and she would still be being pulled into it were it to continue, but I think that she is likely to reach an age of better ability to self-protect at perhaps 12, 13. It’s true that I can’t make the same comment on (X) he is a way more vulnerable lad than his sister is, and that’s to do primarily, I suspect, with his cognitive difficulties. I should say that I really found Dr G’s report some lengthy time back very helpful in understanding what the boy struggles with. It seemed to me when I talked to him that he struggles to try to make sense of his inner world. When I spoke to him this last time, he was trying to piece bits and pieces together and make sense of them, and that involved different things – that the two mothers had conveyed to him that didn’t gel because in fact they were different, and he struggled with that. But while he was calm, he was able to move away from it a little bit, and not have to solve it. What I formed the impression was when he starts to become unsettled, when his routines are upset or there are different expectations of him than what he is used to having, then his world seems to go into a chaos inside his head, and he loses control of himself and his feelings and his thoughts, and it just becomes a swirling, cascading spiral downwards. So he’s the child who needs to have consistent routines, consistent habits, consistent ways of dealing with the times when he’s feeling upset and anxious, and so moving from one house to the other where there were different rules, different views, it was just too hard for him.
(emphasis added)

When Ms C last met with X, she said he presented as anxious with notable fidgeting but no signs of ticks or other quirky behaviour. He impressed her as a trusting, sensitive but vulnerable lad. Ms C also referred to information from his school and noted that school staff had conveyed some growth in his resilience and that he was definitely more able to regulate his emotions. X himself told Ms C that school was a lot better and had gotten easier, he hadn’t run away for a whole year and was better able to handle his feelings.
At trial in relation to an improvement in X, Ms C said this:
He has been improving, and that, I think, is a credit to the child’s efforts, the huge efforts that he puts in to trying to manage himself, but how soon he’s going to reach an age of self-protection, I would really be loath to say.
(emphasis added)
That leads me to what I consider to be the most significant issue that I need to decide in this matter namely, will the children be better protected from emotional harm by the proposal of the Independent Children’s Lawyer and applicant that they live with the applicant and spend limited supervised time with the respondent or as proposed by the respondent that they continue to live with the applicant but spend increasing time over the next 12 months with her so that at the end of 12 months they are spending equal time between their parents.
I turn firstly to consider whether the children are at risk of emotional harm by living with the applicant. There were several examples explored at trial of when and how the applicant has either exposed the children to conflict or made parenting decisions which were not child-focused.
The first was her refusal to allow Dr N to release the children’s medical records to Dr D. When questioned by Ms Oakley as to why she simply didn’t give Dr N authority to provide the records, she responded that she considered Dr D to be incompetent because he had provided medical certificates for the children to excuse their attendance at school after the respondent had retained them in her care. She conceded that in hindsight she made the wrong decision, when the sense or futility of this decision was challenged by Ms Oakley who pointed out that it would have been more child-focused to allow the information to be provided to allay the respondent’s concerns about the children’s medical treatment while in her care.
Another example relates to the contact centre visit on 13 August 2019. The notes from the contact centre referred to earlier indicate that the applicant was informed of X’s distress during that visit with his mother and Ms A. She conceded that despite being told X was upset she did not discuss with him what had happened at the visit or take the opportunity to provide him with some comfort or reassurance after the visit. I gleaned from her answer to that question that this was an occasion when she put her frustration with this dispute and the respondent before providing this little boy who has some emotional vulnerability with support.
It was also careless, whether she did it consciously or not, to allow X to overhear her conversation with her brother about birthday cards before the 13 August 2019 visit. The notes make it clear that the whole birthday card issue caused him significant upset such that he felt the need to challenge his mother and Ms A during that visit. It also clear, in my view, from some of the comments made by X that he has heard either directly or indirectly the applicant make negative comments about the respondent and members of her family.
The applicant also agreed in answer to a question from Ms Oakley that as a result of her and the respondent’s behaviour the school had become a platform for their conflict to the point that the principal had refused to engage with the respondent.
I have already referred earlier in these reasons to the comments made by Ms C in her last family report wherein she opined that the applicant had better quarantined her views of the respondent and Ms A from the children. Whilst under cross-examination from Mr Waterman when she was referred to the examples set out above of the occasions the applicant had exposed the children to conflict, she agreed that was the case and said the Court should be concerned when any parent exposes their child to adult conflict with the other parent. However she went on to explain that she did not believe it was indicative of a pattern of that behaviour by the applicant. She referred to the applicant presenting at interview as far more focused on talking about how the children were coping with the dynamics between the two households and was very clear to draw distinctions between her own feelings and the children’s needs and to not confuse the two. She said she did not wander off in her own reactions, thoughts and feelings but remained focused on the children. Over the years she gained the impression that although the applicant will no doubt make mistakes, her ability to separate her views and needs from the children had vastly improved.
Having said that I accept that in answer to questions from Ms Oakley the applicant was not able to provide a satisfactory answer to the question posed to her, as to how she might improve her communication with the respondent in the future so that the children could have a relationship with each parent.
Of course when considering this issue, I must also take into account that over a lengthy period now as the children’s primary carer and with the benefit of an order for sole parental responsibility, the applicant may have been in a better position to avoid bringing the children into conflict. It could be argued, therefore, that as a consequence of those orders and the sense of control that those orders might give her, it is less important or necessary for her in the war of this litigation to involve the children in the dispute and/or to embark on an evidence-gathering exercise.
Ultimately however, whilst I accept there are some examples of the applicant continuing to involve the children in this dispute, I accept Ms C’s evidence that she has developed some insight as to what she has done in the past, or not done, to protect the children from conflict, her role in that and its impact on the children.
Turning then to the respondent, I start my assessment of her and the risk of emotional harm, if any, to the children by unsupervised time with her by referring to her answer to a question from Ms Oakley referred to earlier. She claimed that after reading the second report she was clearly aware and understood Ms C’s concerns, that the children’s exposure to conflict was a significant issue in this matter, that it was having an impact on the children and that she needed to do more to protect the children from conflict.
Having considered her affidavit material and having heard her answers to questions from Ms Oakley however, I have significant concerns about the truth of that statement or her bona fides in this regard. Her answers to questions, along with Ms C’s, support a finding in my view, that the respondent, particularly since the 2017 orders, has continued to place, not only the children but service providers assisting the children, at the centre of her dispute with the applicant and has embarked over those many months on an evidence gathering exercise that has not produced any evidence of harm to the children in the applicant’s care. That evidence does support a finding however that the children are at risk of emotional harm in the respondent’s care.
Most concerning I can find that at times she has placed her need to gather evidence against the applicant, before her responsibility to protect the children from potential harm. She has gone as far as providing false information not only to the Court but also to doctors to support her case. In her dealings with health professionals including hospitals, police and the Department, she has raised concerns about the applicant and her parenting which are either historical and/or have no connection to the event or reason she made contact with those service providers in the first place. I also accept Ms C’s view that when the children, particularly X, present as distressed, anxious and/or unwilling to go to school or return to the applicant’s care she interprets this as them being either unwell or fearful of the applicant.
An example of the respondent raising concerns with service providers that seem unrelated to the reason she made contact with those service providers is a call she made to CPU at Suburb Q on 6 June 2017. The purpose of this call seems unclear but related to a concern that the children were being psychologically bullied by the applicant preventing telephone time with her. In that call she took the opportunity to report that Y had been slapped by the applicant six months earlier, that she had a tear to her vagina some three or four years prior in 2013/2014 and that even though the applicant’s brother lived in Brisbane, he occasionally stayed at the applicant’s house.
There are two major concerns that I have in relation to this phone call. Firstly, it was made only six weeks after Ms C’s third family report when, as mentioned in the background to these reasons, Ms C had raised serious concerns for the children’s emotional health and stability if the conflict between the applicant and respondent continued. The other concern is that when challenged as to the connection between the vaginal tear in 2013/2014 and the applicant’s brother living in Brisbane but staying at the applicant’s home, she denied that there was any connection or that she was raising a concern that the applicant’s brother may have sexually harmed Y. She later conceded, however, that because Y continued to return home with vaginal irritation, she thought she should mention it to the police.
A few weeks later, the respondent signed a statement with Queensland Police alleging a breach of the Federal Circuit Court orders again regarding telephone time. When asked why she thought it was necessary to make a statement about telephone communication, she said she was concerned that she had been put on conference call and that it was a breach of her and the children’s privacy and therefore a police matter. It was also clear from the evidence that the respondent had been making recordings of telephone calls and provided those recordings to the police.
The respondent has made similar unrelated comments to staff at J Hospital and Suburb E Hospital. As mentioned earlier, the notes from Suburb E Hospital record the respondent telling staff she had experienced domestic violence including emotional and verbal abuse during the relationship with the applicant, that she believed the children were exposed to this violence, that the applicant was using the parenting orders as a means to manipulate the children and cause emotional harm, that the children feel they cannot disclose their concerns to their counsellors, that Y has or is likely to have experienced sexual abuse but not made a disclosure and that Ms Handley had experienced sexual abuse as a child.
X’s presentation at hospitals was also inconsistent with the respondent’s evidence that he was threatening self-harm, that he would run away and was refusing to go to school. When the respondent was asked to concede that the children’s presentation, in particular, X’s presentation at the hospital, as recorded in the notes was not what she described in her affidavit or to staff that day, her explanation was that he had calmed down by that stage because he knew he was going to the hospital and he could discuss his concerns there.
I also note the respondent’s description of X’s distress at this time, seems inconsistent with the deputy principal, Ms K description of him as being in the best place he has been for a very long time.
My other concern is that the respondent is unable to regulate in particular X’s distress and anxiety at times before or at changeover, but rather enlists the assistance of health professionals to do so. This is in stark contrast to what has been recorded both in Ms C’s report and in the records of the Suburb E hospital of X’s attendance there on 29 September 2018. In Ms C’s report she refers to the applicant’s ability to calm X. In the Suburb E Hospital records it is clear that with the benefit of some one-on-one time the applicant was able to settle X and have him return to her care despite what the respondent described as his absolute refusal to do so prior to his attendance at the hospital on that day. It is also important to note in this regard the respondent’s criticism of the Suburb E Hospital staffs’ decision to allow the applicant to spend more time with X, than had been agreed and her allegation that rather than the applicant being able to soothe X she used that time to manipulate him such that despite his previous distress he returned to her care. In this regard she told Ms C that the applicant had silenced X’s openness to speak about his feelings when she spent time with him at Suburb E Hospital.
The comments made by both the respondent and Ms A to X at the contact centre visit on 13 August 2019 is another example of the inability of the respondent and her partner to protect the children from their views of the applicant. I set out in detail earlier in these reasons the comments made by the respondent and Ms A in this regard and I need say no more than that many comments were not child focused.
The most concerning and stark example of the Independent Children's Lawyer’s concerns that the children have and will be exposed to conflict by unsupervised time with the respondent are the respondent, Ms A’s and to some extent the respondent’s mother’s allegations and belief that Y is at risk of sexual abuse from the applicant or whilst in the applicant’s household.
I pause here to say that it is not in dispute including in the respondent’s own case that there is no evidence that Y is at an unacceptable risk of sexual abuse by the applicant or from someone in the applicant’s home. No disclosures have been made by Y despite being given opportunities to do so by police and health professionals. There is no medical evidence although it is clear that Y has been taken both to the general practitioner and to the hospital with the respondent’s concerns in this regard. The respondent has contacted the police and others have contacted the Department, including Dr D, with the respondent’s concerns and the police and the Department have not thought it necessary to even investigate the concerns. In fact the only occasion that Y has been exposed to pornography and/or acted out in a sexual way was in the home of the respondent.
The events the respondent relies on which caused her to be concerned that Y had been sexually abused include what I have referred to in the background to these reasons as the bath incident, the allegation that Y had glitter putty in her underwear, that she returned home after spending time with the applicant with a perineal tear and that for an unspecified period she was returning home complaining of an irritated vagina.
Initially when it was put to the respondent that she suspected the applicant had sexually abused Y, she denied that was the case. It became clear, however, after answering Ms Oakley’s questions regarding these events, that she did suspect the applicant of sexual abuse, and if not her, then someone in her household. It is also clear from evidence given by Ms A and the respondent’s mother that they share the respondent’s concerns.
Ms Oakley argued in relation to the respondent’s allegation in this regard, and in my view her argument has some merit, that the respondent was never happy with or should never have consented to an order that the applicant have sole parental responsibility and that her time with the children be reduced to alternate weekend time. Such was her distress and/or opposition to the 2017 orders that after consenting to them, she set about putting together a case that the children were at risk of emotional harm and Y of sexual abuse while they lived with the applicant.
The chronology of events post the 1 August 2017 orders does lend some support to Ms Oakley’s submission. Those events and the timing of those events are as follows:
·1 August 2017 the respondent after the first day of trial agrees to orders for the applicant to have sole parental responsibility and for her time to be reduced to alternate weekends and holidays;
·18 August 2017 the respondent tells Dr D that Y has placed glitter putty in her underwear to protect herself causing Dr D to notify the Department;
·18 January 2018 Y is found acting out sexually with a friend. The respondent does not tell the applicant that Y had accessed pornography in her home, that she had found Y acting in a sexual way or that she was concerned that someone in the applicant’s home may have harmed Y;
·22 January 2018 Y is taken to Dr D to discuss the bath incident. The Department’s notes of Dr D’s notification referred to concerns the child was acting out due to something the applicant is doing to her;
·20 August 2018 first attendance at Suburb E Hospital when the respondent raises concerns about the applicant’s parenting causing X in particular to become significantly distressed and threatening self-harm;
·22 August 2018 applicant files the current application for a change of the living arrangements for the children;
·27 August 2018 first return date of applicant’s application when Judge Turner appoints and Independent Children’s Lawyer and adjourns the matter;
·29 September 2018 – second attendance by X at Suburb E Hospital when the respondent again raises concerns about the applicant’s parenting and X’s distress at having to return to the applicant’s home.
In relation to the respondent’s claim that Y is at risk of sexual abuse by the applicant or by someone in her household I will deal firstly with Y accessing pornography on an iPad whilst in the respondent’s home, which it seems led to the bath tub incident with P. Ms Oakley cross-examined the respondent at length in relation to this incident and pressed whether she believed the applicant had done something to Y or allowed Y to see something which caused her to act out in the way that she did. It is appropriate in my view to quote directly from the transcript in this regard as follows:
Is it possible – never mind about the allegations in the affidavit. Is it possible that Y accessed an iPad at your house, saw a screen that still had some pornography on it – I’m not suggesting to you in any way improperly or deliberately, is it possible that an accident happened like that?---No.
And why not?---Because I don’t watch pornography.
Right. Do you have an iPad?---I do have an iPad.
How many iPads are in the house?---Y has an iPad.
Yes?---X has an iPad.
Right?---I have an iPad, and Ms A has an iPad.
Right. You wouldn’t have parental locks on yours and Ms A’s, though, would you?---No.
No. So it’s possible, isn’t it? If there are no parental locks on your iPads, it’s possible she has accessed either of your iPads and happened upon it, somehow?---I wouldn’t – I – I guess so. I – I actually tried to – after – after – I did, on that night, find out that they had accessed pornography.
Who did? Sorry?---Y and P– well, Y had.
Right. And what night are you talking about?---The night that they got into the bath.
Right. But after that I did some research on it to try and find out 10 how they accessed it, and I tried putting in different words and couldn’t bring up any pornography. So - - -
So what did you find out about that night in terms of them accessing pornography?---Just that they had put in “pornography” into the iPad.
Right. And – well, that’s the first time you’ve told us about that, isn’t it?---Yes.
That’s not in your affidavit?---No.
Why not?---Because it was raised by Ms Handley in her affidavit in a negative light, and I guess I wanted to - - -
Conceal it?---No, not conceal it, but – but – well, yes, I guess. And my apologies, for that.
Why do you want – why did you want to conceal that?---Because I was afraid at what the response of the – of the applicant would be – what Ms Handley would have – what her response would be.
Well, that’s an example, isn’t it, of you being dishonest to this court by your omissions in your evidence; correct?---Well, that was dishonest, yes.
Right. And a perfect example, I want to suggest to you, of the utter disaster that would be presented to these children if you two had an equal-time arrangement, isn’t it?---I believe there are ways we could possibly work around it.
Really?---Mmm.
You see, why would Ms Handley believe anything you had to say, given what we’ve just stumbled over now - and when one puts that in the context of the history of litigation between you two?---Mmm.
Why should she believe anything you say if you’re only going to give information that’s selective?---I was honest about it just then.
And that’s the best you’ve got, is it?---No.
(emphasis added)

Apart from her dishonesty in this regard, I am concerned about what flowed from her answers to Ms Oakley’s questions in relation to this incident. Firstly, while on the one hand she told the Court she didn’t suspect the applicant of acting sexually with Y or allowing her to be exposed to oral sex in her household, she did not explain why she didn’t call the applicant and tell her that she had found Y acting out sexually and to inquire of her what could have happened in the her home or elsewhere which could explain the behaviour.
She then told the Court that she thought it may have been someone in the applicant’s household that harmed Y and not the applicant but again could not explain why she did not contact the applicant to raise concerns about how others who visited her household may pose a risk to Y.
She also could not explain why, when she discovered Y had accessed pornography in her home, she did not act protectively and alert the applicant that Y had worked out how to access pornography, so that the applicant could ensure that proper safeguards and controls were in place to prevent that happening in her home.
She acknowledged she did not inform the police at the time, although it seems she mentioned it to police much later when raising concerns about unrelated telephone communication.
It seems, although it is not clear, that the respondent may not have alerted Ms H, P’s mother, that Y had been the one to access the pornography. Even if, and I accept that it may have been a day or two after the incident that the respondent became aware, with the help of a friend of Ms A, that Y could have looked at pornography, Ms H in her evidence indicated she was not aware that Y had been the one to access pornography until sometime later and certainly more than a couple of days later, when she saw P looking at pornography, and when she asked how she knew how to, she was told Y had shown her.
The other dishonest evidence the respondent gave was in relation to glitter putty in Y’s underpants. The applicant inquired in her cross-examination of the respondent whether Y playing with craft including glitter could explain how the glitter putty was found in Y’s underwear. The respondent rejected that proposition and said what she saw was not consistent with Y just playing with glitter and that Y had told her she had put the glitter putty on her vagina.
Ms Oakley asked many questions of the respondent to assist her and the Court to understand the connection between glitter putty in the child’s underpants and concerns of sexual abuse. I must say that her responses to those questions were confusing and certainly not convincing.
It became clear however from answers Dr D gave to questions from Ms Oakley, that not only did the respondent raise her concerns with him about the glitter putty, she also told him that Y explained that she had put the glitter putty on her vagina to protect herself.
This was never disclosed anywhere, in any evidence given by the respondent, in any comments or information given to any other person in these proceedings or to the Department, police or other authorities.
Dr D also agreed with Ms Oakley that it was this alleged comment by Y that caused him to be concerned enough to make, as he is required to, a notification to the Department.
I accept, after hearing that evidence, that the respondent misled the doctor to cause him to contact the Department because without that comment/connection he would not have been concerned enough to make a notification. I would go as far as to say that it was a deliberate attempt to build a case against the applicant because if in fact Y had told the respondent she wanted to protect herself, it would have been front and centre in her affidavits. It would amount to enough of a disclosure that she, I have no doubt, would have contacted the police and/or the Department to report the comment.
Again, if indeed the child had made that comment, it beggars belief as to why she did not act protectively and immediately raise her concerns with the applicant.
That then leads me to consider the other ways in which the respondent has acted, in my view, against the children’s best interests and involved them in this dispute.
The first example is her allegation that something either accidentally, at best, or worse, deliberately was done to Y, which occurred whilst she was in the applicant’s care, which caused her to suffer what has been described as a perineal tear.
As mentioned earlier on 4 April 2014, Y allegedly returned to the applicant’s home with an injury to her vagina. The respondent immediately took a photograph of the area and the next morning took Y to Dr D who referred her to the F Hospital where she was seen by a registrar, who reported in a letter the next day that the child had presented with vaginitis.
When the respondent was discussing this issue with Ms C, she said:
All sorts of things go through your head when you see that
When Ms C asked her directly however whether she had concerns about sexual abuse she was adamant she had no such concerns.
She explained at trial that her concerns increased as the years went by and more and more incidents occurred. Again both the respondent and Ms A gave evidence of Y returning home regularly for a time, from when she was about three or four, with vaginal irritation. When Dr D was asked, however, whether Y regularly presented at his practice with this complaint, he replied it may have occurred on a couple of occasions, including when she was taken to his rooms on 5 April 2014 with the injury to her vagina but not regularly.
In relation to the respondent’s insight and her ability to change and protect the children moving forward, I share Ms C’s serious concern that she has displayed little if any insight and she could not protect them.
At paragraph 49 of Ms C’s last report in this regard, she records the respondent as saying this:
I’m willing to recognize when I make a mistake. Early in 2017, I took their responses as them being scared of her (Ms Handley) I now realise they are in internal conflict. X was going mad with all this court proceedings. He’s not coping with it, and Y is being impacted by his behaviour. The kids are loyal to both Ms Handley and to me. They are so confused in their heads by what they are being told.
She is also recorded at paragraph 50 of the report to have said that she accepts that X would probably be unlikely to self-harm but she was nevertheless concerned that thoughts can turn into actions when a child is in such turmoil.
Despite those comments which seemed to indicate she had gained some insight, she then went on to explain as referred to in paragraph 52 of that report:
52. … ‘There is only one parent here who is casting the most outrageous allegations. There is only one parent who is bringing this constantly back to Court. She has everything. She has blocked me. I have had very little school or medical information on the children. I have no idea on what happens in their daily life. What I do know of their list is the little snippets that they share and what they do with us.’
It is extremely telling, in my view, and speaks volumes of not only the respondent’s lack of insight regarding the impact of her actions or inactions, particularly over the last two years to consider her response to Ms Oakley’s question as to how I could accept that something had changed such that she and the respondent could cooperate in the interests of the children, when she said:
I think it is now - it is more so that something has changed in me in the past two years ... in that my focus is … completely on the children and it’s not about Ms Handley and myself.
That comment is totally inconsistent however with the following findings I have made in these reasons:
a)Her failure to tell the applicant about the bath incident and that Y had accessed pornography on an iPad in her home. This in my view is a clear example of the respondent’s commitment to the parental conflict overwhelming her parental responsibility to protect the children;
b)She was deliberately dishonest with Dr D when she told him Y had placed glitter putty in her underpants to protect herself so as to cause him to make a notification to the Department;
c)When she was unable to deal with X’s upset about returning to the applicant she engaged the assistance of J Hospital, and later Suburb E Hospital and in turn either provided staff with false or exaggerated claims about the children’s distress and also used the opportunity to raise concerns about the applicant and her parenting which were also often not relevant or connected to the reason she was at the hospital;
d)Calling police to discuss concerns that were historic and/or without context or connection to the reason for her call;
e)Involving the school including sending, what she considered to be disrespectful emails which then caused the Principal to ban her.
But more significantly, when pressed repeatedly by Ms Oakley and despite absolutely no evidence of sexual harm even in her own case and she considered Y never having made any disclosures, she still maintained her belief that Y is at risk of sexual abuse in the applicant’s home, either by the applicant or her brother. Then when asked how she might satisfy her concerns that Y has not been harmed, she told the Court she would draw a line in the sand and speak to the applicant about it. That comment speaks volumes about her lack of insight, naïveté or, in fact, might suggest that she is not being truthful.

The legislative pathway

The Family Law Act 1975 (“the Act”) requires the Court to make final parenting orders that are in the best interests of the children, and sets out the legislative pathway the Court must follow to achieve this.
This pathway, guided by the objects and principles in s.60B, has its starting point with the Court’s consideration of the matters set out in s.60CC(2) and s.60CC(3) (the primary and additional considerations).
The Court must then consider parental responsibility. The law presumes that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility: s.61DA. However, this presumption is rebuttable, and might not be applied in the context of the Court’s findings of family violence or abuse: s.61DA(2).
If the presumption is rebutted, the Court is bound to frame orders in the best interests of the child, subject to the factual matrix of the case. If the presumption applies, the Court must determine whether it is in the child’s best interests and is reasonably practical (considering the factors set out in s.65DAA(5)) to: first, make an order for equal time; or, if that fails; second, make an order for substantial and significant time: s.65DAA and MRR v GR (2010) HCA 4).
I have already found that both children would benefit from a meaningful relationship with both the applicant and the respondent however I am required, when deciding the living arrangements for the children, to give priority to making an order that protects the children from harm.
I accept that I have raised some concern about the applicant exposing the children to her conflict with the respondent since the 2017 orders, however I have also made a finding that she shows far greater insight in relation to the impact of same on the children than the respondent.
I acknowledge that concerns have been raised previously, not only by the respondent but also by the children, of the applicant slapping the children and verbally abusing them, however the children have not disclosed concerns in that regard for some time. I note that notes made by staff at the Suburb E Hospital referred to in paragraph 41 of these reasons, record X as saying that apart from the applicant yelling at times and smacking him on the bottom twice but not for the past year, he denied any abuse in the applicant’s home. Neither child raised any concerns in this regard with Ms C in recent reports.
Although the respondent raised in previous proceedings her concerns that the children had been exposed to domestic violence during her relationship with the applicant and repeated those concerns to staff at Suburb E Hospital, I did not understand it to be her case that the children are at risk of exposure to domestic violence in the applicant’s home currently.
In relation to harm by unsupervised time with the respondent however, I have clearly made a finding that the children would be at risk of emotional harm if they were spending unsupervised time with the respondent, particularly considering that I have also found that she displayed no insight in that regard. Despite some comments to Ms C in the preparation of the last report, she went on to make allegations which were inconsistent with her claim that she understood the impact on the children of her exposing them to her conflict with the applicant. As mentioned earlier, after hearing all of the evidence, at the conclusion of her cross-examination by Ms Oakley, she still maintained that she was concerned for the children’s safety in the applicant’s care.
In relation to the children’s exposure to violence in the respondent and Ms A’s relationship, although the respondent and her partner deny any violence in their relationship I note that X spoke of witnessing an argument between the respondent and her partner on the evening before his second attendance at Suburb E Hospital on 29 September 2018. In this regard he told Ms C that the respondent and her partner had little fights before but they were never as strong as this one. He went on to explain “they hurt each other and I saw it”. It is of concern that he also told Ms C that he blamed himself for their fight because a neighbour had come over to give him some food to give to the respondent and he hadn’t known who the person was. He did acknowledge that the respondent and her partner told him later that it wasn’t his fault and that he knows that is wasn’t his fault but he thinks it was a little bit of a contributing factor as to why he found it difficult to leave the respondent the next day.
In relation to the applicant’s capacity to provide for the children’s day-to-day-care, although the respondent maintained under cross-examination her position that as a teacher she is better able to provide for the educational needs of the children, the applicant was not challenged in any real way in my view, to suggest that she is any less able than the respondent in this regard. In this regard I also note that the evidence form the school indicates that both children have settled, are enjoying school and progressing appropriately.
Although a significant issue between the applicant and the respondent in earlier proceedings was the respondent’s concern that the applicant was refusing to have X assessed, and therefore his health was compromised in her care, he assessed in late 2016 by Dr G. There is also evidence before the Court, particularly from X’s school that the applicant has addressed his particular needs with regard to his education and she has also made arrangements for the children to continue to attend at Mr B for counselling.
I also note that there are no current evidence from the school to indicate X’s troubled behaviour at school has resurfaced in the last 12 to 18 months. Ms H in her evidence raised some concerns about the applicant’s attention to the children’s homework however conceded that these concerns were based very much on what she had been by the applicant. Having heard the evidence, there was nothing that caused me to be concerned or even suggest that the applicant is so wanting in this regard that it should cause me to be concerned about the applicant’s attention to the children’s education.
As mentioned earlier in these reasons, it was conceded by the applicant and it is not in dispute that both children, but particularly X, in the past has at times expressed a wish to reverse the living arrangements so that he was spending alternate weekends with the applicant and the balance of time with the respondent.
In Ms C’s last report he is recorded as explain that he likes living in the applicant’s home but, to use his words “likes being at the respondent’s more” because he finds it very hard to let go of the respondent but he didn’t have the same problem letting go of the applicant because he sees more of her. He went on to say that he was managing fine with what was then the two days with the respondent and 12 days with the applicant until the hospital visits started. In fact his preference at the time of the report was that the arrangements go back to the way that they were (12 days with the applicant and two days with the respondent) but he did not want the respondent to take him back to the hospital again.
In relation to Y, it was clear to Ms C that she loves both parents and express some sadness at leaving the respondent because they didn’t get to see her as much. At interviews for the preparation of the last report, it was her preference to stay with the respondent until Wednesday because the weekend was not long enough.
I have already referred earlier in these reasons to Ms C’s view, which seems not to be in dispute even by the applicant, that the children will be most distressed by such a significant reduction as is proposed by the Independent Children’s Lawyer in their time with the respondent. It was clearly Ms C’s view however which was really not challenged and I accept, given the findings that I’ve made about the respondent’s lack of insight, an order that provided for them to spend unsupervised time with the respondent in the long term would cause them greater distress.
In making the orders as proposed by the Independent Children’s Lawyer I have considered the case law which suggests that long-term supervision for children may not be in their best interests. That is particularly important in this matter where X has already started to become bored at a contact centre and Ms C confirmed that Y will soon also find the restrictions of time at a contact centre unsuitable. This is not a matter however, when both children are so close to the respondent, that it would be in their interests in my view to make an order for no time, but to address their boredom and to provide them with an opportunity to spend some time with the respondent, off-site supervision was proposed and in my view is a preferable option.
It was also proposed by the Independent Children’s Lawyer that the applicant share in the costs of that off-site supervision as it will be much more costly than supervision at the contact centre. The restrictions that have been placed on Ms A’s attendance are also in my view appropriate given comments made by Ms L from O that it is important for the children’s time with the respondent to be maximised by not always having others in attendance.

Parental Responsibility

It is my view that the evidence in this matter would support a finding that, even prior to the August 2017 order, which gave the application sole parental responsibility, there were many examples of the applicant and respondent being unable to resolve disagreements, in particular in relation to medical treatment for the children, the needs for an accuracy of medical and other assessments of the children and their education. Those failures led, of course, to the order for sole parental responsibility which was recommended by Ms C in her third family report and taken up by her Honour in the August 2017 order.
It is also clear in my view and, in fact, conceded by the applicant and respondent in answer to questions from Ms Oakley, that the sole parental responsibility order has not prevented ongoing disagreements between the parties. Examples of this include a disagreement between the applicant and respondent as to whether Y had a case of worms which eventually led to the General Practitioner treating Y at the time to decline to continue to treat her. Other disagreements include the appropriate manner in which to release medical information to the respondent, whether a child should have a haircut or not, and what school X will attend in 2020.

When both parties were asked about how their communication could improve, neither had a satisfactory response. The applicant was unable to suggest any way their communication could improve and acknowledged that they had last spoken more than a few words to each other for a couple of years and that was in relation to X, but had not been successful since that time in communicating with each other. She also referred to a suggestion that they met with a professional for therapeutic assistance, again, apparently two years - three years ago, but the respondent had refused to attend.
The respondent’s only suggestion was that they both, as indicated before, draw a line in the sand and start talking with each other.
Having heard from both parties in this matter, I have no faith in their ability to communicate in any way and, certainly, not in any cooperative way in the foreseeable future. Neither, in my view, have the insight or skills necessary for that to occur and I have even less faith that they have the ability, skills or even motivation to do that, when there is no evidence of it happening since separation, some years ago, and after four family reports referring to the conflict and its effect on the children, the need for this to communicate for the benefit of their children.
Of course given the findings that the children would be at risk of harm by unsupervised time with the respondent, the presumption of equal shared parental responsibility is rebutted in this matter, and however, for the reasons set out above, that order would clearly not be in the children’s best interest and given that they will be living with the applicant, it is appropriate for her to retain parental responsibility for the children.
This is also not a matter where there would be any benefit to the children in the Court making an order that required the applicant to inform the respondent of decisions that need to be made and to receive her input in that regard. Unfortunately their communication and ability to agree on any topic would only cause them to be in further conflict with each other and could very well delay important decisions being made in relation to the children’s education and/or medical treatment.
The orders proposed by the Independent Children’s Lawyer do provide however for the applicant to provide to the respondent at the conclusion of each school term, an extensive written summary of their progress including information relating to their education, health, general development, interests, peer relationships and milestones as well as their school reports and NAPLAN results and any medical reports relating to the children.
This is truly a very sad outcome in my view, for Y and X but ultimately for the reasons that I have explained, I will make all of the orders proposed by the Independent Children’s Lawyer including an order that provides for the reports of Ms C, my orders and reasons to be provided to the children’s counsellor and for the Independent Children’s Lawyer to be discharged after she arranges for the children to attend upon Mr B to explain the orders.

I certify that the preceding one-hundred and fifty-one (151) paragraphs are a true copy of the reasons for judgment of Judge Spelleken

Date: 11 November 2019

[2019] FCCA 2860

11 November 2019

Key Legal Topics

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Family Law

Equity & Trusts

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Injunction

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