Lake & Lake - [2024] FedCFamC1F 439

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lake & Lake [2024] FedCFamC1F 439

File number(s): BRC 3632 of 2020

Judgment of: JARRETT J

Date of judgment: 27 June 2024

Catchwords: FAMILY LAW – PARENTING – Where the applicant mother has been primary carer for children – Where the mother will not support a relationship between the children and the respondent father – Where the mother has a history of non-compliance with orders for children to spend time with the father – Where finding of risk of harm in mother’s care – Where children will benefit from a meaningful relationship with the father –Where the father will support the relationship between the children and the mother – Change of residence ordered

Legislation:
Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) s 65L

Division: Division 1 First Instance

Number of paragraphs: 125

Date of hearing: 18 – 21 June 2024

Place: Brisbane

Counsel for the Applicant: Mr Duplock

Solicitor for the Applicant: Trianon Law

Counsel for the Respondent: Ms Pendergast

Solicitor for the Respondent: Carswell & Company

Counsel for the Independent Children’s Lawyer Ms Marsden

Solicitor for the Independent Children’s Lawyer: Swanick Murray Roche Lawyers
ORDERS

BRC 3632 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LAKE

Applicant

AND:
MR LAKE

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

27 JUNE 2024

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The respondent shall exercise sole decision-making for long-term decisions for the children X born 2014 and Y born 2014.
3.The children shall live with the respondent.
4.The applicant is restrained and an injunction hereby issues restraining the applicant from having physical contact or any form of communication with the children for a period of eight (8) weeks from the date of this order.
5.After the period set out in order 4 hereof, the children shall spend time and communicate with the applicant at all reasonable times as may be agreed between the parents in writing but failing agreement as follows:
(a)in the event that the applicant resides in City D on the second, fifth and eighth weekends of each school term from 3.00pm or the conclusion of school on Friday until 4.00pm Sunday (or Monday if same is a public holiday or student free day);
(b)in the event that the applicant resides in Brisbane:
(i)each alternate weekend of each school term from 3.00pm or the conclusion of school on Friday until 4.00pm Sunday (or Monday if same is a public holiday or student free day);

(c)irrespective of where the applicant resides, for one half of the Queensland gazetted school holidays each year to be the first half in odd numbered year and the second half in even numbered years.

6.If the applicant resides in City D, she is to give the respondent seven (7) days’ notice in writing of her intention to spend time with the children pursuant to orders 5(a), 8 and 10 hereof.
7.Changeover shall take place as follows:
(a)in the event that the applicant resides in City D, the applicant shall collect the children from the respondent’s home at the commencement time and the father shall collect the children from the mother at the park at City FF at the conclusion of such time;
(b)In the event that the applicant resides in Brisbane, the applicant shall collect the children from school at the commencement of such time and shall deliver the children to the respondent’s home at the conclusion of such time.

8.For the purposes of school holidays, the following shall apply:
(a)the school holidays shall commence at 12.00pm on the first Saturday after the last gazetted day of the school term; and
(b)the school holidays shall conclude at 12.00pm on the Saturday immediately prior to the first gazetted day of the school term; and
(c)handovers in the middle of the Easter, June and September school holidays will occur at 12.00pm on the middle Saturday of the holiday period; and
(d)handovers in the middle of the Christmas school holiday will occur on the fourth Saturday of the school holiday period; and
(e)if the applicant has the first half of any school holiday period, her time each alternate weekend shall recommence on the first weekend after the first gazetted day of the school term; and
(f)if the applicant has the second half of any school holiday period, her time each alternate weekend shall recommence on the second weekend after the first gazetted day of the school term; and
(g)the applicant shall be responsible for collecting the children from the respondent at the commencement of the children’s time with the applicant and the respondent shall be responsible for collecting the children from the applicant at the conclusion of the children’s time with the applicant.

9.Should the applicant be in Brisbane on Mother’s Day, the children shall spend time with the applicant from 9.00am until 4.00pm on that day.
10.Should the applicant’s time with the children pursuant to clause 5(a) above fall on the Father’s Day weekend, the applicant shall return the children to the respondent at 9.00am on Father’s Day.
11.The parent who does not have the care of the children on their birthday shall spend time with the children on that day in Brisbane as follows:
(a)if it is a school day from 3.00pm or the conclusion of school until 6.00pm; or
(b)if it is a non-school day from 1.00pm until 6.00pm.

12.Commencing eight (8) weeks from the date of this order, the parent who does not have the care of the children shall communicate with the children by telephone or video call each Wednesday and Saturday between 6.30pm and 7.00pm with the parent who does not have the care of the children to make the call and the parent with the care of the children to ensure the children are available to take the call. The call is not to exceed thirty (30) minutes in total.
13.The respondent shall keep the applicant informed in writing of the names and contact details of the children’s current medical, allied health and other service providers.
14.The applicant is restrained and an injunction hereby issues restraining the applicant from attending at the children’s school or removing or attempting to remove the children from their school without the express written permission of the respondent or otherwise as in accordance with these orders.
15.The applicant and the respondent are to keep each other informed at all times of their residential address, home telephone number and mobile telephone number and shall notify the other in writing of any change within 72 hours of that change.
16.The applicant and the respondent shall keep each other informed of any medical emergency or major illness involving the children that occurs during periods when the children are residing with each of them.
17.This order shall act as an authority for schools that the children may attend from time to time to provide each of the parents with all information relating to the children’s progress at school, including school reports, newsletters and photographs.
18.This order shall act as an authority to the children’s medical, allied health service and dental providers to provide to the applicant information in respect of the current care, welfare, treatment and development needs of either child.
19.The respondent shall keep the applicant informed in relation to any counselling he arranges or intends on arranging for the children.
20.Orders 16-18 do not permit the applicant to contact the schools, medical, allied health service or dental providers to discuss the care, welfare and development of the children.
21.Neither parent shall denigrate the other parent or their household either directly to or in the presence of the children nor allow any other person to do so.

22.Neither parent will consume alcohol to excess or be under the influence of illicit substances whilst the children are in their care.
23.Neither parent will discuss matters of an adult nature including but not limited to these Court proceedings or arrangements for the children’s time with each parent either directly to or in the presence of the children.
24.The parents shall, within seven (7) days of the date of these orders take all steps to transfer authority over the children’s NDIS packages to the respondent.

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).
REASONS FOR JUDGMENT
JARRETT J:

This case concerns the parenting arrangements for twin boys, X and Y, who are now nearly 10 years of age. Presently they live with their mother, the applicant, in City D. Until recently, the children were not spending any time with their father, the respondent, who lives in a suburb of Brisbane.
The parties now agree that if they lived closely enough together, the children should live in a week about arrangement between them. However, they do not agree about the arrangements if they do not live geographically proximate to each other for a week about arrangement to work. The respondent says that in that case, the children should live with him and spend regular time with applicant. The applicant seeks a more-or-less mirror arrangement.
The applicant’s case, in summary, is that the children must remain living with her because she is the children’s primary carer and she is the only parent capable of attending to their special needs. On her case, the respondent does not understand their needs and does not have the capacity to properly meet them. She contends that it is in their best interests for them to remain living with her.
The respondent’s case, in summary, is that the children should live with him if the applicant chooses to remain living in City D. He contends that unless they live with him, they will not have an appropriate opportunity to develop and maintain their relationships with him. He contends that the difficulties that have been put in the way of the children having a relationship with him in the past will continue and the maintenance and advancement of their relationship with him will be fraught. He contends that he understands the children’s needs and has an appropriate capacity to meet them. He argues that he understands the significance of the children’s relationship with the applicant and he will maintain their relationship with her. Further, the respondent says that if the applicant moves so that she lives in a geographically proximate location to the children’s schools, it would be appropriate for the children to live week about between them.
I have the assistance of an independent children’s lawyer. She supports the respondent’s case and argues that the only realistic way that these children will enjoy a relationship with each of their parents will be if they reside with the respondent. She contends that the respondent understands and is able to meet the children’s needs. She contends that if the children continue to live with the applicant, whether that be in Brisbane or in City D, they will not be able to maintain a relationship with both parents and the respondent in particular. She contends that the children have been subjected to emotional and/or psychological harm from the applicant by reason of overservicing the children with unnecessary therapies, failing to support the children’s schooling, reliance on the children’s service providers to compensate for her lack of independent support, excessive discipline of the children, the applicant’s own medical issues including mental health issues and the applicant’s incapacity to promote and encourage the relationship between the children and the respondent.
Having regard to the evidence and the submissions of each of the parties and the independent children’s lawyer I have concluded that the children should live with the respondent and spend time with the applicant as contended for by the independent children’s lawyer. I do not consider that it will be in the children’s best interests for them to live in a week about arrangement should the location of the applicant’s residence make such an arrangement practicable. I explain why that is so later in these reasons.
A WORD ABOUT THE PARTIES’ EVIDENCE
The applicant was a particularly difficult witness. In cross-examination she persistently failed to address the questions asked of her, provided non-responsive answers to questions, was defensive and persistently tried to control the narrative of the cross-examination despite the best efforts of cross-examining counsel and me. I formed the view that sometimes her conduct was deliberate and at other times it was not.
Her written evidence suffered from a lack of attention to detail and is characterised by generalisation and unsupported conclusion and speculation. It is also, in parts, exaggerated when compared to objective corroborative evidence. Regrettably, I have concluded that I must approach the applicant’s evidence with considerable caution and look for corroborative evidence in relation to issues of significance.
The respondent was a far more impressive witness. His answers in cross-examination were generally responsive, thoughtful and measured. He was not given to promoting his version of events at the cost of being responsive to counsel. He made concessions where appropriate. I have no difficulty accepting the evidence of the respondent, even absent corroboration.
X AND Y
X and Y are twins. They were born in 2014. As I have said above, they presently live with the applicant in City D although when I reserved my judgment at the conclusion of the final hearing in this case I ordered the children to live with the respondent for one half of the school holidays, which commenced that afternoon. The children have been in his care since then.
It is uncontroversial that the children were diagnosed by Dr B, paediatrician, as having “[Developmental Delay]” when they were approximately two and a half years of age.
It is also uncontroversial that Dr C, a paediatrician, who for a time had the care of children, diagnosed both children in 2019 with multiple developmental delays:
There is also evidence in the applicant’s trial affidavit (annexure ML-7) that since April, 2020 both X and Y have attended with Ms E, psychologist, who assessed both children for behavioural and cognitive challenges. It seems that she diagnosed both children with two conditions including Attention Deficit Hyperactivity Disorder. The reports for each child from Ms E annexed to the mother’s affidavit, each dated 20 October, 2022 are in the same terms.
Concerningly, the respondent swears that he did not know about the diagnoses from Ms E until he found out about them in the course of these proceedings on 14 April, 2023. I accept his evidence about that.
THE APPLICANT
The applicant is currently 42 years of age and in good health. She was born in Country F and is of Country G parentage and culture. She presently lives in City D with the children. She is not employed and she has not repartnered.
The applicant has a significant mental health history. The respondent suggests that she was suffering from mental health issues when the parties first met in Country F although these matters were not explored with the applicant in cross-examination. I have set out the applicant’s mental health history more fulsomely later in these reasons.
According to her evidence-in-chief, the applicant had problems with excessive alcohol use, but that is no longer a feature of her life. Her excessive consumption of alcohol caused difficulties in the parties’ relationship, though she seemed to resile from this evidence in cross-examination.
I have the assistance of a forensic psychiatrist’s opinion in respect of the applicant from Dr H. The import of his evidence is that he thought that the behaviours evidenced by the material supplied to him in respect of the applicant were more a function of underlying personality disorder and anxiety/panic, rather than evidence of a major mood disorder. He thought the signs and symptoms of the disorder diagnosed some time ago were short lived. Further, Dr H thought that whilst the symptoms described may be attributable to an underlying mood disorder, it was his view that it would be more likely attributable to poor coping skills and inappropriate help seeking behaviour in a vulnerable personality.
Dr H thought that if the description given by the respondent as to the conduct of the applicant during and subsequent to the relationship was found to be accurate, it would suggest that “the […] personality disorder in the mother is quite profound and suggests an inability of the mother to prioritise the needs of the children ahead of her own psychological needs”.
For reasons that will become apparent, I have determined that the description given by the respondent to Dr H of the conduct of the applicant during and subsequent to the parties’ relationship was accurate and according to Dr H, suggests that the personality disorder in the applicant is quite profound. Consistently with that, I find that it suggests that there is an inability on the part of the applicant to prioritise the needs of the children ahead of her own psychological needs.
THE RESPONDENT
The respondent is 47 years of age and in good health. He too, was born in Country F.
Presently he lives in Brisbane with his new partner Ms J and her two children. He is an artist by occupation and at the time of trial he was working about four hours per week. He gave evidence of other employment opportunities that he might pursue depending upon the outcome of the case and the responsibilities that he might have to care for his children. Ms J is also an artist by occupation and conducts her own business.
The respondent has a criminal history. In 2012 he was charged with offences for assaulting his relative. The respondent says that he had learned that his relative had set up surveillance equipment in the bathrooms of his (the relative’s) home and was filming the children of that household. The children were then aged between 3-15 years old. The respondent’s relative was convicted in relation to his offending, sentenced to probation and registered. The respondent says that he was convicted of the charge I have outlined earlier and sentenced to prison. He was released after a successful appeal. The respondent’s appeal was funded by donations organised by the applicant.
The respondent was assessed by Dr H for the purposes of these proceedings who did not think that the respondent suffered from any major mental illness. Dr H was concerned that if the respondent’s account was to be believed and he was the victim of significant prolonged domestic violence from the applicant whilst in a relationship with her, the fact that he remained in the relationship as well as subjected the children to the applicant’s behaviour, raised concern about his protective capacity. Dr H thought it was also somewhat concerning that the respondent had distanced himself to the degree to which he has from the children, given his quite significant concerns about the welfare of children in the care of the applicant, given her previous and presumably ongoing abusive behaviour towards the children.
BACKGROUND AND SOME MORE FINDINGS OF FACT

The parties met when the applicant was living in Country F and the respondent is travelling in that country. At that stage, the respondent was living in Australia. After his travels he returned to Australia and subsequently, the applicant came to Australia to live. The parties commenced living together in 2009. They married in 2010 and separated on a final basis in February, 2020.
The commencement of the parties’ relationship was a source of great shame for the applicant. When she commenced a relationship with the respondent, she was already betrothed to another man (whom the respondent says was of Country G ethnicity) via an arrangement common in her culture. Her evidence is that her immediate and extended family disowned her when she took up with the respondent a non-Country G man and left behind her religion for Christianity.
She turned to alcohol to assist her with anxiety and stress and she says that “there were times where that was a problem for our relationship”. The respondent’s evidence corroborates the applicant’s evidence about this. The respondent asserts that when she was drinking the applicant would become volatile. He says that she stopped drinking alcohol when she became pregnant.
The parties lived in various parts of Queensland after the applicant came to Australia. Shortly prior to the birth of the children, they moved to City D and the applicant has remained living there ever since.
The applicant says that she used an illicit substance during her pregnancy to “calm my stomach” but she says that the respondent was using the illicit substance as well. The respondent denies using the illicit substance at all save on one occasion in 2017. His evidence is that whilst the applicant used the illicit substance during her pregnancy for her morning sickness he did not think that she used such a quality as to be a problem. I accept the respondent’s evidence about these matters.
The birth of the children seems to have brought the applicant’s family closer to her because her mother and father visited following the birth of the children. The respondent’s evidence is that the applicant’s parents remained unaccepting of him but that their presence in City D brought the applicant some joy. He suggested that the birth of a male child in Country G culture was cause for particular celebration and the fact that the applicant had borne her family two male children was something of significance to her and her family.
After the applicant’s parents had finished their visit and left City D an accident befell X. The applicant had placed X in his bouncer and put him on the kitchen bench. She says that she was rushing around and as she did so, her elbow caught the edge of the bouncer and X fell off the bench. He was flown to Brisbane for treatment.
X’s accident seems to have precipitated a deterioration in the applicant’s mental health. Her evidence is that she lost confidence in handling the children and had become very nervous and anxious. Her anxiety became worse and she suffered from panic attacks. Eventually, the applicant (together with the respondent) consulted her general practitioner, one Dr K, who diagnosed her with post-natal depression and prescribed an antidepressant medication.
The severity of her anxiety and the panic attacks were such that the respondent was required to care for the applicant on a full-time basis and he became her paid carer for a time. Despite her evidence-in-chief which suggests that this is so, in cross-examination, the applicant denied that she needed the respondent’s support as a carer or that he was in fact her carer at all. I prefer the respondent’s evidence about the need for him to be the applicant’s carer and the extent of the care that he provided to her. I reject the applicant’s assertion that the respondent engaged in some form of dishonest behaviour by receiving a carer’s pension when she did not need a carer. This, I consider, to be an example of the applicant attempting to control the narrative that accorded with the picture she wished to present the court. It seems to me that by conceding that she required the assistance of the respondent and that he could provide it, she considered that it would somehow weaken her position in the eyes of the court. I accept the respondent’s evidence about the care that he gave to the applicant at this time. I also accept respondent’s evidence that he became the children’s carer at this time. The applicant made no attempt to explain the inconsistencies in her evidence.
The applicant was subsequently diagnosed with a disorder by a psychiatrist Dr L and she was prescribed medication, although she says that her general practitioner later questioned that diagnosis. It seems common ground that the medication did not assist the applicant. Her anxiety and panic attacks continued and she swears that she became even more anxious at times when the respondent was not around. The respondent’s evidence is that at times the applicant seemed to improve and he would then try and take on some casual work to improve the family’s financial position . But his absence would cause the applicant to become anxious and she would start arguments with him during which he says she would become physically violent and punch him. The applicant’s evidence is that when the respondent was away from home she became “even more anxious at times when he wasn’t around” and she would ask him to come home. Sometimes he would and sometimes not, presumably dependent upon his work commitments. The respondent’s evidence was consistent with this. This evidence stands in stark contrast to the answers she gave Counsel for the respondent in cross-examination. I accept the evidence of the respondent about these matters.
From time to time the applicant says that she would threaten to kill herself although she was never serious about the threat. In early 2015, mistakenly I think said by the respondent to be 2017, the applicant went to M Hospital and was treated for anxiety and panic attacks. According to her evidence-in-chief she was considered a suicide risk, but again she appeared to resile from this evidence in cross-examination. She says that was “as a result of quitting the use of [an illicit substance]” but there is no other evidence to support this assertion. She was prescribed different medication and she says that it made her feel more agitated.
The respondent’s account of this episode is somewhat different. He says that there was an agreement between he and the applicant that she would voluntarily admit to hospital so that she could obtain some more intensive treatment for her mental health and on the condition that she did so, he would reconcile with her. As it turned out, she did not remain in hospital. Whatever is the case, whether the applicant’s version is accepted or the respondent’s, it is clear that the applicant’s mental health was such that she required a presentation to the hospital and, on her own account, was treated by the hospital for that presentation.
In the meantime, the children were starting to exhibit signs that all was not well with them. They were about 15 months of age at this time. They were not sleeping well and there were concerning things about their development. The sleep difficulties improved after the parties received some professional assistance for that issue.
The children’s eating habits were a source of conflict for the parties. The respondent says that he noticed that the applicant would get very frustrated with the children because they seem to be fussy eaters and she was constantly feeding them. He says that she insisted that they eat Country G food. She says that the applicant would force-feed the children and fairly regularly they would “throw up because of it”. He says that if he tried to intervene the applicant would become verbally abusive towards him and at times she would punch him in front of the children. He says that he would apologise to the applicant to diffuse the situation so that the children were not being exposed to the conflict between them.
Of these issues the applicant’s evidence is quite scant. She says that the respondent told her that he thought she was “force-feeding the boys and making them vomit”. She says that he insinuated that Country G people have a thing about eating and that he was always at her for doing the wrong thing. Interestingly, she says that she was concerned that “they were not gaining weight”. That statement by the applicant tends to suggest that the respondent’s evidence is correct namely that she was feeding the children perhaps forcefully such that they were from time to time vomiting.
The applicant swears that because of their autism spectrum disorder, the children experience dysphasia and that meant they could not use the tongue thrust appropriately and manoeuvre their food in their mouth. I am not sure of the importance of this evidence but perhaps it is meant to suggest that the applicant’s actions in attempting to force-feed the children or at least appear to do so were in some way justified. I do not accept her evidence, however, because there is no professional evidence before me about this issue to support the applicant’s assertions.
The respondent gives evidence of a particularly alarming interaction between the applicant and the respondent’s family in 2017 during a visit to the respondent’s family. The incident commenced with the applicant “shoving food in the children’s mouths when the mouths were full already”, almost choking them and continuing to do so even when the children were visibly upset. The respondent says that when the children refused to eat the applicant was cracking both the boys on the knuckles with a spoon and was yelling and screaming at them. She says that she kicked one of the boys in the thigh. He says that she grabbed one by his arm and started to haul away from the dinner table. The children continued to be upset even when she had them in the shower. The respondent says that he was trying to intervene and the applicant was verbally abusing and yelling at him so much so that his sister, came to the door of the bathroom and remonstrated with the applicant. In response the applicant rushed out of the room and slapped his sister in the face. The respondent’s sister returned the favour and he had to separate the two women. The fracas continued the next day and involved another of the respondent’s sisters. The respondent annexes to his affidavit statements made by his sisters that were made in support of an application for a domestic violence protection order against the applicant and a criminal complaint against the applicant by one of the sisters.
It seems that there was a protection order made, although the criminal complaint apparently went nowhere. I accept the respondent’s evidence about this incident. It is alarming. This incident, however, is one of the many allegations made by the parties, one against the other, about violent conduct and it is to those matters I now turn.
The applicant alleged being subjected to a significant amount of family violence perpetrated by the respondent. She claimed the respondent “could be very volatile” and “on many occasions” he would hit her causing deep bruising. She did not particularise these events any further to enable any finding of fact about them.
In contrast, the respondent also alleged being the subject of domestic violence from the applicant. He deposes to one unparticularised occasion in Country F when the applicant starting hitting him in the face and he left to hitch-hike back to his family but was instead picked up by the applicant. He also described how, after coming to Australia, the applicant would throw items such as saucepans and metal drink bottles at him and punch him in the face with a closed fist without warning and at times he would have to restrain her by holding her hands or arms. He says that when he tried to walk away to defuse the situation the applicant would threaten to kill herself. The respondent describes the applicant as a heavy drinker at this time.
The respondent alleges that sometime after the applicant was diagnosed with a disorder, they would have arguments ending with her punching him in the face and him going to work with black eyes. However, there is no evidence that corroborates these allegations.
In early 2018 police attended the family home. The parties had been arguing and the respondent says the applicant got so angry at him that she smashed his mobile phone and the landline so that he could not call anyone for assistance. He says the applicant then got a knife from the kitchen and threw it at him. He deflected the knife with his arm and it cut him on the arm which bled quite badly, leaving scarring. The applicant grabbed his arm and bit him. A neighbour called police, but the respondent told police he did not want the applicant charged for her behaviour. Police applied for a domestic violence order with the respondent as the aggrieved and the applicant as the respondent to the order.
The applicant’s evidence about this incident was that the parties used some illicit drugs together, then she panicked and wanted to call the police. She says that the respondent threatened to divorce her if she called for help. She says the respondent tried to physically restrain her and picked her up and threw her against a wall and she fell on the floor. She does not recall throwing a knife at him. She says she got up and tried to run out of the house and the respondent restrained her at the door and placed his hand over her mouth. She says in the struggle she bit him on his arm. According to her, one of the neighbours heard her crying out for help and telephoned police. When police arrived, she felt ashamed and did not speak up and the respondent “painted a very disturbing image” of her to police. The respondent was cross-examined about this incident but the applicant’s version of events was not put to him.
The applicant referred to one event in early 2020. She says that the respondent was aggressive with her and punched and kicked her. He kneed her between the legs and around her left knee. She says he had her against the wall, then he dragged her by her hair and threw her against some clothes bags that were in the room. She says that when she told the police about this incident, the police added the children to the existing domestic violence order in the respondent’s favour. She annexes some photos of bruises she says she developed following the incident. There was, however, no way to verify the date of the photographs of the bruising and the applicant called no medical evidence to suggest the bruising was consistent with the events she described.
The respondent has a different version of this incident. He deposed to assisting Y with toilet training when the applicant became angry at him, slammed the door on his head and attacked him, punching him in the head several times while screaming to Y “your father is the devil”. Police were called by a neighbour but the respondent did not want the applicant to be charged with breaching the domestic violence order, which led to police varying the domestic violence order to include the children. This version of events was put to the applicant in cross-examination and she denied it.
Neither party led evidence of sufficient probative value to enable a positive finding in relation to these incidents. Neither party tendered the police records of the incidents in early 2018 or early 2020 or better yet subpoenaed the responding officers to give evidence. However, having regard to my general findings about the applicant’s credit and credibility and to the police response to both these incidents by successfully applying for and then varying a protection order to which the respondent was the aggrieved, I prefer the evidence of the respondent in relation to these issues.
THE CHILDREN’S NEEDS
A significant focus of this case is the needs of X and Y. The evidence to which I have already referred, that is, the diagnoses that are set out in the letters annexed to the applicant’s affidavit, is the sum total of the medical evidence presented by the applicant to the court in relation to the children’s needs. The independent children’s lawyer called evidence from Dr N, who is now it seems, the children’s treating paediatrician. I will come to his evidence shortly.
Before I do, I will record what the applicant says about the children’s needs. In her trial affidavit, she describes the children’s needs in the following way (faithfully reproduced):
126.When the children are fatigued or experience new or unfamiliar tasks or changes in their routine, they express their difficulty through behavioural responses. This can be through their proprioception challenges and when in a temporary “hypo proprioception” they can laugh when they experience pain and discomfort and scratches or rubs his skin on the face or nose and body causing himself pain to ease the emptiness, to bring him the feeling of being alive and releasing fear, tension, anxiety and danger as a form of masking it rather than displaying the emotion.
127.The children “shut down” and they look like they are avoiding tasks, however this is one way of them expressing through their behaviour that they are not comfortable and that they are unable to process the change.
128.Due to the children’s difficulties with following verbal instructions, they require simple keywords and signs. This is why I have assisted the children with the visual aids throughout our home.  [Mr Lake] would become impatient and not hide it for having to sit and read to one of them to encourage them to sit on the toilet long enough to do business, or become distracted and leave them in the bath alone.
129.I have photographs of the children’s routines throughout our home to support them in maintaining routines.  Without the visual aids, the children will often get confused and stressed and they suffer from the sensory overload.
…
134.The boys have very little awareness of safety and consequences and they require constant supervision.  The children have no concept of emergency situations and have no idea what to do in an emergency.
135.The children both lack the skills they require to complete normal day-to-day tasks.  For example, I have to carefully watch the children when they eat and drink to ensure that they eat and drink adequate food and water, but also to ensure that they are eating safely during meal times, because they occasionally have issues with coordinating chewing and swallowing and can choke.  I have to ensure that the children do not stuff their mouths with food or gag, or have distractions whilst eating.
136.The children have extremely high needs and require an enormous amount of care and support in every aspect of their day-to-day routines.
The first thing to be observed about this evidence is that there is not a shred of corroborative evidence, nothing from a medical practitioner, psychologist, occupational therapist, speech pathologist or any other healthcare professional, that would support anything that the applicant asserts in those paragraphs. Further, that evidence needs to be contrasted with the evidence from the children’s schoolteachers. However, before setting out the evidence from the children’s schoolteachers, some background about the children’s schooling is necessary.
The applicant’s evidence is that before the children commenced school in 2020, she and the respondent had attended upon O School for an interview to enrol the children into that school. However, due to financial constraints, their enrolment at that school did not proceed. Instead, the children were enrolled at P School, where they completed their first year of schooling in 2020 and they continued there in 2021. The applicant says that she was unhappy with P School because of its size and student numbers. She said that the children were often “getting lost around the school” and she thought that their needs were not being met. Consequently, she enrolled the children in O School at City D, without the respondent’s consent. The applicant says that she had a conversation with the respondent from which she inferred he had no interest in the children’s schooling, but I reject her evidence about that.

The children commenced at O School at the commencement of the 2022 school year in year 1. Ms Q was the boys’ learning support teacher at O School in term1 of year 1, 2022. She was also their learning support teacher at other times, until their enrolment at the school was terminated in 2024.
Ms Q has been teaching at O School, where the children attended, for many years. For some of that time, she taught year 1 classes. A couple of years later she moved into a learning support teacher role. Ms Q observed that academically the children were given substantial support compared to other students and they were on a highly individualised curriculum plan compared to their cohort. She swore that in 2023 the children were working well below their cohort and this sometimes led to frustration on their part because they were aware that they were doing different work to their other classmates. Apparently, Y was more aware of this than X.
She observed that the children did not like being taken out of class to do separate work and so the school arranged for them to be able to sit in the classroom whilst completing work at their level. Ms Q swore that the boys’ frustration would lead them to “not wanting to do things, “...but they never behaved any differently to their other peers at their age. The children never had big tantrums. The worst they would do was hide under the desk when they were asked to do things. This was when they were in year 1.”
She swore that when they were in year 1 - so in 2022, they might have flung themselves onto the floor occasionally, “...but never anything outside what you would expect of a child of that age”.
She considered that as they settled into the school routine, their behaviour was good and they interacted well with their peers and their class. They showed no distraught behaviours. She personally conducted observations of the children in class and on the playground to see how they behaved when they were together and when they were apart. She gave no evidence of any remarkable behaviour or misbehaviour on the part of the children, nor did she observe any particular change with their behaviour when their mother was leaving the school. She observed that sometimes there was “...a little bit of separation anxiety, but they recovered well and were easy to redirect. This was at the beginning of year 1 and quickly subsided once their mother left.”
In cross-examination, Ms Q expanded upon this to suggest that:
Well, if you were looking at when I was teaching them in term 1, in year 1, that separation when they were new to the school was a lot more – they were new to the school, so there was that little bit of anxiety – new class, new school, new teacher. So like a lot of their peers, there was that anxiety. At different times then through the schooling years that they were here, we saw some of it, but it wasn’t like we were having to peel the children off mum. They were – they could be easily directed back to class. Yes.
When asked about the children’s perception of risk and safety and whether she had observed the children, “acting recklessly on monkey bars or being able to understand whether or not they were essentially jeopardising their own safety”, Ms Q said that she had not seen that before and, “We did not have a lot of behavioural issues that we had to deal with.”
Cross-examination of Ms Q was otherwise unremarkable. I have no hesitation in accepting her evidence.
The independent children’s lawyer also called evidence from Ms R. She has been a teacher for over 10 years and has experienced teaching children that are neurodiverse and students with intellectual disabilities. She is employed as a teacher at O School. She taught X and Y in year 2 in 2023. Ms R described X and Y as shy at the beginning of the 2023 year, but observed “...a lot of growth in them throughout the year, with them becoming much more independent.” Significantly, she said that she had many meetings with the applicant throughout the year and the applicant required, “...a lot of reassurance regarding issues that she thought existed were being dealt with and reassurance that her fears were not a reality.”
Ms R said that she “...did a lot of social stories and work - on the children’s toileting.” She noted that the children successfully requested toilet breaks throughout each day. However, she swore that the applicant, “...would complain that the children would come to the car soaking wet, presumably because of a toileting accident.” Ms R said that this only happened once that she observed and she says that she was never advised by any other staff members, who all kept close eyes on X and Y specifically, that this was an issue that they had observed. If the children were returning to the applicant after school, having had some type of toileting accident, Ms R could not offer an explanation for it.
Ms R described in her evidence the progress the children made in her class. It is clear that they required substantial support and that they each learned at different rates. According to Ms R, they had different skills and abilities. In cross-examination, she described how, at the commencement of 2023, neither boy could write using complete sentences, nor could they fully write their own names. However, by the end of term 2, they were able to write multiple sentences on a topic. They exhibited progress in reading, writing and spelling. Ms R’s evidence is that she and the other staff did a lot of work preparing “social stories” to be used both in the classroom and at home for the children to help with them with challenges that the applicant had reported to the school. Ms R says that the social stories prepared for home, “...were because the applicant said she was struggling with the children’s behaviour at home and getting them to school on time. Difficulties in behaviour described by the applicant were not something I observed at school. For example, there were no tantrums or crying.”
It is clear from Ms R’s evidence that the children had developed significant trust in her and they could bring her their problems when they arose.
Her evidence suggests that, generally, she took no steps to follow a particular routine for these boys. Her evidence was that all of her students benefited from a predictable routine. She would take time to prepare the boys for new events that were outside of the normal routine and that she did not generally experience the children having “big meltdowns”. In cross-examination, Ms R made it clear that the facilities with which she was provided by O School and in particular, teacher aid assistance, made it possible to ensure that the boys received an education program tailored to their needs. It was abundantly apparent from her evidence that the children were well served by attending school at O School and their needs, both academic and social, were well met.
Ms R observed that the children were happy enough for the applicant to be present when she brought them to school, “...but they were different when she was around.” Ms R described them as, “...more quiet and reserved.” And they would, “...just stand and say nothing until their mother left.” According to Ms R, once the applicant left, the boys would change and become more engaged with everyone else around them.
Ms R also had the opportunity to observe similar behaviour in the children away from the school. She attended the same church as the applicant and the children in 2023 and had a role in Sunday school. To her observation, the children’s presentation outside of school when they were with the applicant was similar to what she observed at school, namely, the children were quiet, reserved and did not engage with other people when their mother was around.
I have no hesitation in accepting Ms R’s evidence.
It is apparent from the evidence of Ms R and Ms Q that the children’s needs, in terms of their behaviour, did not extend very far beyond the needs of most of the other children in their class. They needed additional academic support, which they were receiving and which, according to the evidence of both teachers, took into account the boys’ need to develop their fine and gross motor skills.
For reasons that I will canvass shortly, the children ceased attending school regularly in term 4 of 2023. Ms R swears, “All the growth that they had achieved that year regressed because of this.”
In her trial affidavit, the applicant describes the supports in place for the children. So that I do not do any disservice to her evidence, I set it out in full:
137.The children currently have the following supports in place, by attending upon:
(a)[Dr S] at [U Health Centre] as their general practitioner;
(b)[Dr T] at [U Health Centre] as a backup general practitioner when [Dr S] is not available;
(c)[Dr N] as their paediatrician every six months;
(d)[Dr V] for ear nose and throat issues that are ongoing with both children. [Dr V] is now no longer a bulk-billing doctor, which I cannot afford to continue seeing if he’s no longer bulk-billing. This led me to sourcing another doctor within [U Health Centre] that bulk-bills;
(e)[Ms E] of [W Psychological Services] once a month. The children have pre-booked appointments between now and the end of the year as follows:
(i) […] April 2024,
(ii) […] July 2024,
(iii) […] October 2024,
(iv) […] January 2025;
(f)[Ms Z] of [BB Therapy Organisation];
(g)[CC Therapy Organisation] each week;
(h)Church each Sunday for Sunday school;
(i)[Children’s Club] for weekly sessions which assist with the children developing their fine and gross motor skills, building special awareness whilst in a social environment. The children have recently moved up [a] level of the […] program since being within the program;
(j)From [a therapy organisation] for [animal] therapy, usually on a weekly basis;
(k)[AA Education Centre] for tutoring services. The children attend weekly for 30-minute individual lessons. This has been a great assistance to the children to continue to support their learning;
(l)[…] Music lessons each week for 30-minute sessions as an extra support;
(m)A continence specialist, from time to time. [She] helps with continence maintenance and delivers strategies to help with bedwetting and toilet strategies. [She] assists me in educating me on how to assist the children;
(n)The children also have […] support workers that assist the children on a regular basis, Monday to Friday. [They] provide support to the children for their everyday hygiene, health and wellbeing and also activities the children do within their NDIS plans. This includes activities such as developing functional speech and language skills, increasing social inclusion and emotional wellbeing. [They] also provide individual training for general life skills to increase the children’s independence in dressing, hygiene, eating independently, toileting assistance, engaging in play for social support, engaging in learning support, fine motor activities, helping the children achieve tasks through managed and learned conversations if they are having a breakdown, or just a difficult time interpreting or relaying information to another peer, or, for example, when they are at the park, or amongst themselves at home and they also assist as an advocate for the children to help prevent me from having career burnout;
(o)We are on a waitlist for speech therapy.
138.As deposed above, the children have significant needs and I have taken on every recommendation and have endeavoured to obtain every support available for the children to ensure that they continue to develop and learn and maintain the highest quality of life possible for them.
The list is extensive, but there is no evidence before me about the necessity for much, if any, of it. The evidence does not reveal for how long the children have been undertaking all of this “support”, but it is tolerably clear that it has been in place for at least the best part of 2023 and all of 2024. I reach that conclusion because the applicant gives evidence that during the last term of 2023, the children were experiencing, “a higher level of emotional and behavioural problems associated with increased visitations and preparation for supervised visitation with the other parent.” By “the other parent” she means the children’s father, the respondent in this case. She swears that, “this meant that the children were being supported with social stories, added occupational therapy appointments and visits to [various family services organisations].”
The children’s school attendance dropped away in term 4 of 2023, as Ms R said. The applicant explains their lack of attendance at school by reference to the upset they were experiencing and the need for additional support services. She also suggests that she needed to take the children out of school because, “There was also a court requirement for myself to attend [Dr H] for the psychiatric assessment in Brisbane and, on another occasion, for the family report writer’s report for the children and myself to be at the Brisbane courthouse.” She swears that, “All this has been an extremely emotional, psychological and physical barrier to attendance at school.”
The children’s enrolment at O School was terminated by the school in early 2024. The termination was informed by two main issues: the applicant’s interactions with the school staff and the children’s lack of attendance. In the lead-up to the termination, the applicant had taken the school to task because of a plan to separate X and Y and place them in different classes. The applicant did not agree with this. Ms Q’s written evidence on this point is instructive:
26.Myself and other staff felt that this was necessary because the boys were demonstrating indicators of wanting independence from one another in the classroom.
27.I personally conducted observations of the children in class and on the playground to see how they behaved when they are together and when they are apart.
28The school allocated the children into different classes so they could work as individuals and continue to develop their independence socially and academically.
29I believe that it is appropriate for the children to be in different classrooms and would support this arrangement.
Indeed, in her letter to the applicant dated early 2024 written in the context of an upcoming meeting with the applicant, the principal of O School recorded that:
As stated in my previous correspondence to you dated [early] 2024, the school is unfortunately not in a position to change class allocations at this time - and, accordingly, I will not be discussing changing class allocations at our meeting. It remains the position of the school that the decision to separate [X] and [Y] was made after careful review and consideration of several factors in consultation with educators as a result of your request in 2023 and with [X] and [Y’s] best interests in mind. The decision was guided by our commitment to fostering a beneficial and successful learning environment for students at [O School].
The evidence found in the school’s letter of early 2024 is that in mid-2023 the applicant made a request to Ms R that X and Y be separated into different classes in 2024, as they were becoming increasingly competitive and destructive at home after school. The school acted on that request and made the necessary arrangements to facilitate it. It was, indeed, consistent with the teacher’s observations. The school communicated the change of class allocations for the 2024 school year to the applicant as part of the whole school community on three separate occasions - once each in October, November and December of 2023. However, notwithstanding these matters, it was clear from the applicant’s cross-examination that she continued to object to the children being in separate classes.
The purpose of the meeting to which the letter of early 2024 related was to discuss with the applicant the children’s education plan for 2024 and, “The best strategy moving forward to ensure [X] and [Y’s] re-engagement with the school” and their attendance at school. After setting out the extensive list of adjustments the school had made to accommodate both children – and they are indeed extensive – the Principal continued:
[X] and [Y] failing to attend school has placed notable hardship on staff who plan and prepare to accommodate these adjustments, as well those staff who are specifically employed to assist and teach [X] and [Y] in accordance with the above aforementioned adjustments. These staff members are unable to perform their duties at work given [X’s] and [Y’s] absence, despite sending significant time planning and preparing for the boys’ highly individualised educational programs.
This, of course, then creates disruption to the year 3 students, which has been a recurring issue since about early 2023. I remind you that [X] and [Y’s] attendance at school is a legal requirement and their attendance rate, which had somewhat improved since term 4 2023, remains a serious concern. I expect [X] and [Y’s] re-engagement with school as a matter of priority and reiterate my previous request that their therapy appointments be outside of school hours as they have already missed significant days from school this year.
The applicant seemingly ignored these concerns because the Principal was moved to terminate the children’s attendance at O School by letter in early 2024. Notably, amongst many other things, that letter set out:
[X] and [Y’s] attendance rates at school have been and continue to be a serious concern. By the end of term 4 in 2023, [X] and [Y’s] attendance rate was below 40 per cent. Despite the school’s repeated reminders to you that their attendance at school is a legal requirement and crucial for their development, their current attendance rate is now below 33 per cent. This remains below the school’s target for attendance rates of 95 per cent or higher.
In cross-examination, the applicant maintained that the children’s absences from school had been wrongly accounted for in the school’s records and that their absences were always necessary and due to illness or the need to attend one of their many therapies. Indeed, in her evidence-in-chief, she swears that:
The increased absenteeism is a direct result of the children’s behavioural challenges and the school’s termination of the boys’ enrolment stemming from the abrupt school separation without proper transition and communication from the new school principal, […], who had only recently assumed her role [in early] 2024.
That latter statement is a direct reference to the school’s decision to separate the boys for year 3.
Exhibits 2 and 11 are the children’s school attendance records kept by O School for the 2023 school year. Those records carefully record when the children were absent from school, when they were late for school and when they departed early from school. The records mostly note the reasons given for their absence, their early departure or their late arrival. There are many entries where the children have been absent from school, have been late to school and have departed early from school for various therapies, described as “play therapy”, “occupational therapist”, “psychology appointment”, as well as other reasons, such as “family reasons”, “sick” and “unknown reasons”.
Remarkably, there is very little difference between the attendance records for X and Y. When challenged with this in cross-examination, the applicant’s evidence was that the children were usually sick at the same time and it was necessary to keep them home from school together. I have significant doubts about that evidence.
I accept the authenticity and veracity of the O School attendance records. They paint a miserable picture of school attendance for these two boys. It is little wonder that the school moved to terminate their enrolment given the resources that the school had devoted to meeting the children’s needs, only to have those resources underutilised or wasted.

Moreover, I note with some irony that one of the engagements for the children that the applicant gives evidence of in paragraph 137 of her affidavit is an engagement with AA Education Centre for tutoring services, where the children attend weekly for 30-minute individual lessons that, she says, “have been of great assistance to the children to continue to support their learning”. One wonders whether it was as great as it might have been if they had gone to school.
When the applicant filed her trial affidavit on 26 March, 2024, she did not mention that the children’s enrolment at school had been terminated. In her trial affidavit, she did swear that she was currently in the process of, “Transitioning the children between schools and they are awaiting admission into a new school. I am carefully seeking out the best available supports and resources to ensure their successful transition, integration and academic success in their prospective school”.
In the absence of evidence that the children’s enrolment at O School had been terminated, this evidence is, at best, misleading and, at worst, deliberately disingenuous. It did not become apparent until the matter was in court before me on 23 April, 2024 that the children were not enrolled in any school. It was the first time the respondent or the independent children’s lawyer had become aware of that fact. On 26 April, 2024, I made a consent order requiring the applicant to enrol the children in school within seven days of the date of the order.
The evidence that fell from the applicant in cross-examination demonstrated that she wished for the children to attend a particular school, but she lived outside of the catchment for that school and it was not possible. She disagreed with that decision. Nonetheless, she took steps to enrol the children at P School, the school they had attended in 2020 and 2021. Interestingly, in cross-examination, the applicant accepted that P School had a special education program specifically designed to assist children with X’s and Y’s challenges.
As it turns out, the children were enrolled in P School in May 2024. The attendance records for the children at P School are exhibit 4. It demonstrates absences commencing in May 2024 that is, in the first week the children attended P School. Those absences continue through the period until June, 2024. The records reveal that barely a week goes by without the children failing to attend school, sometimes on multiple occasions. The attendance records for both children remain remarkably similar.
The independent children’s lawyer relied upon an affidavit by Dr N, who is at the M Hospital, a role he has occupied for some years. He initially saw the children in 2018 and then not again until “very recently”. He says that he last saw the children with the applicant in early 2024. He has not seen them since. Dr N gave evidence that he was concerned that, “The children need to be attending school more consistently. As identified in my correspondence, letters and discussion with [Ms Lake], [in early] 2024, both children are attending many therapists, which I felt was impacting on their school engagement and attendance.”
That correspondence is not in evidence. Dr N thought that the children’s attendance at school, “Needs to be prioritised over the large number of therapies they are engaged in. School attendance is compulsory and I support school attendance, especially for children who require consistency in their daily routines, such as the case for those diagnosed with autism.”
Moreover, Dr N expressed concern, “That many therapies at once could dilute the efficacy of individual therapies at one time and that therapist goals need to be specific, clear and achievable.”
He thought that, where multiple therapists and goals are set, these should be prioritised so as to be, “minimally disruptive to school attendance.”
Notably, he says that the applicant submitted copies of reports to, “our outpatient from many of the therapists and service providers involved in each boy’s care. I am aware that these reports have recommended substantial amounts of ongoing therapy and practical supports for the children at home despite, in some cases, identifying that therapy goals have only been partially met.” Remarkably none of these documents were produced in evidence at the trial.
Dr N was not cross-examined. I accept his evidence.
From all of this evidence, I conclude the following, namely that X and Y have an intellectual impairment described by Dr N as “mild”. Both children have autism spectrum disorder and developmental delay. They have speech-language delay; although, there is no current evidence as to the severity of that condition. They have also been diagnosed with Attention Deficit Hyperactivity Disorder. The children require significant academic support and they had been receiving that significant academic support at O School until their enrolment was terminated. When they are observed away from the applicant, they exhibit little behavioural difficulties beyond that of their peers.
The therapies in which the children have been engaged in 2023 and 2024 have, to some extent, been unnecessary and that involvement in unnecessary therapies has detrimentally impacted upon the children by taking them away from their school and diluting the goals that might otherwise be identified for necessary therapies. Which therapies are necessary and which are unnecessary, is impossible to tell from the evidence before me.
I conclude that the children have been well served by their teachers and school at O School. It was detrimental to both their academic and social progress for the applicant to cause the children’s enrolment at that school to be terminated through their non-attendance. Her remonstrations with the school about the school’s decision to place the children into separate classes in 2024 was not only inconsistent with her own request of the school made as early as mid-2023, but detrimental to the ongoing welfare of the children.
All of this evidence satisfies me that the applicant, whilst endeavouring to do the best that she can for the children, is unable to prioritise the children’s school attendance, something which, on the evidence, has been extraordinarily useful for them, above and beyond the many therapies in which she has engaged them. Whilst I accept that these children probably require some therapies, it is impossible to tell from the evidence which are necessary and which are not. Whilst it is clear that they attend such a volume of therapies that it impacts upon their ability to attend school, there is no probative evidence that things have changed. The applicant gave evidence that after hearing what Dr N had to say, she reduced the children’s therapies, but why she chose those two therapies was not explained. Whether that was done on medical or other health care professional advice or not is just not clear.
The difficulties that I have described between the applicant and the principal of the school trying to secure the children’s school’s attendance is consistent with the nature of the behaviour experienced by the respondent as described by him, to which I have referred earlier in these reasons, throughout the course of the parties’ relationship. It is also consistent with the interactions between the applicant and the children’s teachers, Ms R and Ms Q. Both of them give evidence about the applicant’s insistence on coming into the children’s classrooms and “hanging around” to use Ms R’s words and sometimes making, “handovers more difficult”.
The evidence is that the applicant was told by the teachers on more than one occasion that the school wanted the boys to walk down to their classrooms on their own, but the applicant would insist on coming down with them. Whilst the children were not negatively affected by that, it impacted on their sense of independence and prevented it from developing further. The evidence from the teachers is that they would often encourage the applicant to leave the classroom or the school grounds so as to enable the boys to demonstrate their independence, but that was often ignored. Interestingly, the observation of the teachers was that it was often the applicant who was exasperated, whereas the children were always quite calm. It was the applicant who would complain that she had had a hard morning, but that was not what was being observed in terms of the children’s behaviour by the teachers.
The difficulty in managing handovers was the subject of some evidence before me arising out of some orders that I made for there to be a supervised handover between the applicant and the respondent here, supervised at the court. Before I go on to deal with that evidence, it is as well to record that the evidence demonstrated that whenever the applicant has interactions with people – family consultants, family report writers and the respondent – she records the interactions. Some of the recordings featured in the evidence in these proceedings. She made those recordings, notwithstanding that it is an offence to do so.
In the course of giving her evidence, I granted her a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) to protect her against prosecution in respect of those offences. But it is clear from her cross-examination that the purpose of the tape recordings was so that she could gather evidence – evidence of wrongdoing on the part of others or the reactions of the children to what was going on. But as is so often the case where people use tape recordings as evidence, the tape recordings demonstrate the recorder in a very poor light rather than the person being surreptitiously recorded.
The first piece of evidence to refer to is the exchange between the applicant and Mr DD, a senior family consultant employed here by the court, who was engaged for the purposes of conducting the supervised changeovers, pursuant to my s 65L orders of 26 April, 2024. The applicant tape recorded the changeovers. Mr DD made a written report. Mr DD faithfully records in his report, more or less, what the applicant says in the course of the changeovers. I heard the tape. The applicant’s encouragement to the children to spend time with the respondent is, on the recording, apparent and appropriate. But what Mr DD records in his report, at least in terms of the first changeover on 17 May 2024 was that whilst the applicant was saying one thing, her body language was saying the opposite. Mr DD sets it out in his report. I accept his evidence and I find that whilst the applicant was overtly encouraging the children to spend time with the respondent, her body actions and body language gave the children a very different message.
More than that, the tape recording does not make out the applicant’s case that the children were reluctant or at any stage upset by what was going on. There was certainly at the commencement of the recording some protestation from the children that they did not want to go, but as Mr DD describes in his report, the children soon settled and they were playing happily. The applicant describes this as “masking behaviour”. She says that notwithstanding that they appeared to be happy and enjoying themselves and having fun, they were in fact experiencing the opposite. I reject her evidence. There is not a shred of evidence before me to support her proposition. That type of evidence would need to come from a psychologist or psychiatrist or other person skilled in giving it and there is none.
There was an incident during the course of the changeover where one of the children hit their head on the wall. The tape recording makes it clear that the applicant’s instant reaction was to insist upon there being an ice pack, presented for the purposes of placing on the child’s head. There was none available. The applicant then asked for a first aid kit. There was one available, but that was not pressed. The demand for the ice pack was pressed. In the absence of receiving an ice pack, the applicant called the ambulance service. It was extraordinary. It was nothing short of an abuse of the emergency services in circumstances where the applicant knew that the interactions were being tape recorded. It was nothing more than a blatant attempt by her to present and construct evidence that she thought might assist her case. It was just an outrageous thing for her to have done. It demonstrates that the applicant will go to any lengths to ensure that these children will not have a relationship with their father. That seems to be the point of it. Whilst she was on the one hand saying everything that might be expected of her to be said by way of encouragement of the children, she was doing the opposite.
Having said those things, it is apparent from Mr DD’s report that the following two visits occurred without difficulty. That is a credit to both parents and, more so, it demonstrates that these children have no difficulty in their relationship with their father and that they are willingly able to go with him. In fact, the applicant’s recording – and I use that description advisedly, the applicant’s recording of the interaction between the respondent and the children in the lift when they were exiting this building makes that point in spades. The applicant says that there was, on her telephone, a voice message. She does not know how it got there. I know how it got there. I find that the boys were sent with their smartwatches, for the express purpose of being able to communicate with the applicant when they were with the respondent and for the express purpose of the applicant being able to listen in to the interaction between the children and the respondent when they were with him. And that is exactly what she did. It is, again, an outrageous imposition on the children’s relationship with the respondent for her to have done that.
I have the benefit of a family report in this case and some cross-examination of the family report writer. The report from Ms EE is dated 12 February, 2024. Initially, Ms EE made recommendations that X and Y live with their mother and once the father demonstrated sufficient evidence to the court in relation to his alleged excessive alcohol consumption, then consistent spending time arrangements for day visits in City D between he and the children seemed to be suitable. Those recommendations were made in the context of some allegations made by the applicant that the respondent excessively consumed alcohol.
There is little to be gained, I think, by going through Ms EE’s report and highlighting the inconsistencies between what the applicant told Ms EE and what she swears in her evidence-in-chief and the inconsistencies between what she told Ms EE and what she said in cross-examination. But it is clear that the allegation of excessive alcohol consumption by the respondent was something about which Ms EE was concerned. However, by the time of trial, that issue had evaporated and there was no concern raised in the course of the evidence, or submissions, about the respondent’s alcohol consumption. The evidence satisfies me that not only does he not have an alcohol consumption difficulty, he has never had one. It is a matter raised by the applicant in a spurious attempt to besmirch the respondent’s character.
In cross-examination, Ms EE accepted the proposition that if the applicant was unable to prioritise the children’s needs above her own, in the ways in which I have highlighted in these reasons for judgment, then it would be appropriate for the children to live with the respondent. It would also be appropriate for there to be a short period of moratorium of time between the children and the respondent. I accept Ms EE’s evidence in cross-examination.
It is, I find, appropriate for these children to live with the respondent. I reach that conclusion because the evidence satisfies me that these children have a relationship with each of their parents. Notwithstanding that these children spent so much time without spending any time at all with the respondent, according to Mr DD’s observations, they nonetheless have a good relationship with him. Were it otherwise, the applicant would not be suggesting the orders that she proposes.
I have highlighted earlier the evidence which leads me to conclude that these children are at a risk of harm in the applicant’s care in the sense that, whilst I do not consider for a moment that she would physically harm them, the harm that is caused to them is the harm that derives from her consistently and continually having them engage in therapies that impact on their ability to attend school. The harm takes the form of an unnecessary restriction on their educational advancement, their academic achievement and their socialisation. It is something that, in my view, will not befall them in the respondent’s household. I find that he will attend to their schooling needs in a fashion which will mean that they are advanced in the way that they ought to be and that they will benefit from that attention from him. That is a different way of saying, I suppose, that, in terms of the capacity of each of these parents to meet the needs of these children, in my view, the respondent has a greater capacity to meet their needs than does the applicant. Whilst the applicant has demonstrated that she can meet their needs on a day-to-day basis in the sense that she can get them to and from the various therapies in which she says they need to be engaged, the evidence also demonstrates that she has an enmeshment – and I do not use that word in the psychological or social work technical sense – but she has an enmeshment with them such that she is, apart from when they are at school and therapies, always with them. The teacher’s evidence satisfies me that these children will be better off if they are able to be detached from her, at least for short periods of time during the school day, but their evidence demonstrates that she was unwilling to do that to any great extent. The respondent, I am satisfied, has the capacity to meet the children’s needs by observing what it is that he is told they will need.
The orders proposed by the independent children’s lawyer will mean that these children will continue to receive the benefit of the meaningful relationship that they have with the applicant. They will continue to be able to pursue that relationship, but they will also have the benefit of a meaningful relationship with the respondent, something that they have not been able to pursue for a considerable period of time.
The independent children’s lawyer did not suggest orders that would mean that if the parties lived closely enough together, there should be a week about arrangement. I agree with that assessment. My assessment is that the children are better off placed full time in the respondent’s care and to spend alternate weekend time with the applicant, irrespective of where she lives. Having said that, of course, these parties are quite entitled to do anything they wish with their children, provided they agree on it and it may well be that, notwithstanding any orders this court makes, these parents are able to reach a different agreement which, if they agree on it, they can put into effect.
I gained the impression from the respondent’s evidence that he is not here to ensure that these children do not live with the applicant ever, or that they never have a relationship with her. I was impressed by his evidence and his exasperation in having to deal with the applicant and having to fight in the way in which he has to ensure that these children have a relationship with both of their parents. I was impressed by the respondent’s plan for the children in the future, whereas the applicant’s plan had really no form to it other than to say that she wished for them to be able to, perhaps, one day live independently. The respondent’s plan had some form to it. He took the view that these children ultimately may well be able to live independently if they have some skills to permit them to do so and had some skills to be able to earn an income. He foreshadowed that they would have the capacity and ability to do what he does, that is, to engage in art and from that they would be able to earn an income which would permit them to live independently. I was impressed that he had thought about those things and has a plan.

I make these observations about the terms of the orders. I have made an order for the respondent to exercise sole decision-making responsibility for the children for their long-term decisions. Such an order is, in my view, necessary, given the evidence about the lack of communication between the applicant and the respondent. The communication between them is non-existent and the evidence satisfies me that the attempts that there have been in the past to co-parent these children have failed miserably. Such is the applicant’s attitude to these children and their conditions that it seems to me that it would be entirely unworkable for the respondent to have to co-parent with the applicant in relation of these children and their care.
I accept immediately that the respondent has not had responsibility for caring for these children in the way in which the applicant has until now, but I am satisfied that he has the capacity to do so and he is attuned to their needs. Indeed, he has demonstrated on a number of occasions particular sensitivity to them and their needs by removing himself from situations of conflict to which they were exposed.
The moratorium period is longer than the moratorium that was suggested by the family consultant, Ms EE. It is my assessment that a period of two months is appropriate in this case, given my observations of the applicant as a witness and her likely reaction to these orders.
In order 5, I have made an order for time for these children with the applicant, dependent upon where the applicant lives.
If she lives in City D, then it seems appropriate, or more to the point, it seems inappropriate for the time between the children and her to be every alternate weekend. There is a significant amount of travel involved and it would be inappropriate for these children to be subjected to that travel every fortnight. The orders provide for time to happen three times per term, as suggested by the independent children’s lawyer.
If the applicant was to live in Brisbane, and I acknowledge the evidence that she gave about her inability to move to Brisbane, but if it was the case that she resided in Brisbane, then the time between she and the children could increase to each alternate weekend.
The changeover places that I have put in the order are consistent with the suggestions made by the respondent in his draft orders. There were no suggestions made by the applicant in her proposal or submissions that would accommodate the arrangements that I have put in place by these orders for the children to live with the respondent.
The orders provide for a moratorium on electronic communication as well as face-to-face communication. It also provides for an injunction on the mother attending the school, except with the written consent or in accordance with these orders although the changeover provisions permit the mother to pick the children up from school. That order is designed to prevent the mother engaging with the school in a harassing way, as she has done with O School and other schools. There is evidence before me that the mother engages in behaviour which is designed, in my assessment, to intimidate and be harassing of authorities such as schools. So much is recorded in the letters from the principal of O School to the mother of early 2024, so that order is designed to prevent that.
So, too, is order 21, which makes it explicit that the orders providing for authorities to obtain information or to receive information from various healthcare providers and schools does not permit the applicant to contact those schools or healthcare providers so as to discuss the care, welfare and development of the children. That information must come via the respondent.
For those reasons, I make the orders that I have pronounced.

I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.
Associate:
Dated: 27 June 2024

File number(s):	BRC 3632 of 2020
Judgment of:	JARRETT J
Date of judgment:	27 June 2024
Catchwords:	FAMILY LAW – PARENTING – Where the applicant mother has been primary carer for children – Where the mother will not support a relationship between the children and the respondent father – Where the mother has a history of non-compliance with orders for children to spend time with the father – Where finding of risk of harm in mother’s care – Where children will benefit from a meaningful relationship with the father –Where the father will support the relationship between the children and the mother – Change of residence ordered
Legislation:	Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) s 65L
Division:	Division 1 First Instance
Number of paragraphs:	125
Date of hearing:	18 – 21 June 2024
Place:	Brisbane
Counsel for the Applicant:	Mr Duplock
Solicitor for the Applicant:	Trianon Law
Counsel for the Respondent:	Ms Pendergast
Solicitor for the Respondent:	Carswell & Company
Counsel for the Independent Children’s Lawyer	Ms Marsden
Solicitor for the Independent Children’s Lawyer:	Swanick Murray Roche Lawyers

BRC 3632 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS LAKE Applicant
AND:	MR LAKE Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	27 JUNE 2024