Hoyt & Hoyt (No 4)
[2024] FedCFamC1F 581
•20 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hoyt & Hoyt (No 4) [2024] FedCFamC1F 581
File number(s): MLC 2823 of 2023 Judgment of: STRUM J Date of judgment: 20 August 2024 Catchwords: FAMILY LAW – PARENTING – Allocation of parental responsibility for decision-making in relation to major long-term issues - With whom the children live – With whom the children spend time - Best interests of the children – Where mother refused to appear in person at trial without proper basis –Where Victoria Legal Aid declined to appoint further legal representation for mother subject to s 102NA order -Where ICL and father agree and Court finds that it is in the best interests of the children for father solely to have parental responsibility for decision-making in relation to major long-term issues, for the children to live with him and to spend no time with mother. Legislation: Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61D, 64B, 65C, 65D, 65DAAA, 102NA(1)(c)(iv), 114Q144(3)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 15.16(3), 8.15, 10.13(1)(a)
Children, Youth and Families Act 2005 (Vic) s 162
Cases cited: Re-F: Litigants in Person Guidelines (2001) FAMCA 348 Division: Division 1 First Instance Number of paragraphs: 203 Date of hearing: 19 August 2024 Place: Melbourne Counsel for the Applicant: Ms Clarken and Mr Brear Solicitor for the Applicant: MMH Lawyers For the Respondent: The Respondent did not appear Counsel for the Independent Children's Lawyer: Mr Tesorerio Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 2823 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HOYT
Applicant
AND: MS HOYT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
20 AUGUST 2024
THE COURT ORDERS BY CONSENT BETWEEN THE APPLICANT FATHER AND THE INDEPENDENT CHILDREN’S LAWYER AND UNDEFENDED BY THE RESPONDENT MOTHER THAT:
Decision making
1.The Father have sole decision making authority in relation to decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) for the children X born in 2014, Y born in 2016, and Z born in 2018 (‘the children’).
Live With and Spend Time Arrangements
2.The children live with the Father.
3.The children spend no time and have no communication with the Mother unless agreed between the Father and Mother in writing.
Communication
4.The Father and Mother communicate with each other only regarding matters pertaining to the children via the Talking Parents application or any other application as agreed to between the Father and Mother.
5.Save for emergency situations, the Mother only be permitted to contact the Father via the Talking Parents application between the hours of 4:00pm and 5:00pm.
6.The Father and Mother notify each other of any change of address, telephone number or email address within 24 hours of such change.
Travel
7.The children be permitted to travel outside the Commonwealth of Australia with the Father notwithstanding that the consent of the Mother has not been obtained.
8.For the purposes of section 11 of the Australian Passports Act 2005 (Cth) (‘Passports Act’) the issue of a passport or travel documents (within the meaning of the Passports Act) be expressly permitted for each child upon application by the Father and without requiring the consent of the Mother to the child travelling outside the Commonwealth of Australia or her signing passport renewal applications.
Miscellaneous
9.The Father be at liberty to provide a copy of these orders to:
(a)Any school, after school care provider or extracurricular activity provider that the children attend from time to time;
(b)Any government or non-government agency in relation to any matters concerning:
(i)Exercising sole decision making authority;
(ii)Care of the children or any of them;
(iii)Immigration and/or visa matters;
(iv)Applying for and obtaining passports for the children or any of them;
(v)The children travelling outside the Commonwealth of Australia.
10.The Mother be restrained by injunction from:
(a)Attending upon any medical professional in relation to the children or discussing with them the children’s medical or health-related affairs;
(b)Administering medication to the children that is not prescribed or recommended by a medical professional;
(c)Advising the children that they have any illness or disease unless diagnosed by a suitably qualified medical professional;
(d)Consuming alcohol or illicit drugs, or being affected by alcohol or illicit drugs if/when in the presence of the children, or if/when communicating with the children;
(e)Exposing the children to physical or verbal violence;
(f)Subjecting the children to verbal or emotional abuse, including but not limited to swearing at or otherwise denigrating them;
(g)Discussing any matter pertaining to these proceedings with or in the presence or hearing of the children;
(h)Denigrating the Father or any member of the Father’s family in the presence and/or hearing of the children or allowing any other person to do so.
11.Pursuant to s 144(3) of the Family Law Act 1975 (Cth), the Mother be restrained from contacting the Independent Children’s Lawyer.
12.The Independent Children’s Lawyer be hereby discharged.
13.All extant applications be otherwise dismissed and the proceedings removed from the docket of the Honourable Justice Strum.
14.The ex tempore reasons for judgment delivered this day be transcribed and a copy thereof be provided to the parties when settled, in circumstances where the Mother failed to appear at trial and the trial proceeded undefended by her, requiring the delivery of reasons for judgment, notwithstanding the consent of the Father and the Independent Children’s Lawyer to the making of these orders.
AND THE COURT NOTES
A.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
B.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Strum J:
These are proceedings under Part VII of the Family Law Act 1975 (Cth) (“FLA”) for parenting orders in relation to the three children of the marriage of the father, Mr Hoyt, and the mother, Ms Hoyt, being: X, born in 2014 and aged 10 years; Y, born in 2016 and aged 7 years; and Z, born in 2018, and aged 16 years.
X was diagnosed three years ago in 2021 with ADHD. He has not taken any medication for ADHD since he commenced living with the father in 2022 and is, by all accounts, progressing well without it. Neither of the girls have been diagnosed with ADHD, or indeed anything else.
These are my (settled) ex tempore reasons for making orders substantially in terms of a minute of consent orders as between the father and the Independent Children’s Lawyer in proceedings undefended by the mother at trial.
BACKGROUND
The parents separated in January 2019 and, by agreement between the father and the mother, the children lived with the mother and spent time with the father without the need for orders of this Court.
In 2022, the Department of Families, Fairness and Housing (“DFFH”) became involved with the family due to concerns for the safety and welfare of the children in the care of the mother. The children were placed in the care of the father and have remained in his care in the ensuing months and appear to have thrived during that time.
Later in 2022, an Interim Accommodation Order was made in the Children's Court of Victoria at City C, pursuant to which the children commenced to live with the father and spend supervised time with the mother.
By late 2022, the requirement for supervision was relaxed somewhat to “monitored” time with the mother.
In early 2023, an interim Intervention Order was made against the father in favour of the mother. The nature of such orders in Victoria is that they are usually made ex parte.
It appears that, also in early 2023, DFFH further relaxed the conditions governing the mother's time with the children, notwithstanding the concerns of the father.
Later in 2023, the mother reported that all three children had ADHD, notwithstanding that only X had ever been diagnosed therewith some two years earlier. The children were distressed by that allegation. It appears that the mother also made this allegation to the children's school or schools. This caused DFFH to issue a communication plan.
More relevantly, later that month, the father instituted these proceedings, leading to DFFH eventually withdrawing from its involvement in the Children's Court. However, that did not preclude DFFH from making a report to this Court in 2023 deeming the children to be at unacceptable risk of emotional and physical harm if they were to reside with the mother.
At all times, the mother has denied the allegations against, or involving, her and has alleged that risk is posed to the children in the care of the father. I note that none of the professionals in this case share her view, including: the Independent Children's Lawyer; the Family Report writer; the Child Impact Report writer; Dr O, the author of a psychiatric assessment of her; and DFFH.
Interim orders were first made in Division 2 of the Federal Circuit and Family Court of Australia on 12 April 2023, by a Senior Judicial Registrar. They provided:
8.That the children [Z] born [in] 2018, [Y] born [in] 2016 and [X] born [in] 2017 (“the children”) live with father.
9. That the father have sole parental responsibility for the children.
…
11.That the children spent time with the mother on a supervised basis on the following terms:
a.On a supervised basis at a contact centre agreed between the parties and failing agreement as nominated by the father;
b.For two (2) hours per fortnight or at such times as agreed between the contact centre and the parties;
with the cost of the supervised contact centre to be shared equally between the parties.
…
15. That the Respondent Mother be restrained by injunction from:
a.Attending upon any medical profession or discussing with them the children’s medical or health-related affairs;
b.Administering medication to the children that is not prescribed or recommended by a relevant medical professional;
c.advising the children that they have any illness or disease unless diagnosed by a suitably qualified medical professional;
d.consuming alcohol or illicit drugs, or be affected by alcohol or illicit drugs, when with the children;
e.exposing the children to physical or verbal violence; and
f.subjecting the children to verbal or emotional abuse, including but not limited to swearing at or otherwise denigrating them.
Those orders have remained essentially in effect since then.
On 12 October 2023, I made orders in Chambers by consent, extending the mother's supervised time with the children from two hours to four hours per fortnight. However, I note that the mother has not exercised supervised time with the children since late 2023, approximately one month after I granted the extension of her time.
On 22 February 2023, I made orders listing this trial to begin on the 19 August 2024, with an estimated duration of five days. I note that the Trial Plan agreed between the father and the Independent Children's Lawyer estimated a duration of approximately five days. The mother disagreed with that estimate, and in her marked-up amendment to the Trial Plan contained in the Court Book, she contended, somewhat remarkably, that the whole trial would take 20 minutes.
On 6 March 2024, given the circumstances of the case, I made orders in the exercise of my discretion pursuant to s 102NA(1)(c)(iv) of the FLA (“s 102NA Order”) which enabled both parties to apply to Victoria Legal Aid for funding for legal representation pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme. The father is so represented today, 20 August 2024, as well as yesterday, 19 August 2024.
On 9 May 2024, an Application in a Proceeding was filed by the Independent Children's Lawyer which, on any view, was remarkable and emblematic of the concerns about the mother. The application sought to restrain the mother from contacting the Independent Children’s Lawyer, Counsel instructed by her and any employee of Victoria Legal Aid, save for specific purposes, and otherwise no more than one email per week, on Wednesdays between 10.00 am and 10.30 am.
On 24 May 2024, orders were made by consent, generally to that effect. It is a scenario that I have never encountered before and corroborates many of the allegations, and is consistent with much of the evidence, against the mother.
MOTHER’S NON-PARTICIPATION AT TRIAL
In relation to the s 102NA Order, an email was received on 24 June 2024 by my Chambers from Victoria Legal Aid, which has been marked as Exhibit C3. Victoria Legal Aid informed my Chambers that they had been advised that day that the mother would self-represent at trial and that they had advised S Lawyers thereof. I presume they were the solicitors then retained on behalf of the mother pursuant to the s 102NA Order. Victoria Legal Aid also advised my Chambers that they had reminded the mother of the need for legal representation if she wished to cross-examine the father.
On 11 July 2023, a further email from Victoria Legal Aid was received by my Chambers, which has been marked as Exhibit C4. The email was said to be by way of “update” in the matter and stated:
To date we have allocated [Ms Hoyt] to two firms, both of whom have withdrawn due to [Ms Hoyt] having unreasonable expectations and unwillingness to accept instructions.
Due to this, VLA will not be seeking new representation for [Ms Hoyt].
On 12 August 2024, the mother filed a Request to Attend by Electronic Communication. She indicated that she wished to do so for the purposes of making submissions, to give evidence and to adduce evidence from both the father and the single expert psychiatrist who assessed her, Dr O. Insofar as she referred to an intention to “adduce evidence”, I infer that she was proposing to cross-examine the father, notwithstanding that she would have been precluded from so doing by reason of the s 102NA Order, unless application was made to discharge it, and no such application was foreshadowed or made.
The reasons given by the mother as to why she sought to use electronic communication were stated in her Request to be as follows:
For my physical and emotional safety, I must attend the Final Hearing via video conference from the safety of my home. […] [Last] year, my [treating medical professional] tested my underlying [health] as perfect. He instructed me to avoid unnecessary stress, which was the cause of the onset of [a health condition]. The Melbourne branch of the FCFCOA causes more stress than any other physical location. [Dr O], [Mr Hoyt], and Justice Strum have repeatedly victimised and vilified me during previous hearings, misusing reports compiled by Victorian Government employees and Family Court Social Science employees.
I did not and will not condescend to answering the mother’s allegations insofar as they relate to me. As will become apparent, the mother was advised that if she had an application to make, it would be considered.
In answer to the question in the pro forma Request as to the proposed arrangements for attendance, she said as follows, albeit that it did not answer the question:
I’m requesting to attend every day of the trial via video conference from the safety of my home and despite my request being outside the 28-day time limit. I have no support person who I would consider exposing to the stress of witnessing personal and professional attacks on me during proceedings. These consistent, ongoing attacks have led to my [health deteriorating]. This has been confirmed by [medical equipment]. I developed [a health condition] for the first time in […] 2022 when my children were stolen and kept from me since by the father, with no legal protection for us. Past hearings have allowed for video access by other interested individuals, beginning with [Ms F] and [Ms T] [in] 2023. My pupils have become different sizes yet my eye test was perfect, indicating a stress response which has begun affecting a different part of the brain. I won't risk driving [several] hours with a stress induced eye condition among other listed stress responses and I would appreciate the court allowing me to join the final hearing virtually from [Town U], south of [City C].
Whilst the mother stated in the Request that she had advised the other parties, namely, the father and the Independent Children's Lawyer, that day, being Monday 12 August 2024, of her intention to make the request, she did not indicate whether any response thereto had been received from them.
The following day, on 13 August 2024, at 3.07 pm, the mother was advised by email from my Chambers that her request did not comply with the mandatory requirements of r 15.16(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Rules”). Contrary to paragraph (b), the Request had been made less than 28 days before the date fixed for the trial to start, and without explanation. Insofar as paragraph (c) requires the facts relied upon in support of the request to be set out, the facts asserted by her in relation to her physical and mental health were unsupported by any expert evidence from medical or ancillary health practitioners. Contrary to paragraph (d), she had failed to set out the details of the notice in relation to the request that had been given to the other parties. Contrary to paragraph (e), she failed to state whether the other parties had agreed or objected to the request.
The mother’s request was therefore refused and she was advised by email from my Chambers that she was required to attend in person at Court on 19 August 2024 at 10.00 am. She was warned that, should she fail to do so, the trial might proceed in her absence. She was also reminded that, insofar as certain of the difficulties which she asserts were concerned, that those difficulties might have been obviated, or at least alleviated, by the s 102NA Order previously made by me, which would have enabled her to secure legal representation through Victoria Legal Aid.
The mother was also advised, in relation to her stated intention to cross-examine the father, albeit electronically from her home, that by reason of the s 102NA Order she would not be permitted to do so personally, but only by a legal practitioner acting on her behalf. She was informed, however, that matters in respect of which she wished to cross-examine the father might, in any event, be the subject of cross-examination by the Independent Children's Lawyer. She was further advised that the s 102NA Order would not preclude her from cross-examining in person, at Court, Dr O, or any other witness.
In response to that email, later that evening, on 13 August 2024 at 8.31 pm, the mother sent an email to my Chambers, marked Exhibit C9. She referred to the Court’s intention to enhance national access to justice for vulnerable parties and regional communities through the use of technology. She asserted that City C, in the vicinity of which she lives, is classified as regional and repeated that she wished to access this technology during the trial the following week. She further advised that she would provide a medical certificate the following day in support of her request to attend the trial by video, and that if the father disagreed with her reasoning, she sought that he indicate why he did so and from whom he sought his medical evidence advice. Ultimately, it was not a matter for the father, it was a matter for me, and in the absence of any indication as to the position then of the father and the Independent Children's Lawyer, I had already considered and refused her Request.
She also stated that she -
…did not foresee these physical symptoms developing prior to the unexpected commencement of court proceedings 2 years ago.
She has never previously, to the best of my recollection, referred in these proceedings to physical symptoms having precluded her from attending Court. Indeed, she has attended Court in person in the past, including before me.
Insofar as she referred to difficulties with her eyes which she asserted reduced the safety of driving long distances, I refer below to two “Eye Examination Reports” that she provided the following day, on 14 August 2024. However, there is nothing in those reports that suggests she is not capable of driving, whether long distances or at all. Insofar as she then added that “current delays with public transport from [City C] […] cannot ensure that the proceedings would commence on time each day”, the solution was to leave home earlier, armed with that knowledge, especially in circumstances where she had no care commitments for the children.
The following day, on 14 August 2024 at 1.50 pm, under cover of an email, the mother provided two “Eye Examination Reports”, which are in evidence, marked Exhibits C1 and C2. In the covering email, which is in evidence marked Exhibit C5, the mother asserted that she is “[a health professional] with a [professional qualification] to undertake diagnostic medicine”. She further asserted, without any proper evidence, that she is:
…qualified [in medical diagnosis]. This role is a vital part of medicine and has been my long term career, even whilst I'm not working in [allied health] or [in education]…
Suffice it to say that she cannot be an independent expert in her own case. Other than it seems to be acknowledged that she is an allied health professional, there is no evidence of any other qualifications on her part.
She then made further allegations about some difficulties with her eyes and said as follows:
…I assure the parties that I am providing an accurate report of my physical state of vision at present and that my professional opinion on the risks of driving holds the same weight as a medical certificate written by a 'Doctor' which would not have to list the ailment…
I do not know how she can assert that a doctor would not have to list the ailment and, as I have said, I am not satisfied as to her qualifications to so opine. She renewed her request to attend by video conference on the asserted basis that she is “the person who is best suited to provide an opinion on ‘cause and effect’ in the medical field”.
Both Eye Examination Reports are dated 2024, on an optometrist’s letterhead, and, on their face, are apparently authored by Ms V. It is not clear why she prepared two reports, both dated the same day. There is no evidence as to the expertise of the author; it may be that she is an optometrist. It is, in my opinion, unlikely that she is an ophthalmologist, as she refers to herself only as "Ms". Nothing in those reports suggests the mother was unable to attend at Court or that she was unable to drive. There is no reference, and understandably so, to any of the other multiple conditions to which the mother referred in her Request to Attend by Electronic Communication and in her communications with my Chambers. She says in Exhibit C1 that the mother was “first seen at our practice […] for a [medical condition] in the […] eye”. Ms V reports that the mother “presented the following day with significant pain in her […] eye radiating into her eye socket.”.
Ms V says that she reviewed the mother again the following morning and that the mother reported having used the eye drops “only a few times” during the night. The mother was referred to a Dr W for an opinion on management, who then referred her to Dr AA for a medical procedure. There is no evidence at all from Dr W or Dr AA, and inexplicably so. Similarly, there is no evidence as to their qualifications.
The second of the reports, being Exhibit C2, refers to the mother having been seen by an unnamed colleague of Ms V also in 2024. It is difficult to reconcile Ms V saying in Exhibit C1 that the mother was first seen by her at the practice in 2024, but then saying in Exhibit C2 she was first seen by her colleague, by which I infer a colleague at the optometrist, earlier in 2024.
Ms V sets out in her “key findings”, inter alia:
…No ocular causes for headaches were found and [Ms Hoyt] was advised to consult with her GP if symptoms persisted.
Neither of these reports, in my view, provide a sufficient basis for the mother not to have attended at Court yesterday. I am fortified in this regard, in that both reports state that the "patient will be recalled [in] 2025 (12 months)”. If the mother was as unwell as she asserts, I consider it highly likely that she would have been recalled within much less than one year.
In the circumstances, the mother was advised by my Chambers at 2.56 pm on 14 August 2024 that an appearance in person would be expected at trial, to which she glibly replied by email at 7.17 pm on 14 August (Exhibit C6):
Well, we have our answer then.
In reply to an email sent by my Chambers to all parties on 15 August 2024 (Exhibit C7), the mother responded:
Dear Associates and parties,
I do not have counsel briefed for next week, and I’m currently unable to personally make representations for myself in Melbourne.
Later that afternoon, the mother was again reminded by my Chambers that punctual attendance would be required at trial and that, should she fail to appear, the matter could proceed in her absence. Further, she was advised that any application she might wish to make in person that day would be considered by the Court.
I am, of course, cognisant of the obligations imposed upon judges when dealing with litigants in person and the guidelines set out in that respect by the Full Court in Re-F: Litigants in Person Guidelines (2001) FAMCA 348. Had the mother seen to appear, I would have endeavoured to comply with those guidelines.
The mother responded to that email from my Chambers nearly two hours later, at 4.02 pm on 15 August 2024 (Exhibit C8), as follows:
Dear Associates and Parties,
The risks outweigh the benefits of your request for an in-person appearance by me at the trial.
In the aim of safety (on all fronts), I won't physically be in attendance next week for the reasons I've provided. Nor can I make an oral application in person on the day for the same reason.
I accept that the Court will make Orders which they see fit to make, in my absence. Also, I do not consent to an adjournment.
No adjournment had then been sought by either the father or the Independent Children's Lawyer. If an adjournment was to be sought, presumably it would have been sought by the mother in circumstances where she asserted that she could not come to Court and she did not have legal representation and, by reason of the s 102NA Order, would have been precluded from cross-examining.
Insofar as the mother referred to "[i]n the aim of safety on all fronts" (emphasis added) she would not physically be in attendance, I do not know what she meant by that. It is one thing for her to assert (although I do not accept on the evidence) that it might not have been safe for her to travel to or attend at Court; however, I do not understand the reference to "on all fronts" and whether that is possibly a reference to the father, the Independent Children's Lawyer, counsel briefed by them, my staff or me.
Yesterday (19 August 2024), when the matter was listed for trial, the mother was called outside of Court at 10.11am, 10.51am. and 11.51am. On no occasion was there any answer to the call. Each call outside of Court was immediately followed by a telephone call to the mother's mobile telephone which, in each case, immediately diverted to a voicemail, the message of which referred to calling “[Ms Nickolaeva]”, which is the mother's name. Immediately after the last call to her outside Court, I was informed by counsel for the father that she had a missed call from the mother. The matter was again stood down to enable counsel for the father to return the mother's call. When Court resumed, counsel for the father informed me that she had spoken to the mother who had told her that she would not come to Court. Counsel for the father further informed that that she had told the mother to leave her telephone switched on as the Court would call her again, in response to which the mother said she that would not respond. True to her word, when the mother’s telephone was called by the Court for a fourth (and last) time at 12.15 pm, it again immediately diverted to her voicemail.
Also tendered into evidence were written communications from counsel for the father and counsel for the Independent Children's Lawyer to the mother that morning, endeavouring to make contact with her due to her failure to appear at Court. That correspondence is in evidence, marked as Exhibits F1 and ICL1. The mother responded to the Independent Children's Lawyer at 6.37 pm that evening – more than eight hours after the email was sent – with two words: "Roger that" (Exhibit ICL4).
In the circumstances, the trial of these proceedings has proceeded undefended by her.
ORDERS SOUGHT BY THE PARTIES
The father filed an Amended Initiating Application on 24 June 2024, in which he relevantly sought:
Decision Making
1.The Father shall have sole decision making authority in relation to decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) for the children [X] born [in] 2014 […], [Y] born [in] 2016 […], and [Z] born [in] 2018 […] (‘the children’).
Live With and Spend time Arrangements
2.The children live with the Father.
3.The children spend time and communicate with the Respondent Mother:
a. Once per month for a period of two hours supervised at [G Contact Centre] or other agreed Supervised Contact Service with all costs associated with the supervised visits to be the sole responsibility of the Mother;
b. As otherwise agreed between the parties in writing.
…
Travel
7.The children be permitted to travel outside the Commonwealth of Australia with their Father notwithstanding that the consent of the Mother has not been obtained.
8.For the purposes of section 11 of the Australian Passports Act 2005 (Cth) (‘Passports Act’) this order expressly permits the issue of a passport or travel documents (within the meaning of the Passports Act) for the child upon application by the father and without requiring the consent of the mother to the child travelling outside the Commonwealth of Australia or his signing passport renewal applications
…
The mother filed an Amended Response to Initiating Application, most recently on 30 July 2024 – although it is dated 29 July 2024 – in which she sought a number of orders:
1.That the Respondent Mother have sole parental responsibility for the children [X] born [in] 2014 […], [Y] born [in] 2016 […], and Z born [in] 2018 […] (the 'children').
2. That the children live with the mother.
3.That the Respondent Mother have sole medical decision-making responsibility for the children.
4. That the child with the name:
Reverted to order 4(i)originally published on 20 February 2024
i.[X Hoyt] be changed to [X Nickolaeva];
ii.[Y Hoyt] be changed to [Y Nickolaeva]; and
iii.[Z Hoyt] be changed to [Z Nickolaeva].
She further sought that the Court make a number of findings or, in her words “enter into the record” a number of matters, not properly the subject of orders:
5. That the Court enter into the record that:
i.The mother has acted in the best interests of the children, to the best of her abilities;
ii.That the mother has provided the children with the widest possible protection, within her capabilities;
iii.On a balance of probabilities, the mother does not pose a risk to the children’s physical, emotional, or psychological health and safety, or development; and
iv.Allegations of child abuse made by the Department of Families, Fairness and Housing, by the mother towards any of her children, were unsubstantiated and without legal basis to support the allegations.
The mother sought further unusual orders, including
6.That the Court make orders compensating the mother for lost time with the children;
i. From 6 July 2022; and
ii. At the previous parental care ratio of 5:2 in the mother’s favour.
7.That the children’s time spent with the father be decided on by the mother, and guided by:
i. the best interests of each of each individual child;
ii. the views and wishes of each individual child; and
iii.the benefit of the children having a meaningful relationship with both of their parents, the paternal and maternal grandparents, and other persons of significance.
And subject to;
i.the need to provide the children with the widest possible protection; and
ii.the capacity of each of the children’s parents and grandparents to provide for the emotional and intellectual needs of the children.
…
9.That, pursuant to Rule 12.15 of the Family Law Rules 2021, the Respondent Mother (and a party to the proceedings) requests that the Court make a costs order against [Mr H] and [BB lawyers] requiring the Firm to repay any money that their client, [Mr Hoyt], has already paid in costs.
The undue delay in resolving their client’s parenting matter has been caused by the improper and unreasonable conduct of [Mr H], [Ms CC], and [Ms DD]. Most notably, [Mr H] failed to:
i.comply with multiple pre-action procedures;
ii.comply with the Rules of the Court and orders made;
iii.prepare and file documents in a reasonable and timely manner as ordered by the Court; and
iv.prepare any proper evidence or information.
9A.That, pursuant to s119 of the Family Law Act 1975, the Applicant be ordered to pay damages to his wife for the tort of Intentional Infliction of Emotional Distress causing psychiatric injury, to the same value awarded in paragraph 9.
10.That the Firm, [BB lawyers], cannot seek to redeem these costs from the Respondent mother.
…
On 15 August 2024, a Case Outline was filed by the father, in which he specified that he relied upon his Amended Initiating Application and did not seek different orders. The Independent Children's Lawyer filed a Case Outline on 15 August 2024; similarly, no orders were sought, but it was clear from that document that the Independent Children's Lawyer substantially supports the father's case, with certain areas of divergence, to which I refer below. The mother did not comply with my Orders for the filing of a Case Outline. No reason has been proffered for her failure to do so.
On page 9 of the Independent Children's Lawyer’s Case Outline, under the heading “Additional Information”, the Independent Children's Lawyer relevantly stated that:
…
The ICL supports the orders sought by the Father with respect to where the children live and long-term decision-making responsibility.
The ICL does not support any time between the children and the Mother.
If the Mother fails to attend court, the ICL supports the matter proceeding on an undefended basis and seeks orders that there be no time between the children and the Mother.
In the event the Courts deem it appropriate to make final parenting orders, the ICL seeks that there be final orders restraining the Mother from contacting any employee of VLA, including the ICL, via work or personal contact methods, or attending any VLA office, or contacting any Counsel for the ICL.
The father now supports the position of the Independent Children's Lawyer with respect to the children not spending any time whatsoever with the mother. I am satisfied that the mother is on notice of the position of the Independent Children's Lawyer by reason of service upon her of the Case Outline to the email address specified in the Notice of Address for Service filed by her. Service of that document was effected on 15 August 2024 by way of the email and covering letter, which were tendered by the Independent Children's Lawyer and marked Exhibit ICL3.
I am fortified in finding that the mother is on notice of the Independent Children’s Lawyer’s position by reason of an email sent by the Independent Children's Lawyer to the mother the previous day, on 14 August 2024 (Exhibit ICL2), in which she advised the mother that if she did not attend court:
… I will seek that this matter proceed on an undefended basis and support the fathers [sic] application for the children to live with him and he have sole decision making for long term issues regarding the children.
I will not support orders [that] the children to spend any time with you and will seek orders that you engage with a psychiatrist and follow all reasonable recommendations of the psychiatrist including a trial of [different prescribed] medication, and a cessation of [the current prescribed] medication.
This email will be tendered to the court as will my email dated 13.8.2024.
EVIDENCE
I have read the affidavits of the father and the mother. In relation to the evidence of the father, by reason of the mother's failure to appear and by reason of the s 102NA Order, there has been no cross-examination of him, either by the mother, or on her behalf. Had she appeared, she might have made application to discharge the s 102NA application. I will not speculate as to the merits and prospects of success of any such application. Further, the father was not required for cross-examination by the Independent Children's Lawyer and his evidence is unchallenged. Having read his affidavit, there is nothing inherently improbable that would cause me not to accept his evidence.
In relation to the mother, by reason of her failure to attend and make herself available for cross‑examination, her evidence is not capable of being tested. However, many of the allegations she makes in her affidavit are contradicted by other evidence in these proceedings, including evidence independent of that of the father. It was clear from the Trial Plan that both the father, by counsel, and the Independent Children's Lawyer sought to cross-examine the mother. I therefore give her evidence minimal weight. However, I note that her trial affidavit consists of 10 pages of text, excluding annexures which are not in evidence. Her affidavit primarily consists of complaints regarding the proceedings in this Court and the Children's Court, and little about the children, their relationship with her, and matters that would have been of far greater interest to the Court.
I am fortified in relation to my acceptance of the father's unchallenged evidence because it is substantially corroborated by the s 69ZW Response provided to the Court by the DFFH dated 28 June 2023; the Child Impact Report dated 31 August 2023; the Family Report dated 28 June 2024; and the Psychiatric Assessment of the mother by the single expert, Dr O, dated 18 July 2024.
Section 69ZW Response
The s 69ZW Response sets out the involvement of DFFH between 2022 and 2023, which corresponds to the time when there were proceedings in the Children's Court of Victoria to which it was a party. The s 69ZW Response refers to a report received by “Child Protection” in 2022 pursuant to s 162(1)(c)(e) of the Children, Youth and Families Act 2005 (Vic), which included concerns that the mother was providing medication to Y that was not prescribed to her; that she was struggling in managing the children, resulting in shaking Y; of threats of harm; and an increase in the mother's alcohol consumption.
The s 69ZW Response states that:
…
The matter proceeded to investigation and Child Protection ascertained a number of concerns for the children in the care of [Ms Hoyt]. These concerns combined evidenced Child Protections’ primary concern that [Ms Hoyt] was experiencing adverse mental health thereby placing the children at significant risk of harm as follows:
•[Ms Hoyt] exhibited a pattern of behaviour characteristic of 'doctor-shopping’ to seek various diagnosis for the children contrary to professional advice.
•[Ms Hoyt] was providing [Y] with various medications that were not prescribed to [Y] which had potential severe side effects.
•[Ms Hoyt] was inappropriately physically disciplining the children.
•[Ms Hoyt] was engaging in problematic alcohol use which was impacting on her capacity to provide a safe and stable environment.
It was therefore determined that all three children were at imminent and unacceptable risk of harm in [Ms Hoyt]’s care…
The children were therefore placed in the primary care of the father. Attempts were made by DFFH to work with the mother on a voluntary basis to reduce the protective concerns; however, her behaviours resulted in increased concerns on the part of DFFH, which included the following:
•Reports from medical professionals regarding the mother’s persistent attempts to obtain prescription medication for [Y] claim a range of behavioural issues. It was reported by one medical practice that the mother presented with intimidating and abusive behaviour causing the medical practitioner to become distressed.
•It was reported that the mother was providing [Y] with [X]’s ADHD medication […] which had potential severe side effects. This report was supported by disclosures from the children that this was occurring.
•Reports that the mother was insisting that [Z] had a diagnosis although would not clarify what this was and attributing this ‘diagnosis’, to a deterioration in [Z]’s presentation and behaviour.
•Disclosures regarding the mother physically assaulting [Y] […] on a regular basis as well as forcing [Y] to take three tablets per day believed to be [prescription medication].
In 2022, a decision was made to issue a Protection Application, following the mother collecting the children from school and taking them to her home, when they were in the care of the father. The children were made the subject of an Interim Accommodation Order in favour of the father to ensure their safety. Whilst the mother raised concerns regarding family violence allegedly perpetrated by the father and risks to the children in his care, DFFH completed two consultations and reviewed the mother's written allegations and Child Protection's interactions with the father and the children. Both consultations identified that, in terms of family violence risk assessment, there was no indication of high-risk factors being present that would reflect any risk of serious outcomes to the mother or the children under the current arrangements.
As mentioned earlier, the s 69ZW Response also refers to the mother seeking an interim Intervention Order against the father, which also listed the children. DFFH supported the father in contesting that order by providing a letter of support for him to the Magistrates’ Court. Whilst an Interim Order was made or extended, the children were not included on the order.
DFFH further reported that it continued to make attempts to work with the mother to recognise the detrimental impact of providing Y with non-prescribed medication and ongoing attempts for paediatric assessments, as well as conversations with the children regarding the mother's beliefs that they were neurodiverse. However, the mother's behaviours towards Child Protection staff escalated, resulting in the need to develop a clear communication strategy to prevent exposing staff to ongoing unsubstantiated allegations and abuse.
In relation to the father, Child Protection assessed that he was a safe and appropriate parent and there was no evidence to support that the children were at any risk of harm in his care. Based on the fact that there was a legal guardian, namely, the father, who was willing and capable of ensuring the children's ongoing safety and wellbeing, it was determined that Child Protection should withdraw involvement and that the children remain in the father's care.
It was reported by DFFH to the Court (at page 4 of the s 69ZW Response) that:
… The negative impact on the children's emotional and psychological development of ongoing Child Protection involvement was concerning, in particular the impact on [Y] who is overly protective of her mother and her sense that her mother's current situation and child protection involvement is because of [Y] has the capacity to significantly negatively impact on her emotional and psychological wellbeing.
It was further identified that due to [Ms Hoyt]'s continued concerning behaviours and views of the children that without the formalisation of Family Law intervention the safety and well being of the children could not be guaranteed. …
The father was therefore encouraged by DFFH to seek orders of the Federal Circuit and Family Court of Australia (Division 2) to ensure the safety of the children, so as to enable Child Protection to withdraw from further involvement. As I have indicated earlier, that occurred and interim orders were made by a Senior Judicial Registrar on 12 April 2023. Given the overlap between the proceedings in the Children's Court and the proceedings in Division 2, and the appeal by the mother from the Children's Court to the Supreme Court of Victoria, DFFH clarified that, in its opinion, the most appropriate jurisdiction for the matter was in Division 2, where there were already suitable orders in place for the safety and wellbeing of the children. Accordingly, Child Protection successfully withdrew the Protection Application before the Magistrates Court, whereupon the orders of the Senior Judicial Registrar came into force.
DFFH reported at page 5 of the s 69ZW Response that:
…
[Ms Hoyt] has been identified as a vexatious complainant and over the course of the Child Protection intervention has attempted to use the system as form of control. She has reportedly declared that she will appeal and appeal and appeal to prevent [Mr Hoyt] from getting his way and stated that if she knew a Family Violence Intervention Order could make him disappear, she would have done this years ago. Child Protection were required to restrict [Ms Hoyt]’s communication with Child Protection to a structured communication plan to prevent her making ongoing unfounded allegations complaints against staff which was adversely impacting the programs capacity to work effectively.
…
I observe that the complaints of DFFH are not dissimilar in nature to the complaints of the Independent Children's Lawyer, which led to the extraordinary application made by her and which was granted, ultimately by consent, in May of 2024.
Finally, DFFH further reported at page 5
…
At the time of child protection closing, contact between [Ms Hoyt] and the children was recommended to be always supervised, given the ongoing risk that [Ms Hoyt] was posing in terms of her attitude towards the children as well as her attempts to take them back into her care.
…
Reference was also made by DFFH to concerns having been raised that the mother was forging referral letters to paediatricians to have Y assessed, without medical cause, thereby placing her at risk of harm.
Notwithstanding DFFH’s withdrawal, Child Protection received a further report regarding the children on 22 June 2023, in respect of which DFFH responded to the Court at page 5 of the s 69ZW Response:
…
The current report identifies that through the Family Law Court circuit area, that [Ms Hoyt] raised concerns for the children well-being in the care of [Mr Hoyt], alleging family violence, mental health issues, substance misuse and threats of harm perpetrated by [Mr Hoyt]. It is known that these concerns have recently being investigated and unsubstantiated against [Mr Hoyt], however Child Protection substantiated the concerns identifying [Ms Hoyt] as responsible for harm under section 162 (e) and (f) of the Children Youth and Family Act (2005).
…
It was therefore recommended by DFFH to the Court that any decisions regarding future “contact” arrangements between the mother and the children take into consideration, inter alia:
•Child Protection’s assessment at time of closure in […] 2023 that contact between [Ms Hoyt] and the children continue to be supervised.
•[Ms Hoyt]’s history of concerning behaviour towards the children including persistently telling them they have a diagnosis, perpetration of physical and verbal abuse and forcing [Y] to take medication that is not prescribed for her despite the risk of severe physical side effects.
•[Ms Hoyt] telling the children to keep secrets and that she will be taking them back into her care as well as having previously done this leading to them being removed from her care by Child Protection.
•It is not known what progress if any [Ms Hoyt] has made to address the concerns, however the recent report dated […] 2023 indicates very little.
From that, I infer that the report to DFFH that was made in 2023 was made by or on behalf of the mother. DFFH concluded its s 69ZW Response to the Court as follows:
…
2.As demonstrated by the most recent to Child Protection, [Ms Hoyt] presents with a fixated belief that her children are unsafe in [Mr Hoyt]’s care and continues her unrelenting efforts to discredit him and those that do not support her views of her children's neurodiversity. It is highly likely that she will continue to raise unfounded allegations against [Mr Hoyt] into the future. Given this, it is strongly recommended that any future reports received are viewed through the lens of [Ms Hoyt]'s persistent attempts of system abuse and the already thorough assessment completed that identified [Mr Hoyt] as a safe parent.
3.[Ms Hoyt] needs to demonstrate she is willing to address the protective concerns that lead to child protection involvement inclusive of seeking Alcohol and Other Drug counselling and a Mental Health assessment and any ongoing treatment if recommended.
…
Those recommendations were, in my view, prophetic in their nature.
The Child Impact Report
The next document to which I have regard is the Child Impact Report, dated 31 August 2023. It reported that the children enjoyed a close relationship with their paternal grandparents and that, whilst the extended family, inclusive of the maternal grandparents, uncles, aunts, and cousins on both sides lived further away than the paternal grandparents, the children had contact with all of them, supported by the father.
In relation to the children and the father upon presentation for interview, the report writer observed at [10] that:
…The children were all neatly presented, prepared with activities, snacks and drinks. The children all demonstrated a warm and comfortable relationship with their father before and after the children’s interviews, at which they all attended willingly and appeared to conduct themselves with confidence and ease.
The report writer reported that both parents referred to Y as a bright child; however, they differed in their description of her psycho-social, emotional and developmental presentation and needs. The mother was focused on Y’s alleged trauma history and the mother’s suspected diagnosis of Oppositional Defiance Disorder for Y. The father, unlike the mother, described Y as a well-balanced child who was doing well during the course of the year.
Y reported to the report writer at [12] that: “mum was drugging us with her own pills”, which Y then said was hard to explain but she thought it was to help “the children ‘calm down’” (emphasis added). Y again made reference to the mother administering her own medication to the children.
In relation to X, the report writer observed that both parties described him as “a bright and articulate child”. The mother described him as being of a similar personality to her and ascribed this to their shared diagnosis of ADHD. However, as I referred to earlier, although he was diagnosed in 2021 with ADHD, since he has been in the care of the father, commencing in 2022, the evidence is that he has not been administered such medication, with no adverse impact upon him.
X referred in his discussions with the report writer to “secrets” at [15], which seemed to the expert to be referring to things that the mother had said to the children in the past, or because of problems with taking medication.
In relation to Z, both parties referred to her as a “sweet child”. The parties’ contrasting reports in relation to her were set out and are not presently germane.
Whilst there was a heading in the Child Impact Report, namely, “Family Violence Issues”, there were no concerns relating to the father on the part of the report writer.
At [21], under the heading “Additional Risks and Harm Issues”, the report writer said as follows:
The medical needs and diagnoses of the children are at the centre of the dispute, and the parties remain in disagreement as to whether the children require specialist diagnoses and medication. [Mr Hoyt] reported in interview that since the children have been in his care, they have ceased all medication and are observed by him and reported by the school as doing well, with no identified concerns, educational or otherwise. [Ms Hoyt] maintained during interview that the children required specialist assessments and resisted answering direct questions about whether she had historically given her own medication to the children.
Given the preponderance of the unchallenged evidence before me, I have no hesitation in finding that she has done so.
In relation to parental understanding of the children's needs, the report writer reported at [31] that:
… [Ms Hoyt] appeared fixed in her narrative about the diagnoses and required medication for the children, such that she could not tolerate any alternate narrative or professional assessments that did not accord with her convictions. [Ms Hoyt] did not appear able to consider the children’s wellbeing outside of her concerns, thereby demonstrating a lack of preparedness to accept and consider professional diagnoses, or otherwise, that conflicted with her own position with regard to the children. This could indicate a potential unwillingness to comply with orders that do not accord with her own views.
At [32], the report writer continued:
[Mr Hoyt] presented as a loving, present father, with a clear understanding of his children’s dispositions, strengths and personalities. He has fostered contact with extended family on both sides. [Mr Hoyt] acknowledged that the children loved their mother and would love to spend more time with her. He stated, however, that due to the concerns, he could not envisage a safe way for spend time to be unsupervised, at present or in future.
There was reference in the Child Impact Report to the Court possibly considering an increase in the mother’s supervised time to provide for a longer period each visit. As referred to above, that time was doubled from two hours to four hours later in the year by my Orders of 12 October 2023.
There was also the recommendation, which was subsequently implemented, that the Court consider an independent psychological assessment of the mother, to detect any potential underlying mental health issues that could be impacting on her concerns or decision-making with regard to the children's health and wellbeing. In relation to that recommendation, the expression “plus ça change” comes to mind; indeed, nothing seems to have changed. That is borne out both in relation to Child Impact Report and the DFFH s 69ZW Response and by the very recent Family Report and the Psychiatric Assessment of the mother.
The Family Report
The mother told the Family Report writer when she attended upon her in 2024 (at [6]) that:
… she was aware [X] was no longer taking any medications, and she remained concerned that nobody was supporting his “neurology.”…
Other than the mother's expressed concerns, there is no suggestion that X has any neurological issues, and, if he indeed had ADHD some three years ago, he seems to no longer need medication for it as, by all accounts other than hers, he is thriving.
The report writer continued that the mother -
…expressed concern that [X] may feel like he is “broken” and could experience depression or anxiety as a result of losing his connection with her. …
The father reported that X was progressing well at school, and that his teachers had reported that he is meeting his academic milestones. This was said by the report writer to be supported by material produced upon subpoena by his school. The father identified to the writer, as I have referred to earlier, that X is no longer taking medication. The father had not observed any issues with X's focus or ability to complete tasks. He further reported that X’s teachers had not verbalised concerns and that he had no issues with X's behaviour at home.
In contrast to the father, the Family Report writer states at [8] that, in relation to Y:
… [Ms Hoyt] confirmed she was unable to obtain a diagnosis whilst [Y] was in her care, and reported she was unable to make an appointment with a paediatrician. However, [Ms Hoyt] stated [Y] was displaying symptoms consistent with ADHD, and she needed something to “calm her nervous system.” [Ms Hoyt] stated she believed [Y] needed “pharmacology to help manage her behaviour.” She confirmed she had given [Y] “a small amount of [prescription medication]. There was no other way of controlling her behaviour other than threatening or smacking.” [Ms Hoyt] stated she had given 8 mg of [prescription medication] [sic] for five days over a period of three weeks. She confirmed she had been prescribed this medication herself due to her own ADHD diagnosis. [Ms Hoyt] maintained her belief [Y] experienced ADHD and stated whilst she had attended a doctor […] (who had reported her to Child Protection), this was a mistake, and they did not have any knowledge regarding behavioural disorders. [Ms Hoyt] reflected once [Y] was medicated “She was a different kid. She was calm and back to not being scared of everything.”
It is not surprising that Y was “a different kid”, having been administered medication which was not prescribed for her; indeed, it is concerning.
In contrast to the mother, the father, as recently as 2024, described Y as a happy child who is excelling at school and that there are no concerns regarding her social and physical development. He confirmed that Y does not have any official diagnoses, despite the mother trying to obtain them, and the report writer reports at [9] that subpoenaed records from Y's school, which she had inspected, support that Y “is progressing well at school, and [Y] is an enthusiastic and confident child”.
In relation to Z, whilst the mother stated that she did not display any symptoms consistent with ADHD, she asserted that she had historically displayed difficulty making decisions and that she believed Z might experience Pathological Demand Avoidance – whatever that may be – which could be managed “through behaviour”.
In contrast, yet again, the father raised no concerns regarding Z's behavioural or emotional development, describing her as an articulate and inquisitive child.
The Family Report, insofar as the mother is concerned, is of great concern to the Court. Amongst the matters that were reported, at [18], is that:
…The writer observed [Ms Hoyt] attempted to use highly clinical language with the writer, regarding her and children’s brain biology. The writer was unsure whether this was an attempt to confuse the writer, and [Ms Hoyt] continued to highlight she had a background in neuroscience and medicine. [Ms Hoyt] remained adamant throughout the assessment that she had done nothing to harm the children, and employed emotive language to demonstrate how impacted she was by the ongoing Court proceedings. …
In contrast, the father was reported at [19] as appearing:
…somewhat tired and deflated in portions of the interview. He expressed his desire to move on with life, without the need to stress about ongoing Court proceedings and the children’s safety. …
Given that the father has been not just the primary but, effectively, the sole caregiver of the children, and given the evidence of what he has had to undergo in the Children's Court, in this Court, and by reason of the conduct of the mother generally, including her allegations against him, it is not surprising that he appeared somewhat tired and deflated in portions of his interview, or that he expressed a desire to move on with his life without the involved stresses.
The mother told the report writer, in relation to the children's safety and wellbeing, at [23], that:
… she was worried nobody was caring for the children’s “neurology.” [Ms Hoyt] had a wholly negative view of Child Protection and their involvement, she stated they were incompetent and had done nothing positive, but had destroyed the family and her caregiving capacity.
Given the opinion of Dr O, to which I refer below, it is not surprising that the mother is incapable of seeing that, in fact, the children's wellbeing has been safeguarded by the father since they were placed in his care. It is quite clear to me from the evidence that, whilst the mother and the father, by agreement, were initially able to co-parent these children – with them living with the mother and spending time with the father – something occurred in about 2021 that impacted her mental health.
One of the matters which the report writer raised was the absence, at the time of preparing her report, of the psychiatric assessment, which was due to be prepared the following month. Nevertheless, that, in my view, does not in any way undermine the reliability of the report. If anything, the psychiatric assessment bolsters it.
The report writer concluded her report by observing at [30] that:
The parents both presented as loving and caring parents. Each recognised the importance of the children having a meaningful relationship with both parents; however [Mr Hoyt] was unable to see a way a relationship between the children and [Ms Hoyt] could be achieved without professional supervision to keep the children safe.
It was evident to the report writer that, whilst the mother remained concerned about the children's ongoing medical and emotional health, she remained steadfast in her opinion that the children needed medical support and thought the Court and Child Protection were wrong in their assessments. The report writer noted at [31]:
…At one point [Ms Hoyt] called the current matter “scandalous and frivolous” and she displayed no insight into why the Court had ordered supervised visits…She was unable to see past her viewpoint, and appeared to think anyone who had a differing opinion or assessment to her was looking to punish her. …
Most concerningly, at [32], the report writer states as follows:
[Ms Hoyt]’s presentation gave rise to some concerns about her capacity to provide consistent longer-term care for the children on an ongoing basis. Furthermore, she did not appear to fully acknowledge the impact of her choosing not to attend professionally supervised time since […] 2023 may have had on the children, and their sense of trust and security. Instead, she remained focused on how emotionally taxing the visits were on her.
(Emphasis added)
I am troubled that the mother's focus was on how emotionally taxing the children's visits were on her, rather than the impact of her choice (and hers alone) not to see the children since 2023 on them.
Whilst the mother vacillated between whether she wanted sole decision-making responsibility for the children or subsequently joint decision-making, when she was asked by the report writer how she would manage this, given the clear acrimony between the parents, at [34]:
..[Ms Hoyt] explained the parties are not speaking because [Mr Hoyt] has control, “When he doesn’t have the power, he is amicable, and we can do it together.”…
The converse of that, of course, is that she sought to have the power – an irony which appears to have eluded her.
In relation to the children and their relationships, I note the salient passages of the report in relation to X, as follows:
[37][X] was unambiguous and opened the conversation with the writer outlining “Mum gave us medication. She thought we had ADHD.” [X] reported he was also aware that [Ms Hoyt] had tried to give [Y] medication “even though she was not allowed to.”
…
[39]… [X] confirmed his father “has never done anything to hurt us … He’s the best dad in the world.”
[40][X] described [Ms Hoyt] as caring and kind. He stated he did want to spend time with [Ms Hoyt], but he trusted the Court to make the right decision. [X] later verbalised his belief that if he spent time with his mother without someone supervising “She’d put something like medication in my food.” [X] expressed he did not trust his mother but was not scared of her. [X] then described [Ms Hoyt] as “sick in the head.”
…
[42]… [X] stated he would like to spend some time “but not too much because I’m a reasonable child.” He later voiced, “I miss her but I don’t want her to drug me.”
Therein lies the tragedy of this case: there are three children who want to see their mother, but the Court can have no confidence whatsoever, given the Family Report, the Psychiatric Assessment and all of the other evidence, that she is capable, with her current mental health condition, of containing herself.
In relation to Y:
[44]… The writer did not observe any behaviours or mannerisms consistent with an ADHD diagnosis, and [Y] was able to focus on questions presented and answer them each clearly and thoughtfully.
[45][Y] verbalised that she loved [Mr Hoyt] and when she thought about him, she felt happy. She described [Mr Hoyt] as “kind, funny and nice.” [Y] had a little more difficulty describing what she felt when she thought about [Ms Hoyt], “I have no idea. Oh my goodness I haven’t seen her for a long time.” [Y] commented she was excited to see her mother, and articulated she missed her mother, “but not all the time because that would be awful.”…
The report writer continues at [46] that:
[Y] became excited when the writer confirmed she would see [Ms Hoyt] later in the day and started smiling, but then questioned “Is she going to cry though?”
The Family Report writer reports that Y did express a wish, albeit that I note her young age, that she would like to have a sleepover at the mother's house but then to go back home with her father, which I read as meaning that she wished to continue living with her father and spend time with the mother.
In relation to Z, it is reported at [50] that she presented as “a confident and forthright child”, who commented that she missed seeing her mother and was looking forward to seeing her later in the day, sadly stating: "I don't remember what she looks like". Z also reported to the report writer that she felt “a bit sad that [the mother was] all alone”.
The report writer quite properly made contact with the children's counsellor, who reported at [54] – [55] that “the children were progressing well and she had no clear concerns regarding their behaviours or emotional wellbeing” and that “the children presented as happy and stable in the care of [Mr Hoyt], and [Mr Hoyt] was receptive to any feedback provided”.
In relation to the observations of the report writer of the interactions between the mother and the children, they are, in many respects, unremarkable and unsurprising. She reports at [63]:
When [Ms Hoyt] entered the playroom [Ms Hoyt] called out excitedly to the children. [Y] appeared a little shocked and seemed initially reluctant to hug [Ms Hoyt] hello. [X] and [Z] both warmly hugged [Ms Hoyt] and [Y] then joined. The children were affectionate with [Ms Hoyt] and [X] remained in a long hug with [Ms Hoyt].
Further, the report writer observed “natural interactions between the children and [Ms Hoyt]”, who “laughed and smiled throughout the observation” (at [66]) and “were affectionate and tactile with [Ms Hoyt]”, who “responded to the children in a child appropriate and inquisitive manner” (at [68]), at the conclusion of which Z commented “I want my mummy to stay forever, I’m going to die if she goes away” (at [70]). That is indeed a sad and troubling thing for a child to say; however, in many ways, whether by omission or commission, the mother seems to have been her own worst enemy in the course of these proceedings and the preceding ones in the Children’s Court.
In relation to the observations between the father and the children, it was evident to the report writer that the children were comfortable in his presence, and they spoke easily about plans for the rest of the day and like matters. I place great emphasis on the evaluation that follows at [81], and the opinion of the report writer, which I share, that this is a deeply complex matter.
…From the observations and interviews with the children, it is clear the children have a deep love and affection for both their parents. They have been exposed to a high level of conflict and instability in their lives, but despite this they display warmth and affection towards each of their parents. However, during the interview process the writer observed the children presented as somewhat confused and ambivalent regarding their relationship with [Ms Hoyt]. This was highlighted in [X]’s interview with the writer, where he commented that he loved his mother but also feared her and the current situation was her fault. Additionally, whilst the children evidently love their mother there was a sense of hypervigilance during the observations and the children wanting to appease [Ms Hoyt] throughout. The children did not appear to fully relax in the presence of [Ms Hoyt] when compared with their interactions with the writer or [Mr Hoyt]. This was further illustrated during the final professionally supervised visit, as documented in the [G Contact Centre] Supervisor’s notes, where the supervisor commented that the children tried to deescalate [Ms Hoyt]’s behaviour during the final session and checked on the supervisor after the session had ended. It may be that the children’s feelings of ambivalence and hypervigilance towards [Ms Hoyt] is a result of the historic uncertainty and the resulting emotional turmoil they are experiencing.
The report writer opines, and I agree, at [82] that:
[Mr Hoyt] should be commended on his efforts to provide a stable home and ensure the children’s developmental needs are met, given the amount of volatility they have experienced in their short lives. The information gathered and considered for this report did not raise any concerns about the children’s day-to-day safety and wellbeing in the current care arrangement with [Mr Hoyt]. Whilst [Ms Hoyt] raised concerns regarding [Mr Hoyt]’s use of family violence and her concern that the children feared him, the writer did not find any collateral information to support [Ms Hoyt]’s allegations and found [Mr Hoyt] presented as a loving and attuned father. Additionally, Child Protection have historically investigated these allegations and did not substantiate concerns. The children all commented how much they loved their father, and it appears [Mr Hoyt] has been able to provide the children with much needed security over the last few years. …
At [83] the report writer says:
It is of significant concern to the writer that [Ms Hoyt] displayed no accountability or insight into her historic behaviours. She continued to verbalise she had not done anything wrong and had not harmed the children in any way. [Ms Hoyt] appeared fixated on the current Court proceedings and how they had negatively impacted her health, the children, and the family relationships. At no point in the interview did she demonstrate a capacity or willingness to reflect on how she may have contributed to the current situation. Whilst it is evident [Ms Hoyt] loves and cares for her children, her inability to self-reflect and demonstrate a level of insight remains a significant concern, and in turn is a substantial risk factor in this matter. [Ms Hoyt] presented as determined and driven in her belief that [X] and [Y] require diagnosis and medication, despite professional assessment indicating otherwise.
I interpolate that the mother has now expressed these concerns for over two years and, notwithstanding the passage of time, does not appear to have in any way modified, moderated or even reflected upon those views which appear to be held by no-one other than her.
The report writer opines at [84]:
[Ms Hoyt]’s presentation and limited capacity to acknowledge how her behaviour may be perceived by others, along with how it would impact the children, raised significant concerns about her ability to prioritise the children’s safety and wellbeing were she to spend unsupervised time with them. It is the writer’s assessment that if [Ms Hoyt] were to spend time with the children in an unsupervised setting, there is a risk she may attempt to medicate the children or expose the children to medical discussion or encourage them to keep secrets. … Should the children be exposed to medical discussions or feel pressured to take medications, it would undoubtedly place an extensive amount of emotional burden on the children, which would likely result in increased experience of anxiety, stress and a sense of conflict between their parents. This is combined with the obvious physical risks if the children were unnecessarily medicated.
…
I agree.
The report writer further opines that at [84] that -
… due to [Ms Hoyt]’s determined attitude and lack of accountability, if time were to progress to an unsupervised setting it would be impossible for the Court to ensure [Ms Hoyt] would not expose the children to discussions around medical issues or other adult topics. Given [Ms Hoyt] does not appear to have altered her thinking, and continues to believe her own narrative, the risk remains prominent.
In relation to supervision, the report writer notes at [85]:
… Court documents indicate a pattern of behaviour where [Ms Hoyt] has been insulting to people who are not in line with her opinion. [Ms Hoyt] has displayed historically aggressive behaviours towards a range of services, including Child Protection and [G Contact Service]. The writer questions if time were to be supervised by a trusted family or friend, difficulty may arise if [Ms Hoyt]’s behaviour should escalate. [Ms Hoyt] may attempt to pressurise or coerce any family members that may not be equipped to deal with her emotive, escalating behaviours. This in turn would place the children at risk and cause a high level of stress and anxiety for all those involved. Based on [Ms Hoyt]’s historical pattern of behaviours and her lack of accountability regarding these behaviours, it is the writer’s assessment that any time between the children and [Ms Hoyt] should be professionally supervised.
The report writer stresses at [86] that her assessment is not intended to punish the mother but, rather, to bring focus to what would be the safest and most sustainable way for the children to have a meaningful relationship with her. She expresses the view, with which I agree, that it is disappointing that mother made the decision to discontinue supervised time in 2023, which clearly caused upset and confusion for the children, and that the mother's adult-centric decision denied the children an ongoing relationship with her. Whilst the mother referred in her discussions to the disruption of her relationship with the children and their removal from her primary care, unsurprisingly, the report writer says at [86] that:
… This is in no small part due to [Ms Hoyt]’s choices, and ensuing decision to cease any time with the children.
Reference was made to the absence of the mental health assessment, to which I refer below, but it was suggested by the report writer at [87] that it is “highly likely” the mother would benefit from ongoing mental health support, which might enable her to recognise how her choices and her behaviours have impacted upon both the children and her.
The report writer refers to the mother's current limited capacity to provide the children with the emotional support they need and assesses that the mother has “significant difficulty moving beyond her own emotional needs to support those of the children.” The Family Report writer states at [87] that she -
…would be concerned if [Ms Hoyt] refused to engage in mental health support and what impact this would have on the children should she spend supervised time with them without this scaffolding. …
I observe that although Dr O's psychiatric assessment has now been available to the mother for in excess of a month, there is no evidence whatsoever as to whether she has acted upon any of his recommendations or, indeed, those of the report writer. The report writer recommends at [87] that the mother should engage in mental health support “before any supervised time with the children recommences” (emphasis added).
In circumstances where there is no evidence before the Court as to whether the mother has commenced to engage in any such support, it follows that the recommendation of the report writer is that there should be no supervised time at the present time.
The report writer expressed the hope at [87] that such mental health support would assist the mother to “change her perception and attitudes and promote a child focused viewpoint”, but opines that, if she fails to undertake mental health treatment, “it risks her continuing to expose the children to significant risk and instability”.
Contrary to the position of the Independent Children's Lawyer, and that subsequently adopted by the father, the report writer somewhat contradictorily suggests at [87] that:
…Should [Ms Hoyt] choose not to engage in ongoing mental health support, it would be appropriate for time between her and children to be four times a year in a supervised setting. This would then reduce the likelihood of the children been exposed to [Ms Hoyt]’s instability and any disappointment if [Ms Hoyt] refuses to attend time as she has done so in the past.
It is difficult to reconcile that recommendation with the recommendation only a few lines above, namely, that the mother should engage in mental health support before any supervised home with the children recommences. This may well explain the position of the Independent Children's Lawyer, and now the father.
The report writer expressed the concern at [88] that:
… If the children perceive that their behaviours and feelings are consistently judged negatively and considered needing assessment, this may adversely affect their self‑image and lead to confusion about their identity. Such experiences could potentially undermine their feelings of confidence in their abilities and their perception of their own worth as individuals.
In contrast to the mother's case, as put to her, the report writer supports the father's proposal, as, in her opinion, it provides for consistency in care, safety, and risk mitigation. However, the writer reports holding some concerns regarding the father's capacity to support the children in having an ongoing meaningful relationship with the mother and it was evident to her that they have been exposed to parental discussions which clearly aligned with the father's viewpoint. Regrettably, it would seem that the mother, to a large extent, has been the author of her own misfortunes, as well as those of the children. I do not know whether it is so by omission or by commission and, for present purposes, it matters not.
The report writer, in relation to decision-making responsibility, unsurprisingly observes that generally necessary features such as consistency in parenting, good communication and a collaborative co-parenting relationship, are not apparent in this matter. She reports, additionally, that given the risks identified regarding the mother medicating and misdiagnosing the children, it is her assessment that the children's needs would be best met by the father's proposal for sole decision-making.
In the circumstances, the report writer recommended, inter alia, that:
91.The children remain in the primary care of [Mr Hoyt].
92.[Ms Hoyt] to engage in mental health support.
93.If [Ms Hoyt] actively engages in ongoing mental health support, and once she has demonstrated a shift in her perceptions, it would be appropriate for the children spend professionally supervised time with [Ms Hoyt] at a Contact Centre. This time to be gradually built up over time.
94.If [Ms Hoyt] refuses to engage in ongoing mental health support, the children spend professionally supervised time with [Ms Hoyt] four times a year.
…
I have referred above to what I consider to be the inconsistency in the position of the report writer in that latter regard.
Psychiatric Assessment
Much of what Dr O reports in his psychiatric assessment of the evidence already before the Court. However, at [42], in relation to the impression and mental state examination of the mother, he states that:
…There was an underlying impression of having suffered a major psychological breakdown with a massive loss of function.
Dr O reports at [43] that:
When discussing the allegations of medicating and abusing the children and the legal process that had resulted in the current state of arrangements, she displayed persecutory ideation that the ICL, father and Child Protection had all worked so that she would be seen as a “danger” to the children and so have the children removed from her care. She hinted at some collaboration between these bodies, particularly between the ICL and the father, but did not overtly state this. There seemed to be a bizarre quality to her responses of why she had medicated [Y], and why there had been a lack of agreement by a number of doctors with [Ms Hoyt]’s own diagnoses of the children. There did not appear to be any sign of concern or remorse about having medicated [Y]. …
He further reports at [46] that:
…There was a marked tone of paranoid persecutory ideation regarding other bodies such as the family court, independent children’s lawyer and Child Protection and the actions being unfairly against her. There seemed to be a hint of a more formal systematised delusional system, but this was not overtly stated. There were no ideas of reference. Her main theme of talk was the unfair behaviour of her children being removed from her care.
In relation to the mother's insight, Dr O reports at [49]:
…There seemed to be a marked dense lack of insight about her own behaviour towards the children, particularly [Y], being unusual and in particular being harmful to the children. She seemed to have beliefs that she would have a better knowledge of the conditions affecting her children than medical professionals. She seemed insightless about the possibility of her having a [mental health condition].
I have read Dr O’s report, and I am satisfied that he undertook a very thorough examination of all the material that was provided to him for the purpose of the preparation of his report.
In conclusion, Dr O diagnoses the mother to be suffering from a “[mental health condition] that has been present for over a year”, and which is characterised by a number of features, including the following at [65]:
…
•Persistent persecutory ideation relating to DFFH staff and the Independent Childrens Lawyer (ICL). These include beliefs that the ICL does not really exist, that all the allegations made by DFFH (relating to the mother having allegedly medicated the children of her own accord) have all been fabricated, and that these fabrications were due to unspecified wrongdoings on their behalf. There appeared to be a belief of some collaboration between the father and the ICL.
•An elevated view of her own abilities that was not understandable, with a denigration of health professionals and their knowledge e.g. that as [an allied health professional] she was equal in knowledge to a doctor even in matters not relating to her specific area of expertise. It is alleged that she had stated that she had known more about ADHD in children than the doctors that had been consulted.
•Odd somatic beliefs, such as that she had a ‘blockage” in her chest when she presented to [FF Hospital in] 2023, and had requested Intravenous fluids for an undiagnosed condition. It had been observed by the staff that she “may have [a mental health condition]”.
•Tangentiality of speech in the mental state examination
•A marked deterioration of functioning from being a highly capable health professional who also had been [working in education] to a socially isolated individual who is not working or studying at all.
•Impairment in judgement e.g. informing health professionals that she had medicated [Y] and then being surprised that this had been reported to DFFH, and driving to a Police station in […] 2024 when intoxicated, without realizing that she would be asked for a breathalyser test. Medicating a child without a diagnosis would itself indicate a reduction in judgement.
…
Dr O considers that, although the presence of one of the above features would not necessarily be sufficient to result in a diagnosis of a mental health condition, the fact that a number of the features are present would satisfy criteria therefor.
Dr O notes that there was a report by a Dr M, nearly two years earlier, in 2022, in which that doctor had found that the mother was then suffering from a mild depressive episode. Further, her ideas regarding the need for the children to have medication were considered by Dr M to be “an overvalued idea rather than a delusion”. In this regard, Dr O opines that although this may have been true at the time of that assessment, there may have been a further progression of her disorder. He therefore opines at [66] that -
…The fixity of her beliefs regarding DFFH staff and the ICL, and the general persecutory tone of her ideation, point more to a [mental health condition], than an isolated belief about medication. …
In the concluding paragraphs of his psychiatric assessment of the mother, Dr O reports at [73]:
…Although [Ms Hoyt] has viewed her actions and beliefs as stemming from the loss of contact with the children, it would appear as a distinct possibility that her condition had commenced prior to the involvement of DFFH, and likely prior to the medication of the child. Her difficulties managing [Y]’s behaviour may well have been an early sign of her [mental health condition], which may have contributed to the decision to self-medicate the child. In any case, her deterioration in the level of her persecutory beliefs and her general functional capacity has been highly significant over the past few years.
Further, at [74] he assesses the mother to be “insightless about her own actions”, thereby warranting concern on the part of authorities and medical professionals, and “denying that her persecutory beliefs may not be true, holding them with delusional intensity”. Accordingly, he opines, and I agree, that:
…This has been a tragic outcome, with there likely to have been a considerable effect upon the children due to the loss of contact with their mother. [Ms Hoyt] seems unaware of the part that she has played in these events.
I said earlier, and not lightly or glibly, that to a large extent the mother seems to have been the author, and the sole author, of her own misfortune in the last few years insofar as her relationship with the children is concerned, although I acknowledge that that may be a matter beyond her control.
Dr O opines at [75]:
It would be important for there to be not only adequate treatment, but also a trial of cessation of her [prescribed] medication. The possible contribution of the medication, including any overuse on the part of the mother, to her clinical state, needs to be definitively excluded. [Ms Hoyt] should be under the ongoing care of a psychiatrist, with a view of a therapeutic trial of [different prescribed] medication […]. There would be some concern, were there to be substantial unsupervised care of the children without treatment, that the mother may find the children’s behaviour challenging to manage. It would be entirely possible that she may resort to medicating them in the future, if she were to refuse treatment.
Again, there is no evidence whatsoever that she has taken any such steps.
Dr O expressed the hope at [76] that:
If the trial of cessation of [prescribed medication] and commencement of [different prescribed] medication were to be instituted, then there should be signs of a reduction in her symptoms after some weeks to a few months. The dose may need to be titrated against possible side-effects, so this process may elongate the time somewhat for a therapeutic effect to become evident. It would be hoped that her ideas about [Y] requiring to be medicated would lessen in intensity, although she may not develop full insight about her past behaviour. Hopefully, her capacity for judgement may improve, so that she would agree to not medicate the children, in order to regain contact with them.
Unfortunately, nothing has been done in that regard.
Rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) provides that a document that is to be used in conjunction with an affidavit must not be accepted as evidence in the proceeding unless and until it is tendered in evidence at the hearing of the application and accepted into evidence by the court.
However, I consider expert reports, such as that of Dr O, which is exhibited to his affidavit, to be in a different category. Although not formally tendered by counsel for the ICL, by whom it was filed, or by counsel for the father, it was referred to and specified as being relied upon by both of them in their respective Case Outlines and I have accepted it into evidence.
I accept the unchallenged evidence contained in the s 69ZW Response, the Child Impact Report, the Family Report and the psychiatric assessment of the mother by Dr O.
BEST INTERESTS OF THE CHILDREN
As outlined above, the father seeks, and the Independent Children's Lawyer supports, an order that he have sole parental responsibility for decision-making in relation to all major long-term issues relating to the children. The Father also seeks orders that the children live with him and he now joins with the Independent Children's Lawyer in seeking an order that the children spend no time, and have no communication, with the mother. I am satisfied that the mother is on notice of the position of the Independent Children's Lawyer and this amendment in that of the father.
This is, on any view, a very sad case, most of all for the children, who are the paramount focus of this case. To the historic credit of the mother and the father, between separation in 2019 and 2022 they were able to agree upon parenting arrangements for the children without resort to the Court, unlike many other parents who come before this Court.
By agreement, the children lived with the mother and spent time with the father and apparently thrived under that arrangement. I am satisfied that the current situation, whereby the children have lived with the father for the past two years and spent limited supervised time – and more recently no time – with the mother is due to the substantial deterioration in her mental health. This deterioration appears to explain much of her bizarre behaviour, both towards the children, DFHH and the Independent Children's Lawyer and in relation to the proceedings in the Children's Court of Victoria and this Court.
Had the mother availed herself of the benefit of the s 102 NA Order, and/or had she not refused to appear at the trial on 19 August 2024 absent satisfactory medical grounds, which I have found do not exist, the result might have been different. For example, orders might have been made, at least, for supervised time to be spent by her with the children after some psychiatric treatment, and a progression in that time with the progression of that treatment.
I have considered whether a litigation guardian should be appointed for the mother; whilst I can do so of my own motion, no such order was sought by any of the three parties. The mother denies that she suffers from any mental health condition, and it has not been suggested by Dr O that the mother meets the requirements of r 3.12 of the Rules. In any event, I consider that it would be unusual for a litigation guardian to be appointed in a parenting matter such as this and, indeed, the fact of the need for the appointment of a litigation guardian might well be suggestive of, and lead to, the same result.
I am also fortified in making the orders sought by consent, as between the father and the Independent Lawyer, by reason of the provisions of rule 10.13(1)(a) of the Rules in relation to orders made in the absence of a party, as well as s 65DAAA of the FLA, to which reference was made by counsel for the Independent Children's Lawyer.
Section 65D(1) of the FLA provides:
In proceedings for a parenting order, the court may, subject to section 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
Section 64B(2) of the FLA relevantly provides that a parenting order may deal with, inter alia:
(2) A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
…
Section 65C(a) and (c) of the FLA provides that a parenting order in relation to a child may be applied for by, inter alia, either or both of the child’s parents or any other person concerned with the care, welfare and development of the child.
Insofar as s 64B(2)(c) of the FLA provides that a parenting order may deal with the allocation of parental responsibility for a child, s 64B(3) provides that, without limiting the former, the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
Section 61D(3) of the FLA provides that:
A parenting order that deals with the allocation of responsibility for making decisions about major long - term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision - making in relation to all or specified major long - term issues.
Section 60CA of the FLA provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration
Section 60CC(1) – (3) of the FLA provides the pathway for determining what is in a child's best interests:
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Additional considerations—right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii)to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
Consent orders
(4)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
Taking into account the evidence to which I have referred above and the matters prescribed by s 60CC(2) – (2A) of the FLA, in the circumstance of this case and for the reasons herein, I am satisfied that it is in the best interests of the children, albeit regrettably so for them, to make the parenting orders sought by the father and the Independent Children's Lawyer.
Section 60CC(4) of the FLA provides that, if the Court is considering whether to make an order “with the consent of all the parties to the proceedings” (emphasis added), the Court may, but is not required to, have regard to any or all of the matters set out in subsection (2) or (3). Orders are sought by consent as between the participating parties, namely the father and the Independent Children's Lawyer. The trial is undefended by the mother, but she is still a party and therefore s 60CC(4) does not apply. However, the father and the Independent Children’s Lawyer are in agreement regarding the matters in s 60CC(2)– (2A) and the mother has not participated at trial to challenge them.
Accordingly, I take into account and place weight upon the fact that: firstly, there is consent between the father and the Independent Children's Lawyer; secondly, the father's evidence and that adduced by the Independent Children’s Lawyer has not been challenged; and thirdly, the mother's evidence has been incapable of challenge and, therefore, I give it minimal weight.
Section 60CC(2)(a) requires the Court to consider what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the children and each person who has care of the children. In considering those matters, s 60CC(2A) requires the Court to include consideration of any history of family violence, abuse or neglect involving the children or a person caring for the children and any family violence order that applies or has applied to the children or a member of their family.
The father denies the allegations made by the mother in relation to him being emotionally, verbally and financially abusive throughout the relationship. He denies that the children are at risk in his care. He denies the allegations made by the mother in relation to him suffering from “chronic alcoholism”. He submits that, historically, he consumed alcohol but that this has ceased given his responsibility for caring for the children. Further, those allegations are not shared by any DFFH or any of the experts who have been involved in the proceedings in the Court or, it would appear, in the Children’s Court.
The father submits and, on the evidence, I accept that the mother presents an ongoing risk to the children due to the state of her mental health and her lack of insight into her behaviour and the effects thereof on the children. He points, in particular, to paragraph [32] of the Family Report and paragraphs [65] – [69] of Dr O’s psychiatric assessment of the mother.
The father further expresses concern that the mother has taken no accountability for her behaviours and he seeks that the children live with him to ensure they are protected from the ongoing risk of the mother.
The Independent Children’s Lawyer also points to the history of DFFH involvement, whereby the children were placed into the father’s care and the significant issues regarding the mother’s mental health and her capacity to care for them.
Taking into account the evidence to which I referred above, I accept the submissions of the father and the Independent Children’s Lawyer in relation to the matters prescribed by s 60CC(2)(a) and (2A).
Section 60CC(2)(b) requires the Court to consider the views expressed by the children. The father submits that, whilst X (aged 10 years) is reported by the Family Report writer to be a reflective and intelligent child, Y (aged seven years) is reported to be a confident and talkative child and Z (aged six years) is reported to be a confident and forthright child, they are too young for any views expressed by them regarding their living arrangements to be given any or significant weight. However, he nevertheless points to the evidence of the Family Report writer that the children have expressed that they have a loving relationship with him and, in the case of X and Y their reservations about the mother (at paragraphs [40] and [45]).
There is no reason for me not to accept the evidence of the Family Report writer that the children were observed to be close to their father and comfortable with him, as well as close to the mother, whom they were happy to see, and comfortable in her care and affectionate with her.
Whilst I accept, on the evidence generally, that the children wish to spend time (but not live with) their mother, they are still young. Given the risks which I find, on the evidence, are posed by the mother to their welfare, I give little weight to their views, notwithstanding that I accept they have historically had a loving relationship with her and they love her.
Section 60CC(2)(c) requires the Court to consider the developmental, psychological, emotional and cultural needs of the children. There is ample evidence that their developmental, psychological and emotional needs are satisfied in the father’s care but are at risk in the mother's care.
The father submits, and the evidence supports, that she lacks insight in relation to how her conduct and behaviour have impacted upon the children's developmental, psychological and emotional state. In particular, he points to the mother’s allegations to the Family Report writer that Y’s symptoms are consistent with ADHD but that the report writer “did not observe any behaviours or mannerisms consistent with an ADHD diagnosis” (at [44]). He submits, in his Case Outline, that all three children have “not been diagnosed with a disorder or condition consistent with that alleged by the Mother”. That is not entirely correct, as it appears that X was previously diagnosed with ADHD, in circumstances which are not apparent to the Court. However, the evidence does not suggest he currently suffers from, or manifests any symptoms of, ADHD and, at present, he is not prescribed and does not take any medication therefor.
Section 60CC(2)(d) requires the Court to consider the capacity of each person who has, or is proposed to have, parental responsibility for the children to provide for the children’s developmental, psychological, emotional and cultural needs.
The father denies the allegations made by the mother in relation to the risk she asserts is posed to the children's emotional safety in his care. He submits that he is best placed to have the children live with him and in in his primary care, due to the significant risk issues posed by the mother. He ensures that they attend school, their extracurricular activities and their ongoing fortnightly counselling appointments, and that they maintain a close bond with both their extended paternal, as well is maternal, families.
He submits that there are significant concerns in relation to the mother’s ability to care for the children, including their developmental, emotional, psychological and physical health and well-being. He also points to the fact that, notwithstanding the recommendations of Dr O, the mother does not attend upon any mental health professionals.
The Independent Children’s Lawyer, in her Case Outline, addresses the s 60CC(2)(c) and (d) together. She points to the concerns raised with respect to the mother’s mental health and capacity for sound judgement and, accordingly, her ability to care for the children in a safe and secure environment. She submits, and I agree, that the evidence indicates that the mother has a mental health condition and that the deterioration in her general functional capacity over the past few years has been very significant, including in the level of her persecutory beliefs. She emphasises the risk identified by the Family Report writer with respect to the children spending time with the mother, particularly if the mother refuses to engage in mental health supports.
I am amply satisfied the father is the parent best placed to have the children in their care due to the significant risk issues posed by the mother. I also place weight upon the fact that children have a close bond, not just with their paternal family, understandably, but importantly with their maternal family to, which will indirectly enable them to have some link with their mother, albeit they will not be spending time or communicating with her.
Section 60CC(2)(e) requires the Court to consider the benefit to the children of being able to have a relationship with their parents, and other people who are significant to the children, were it is safe to do so.
The father submits that, whilst there would be a benefit for the children to have a meaningful relationship with both parents, that must be balanced against the mother’s history of demonstrated dangerous behaviour which has negatively impacted upon her ability to have a meaningful relationship with them.
The Independent Children’s Lawyer submits that, whilst the children have been observed by the Family Report writer as having a close relationship with each of the parents, if any time is to be spent by the mother with them, she must first engage with appropriate mental health supports and follow the recommendations of Dr O. However, there is no evidence that she is doing so, or is willing to do so.
There is no doubt that, in a perfect world, there would be a benefit to the children in having a relationship with their mother. Sadly, that is just not possible in this case. Indeed, the relationship the mother has had with the children in the past few years has negatively impacted on her ability to have a meaningful relationship with them. That is most exemplified, to my mind, by the fact that, notwithstanding the order made by consent in October 2023 for an increase in the mother's time with the children from two hours to four hours per fortnight, the following month, she unilaterally, and at her sole election, ceased to spend any time with them.
Section 60CC(2)(f) requires the Court to consider anything else that is relevant to the particular circumstances of the children. Nothing in this regard has been identified by the father or the Independent Children’s Lawyer or is otherwise apparent.
DISPOSITION
Given the unchallenged evidence contained in the s 69ZW Response and of the Child Impact Report writer, the Family Report writer and the psychiatric assessment of the mother by Dr O, and considering the matters prescribed by s 60CC(2) – (2A) in the light thereof, I am satisfied that it is in the best interests of the children to make the parenting orders sought by the father and the Independent Children’s Lawyer (by consent, as between them), in summary, that the children live with the father and he be solely responsible for making decisions about major long-term issues in relation to them and that the mother spend no time and have no communication with them.
ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER RESTRAINING THE MOTHER
The Independent Children's Lawyer also seeks restraints in the nature of those contained in the interim orders made by consent on 24 May 2024. The mother was put on notice that the Independent Children’s Lawyer would seek orders of that nature last week, when she was served with the Independent Children's Lawyer’s Case Outline. In the final paragraph on the final page of that document, the Independent Children’s Lawyer indicated that she sought final orders restraining the mother from contacting any employee of Victoria Legal Aid, including herself, via work or personal contact methods; attending any Victoria Legal Aid office; or contacting any counsel for the Independent Children's Lawyer.
Whilst I initially had some concerns, I am satisfied that by service of that document on the mother, she has notice of that order sought. In any event, one of the orders that I will make is an order discharging the Independent Children's Lawyer, such that the mother will have no proper need to contact the Independent Children's Lawyer hereafter.
One alternative that might have been open to the Independent Children's Lawyer, in the event that I did not make the order, would be to seek an intervention order in the Magistrates Court of Victoria. However, in my view, if the matter can be dealt with in this Court, it is preferable that the Independent Children’s Lawyer not be put to any further expense, or indeed stress, of further contact by the mother or litigation with her. Accordingly, I propose to accede to that application.
I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 20 August 2024
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