Lennan & Gillivray
[2024] FedCFamC2F 381
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lennan & Gillivray [2024] FedCFamC2F 381
File number(s): CAC 1137 of 2022 Judgment of: JUDGE W J NEVILLE Date of judgment: 27 March 2024 Catchwords: FAMILY LAW – PARENTING – the Mother has a long history, starting in high school, of significant drug use which she says arises in times of “stress” – the Mother has stopped her own supervised time with her young daughter at a supervised contact centre – the young child, aged approximately 5 years, has lived primarily with the Father for the last three years – yet the Mother ran a case seeking that the child should change residence from the Father and live primarily with her – the longest period the Mother has been drug free has been 18 months – for all of this, the Mother still holds down a good job in the public service and has been candid with her employer and managers that she uses illicit drugs on a semi-regular basis – Mother also has a history of not completing drug rehabilitation – best interests considerations – child to continue to live with the Father, Mother to undergo regime of hair-follicle testing before re-commencement of supervised time. Legislation: Family Law Act 1975 (Cth) ss. 60CA, 60CC(2A), 60CC(3)(a) – (m) Cases cited: AMS v AIF (1999) 199 CLR 160
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Collu & Rinaldo [2010] FamCAFC 53
Fox v Percy (2003) 214 CLR 118
Godfrey & Saunders (2007) 208 FLR 287
Isles v Nelissen (2022) 367 FLR 338; (2023) 65 Fam LR 288
In the Marriage of Kress (1976) 13 ALR 309
M v S (2008) 37 Fam LR 32
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375
Partington v Cade (No.2) (2009) 42 Fam LR 401
In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230
Sigley v Evor (2011) 44 Fam LR 439
U v U (2002) 211 CLR 238
Vontek & Vontek [2017] FamCAFC 28
Division: Division 2 Family Law Number of paragraphs: 184 Date of last submission/s: 12 February 2024 Date of hearing: 6-7 November 2023 Place: Canberra Counsel for the Applicant Mr N Macpherson Solicitor for the Applicant Gabbedy Milson Lee Counsel for the Respondent Mr J Haddock Solicitor for the Respondent Parker Coles Curtis Counsel for the ICL Mr G Stagg Independent Children’s Lawyer Infinity Legal ORDERS
CAC 1137 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LENNAN
Applicant
AND: MR GILLIVRAY
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
14 MARCH 2024
THE COURT ORDERS THAT:
1.All previous parenting Orders be discharged.
2.The child, X (born in 2018) shall live with the Father.
3.The Father shall have sole parental responsibility for the child.
4.Before making a decision about a major, long-term issue in the exercise of his parental responsibility:
(a)The Father shall contact the Mother and:
(i)Inform the Mother of the decision required;
(ii)Inform her of any view he has about the decision; and
(iii)Seek her view on the decision to be made.
(b)The Mother shall provide her response, if any, within 7 days and the Father shall give consideration to her input or comment prior to making the required decision; and
(c)If the Mother does not provide any response within 7 days, the Father may proceed with the relevant decision.
5.Unless otherwise agreed in writing, the Mother is not permitted to contact any medical or healthcare professionals regarding the child.
Contact
6.The Mother have Facetime contact with the child on one occasion each week, on days and times as agreed between the parties, and failing agreement, each Wednesday at 6pm, and the Mother shall initiate the call by telephoning the Father’s mobile telephone.
7.Both parties are at liberty to record the Facetime conversations between the child and the Mother but are not to inform the child that the call is being recorded.
8.Within 7 days, the parties do all acts and things to register for the B Contact Service supervised contact program.
9.Unless otherwise agreed in writing, the child spend time with the Mother as follows:
(a)Following the Mother providing a clean hair follicle test pursuant to Order 25 and for a period of three (3) months, the child spend time with the Mother for a period of two hours each month, at dates and times determined by B Contact Service and at the sole cost of the Mother and for that purpose:
(i)The Mother shall pay for a report of the contact to be provided to the parties, including the ICL, at her sole cost;
(b)Following the conclusion of the third supervised time period outlined in Order 9(a) and provided there are no adverse B Contact Service reports, the child spend time with the Mother for a period of two hours every second week, at dates and times as determined by B Contact Service;
(c)Commencing term three 2024, and provided there are no adverse B Contact Service reports, the child spend time with the Mother for a period of three hours, every second week, at times to be agreed between the parties in writing, and failing agreement, from 2pm to 5pm, with changeover to occur at B Contact Service;
(d)Commencing term one 2025, the child shall spend time with the Mother for a period of six hours each alternate Saturday or Sunday, at times to be agreed, and failing agreement, each alternate Sunday from 10am to 4pm and changeover shall occur at B Contact Service;
(e)Commencing term three 2025, the child shall spend time with the Mother each alternate weekend, on both Saturday and Sunday from 10am to 4pm and changeover shall occur at B Contact Service;
(f)Commencing term one 2026, the child shall spend time with the Mother each alternate weekend, from 10am Saturday to 4pm Sunday and changeover shall occur at B Contact Service.
School holiday arrangements
10.For the avoidance of doubt, the contact arrangements described at 6 and 9 continue through school holiday periods.
11.Notwithstanding Order 10 above, the Father is at liberty to suspend the contact Orders at 9 above, on the following basis:
(a)For one contact period each term one, two and three school holiday periods each year provided that make up contact is provided to the Mother within 28 days of the school holiday period;
(b)For two contact periods in the term four school holiday period each year provided that make up contact is provided to the Mother within 28 days of the school holiday period; and
(c)At further occasions as agreed between the parties in writing.
Special day arrangements
12.Notwithstanding these Orders, and unless otherwise agreed in writing between the parents, the child spend time with her parents as follows:
(a)For 2024, for three hours on Christmas Day at times to be agreed between the parties in writing and failing agreement from 10am to 1pm;
(b)For 2025 and each alternate year thereafter, with the Mother from 4pm Christmas eve until midday Christmas Day and with the Father thereafter.
(c)For 2026, and each alternate year thereafter, with the Mother from midday Christmas Day to 10am Boxing day and with the Father thereafter.
(d)From 2024, with her Mother from 9am to 1pm on Mother's Day;
(e)From 2025, with her Mother from 5pm the evening before Mother’s Day to 5pm Mother’s Day;
(f)With her Father from 5:00pm on the day before Father's Day until 5:00pm on Father's Day;
(g)On the child’s birthday each year, with the parent with whom she did not wake up, for a period of at least 2 hours at a time to be agreed in writing between the parents, but failing such agreement, from 3:30pm to 5:30pm.
Changeover and communication
13.All changeover occur at B Contact Service save for Christmas Day where changeover shall occur at the Suburb C McDonalds car park;
14.Each party ensure that all communication with the other is respectful and polite and occurs by an agreed parenting application and text message in an emergency.
15.The parties are to communicate via an agreed upon parenting application.
Schooling and medical
16.Both parties will:
(a)Authorise the child’s schools to provide the parents with copies of all school reports, notices, any other reports on school progress and behavioural issues and all school circulars in relation to the child; and
(b)Authorise the child’s schools to provide the parents with copies of all notices received from the school, including details of all functions, parent-teacher nights and other activities to which parents are invited in respect of the child.
17.Each parent ensure that the child attend all extracurricular activities the child is enrolled in, except in the event that the child is unwell.
18.Each parent:
(a)Authorise any medical practitioner or other treating professional who sees the child to send all notices, or release any information, to both parents;
(b)Notify the other of the name of any general practitioner or paediatrician or other specialist who treats the child whilst the child is in that parent’s care;
(c)Keep the other informed of all relevant information about the child’s health, including any symptoms and prescribed or recommended treatment; and
(d)Notify the other parent within at least one (1) hour if the child is admitted to a hospital or medical facility due to a medical emergency.
Travel and Notification of details
19.Each parent notify the other of the following:
(a)A change of address, at least 30 days before the change of residence;
(b)Proposed international travel with the child, at least 60 days before departure; and
(c)Proposed travel with the child outside a 100km radius from their home.
20.Each parent facilitate the child obtaining an Australian passport by completing all such forms as may be necessary within 7 days of the other parent's written request to do so, and the Father shall meet the cost associated with such application.
21.Following the issuing of the child's passport, the Father retain the child’s passport.
22.For the purposes of Section 65Y of the Family Law Act 1975, the Father is permitted to remove the child from the Commonwealth of Australia for the purpose of an international holiday without the written consent of the Mother.
23.For the purposes of the immediately preceding order:
(a)That the Father use his best endeavours to ensure most of the travel occurs during school holiday periods;
(b)The Father shall provide the Mother at least 30 days’ written notice of his intention to travel overseas and provide the following details:
(i)All destinations the parent and child intend to travel to;
(ii)The proposed departure and arrival dates for travel to each destination;
(iii)A complete itinerary as soon as this document becomes available (including flight numbers and accommodation providers);
(iv)A direct contact telephone number for the parent the child is travelling with.
24.The Father shall provide the Mother in writing within 21 days prior to departure the following documents:
(a)A copy of fully paid return airfares;
(b)A copy of all travel insurances obtained;
(c)A copy of any relevant visas obtained for the purposes of the child’s overseas travel; and
(d)A copy of any medical certificate evidencing travel immunisations or other medical treatment required to facilitate the child’s overseas travel.
Drug Testing
25.The Mother is to submit to a supervised chain of custody 5 panel hair follicle test to test for the use of illicit substances and the length of hair shall be sufficient to cover a period of three months.
26.Following compliance with Order 25, each six months thereafter, for a period of five years, the Mother submit to a supervised chain of custody 5 panel hair follicle test to test for the use of illicit substances and the length of hair shall be sufficient to cover a period of six months;
27.For the purposes of Orders 25 and 26 above:
(a)The Mother shall bear the costs of the testing;
(b)The Mother is restrained from cutting, dying or shaving her hair or otherwise rendering her hair unable to be used in the hair follicle testing;
(c)The Mother shall provide evidence of her submitting to the test to the Father within 7 days;
(d)The Mother shall provide a copy of the results to the ICL and the Father’s solicitor within 24 hours of receiving same.
28.In the event the Mother’s drug test results are positive at any time, and without reasonable excuse, the Mother’s contact with the child shall be suspended until such time as she provides a clean hair follicle test and at which time, the Mother’s contact with the child shall recommence at B Contact Service for two hours each fortnight and remain that way indefinitely or unless as agreed between the parties.
Mental Health
29.The Mother shall:
(a)Engage in drug and alcohol counselling with D Organisation or similar provider as often as and as regular as is recommended by the counsellor and the Mother shall provide evidence of her attendance and engagement to the Father each three months by way of letter from the provider;
(b)Engage with and remain engaged with the E Organisation and provide evidence of her attendance and engagement to the Father each three months via letter from the provider;
(c)Engage with a psychologist and do all acts and things as recommended by the psychologist including complying with any prescribed medication regimes, counselling, courses or similar and the mother shall remain engaged with the psychologist for as long as and as regularly as is recommended by the psychologist and the Mother shall provide the Father with evidence of her compliance with this provision each three months by way of letter from the provider.
30.The Father will enrol the child in the F Program or similar program and do all acts and things to ensure that she attends and completes same.
Restraints
31.The Mother is restrained from taking the child to any medical practitioner without the express written consent of the Father or in the case of a medical emergency at which time an Ambulance shall be called;
32.The Mother is restrained from making notifications to the relevant child welfare bodies in the state or territory in which she resides including CYPS and DCJ without the express written consent of the Father;
33.The Mother is restrained from making complaints to the police or AFP with respect to the child and/or the Father’s alleged sexual and/or physical abuse and/or neglect of the child without the express written consent of the ICL;
34.The Mother is restrained from filing any further Applications in this Court without the leave of the Court.
35.Both parents shall be restrained by injunction from:
(a)Denigrating the other parent and/or their family members and friends to the child or in the presence of the child, and shall do all things reasonably necessary to remove the child from any environment in which the other parent and/or their friends or family are being denigrated in the presence of the child;
(b)Discussing their family law dispute with or in the presence of the child or showing the child any documents filed or produced during these proceedings including but not limited to court documents, correspondence and any material produced pursuant to subpoena of s69ZW Order;
(c)Posting anything about the other, or about these proceedings, on any social media website including Facebook;
(d)Condoning or using physical discipline on the child;
(e)Drinking alcohol to excess while the child is in their care;
(f)Consuming illicit substances 48 hours prior to and while having the care of the child.
Other
36.All extant applications are hereby withdrawn and dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction & Overview
This is a fraught case, as so many are, in this jurisdiction. The Court is required to make Orders that are in the best interests of young X (born in 2018), who for the last three years or thereabouts has lived primarily with her Father and has spent minimal time with her Mother.
X’s parents have a completely fraught, dysregulated and regularly fractious relationship. Their communication is often terrible, confronting and accusatory. Both parents love X deeply. Alarmingly, X’s Mother, who works in a good job in the public service and has good supports at work, has a long history of serious drug abuse, which commenced in her last years of high school. For some years she has been using illicit drugs, especially in times of stress. In her evidence, she confirmed that the longest period of time that she had been free from drug use has been approximately 18 months.
In addition to her regular serious drug use, the Mother fervently believes that the Father has sexually abused X and has physically assaulted her. The Mother has made multiple reports in relation to these allegations to police and to Care and Protection Services (“CYPS”). None of them have been established. Little has shaken the Mother’s belief in, if not fixation on, these disturbing allegations. For a period of time, the Mother has spent only supervised time at a contact centre with X. Regrettably and concerningly, the Mother herself stopped this “visitation” with her daughter some little time ago.
The issue for the Court, as already noted, is “what to do in these wretched circumstances?” Moreover, the Mother seeks Orders for X to live with her. On all the evidence, this simply cannot occur, not least because X has been living with her Father for the last three years, with little contact, or regular time with, her Mother. The disruption would be immense, which the Mother seemed to be rather unconcerned about. Alas, how and why the Mother continued to press for such Orders told me more (if more be needed) about her than it did about X.
For the reasons that follow, the ICL’s Orders are, in my view (with some “tweaking”) in X’s best interests.
Applicant’s Orders sought
The Applicant’s Orders sought were contained in her Case Outline, filed on 3rd November 2023. They were as follows (emphasis in original):
1.That the Mother has sole parental responsibility in relation to the child, [X] born [in] 2018.
2.That the child live with the Mother.
3.That the child spends time with the Father every second weekend from Friday afterschool or at 3pm to the following Monday at the commencement of school or 9am.
School holidays
4.During school holidays, the first week with the father and thereafter alternating between each parent for one week period.
5.That the following definitions apply to Midterm school holidays and Christmas school holidays:
a. ‘Midterm school holidays’ are the holidays falling at the end of Terms 1, 2 and 3.
b. ‘Christmas school holidays’ are the holidays falling at the end of Term 4.
c. The Midterm school holidays and Christmas school holidays begin at the end of school on the last day of term which [X] is required to attend;
d. The Midterm school term and Christmas school holidays end at the start of school on the first day of the next term which [X] is required to attend;
e. The school term/school holiday periods, including days of compulsory attendance by students (i.e. excluding staff days or student free days) are determined by the calendar published by the NSW government school term dates;
f. One half of a Midterm school holiday period and Christmas school holiday period is to be determined by calculating the total number of nights in a Midterm school holiday period or a Christmas school holiday period, as determined by Orders 5c to 5e above, and dividing it in two.
g. Changeover is to occur during the Midterm school holiday periods on the day that is the midpoint of the school term holiday period. If there is an uneven number of nights, then the Mother shall have the first night on the first occasion that occurs, and then the Father on the next occasion, and then alternating thereafter.
6.That except as otherwise agreed in writing between the parents and failing agreement, [X] shall spend time with the parents during the Midterm school holidays as follows:
a. In odd numbered years:
i.With the Father for the first half;
ii.With the Mother for the second half.
b. In even numbered years:
i.With the Mother for the first half;
ii.With the Father for the second half.
7.That for the purpose of the Christmas school holiday period, the time [X] spends with the Father pursuant to Order 3 above be suspended, and [X] shall spend time with the parents as follows (or as otherwise agreed in writing):
a. In 2023 and every alternate years thereafter:
i.Week 1 with the Father commencing from the end of school on the last day of Term 4;
ii.Week 2 with the Mother;
iii.Week 3 with the Father;
iv.Week 4 with the Mother;
v.Week 5 with the Father;
vi.Week 6 with the Mother until the commencement of the first day of Term 1.
b. In 2024 and every alternate years thereafter:
i.Week 1 with the Mother commencing from the end of school on the last day of Term 4;
ii.Week 2 with the Father;
iii.Week 3 with the Mother;
iv.Week 4 with the Father;
v.Week 5 with the Mother;
vi.Week 6 with the Father until the commencement of the first day of Term 1.
8.That notwithstanding these Orders:
a. That the parent who is not caring for [X] as per these Orders on the morning of her birthday shall spend time with [X] from 3pm to 7pm that day.
b. That [X] spend time with the Mother on Mother’s Day from 10am to 6pm;
c. That [X] shall spend time with the Father on Father’s Day from 10am to 6pm.
Changeovers
9.That changeover shall occur at the times and locations specified in these orders or as otherwise agreed in writing between the parents and failing agreement as follows:
a. On days when the time for changeover coincides with [X] attending day-care, pre-school, primary or high school, changeover shall occur via [X]’s day-care/school;
b. On days when the time for changeover does not coincide with [X] attending preschool, day-care, primary or high school, at [B Contact Service] changeover services, subject to availability;
c. On days when [B Contact Service] changeover services are not available, at McDonalds in [Suburb C].
d. That changeovers during Midterm school holidays and Christmas school holiday periods occur at 5pm.
Respondent’s Orders sought
The Respondent’s Orders sought were contained in the Respondent’s Amended Response to Final Orders filed 2nd November 2023. They are as follows (emphasis in original):
1.That all previous Orders relating to the child [X] born [in] 2018 (“the Child”) be discharged.
2.That the Respondent Father have sole parental responsibility for the Child.
3.That the Child shall live with the Father.
4.That the Child shall spend supervised identification time with the Applicant Mother on four (4) occasions each calendar year for a period of 2 hours respectively at [B Contact Service] on such dates and times to be advised by [B Contact Service].
5.That the Applicant Mother is permitted to send the Child birthday presents and cards, Christmas presents and cards, and Easter presents and cards by post as and when those special occasions occur, and the Mother is to mail any correspondence or gifts to the Father’s residential address or any other postal address nominated by the Father in writing.
6.That the Applicant Mother is restrained by injunction from making or attempting to make contact with the Child, including but not limited to by way of, physical post, telephone calls, video calls, emails, social media and electronic messaging services or any other such method, save for as provided by these Orders.
7.The parents shall keep the other informed as to their current mobile contact number and email address and shall advise the other in writing within 48 hours of any change.
8.That without admissions, the Applicant Mother be restrained by injunction from:
a.Abusing, insulting, belittling, rebuking or otherwise denigrating the Respondent Father to or in front of the Child.
b.Using or consuming illicit substances and 24 hours prior to any visit with the Child in accordance with Order 4.
c.Consuming alcohol during and 24 hours prior to any visit with the Child in accordance with Order 4.
d.Attending the Child’s daycare, preschool, primary school, or highschool.
e.Attending at any extra-curricular sports or activities in which the Child participates, including but not limited to, trainings, competitions, rehearsals, and performances.
f.Attending the Father’s home at [G Street, Suburb H], or any future residence of the Father.
9.That in the event the Mother, refuses and/or cancels and/or fails to attend two (2) consecutive occasions to spend time with the Child at [B Contact Service], then the Mother’s time with the Child pursuant to Order 4 above shall cease forthwith, and for the purposes of this Order, the Mother presenting at [B Contact Service] for time with the Child while under the influence or affected by alcohol or drugs shall be deemed as a failure to attend.
10.That the Mother be restrained from filing any Initiating Application or Application in a Proceeding without leave of the Court.
Independent Children’s Lawyer’s Orders sought
The Independent Children’s Lawyer’s Minute of Orders sought were emailed to Chambers on 16th November 2023, following the Final Hearing. They were as follows (emphasis in original):
1.That all previous orders be discharged;
2.That the child, [X], born [in] 2018, live with the Father;
3.That the Father have sole parental responsibility for the child;
4.In exercising his parental responsibility, the father shall”
a.Inform the mother of any major decisions that are required to be made with respect to the child;
b.Seek the mother’s input into the decision; and
c.Inform the mother of the decision made.
Contact
5.That the Mother have Facetime contact with the child on one occasion each week, on days and times as agreed between the parties, and failing agreement, each Wednesday at 6pm, and the Mother shall initiate the call by telephoning the Father’s mobile telephone.
6.That both parties are at liberty to record the facetime conversations between the child and the mother but are not to inform the child that the call is being recorded;
7.That, within 7 days, the parties do all acts and things to register for the [B Contact Service] supervised contact program;
8.That, the child spend time with her mother as follows:
a.commencing immediately, the child spend time with the Mother for a period of two hours each week, at dates and times as determined by [B Contact Service] and at the sole cost of the Mother and for that purpose:
i.the mother shall pay for a report of the contact to be provided to the parties, including the ICL, at her sole cost;
b.commencing term one, 2024, and provided there are no adverse [B Contact Service] reports, the child shall spend time with the mother for a period of three hours, at times to be agreed between the parties in writing, and failing agreement, from 2pm to 5pm, with changeover to occur at [B Contact Service];
c.commencing term three 2024, the child shall spend time with the mother for a period of six hours each Saturday or Sunday, at times to be agreed, and failing agreement, each Sunday from 10am to 4pm and changeover shall occur at [B Contact Service];
d.commencing term one 2025, the child shall spend time with the mother each alternate weekend, on both Saturday and Sunday from 10am to 4pm and changeover shall occur at [B Contact Service];
e.commencing term three 2025, the child shall spend time with the mother each alternate weekend, from 10am Saturday to 4pm Sunday and changeover shall occur at [B Contact Service].
School holiday arrangements
9.That, for the avoidance of doubt, the contact arrangements described at 5 and 8 shall continue through school holiday periods;
10.Notwithstanding Order x above, the father is at liberty to suspend the contact orders at 8 above, on the following basis:
a.For one contact period each term one, two and three school holiday periods each year provided that make up contact is provided to the mother within 28 days of the school holiday period;
b.For two contact periods in the term four school holiday period each year provided that make up contact is provided to the mother within 28 days of the school holiday period; and
c.At further occasions as agreed between the parties in writing.
Special day arrangements
11.That, notwithstanding these Orders, and unless otherwise agreed in writing between the parents, The child spend time with her parents as follows:
a.For 2024, for three hours on Christmas Day at times to be agreed between the parties in writing and failing agreement from 10am to 1pm;
b.For 2025 and each alternate year thereafter, with the mother from 4pm Christmas eve until midday Christmas Day and with the Father thereafter.
c.For 2026, and each alternate year thereafter, with the mother from midday Christmas Day to 10am Boxing day and with the father thereafter.
d.From 2024, with her Mother from 9:00am to 1pm on Mother's Day;
e.From 2025, with her Mother from 5:00pm the evening before Mother’s Day to 5pm Mother’s Day;
f.With her Father from 5:00pm on the day before Father's Day until 5:00pm on Father's Day;
g.On The child’s birthday each year, with the parent with whom she did not wake up, for a period of at least 2 hours at a time to be agreed in writing between the parents, but failing such agreement, from 3:30pm to 5:30pm.
Changeover and communication
12.That all changeover occur at [B Contact Service] save for Christmas Day where changeover shall occur at the [Suburb C] McDonalds car park;
13.That each party ensure that all communication with the other is respectful and polite and occurs by an agreed parenting application and text message in an emergency.
Schooling and medical
14.That both parties will:
a.Authorise The child’s schools to provide the Parents with copies of all school reports, notices, any other reports on school progress and behavioural issues and all school circulars in relation to the child; and
b.Authorise the child’s schools to provide the Parents with copies of all notices received from the school, including details of all functions, parent-teacher nights and other activities to which parents are invited in respect of the child.
15.That each parent ensure that the child attend all extracurricular activities the child is enrolled in, except in the event that the child is unwell.
16.That each parent:
a.Authorise any medical practitioner or other treating professional who sees the child to send all notices, or release any information, to both parents;
b.Notify the other of the name of any general practitioner or paediatrician or other specialist who treats the child whilst the child is in that parent’s care;
c.Keep the other informed of all relevant information about the child’s health, including any symptoms and prescribed or recommended treatment; and
d.Notify the other parent within at least one (1) hour if the child is admitted to a hospital or medical facility due to a medical emergency.
Travel and Notification of details
17.That each parent notify the other of the following:
1.1A change of address, at least 30 days before the change of residence;
1.2Proposed international travel with the child, at least 60 days before departure; and
1.3 Proposed travel with the child outside a 100km radius from their home.
18.That each parent facilitate the child obtaining an Australian passport by completing all such forms as may be necessary within 7 days of the other parent's written request to do so, and the father shall meet the cost associated with such application.
19.That, following the issuing of the child's passport, the Father retain the child’s passport.
20.That, for the purposes of Section 65Y of the Family Law Act 1975, the Father is permitted to remove the child from the Commonwealth of Australia for the purpose of an international holiday without the written consent of the Mother.
21.That, for the purposes of the immediately preceding order:
a.That the father use his best endeavours to ensure most of the travel occurs during school holiday periods;
b.The father shall provide the mother at least 30 days’ written notice of his intention to travel overseas and provide the following details:
i.All destinations the parent and child intend to travel to;
ii.The proposed departure and arrival dates for travel to each destination;
iii.A complete itinerary as soon as this document becomes available (including flight numbers and accommodation providers);
iv.A direct contact telephone number for the parent the child is travelling with.
1.4The Father shall provide the Mother in writing within 21 days prior to departure the following documents:
i.A copy of fully paid return airfares;
ii.A copy of all travel insurances obtained;
iii.A copy of any relevant visas obtained for the purposes of the child’s overseas travel; and
iv.A copy of any medical certificate evidencing travel immunisations or other medical treatment required to facilitate the child’s overseas travel
Drug Testing
22.That, each six months, for a period of five years, the Mother submit to a supervised chain of custody 5 panel hair follicle test to test for the use of illicit substances and the length of hair shall be sufficient to cover a period of six months;
23.That for the purposes of Orders 14 above:
a.The Mother shall bear the costs of the testing;
b.The Mother is restrained from cutting, dying or shaving her hair or otherwise rendering her hair unable to be used in the hair follicle testing;
c.The Mother shall provide evidence of her submitting to the test to the Father within 7 days;
d.The Mother shall provide a copy of the results to the ICL and the Father’s solicitor within 24 hours of receiving same.
24.That, in the event the Mother’s drug test results are positive at any time, and without reasonable excuse, the Mother’s contact with the child shall be suspended until such time as she provides a clean hair follicle test and at which time, the Mother’s contact with the child shall recommence at [B Contact Service] for two hours each fortnight and remain that way indefinitely or unless as agreed between the parties.
Mental Health
25.That the Mother shall:
a.Engage in drug and alcohol counselling with [D Organisation] or similar provider as often as and as regular as is recommended by the counsellor and the mother shall provide evidence of her attendance and engagement to the father each three months by way of letter from the provider;
b.Engage with and remain engaged with the [E] Program and provide evidence of her attendance and engagement to the father each three months via letter from the provider;
c.Engage with a psychologist and do all acts and things as recommended by the psychologist including complying with any prescribed medication regimes, counselling, courses or similar and the mother shall remain engaged with the psychologist for as long as and as regularly as is recommended by the psychologist and the mother shall provide the father with evidence of her compliance with this provision each three months by way of letter from the provider.
26.That the Father will enrol the child in the [F Program] or similar program and do all acts and things to ensure that she attends and completes same.
Restraints
27.That the mother is restrained from taking the child to any medical practitioner without the express written consent of the father or in the case of a medical emergency at which time an Ambulance shall be called;
28.That the mother is restrained from making notifications to the relevant child welfare bodies in the state or territory in which she resides including CYPS and DCJ without the express written consent of the father;
29.That the mother is restrained from making complaints to the police or AFP with respect to the child and/or the father’s alleged sexual and/or physical abuse and/or neglect of the child without the express written consent of the ICL;
30.That the mother is restrained from filing any further Applications in this Court without the leave of the Court.
31.That both parents shall be restrained by injunction from:
a.Denigrating the other parent and/or their family members and friends to the child or in the presence of the child, and shall do all things reasonably necessary to remove the child from any environment in which the other parent and/or their friends or family are being denigrated in the presence of the child;
b.Discussing their family law dispute with or in the presence of the child or showing the child any documents filed or produced during these proceedings including but not limited to court documents, correspondence and any material produced pursuant to subpoena of s69ZW Order;
c.Posting anything about the other, or about these proceedings, on any social media website including Facebook;
d.Condoning or using physical discipline on the child;
e.Drinking alcohol to excess while the child is in their care;
f.Consuming illicit substances 48 hours prior to and while having the care of the child.
Other
32.That all extant applications are hereby withdrawn and dismissed;
Applicant Mother’s oral evidence
The Mother confirmed that she is employed as a public servant.[1]
[1] T 4
The Mother also confirmed that when she prepared her Affidavit, she took it seriously and presented a full picture of everything that had happened for the child and her illicit drug use. She confirmed she took that same approach when she attended the interviews with the Family Report writer.[2]
[2] T 5
She was asked what her weaknesses were as a parent. She said she had a tendency to be hypervigilant in response to things that happen with the child. Reasonably candidly, she confirmed that her periodic illicit drug use had been a weakness in her parenting. She said that, on occasion, she had been more than hypervigilant. She did not agree that attending the sexual assault and child abuse team of the Australian Federal Police at the J Organisation was a moment of hypervigilance – or more. She said that she had taken the steps that she had thought were necessary at the time, and that X’s doctor had guided the Mother through this course. When asked to describe a moment where she had been hypervigilant over the last two years, the Mother clarified that she did not think her actions had been hypervigilant in more recent times, but her responses may have been. She said she could not define a particular occasion as she thought her actions had been reasonable over the last two years.[3]
[3] T 5 – 6
The Mother agreed that engaging in use of illicit drugs because X was having surgery and she was stressed was not reasonable behaviour. She said that she had used illicit drugs on four occasions towards the end of 2022. She confirmed that she did not outline in her Affidavit how this substance affects her behaviour or her memory.[4]
[4] T 6 – 7
The Mother could not recall whether she had included a positive thing about the Father in her Affidavit. She was asked what the Father’s parenting strengths were. The Mother said she had observed him being very attentive with the child, that he encouraged her to participate in recreational activities and to do household things such as baking and cooking. She said he is very structured and has a routine which she thought has a positive impact on X. She agreed with the statement that she and the Father have a very strained parenting relationship.[5]
[5] T 7
Again, with some candour, the Mother said that she understood, in some respects, why the Father would find it difficult to trust her due to her drug usage. Curiously, she did not think that his lack of trust stemmed from her lack of compliance with Court Orders. The Mother understood that the various Care and Protection allegations against the Father contained in reports made by her had never been established. She was asked whether she still believed that the Father had hit or sexually abused X. She said she did not know. She denied that this state of belief about the Father would make it very difficult to co-parent, however confirmed that she still held these concerns about him.[6]
[6] T 8
The Mother said that she had attempted to discuss the sexual abuse allegations with the Father before she attended the City K Police. She said this would be in evidence, in the form of a text message. A call for such evidence was made. It was suggested that there was no evidence or communication with the Father about the Mother being so concerned that X had been sexually abused that she intended to go to the police. She said that she did not put the Father on notice that she was going to attend the police, and that she had not understood the question earlier put to her.[7]
[7] T 8 – 10
The Mother’s Affidavit did not set out what she had told the police about the alleged sexual assault, or what the police had told her. She denied that this omission was deliberate. She confirmed that the police told her, in early 2023, that there was no basis to suspect that an offence had occurred. She said that she had told the police that she would prefer if X did not have to go through the experience of speaking with them. The Mother was shown an Australian Federal Police record which stated that the Sexual Assault and Child Abuse Team offered the Mother the opportunity for X to be interviewed, but it was their view that it was not necessary. It was suggested to the Mother that the police formed this view themselves, regardless of what the Mother had said to them. She accepted this. She said she still could not be sure that the Father had not sexually abused the child. She was asked what might give her complete reassurance that he had not done so. The Mother said that it would have to be through signs in X’s behaviour, emotional response to her Father, the views that she shared and how she presented.[8] In my view, the Mother remains steadfast in her belief that the Father has sexually molested X. On all the evidence (including from police and Sexual Assault and Child Abuse Team) such a view is untenable, but the Mother will not, or cannot, resile from it.
[8] T 11 – 12
It was confirmed by the Mother that she sought for X to immediately move in with her. She did not include any transition arrangement, despite the child having lived with the Father now for over three years. Confusingly, the Mother denied that the Father’s house would hence be X’s main ‘sense’ of home, despite confirming that she thought X would be used to being at home in his house. She confirmed that X had not seen her other than under supervised conditions at B Contact Service for a few months. She conceded that it would be a big change for X to move in with her straight away. She confirmed that there was nothing in her Affidavit about what her plan would be to manage that change, including distress on the part of X, or any plans of communicating with the Father for his assistance if required. She confirmed that this was because she would not reach out to him. She said that it had not been of any assistance in the past, and that it would not be appropriate.[9] Simply an observation at this stage: the Mother’s evidence was, among other things, genuinely sad. It was sad in her lack of insight about the reality of her situation and also of X’s with her Father, but it was also sad because of the Mother’s palpable sense of desperation but with so little clarity about her plight. There were glimmers of insight along the way, but they were so clouded by so much else that shrouded the Mother’s judgment, not least being her reasonably frequent turn to drug use (and “hard” drugs at that) when certain pressures appeared in the Mother’s life.
[9] T 12 – 13
The Mother confirmed that one of the problems she had with the Father was around “medical issues” for X. She confirmed that on one occasion, she had informed him that X was sick, and he had responded by advising that she should take her to the hospital. She confirmed that he did not demand her to do so, and that he may have suggested it because she had been reporting a temperature some two weeks after X’s operation. It was confirmed by the Mother that there was no plan set out in her Affidavit for improving their communication.[10]
[10] T 14
The Mother confirmed that her Orders sought contained no provision for the Father to have telephone or other communication with X during the time that she spends with her. She conceded that it could be good for X to include such Orders. She advised that X would not be used to seeing her every day, unlike the Father. She denied that she simply wanted the Father to have as little to do with X as she possibly could get. She said that there was no plan for how X would spend the first night in her care. She denied that the first night would be incredibly distressing for X. She said she did not know whether X would miss the Father, yet confirmed that X loves him, that he loves her, and that she enjoys spending time with him. She said that she thought that X was scared of him, notwithstanding the above.[11] In my view, the Mother’s comments here again demonstrated a significant lack of reality in relation to the impact of X not being in her Father’s care after such a significant period of time with him, and being essentially oblivious to the need to make arrangements for communication between X and her Father when the child was in the Mother’s care.
[11] T 14 – 15
The Mother confirmed that she had read the Family Report recently, specifically the observation between X and the Father. She accepted that it was a lovely observation, and that there was no evidence from that recording to suggest that she was scared of her Father. She further accepted that there was no other evidence that she brought to the Court today that suggests that X is scared of her Father. She said that her personal opinion was based on what she had observed of X and what X had told her. She said that these observations were usually over changeovers where X would return to the Father, and her interpretation of X’s resistance as being scared. She said she had thought about alternative explanations and discounted them. She said she believed that she had outlined in her Affidavit occasions where X had said she was scared of the Father. She was asked to show the Court this following the morning-tea adjournment.[12]
[12] T 15 – 16
The Mother accepted that she was heavily affected by illicit drug use in 2021. She said she was hospitalised in City M in a mental-health facility not due to her drug use, but her thoughts of self-harm. She confirmed this was not a voluntary admission. She felt that her drug use impacted her emotions at the time. She confirmed that after the parties separated, the Father had a lot to do with the care of X including him spending multiple periods overnight with her. She said that she was unsure whether X would have been at risk during that period, despite the arrangement having been made by consent at the time. She said that she thought the risks with the Father included X continuing to be distressed or further disclosures. The Mother confirmed that she thought that over certain periods X’s wishes should have been taken into consideration in relation to time with the Father. She confirmed that X was five years old and conceded that the wishes of a child of that age may include some fantastical things. She confirmed that while her wishes should be taken into account, she should not be able to decide. She confirmed that there had been periods where she had said to the Father that X would not be coming back to him as X had said she did not want to.[13]
[13] T 16 – 18
The Mother was taken to various occasions where she withheld the child from the Father. She accepted that on all occasions, the Father had asked the Mother to return the child pursuant to Court Orders and she had not done so. She said she did this due to her view about X’s health on those occasions. She said she was not trying to deliberately defy Court Orders. She was asked whether X had been cared for by the Father when she was sick. The Mother said that she did not agree with some of the decisions that he made on these occasions. She then confirmed that she thought that he medically neglects X. She conceded that it could be viewed that the parties simply had different parenting views about medical treatment for X. She confirmed that there were at least three occasions outlined in her Affidavit where staff at medical centres had disclosed that the Father had spoken to them aggressively. It was suggested to the Mother that there was no record from the medical practice that suggested this. The Mother was uncertain whether her Affidavit had such evidence but stated that the medical practice would.[14]
[14] T 18 – 20
The Mother said she was not sure whether it would be deliberate on the part of the Father to put the child at risk while in his care regarding medical matters. She accepted again that it could simply be differences in approaches. She said that he had not seemed willing to discuss medical care with her, so this made her unsure that it was simply a difference in opinions. The Mother said that after X had surgery and was prescribed antibiotics, the Father had not ensured her script was filled. She said she did not think that her post-surgery care was dealt with as recommended by her surgeon, and hence she was ill for a prolonged period. She gave further occasions where the Father had taken the child to day care when she was unwell, where the child had been sick with a respiratory infection and was prescribed antibiotics which were not administered properly, and that when the child was unwell, he tended to deny it. The Mother did not agree that her messages to the Father suggesting that X was traumatised or that he abused or neglected X made communication on the Father’s part difficult. She confirmed that he should have simply ignored it, although conceded that she did not think it was okay to say such a thing. She confirmed that it might have been difficult to ignore.[15]
[15] T 20 – 22
The Mother said that FaceTime calls between her and the child were no longer occurring. She confirmed that she had not provided a summary of what occurred during these calls, and that she had not mentioned that on calls X is sometimes encouraged to speak to her by the Father. She confirmed this was positive and that it suggested that the Father thought the child’s relationship with the Mother was important. The Mother confirmed that she thought this was an example of him not interfering with FaceTime calls. She confirmed that it was not mentioned in her Affidavit. She disagreed with the statement that she had not included anything positive in her Affidavit.[16]
[16] T 22 – 23
The Mother confirmed that other people have to set up the phone for her to speak with X, as X cannot do this on her own. The Mother was taken to the notes that she had prepared after having viewed recordings of a FaceTime call between herself and X. She confirmed that the notes included parts of the videos that she had thought were important. She said that Ms N had assisted in preparing the table of notes.[17]
[17] T 23
The Mother confirmed that Ms N is a friend and colleague where she works, and that she had told Ms N of her relapse in drug use at the end of 2022. She confirmed she had told the security staff at her workplace of her drug use relapse. She said she was not required to give much detail, but that she had volunteered to give information.[18]
[18] T 23 – 24
Questions returned to the medical treatment of the child. The Mother said she accepted that herself and the Father had different views about the use of antibiotics to treat medical issues. It was suggested to the Mother that this view was outlined in his Affidavit. She was asked whether the Father having this view meant he was medically neglecting the child. The Mother said that she would agree, if it meant he was not following medical advice.[19]
[19] T 24
The Mother was, again, asked what risks she poses to the child. She again referenced her hypervigilant responses and conceded that her historical drug use was a problem that she was very ashamed of, and felt that she had let X down for. She confirmed that how she might address her hypervigilance was not outlined in her Affidavit. She denied that having X full time in her care would be stressful. She confirmed that stress was the key factor in her relapse in drug use at the end of 2022. It was accepted that she had known that one of the problems in her interactions with Care and Protection in 2021 regarding the care of X was her drug use. She also accepted that she had an Application before the Court in 2022 for X to live with her. She confirmed that stakes were therefore high for her in deciding to use illicit drugs, yet she had not completed any residential treatment program for illicit substance addiction since 2022. She confirmed that she knew that when she was using drugs in 2022, she was putting her relationship with her daughter at risk. The Mother said that this mattered to her, yet she had used the drugs. She denied that drugs had been more important and said it had been a means of coping.[20] My earlier comments about “sadness” regarding the Mothers’ evidence, including her lack of insight, are even more relevant here in the light of this evidence. It was often distressing listening to the Mother’s evidence and the problems she faces in her life, especially (but not only) in relation to her escape to the use of drugs in times of stress. This plainly is a very serious issue of the Mother, but which has flow-on effects for X and the Mother-daughter relationship.
[20] T 24 – 26
The Mother denied that when the child was distressed she would turn to illicit drugs, yet she accepted that she had an ‘over the top’ reaction to distress exhibited by the child. The Mother confirmed that it was likely X was aware of the stress between her parents and that when she saw X distressed, she would respond, and then X would respond to her stress. The Mother seemed to accept the cyclical pattern of this behaviour. She said she felt that in the last 12 to 18 months she had been trying to withhold her response to prevent X from being affected by it. She denied that this meant she was bottling up her stress. The Mother said that she was currently seeking counselling through her workplace, but that her last counselling session had been with B Contact Service about two or three months ago. It was confirmed that she had not stated this in her Affidavit, as she had not yet utilised the services at her work.[21]
[21] T 26 – 27
Questions returned to the Mother’s communication style with the Father on medical matters. She confirmed that if she was being accusatory or aggressive, it would not be surprising if the Father’s responses had appeared as if he did not want to engage with her. She then said that an ‘adult thing to do’ would be to raise concerns in a non-aggressive or accusatory way. She accepted some responsibility for her own behaviour in that sense. The Mother said that the Father was minimising the child’s illness when he said he would send her to daycare with a snotty nose and asked her not to dictate what was going on. She said that she might be more attentive or observant to X than he was. However, she accepted that she could occasionally be wrong in her assessment. The Mother was taken to her Affidavit where she said that between early to mid-2022, she observed that X’s conditions were often worse following time with the Father. She confirmed that X has a medical condition and that she had spoken to a specialist about this. She also confirmed that she was aware that City K is not the best environment for this condition, and that X may continue to experience this if she stays in City K.[22]
[22] T 27 – 30
The Mother was taken to paragraph 44 of her Affidavit canvassing a changeover which occurred in early 2022, where she said that the Father’s sister had dropped X off. The Mother had outlined that X began crying when the Mother held her, she looked tired, her face was puffy and red and that she sounded congested and exhausted. The Mother confirmed that all of these physical symptoms were normal following an emotional outburst, yet she stood by her original assessment that X was sick. She confirmed that she had then asked the Father about whether he had taken X to the doctor 10 days prior. He had responded by saying that the doctor does not like prescribing antibiotics when they do not need to, as it would be better for her immune system without them. She confirmed that this sounded like he had received some medical advice. She said she had assumed that he had not seen a doctor as he had said. She confirmed she is not a medical professional, but that she can determine the difference between X’s emotional outbursts and whether or not she is unwell. She confirmed that she had not taken X to see a doctor. She said she did not believe the Father because he could not tell her which medical practice he had been to, or which doctor he saw, and his responses were broad or intended to shut down the conversation.[23]
[23] T 30 – 33
The Mother confirmed that in early 2022, she had assessed X as unwell again and asked the Father for the name of X’s doctor that she had seen a few weeks earlier. She confirmed that she maintained being critical of the Father for not remembering the doctor’s name, although he provided her with the practice name. She confirmed that she had then contacted the medical practice but denied that this was to check up on the Father’s honesty. She said that she had been confident that X had not seen a doctor on the day alleged by the Father as there was no record on My Health Record. She confirmed that as a result, she was satisfied that the Father lied deliberately about this and could not have been mistaken about the medical practice to which he had taken X.[24]
[24] T 33 – 35
The Mother was taken to an occasion in mid-2022 where she had contacted Dr O after receiving a text message from the Father responding to her with some details about X’s course of antibiotics. She confirmed that the purpose of her appointment with Dr O was to verify that the advice as articulated to her by the Father was true. She confirmed that Dr O had said to her “I said nothing of the sort.” She confirmed that she had then told Dr O that the Father ignores her or refuses to answer her questions when she attempts communication with him. She confirmed that in mid-2022, the Father had not done either of these things. She did not see the problem in interacting with Dr O in this way, nor see how it might put the child’s GP in the middle of a dispute between her and the Father.[25]
[25] T 36
The Mother confirmed that in mid-2022 X was meant to return to the Father pursuant to Court Orders, which did not occur. She confirmed that her rationale was that X’s condition had been very poor, and she had not thought it in X’s best interests to travel between their houses. She denied that a car ride would not have had a significant impact on her conditions. She confirmed that her view had also been that the Father’s care may aggravate her symptoms, due to her belief that he was medically neglecting her. She confirmed that it was not clear from her Affidavit whether she had tried to communicate with the Father about alternative options, rather than withholding X. She conceded that she had made the decision to keep X in her care, and effectively imposed it on the Father. She confirmed that she had not taken X to a doctor until the following day, which she said related to difficulties in arranging a doctor on the weekend. She said that at the time, she had felt she was protecting the child’s interests which she said was a good reason not to follow Court Orders and confirmed that she still felt this way. She confirmed she had not apologised to the Father about breaching Court Orders and conceded that it would have been something that was quite stressful for him, as well as undermining his trust in her as a parent.[26]
[26] T 36 – 39
It was conceded by the Mother that perhaps when the child makes disclosures to her about the Father, she was telling her what she wanted to hear. The Mother said that she still believed X in certain situations but had considered this possibility at the time. She said there have been instances where she did not believe X, although that she would still comfort X regardless. She said this would communicate to her that she was supportive of her feelings. She confirmed this was not reflected or detailed in her Affidavit. It was confirmed that the child had said to the Mother in mid-2022 that she hates the Father. The Mother said she had comforted the child in this situation and had thought that this was a genuine view of the child. She confirmed, however, that the Family Report showed no indication that the child hates the Father, nor is there anything from the childcare centre to suggest the same. She clarified that she believed that this might have been X’s view on occasion; the Mother confirmed (not for the first time) that she believes X loves her Father. She confirmed also that she did not say anything to dissuade the child of this view, although she could not recall what she had said. She denied that this was because she was affected by drugs. She said that she had said to X ‘just hang in there girl’ on FaceTime while she was at the Father’s house and said she did so to communicate support to X. She denied that this would indicate that staying with her Father is a difficult thing to do. She denied that she said this almost every time they had a call.[27]
[27] T 39 – 40
Questions moved to X’s surgery. The Mother said that the stress of this event was one of the causes of her using illicit drugs on four separate occasions. She also said the stress of communication with the Father influenced her relapse but acknowledged that there was nothing in her Affidavit to this effect. She said that she paid for the cost of the surgery. She said she had included it to show she was able to facilitate or meet such costs.[28]
[28] T 40 – 44
The Mother confirmed that she had questioned X about how the Father washed her hair for the purpose of obtaining information about whether she had something in her ears to protect them. She said she could have just assumed the Father was following advice from the doctor, but she did not trust him. She denied that this mistrust extended to matters which were not medically related. She said she did not know if the child had been sexually abused by the Father, or whether she had been by anyone else, and that she did not know if he had physically abused her. The Mother said that she had been hit by the Father, and hence she thought he might do the same to their daughter. Regardless, she said she would prefer not to restrict time between the Father and child. She disagreed that if she genuinely thought the Father had hit X, there would be no way she would let him spend the time that he spends with her.[29]
[29] T 44 – 46
The Mother confirmed that she had been critical of the Father for taking the child to a birthday party only a few days after her surgery. She denied that calling it a major surgery was over the top and said that X had spent two nights in hospital for her surgery. She acknowledged that the Father would have been capable of making an assessment of whether the child was fit to attend a birthday party, and that they simply had different opinions. She was taken to an occasion in late 2023 where she had seen the child at B Contact Service and stated that the child had a runny nose. She agreed that there was no mention of this in the report by B Contact Service.[30]
[30] T 46 – 47
The Mother was asked questions about a dispute over dentistry issues. The Mother said there had been a conversation, rather than a dispute, over X’s potential dental surgery. She confirmed that the Father had nominated a date for the surgery but that she had wanted to get a second opinion. She confirmed that the second opinion had been from the same dentist, the difference being her attending with X rather than the Father being in attendance.[31] Getting another opinion from the same dentist would not usually be considered “getting a second opinion.” To do so, one usually goes to another dentist or specialist as the case may be.
[31] T 47 – 48
The Mother was taken to a statement she had made in her Affidavit about feeling that the Father did not view her as an equal in relation to the parenting of X. She said that she thought this due to the way that the Court operates. Such comments by the Mother were not always, or reasonably, clear. Nor were they necessarily or relevantly grounded in facts before the Court. She said that in the past the Father had been willing to discuss medical concerns, and that he does not need to right now due to the sole parental responsibility Order in his favour. It was suggested to the Mother that her statement that the Father is unwilling to consider anything she said to him about X’s health since the proceedings were initiated was untrue. She denied this. She said she tries most of the time to communicate with the Father in a helpful way about the child’s health. She confirmed on occasion that she had been ‘flat out abusive.’ She agreed that this is not helpful. Accordingly, she conceded that poor communication was not always the Father’s fault, and that it could not be surprising that he might be reluctant to consider her perspective, especially where disagreements over health matters are often the reason that she would contravene Court Orders.[32]
[32] T 48 – 49
Questions moved to changeovers between the parties. The Mother acknowledged that they are a major point of conflict, and that some ‘scenes’ at changeover have not been great, hence it is understandable that X might be “worked up” prior to them. The Mother confirmed that she would often get nervous beforehand, and that X might pick up on this. She said that she tried to be encouraging about the Father to minimise the exposure that X would have to this. The Mother confirmed that she had stated in her Affidavit that X has told her on most occasions that she does not want to go to her Father’s care and that she hates the Father. The Mother said that there have been occasions where she told X not to be silly, or something to that effect. She accepted the fact that she thought it would be helpful for the Father to be attentive and warm at changeovers but said that it might simply be a difference in opinion or approach between them regarding what might work best at changeovers. She confirmed that she thought the Father was indeed a good parent, but she did not include this in her Affidavit.[33]
[33] T 49 – 52
The Mother was taken to a statement that she deposed to in her Affidavit referring to X disclosing that the Father hit her in the face and that she hates him. The Mother said that she did not recall what she said in response to this. She said that she believed she had also deposed that the child had a mark on her face on one occasion. She confirmed that on this occasion, she could not recall whether there had been any mark but confirmed that there would have been some physical results of the injury if he had indeed hit her. She said that the child’s day care had not mentioned any marks, nor had the police or Care and Protection.
The Mother was asked a number of questions regarding how the child had been hitting herself to mimic where and how the Father had hit her. The Mother said she was driving at the time and was looking at her in the rear-view mirror, so she was not completely sure. The Mother denied that this was the sole basis for which she alleged that X had been physically assaulted by the Father. She said that there had been other conversations. The Mother said that on this occasion she thought the child was being truthful. It was suggested to her that she was making up such accounts. The Mother denied this. It was suggested to the Mother that as X was in her care, it could not be true that the Father had just hit her. She acknowledged this, as well as confirming that children of four years old can be inventive and that she is a creative child and has told lies in the past. She said that she had told lies to achieve the effect that she wants. She confirmed that, accordingly, if X did not want to go to her Father, she might say something untrue if she thinks it might prevent this from happening. The Mother said that this could be possible. She also acknowledged that this recognition did not appear anywhere in her Affidavit.[34]
[34] T 52 – 54
The Mother was asked whether it was strange to her that X was saying negative things about her Father out of the blue. She said it was but denied that X might think that the Mother would want to hear negative things about her Father. She denied that it could be possible but accepted the proposition that by saying ‘I hate Dad’, X was in fact meaning ‘I want to spend time with you.’ She said she had tried to consider this as being a reason, but that her fear carried a lot of weight in her assessment. The Mother confirmed that she had written in her Affidavit that her mother had also heard the child say these things, yet the Grandmother was not on Affidavit. The Mother denied that this was because she was not willing to ‘back up’ the Mother’s version of events.[35]
[35] T 54 – 56
There followed a series of curious if not somewhat disturbing “negative” propositions that were, and remain, the foundation for the Mother’s firm adverse beliefs or views about the Father.
The Mother said that she could not be certain that the child had not been sexually abused by the Father. She also confirmed that, accordingly, she could not be certain that the Father was not a paedophile. She accepted that, therefore, she could not be reassured to the necessary level that he can (or should) have time with X every second weekend and during school holidays. She confirmed that this “time-with” proposal would be dangerous if he was a paedophile, but she had not explained, and could not explain, therefore, why she wanted to expose X to such potential level of risk. The Mother said she did not understand the effect on the Father with him hearing that he was, in her view, potentially a paedophile. She accepted that it probably would not be a good thing to hear this, and if untrue, it would be incredibly hurtful. She denied that this might make it impossible for the Father to work with her in the future. It was accepted that there appeared to be some inconsistency between her time-with proposals and allegations against the Father.[36] While there was some acknowledgement by the Mother of the potential serious, negative impact upon the Father of her strongly held contentions, the Mother was generally unwilling, or unable, to recognise how grave her allegations were (and remain), the potentially very serious impact they could have on the Father’s relationship with X, and likewise the enormous potential for further harming the co-parenting relationship, fragile and seriously troubled as it is even now, and has been for quite some time.
[36] T 56 – 57
The Mother said that an alternative to this position might be that sexual abuse of the child simply did not occur. She also said that there would come a point where being accused of such things would be too much, and that it was not a “one-off” occasion where she had made allegations. She confirmed that she had made allegations in late 2022, being when she was using illicit drugs. She confirmed that she had not reflected on these matters. She said she did not think her illicit drugs use impacted what she thought had happened to X.[37] This is quite the imponderable question – on multiple levels. Yet the Mother was remarkably insouciant and, apparently, relatively unperturbed by it. In my view, the Mother’s comments here, as candid as they generally were, only added to my very serious concern about her lack of insight and quite troubling evidence.
[37] T 57 – 58
It was suggested to the Mother that the allegations made by her in her Affidavit about an occasion where the child disclosed sexual abuse by the Father differed from the police records relating to the same incident. She said that she had not included in her Affidavit the conversations between herself and X which led to such disclosures. She understood it was very important to be precise in relation to such matters. She denied that she was trying to obscure in her Affidavit what X had told her. She confirmed that it appears that she had a conversation with X and then asked for more detail, yet how she asked for more detail was not disclosed. She confirmed that she understood that children may be influenced by the way a parent reacts or responds when making such serious disclosures.[38]
[38] T 58 – 59
Questions turned to the Mother’s allegations of the Father being aggressive to Dr P in relation to the appointment that the Mother had booked regarding X’s disclosures. She said that there was no record held by the medical practice that outlined this. The Mother had deposed that Dr P suggested that she report her concerns to CYPS. She said that Dr P had informed her that making a mandatory report to CYPS would only occur if the swab test came back with a particular result. The Mother said that she engaged with a Rape Crisis Centre following this appointment, but prior to the results coming back. It was suggested to her that she in fact contacted them in early 2023. The Mother conceded that this was correct. She advised that two days after the medical appointment she had returned X to the Father. It was suggested to her that she would not have done so if she had believed that he had sexually abused her. She denied this, and said she felt pressure from the Father and the Court Orders.[39]
[39] T 59 – 61
The Mother confirmed that she had earlier taken X to the doctor in late 2022, and that she had been assured that the results were negative for a urinary tract infection earlier that month. She said that she had taken the child to hospital after she had been unwell, vomited and complained of chest and stomach pains. She said she had not informed the Father of this. She said that she had waited at the hospital for two and a half hours, but ultimately, had later attended Q Medical Centre as X had been very anxious. Within this extended time, she had not informed the Father of her being at the hospital with X. She acknowledged that if the Father had done the same, she would have been critical of him for it, but denied that she would have been critical of his parenting.[40] The Mother’s inconsistent evidence and lack of insight continued to speak loudly for itself.
[40] T 61 – 62
The Mother was asked whether she had been making it up that the Father was being aggressive to the medical practitioners as there had been no reference in the medical notes of this. She said she had not.[41]
[41] T 62 – 64
Questions moved to the Mother’s contact with the Rape Crisis Centre. She advised that she had not been aware that in attending this service, it might be thought that she was making an allegation about the Father being inappropriate with the child. She said that the Centre had advised her to report it to the police. It was suggested to the Mother that if she had believed the Father was being unintentionally rough with the child, she would not have attended the Rape Crisis Centre. She was asked why she would not have followed up on the referral to the Paediatric Unit at hospital if she had thought it was unintentional. She said she did not follow up on this as she knew it would take time, and that the GP had informed her that he could not rule out sexual abuse and gave details for the Rape Crisis Centre.[42]
[42] T 64 – 66
The Mother confirmed that 3 days after, in early 2023, she had attended the Suburb J Police Station to speak with the Sexual Assault and Child Abuse Team. She had deposed that she had not done this to assert intentional abuse on the part of the Father, but because she was unsure what to do when he had been refusing to discuss anything with her ‘that he perceived as me [the Mother] trying to accuse him of being anything less than a perfect human.’ She confirmed this was not the first time she had spoken to this team, and that she had also done so in mid‑2021. It was suggested to the Mother that she appeared to currently have a different view about X’s sexual abuse to that expressed in her Affidavit, where she had deposed that she was ‘satisfied’ with the advice from the police that ‘they did not believe that any offence had been committed.’ She said that this was because she was now considering the incident in a broader context of everything that had occurred, and that she now could not be certain of the accuracy of their advice. However, she said she thought the police did their job and accepted their view on the information that they had at hand. She confirmed that, presumably, they would have also had the information from her visit in mid-2021. [43] To say the least – again – in my view, the Mother’s evidence and lack of insight, on multiple levels, was plainly evident in relation to her conduct recounted here regarding her engagement with the police.
[43] T 66 – 67
The Mother said that in early 2023, the paternal aunt had been interviewed by CYPS and that ultimately, X was interviewed by CYPS as well. She said that the child had said “certain things” in this interview. She said she knew this from the s69ZW material. She confirmed that the CYPS assessment was that she was not at risk of sexual abuse from her Father. She said that she did not think CYPS had done a good job investigating, but that she was not sure if they had it wrong. The Mother was asked why she had agreed to have X in the paternal aunt’s care for the purpose of a CYPS investigation if only days prior she had accepted the police assessment. She simply said it was because they were conducting an investigation. She confirmed that being removed from the Father’s care was potentially traumatic for X. She said it was not her place to intervene with the CYPS investigation. The Mother confirmed that, effectively, this meant that she was not willing to criticise the actions of CYPS at the time, but happy to do so later on after the assessment was given. She said there was an option for her to disagree with the interview between CYPS and the child, but she did not.[44]
[44] T 67 – 71
The Mother was asked whether or not sexual abuse might be a ‘pretty long bow’ to draw on the basis of a child having an irritated vagina and presenting as being emotionally distressed and withdrawn. She agreed with this assessment. She acknowledged such an acceptance was not in her Affidavit.[45]
[45] T 72
She confirmed that in 2021 when she made similar allegations, she had been using illicit drugs heavily. She said that she had not outlined how much she had been taking at the time, the frequency of use, or how much money she was spending on the drug. She also said that she had not deposed when she had exposed X to the drug, or when she had cared for X when under the influence. She conceded that she had cared for X while under the influence in the past. To say that this was troubling would be quite the understatement. She denied that omitting this in her Affidavit was to try and conceal it. Quite candidly and with obvious regret, she acknowledged that this was poor parenting on her part. She said that the drug was not costing her anything, as she had been in a relationship with someone who was providing it to her. This fact did not improve the Mother’s situation. She said this relationship had lasted about seven months between 2020 and 2021, and she had stopped using the drug when the relationship ended.[46]
[46] T 72 – 73
Questions moved to the incident which occurred at a shopping centre car park in early 2022. The Mother said that after dropping off X for changeover, she had observed the child crying in the car and had wound her window down and said aloud to her that everything was okay. She said that it had occurred to her that letting the Father manage the situation would have been the best thing for X at the time, yet she had decided to involve herself. She said that she got out of her car and assisted the Father with X to ensure she was okay, despite the parties not getting along at this time. She did not accept that this behaviour was unhelpful, nor that it was directly exposing X to potential conflict. She said that she thought that the Father’s way of dealing with the child when distressed was very cold and did not view her intervention into the situation as potentially aggravating for X. She accepted that X was going to be distressed in life, and that part of responsible parenting would be to allow her to experience this emotion, yet some of her decisions have been based entirely on X’s distress levels. She said that this included declining the opportunity to be interviewed with X at the Family Report interviews because X was distressed upon leaving her. She also said that she had ceased visits at B Contact Service for a period of time due to X’s distress when leaving her.[47]
[47] T 73 – 76
It was suggested to the Mother that she had some significant personal problems in seeing the child in distress. She denied this. She agreed that the Father may simply have a different way of managing the child’s distress. She said that her decision not to have an interview with X for the Family Report was partially due to her not wanting X to see her upset.[48]
[48] T 77
The Mother acknowledged that she had contacted the police in late 2022 and asked them to do a welfare check as X had been combative during handover. She noted that this was not in her Affidavit. The Mother was asked whether she did not include it because the police records stated that the police held no concerns for X and believed that the Mother had submitted ‘a vexatious complaint to the police.’ She denied this. It was suggested to the Mother that the police also included that X was talking happily with her Father. The Mother acknowledged that she had included in her complaint that the Father had dragged X out of the car, and X had been kicking, screaming and biting him. She also said that she mentioned her concerns about the Father hitting X across the face. She recalled saying something to the effect of the Father having previously strangled her and that she was concerned what might happen to X given his anger. She confirmed there was nothing in her Affidavit about the Father strangling her, and that X had never used the word ‘slap,’ despite the Mother entitling a section in her Affidavit “Allegation of [Mr Gillivray] Slapping [X].” She said that the ‘motion’ that X used was to the effect of a slap.[49]
[49] T 77 – 78
At this time, there is insufficient evidence that [X] has been sexually abused by [Mr Gillivray]. Although it cannot be fully excluded, it is unlikely that it has occurred as concerns in relation to [X]'s genitals was a result of gut and bowel flora/ material contamination which can occur in young girls due to not being fully proficient at wiping their bottom. It remains unclear whether [X] has the expressive language skills to make the disclosures to [Ms Lennan] as [Ms Lennan] has reported. However, it is concerning that there appears to be an emerging pattern of reporting in relation to sexual abuse allegations since 2021. In addition, it is highly concerning that [Ms Lennan] has undertaken vaginal swabs on [X] at home at the request of GP and taken photos of [X]'s genitals. [The police officer] who completed the investigation into the sexual abuse allegations stated, "I would share the concerns about subjecting [X] to unnecessary and overly invasive medical procedures.". If [Ms Lennan] continues to complete vaginal swabs and take photos of [X]'s genitals, it is likely that this will result in the emotional abuse of [X] or could be considered sexually abusive behaviour by [Ms Lennan]. It is concerning that [Ms Lennan] continued to take photos of [X]'s genitals for "evidence" despite this being addressed with [Ms Lennan] in an appraisal in 2021. Although it is likely [Ms Lennan] did not take the photos for the purposes of producing child abuse material, the photos do not assist CYPS in determining whether sexual abuse has occurred. At this juncture, it is noted that [Ms Lennan] completed the swabs herself in consultation with medical professionals. Therefore, sexual abuse will not be substantiated.
Emotional Abuse
Reported concerns in relation to emotional abuse include [Ms Lennan]’s history of [illicit drugs] use, [Ms Lennan] engaging in doctor shopping for [X] and gambling. During the interview with [Ms Lennan] [in early] 2023, [Ms Lennan] advised that she has not used [illicit drugs] since [mid]-2021 and the main influence in her drug use was [Mr AL] (known links to [bikie gangs]). [Ms Lennan] discussed previously being in a relationship with [Mr AL] and the seeking an FVO due family violence perpetrated by [Mr AL]. [Ms Lennan] stated that [Mr AL] is now in [prison] and they no longer communicate. [Ms Lennan] has provided CYPS with a copy of the FVO. In addition, CYPS received records from [City K] Corrections which confirm that [Ms Lennan] has not been in contact with [Mr AL] whilst he has been in [prison] this year. [Ms Lennan] has made it clear that she does want to resume her relationship with [Mr AL] as she recognised it would impact her job and relationship with [X]. It is noted [Ms Lennan] raised concerns in relation to historic incidents of domestic violence allegedly perpetrated by [Mr Gillivray] which were not the focus of this appraisal. [Mr Gillivray] did acknowledge on one occasion becoming heightened during a handover and smash [Ms Lennan]'s phone when she was filming him. [Mr Gillivray] acknowledges this should not have occurred. During the appraisal, CYPS became aware that [Ms Lennan] had not completed drug testing in accordance with the Family Law Court order in respect of [X]. CYPS asked [Ms Lennan] whether she would consider completing a hair strand test paid for and arranged by CYPS as it the cost was identified as a barrier for completing the test. [Ms Lennan] completed the hair strand test [in early] 2023. The results evidenced that [Ms Lennan] has used [illicit drugs] between [mid]-2022 and [early] 2023. [In early] 2023, [Ms Lennan] confirmed that she used [illicit drugs] but not on an ongoing basis. [Ms Lennan] said she uses during difficult periods and only when [X] is in [Mr Gillivray]'s care.
Following CYPS providing [Ms Lennan] with the results, [Ms Lennan] sought her own hair strand test which is reportedly negative for all substance. CYPS cannot confirm the integrity of the collection and results as [Ms Lennan] did not provide CYPS with an expert report but only the results. In addition, it is not clear what the cut offs were for the detection of substances in the hair strand testing which [Ms Lennan] undertook independently. Therefore, this report does not rule out [Ms Lennan]'s use of [illicit drugs]. In addition, it is noted in the Expert Report dated [early] 2023 (for the hair strand test arranged by CYPS) that the hair sample collected was 38cm long and the sample reportedly collected for [Ms Lennan]'s independent hair strand test was 0 - 3.9cm long. Although the author is not a forensic scientist, it is highly likely that the length of the hair sample provide also impacts the detection of substances.
As part of the appraisal, CYPS requested [X]'s Medicare records. The Medicare records evidence [X] has presented to medical professionals on 9[5] occasions since [early] 2022. It is also evidenced in medical records from [Q] Medical Centre that [Ms Lennan] also takes [X] to a GP in [Suburb AM]. [Mr Gillivray] also confirmed that he takes [X] to a GP in [Suburb AN]. It is apparent that there is no agreement between [Ms Lennan] and [Mr Gillivray] about which medical practice to take [X] to see a GP despite an undertaking made by both parents to the Family Law Court to take [X] to a single GP. It is likely that [X] would benefit from consistently visiting a single GP practice to allow for continuity in her medical care. It would also be beneficial for [X] not to be unduly exposed to invasive medical procedures and it is possible that the risk of this occurring would be reduced if [X] saw a single medical practitioner. This risk would also be reduced if [X] was taken to the Emergency Department for any concerns of sexual abuse rather than [Ms Lennan] waiting and taking [X] to a GP to request STI swabs. [Ms Lennan] reports that she has previously been diagnosed with [mental health conditions]. [Ms Lennan] said she has since seen a psychologist and now has no diagnosis of [a mental health condition] but has a form of depression from when CYPS was last involved and [X] was not in her care. [Ms Lennan] spoke about the depression being situational. [Ms Lennan] explained that she last saw a psychologist [Ms AJ] three months ago. Records received from [Ms AJ’s] evidence that [Ms Lennan] last attended an appointment [in late] 2022 and has had 11 sessions in total with [Ms AJ] since [mid]-2021. In the records from [Ms AJ], it is evidenced that [Ms Lennan] has a diagnosis of [a mental health condition], has engaged with Gambling Anonymous and reportedly ceased gambling. In a letter from [AC Organisation] dated [early] 2023, it is confirmed that [Ms Lennan] sought assistance for managing her personal finances. Records received from [AB] Hospital evidence that [Ms Lennan] also attended three psychology sessions [in late] 2022 with [Ms AO] due to concerns in relation the impact of [Ms Lennan] and [Mr Gillivray]'s separation on [X] and [Mr Gillivray]'s behaviour during handovers. It is noted by [Ms AO] that no therapy was conducted.
The risk of emotional abuse is assessed as concerning at this time. Based on the information gathered during the appraisal, it is evident that [Ms Lennan] has at times sought support in relation to her mental health and past gambling. It is unclear if it has had a discernible impact on [X] resulting in emotional abuse causing significant harm. Due to [X]’s limited expressive language, it is also unclear whether she has been exposed to [Ms Lennan]'s substance misuse or the affects of [Ms Lennan] withdrawing from [illicit drugs]. It is likely that if [Ms Lennan] does not address her substance misuse that there is the potential for [X] to experience cumulative harm. This is due to not only the risk of exposure to substance misuse but also the impacts of substance misuse on [Ms Lennan]'s parenting.
Factors that increase or decrease the probability of abuse/ neglect
The probability of abuse/ neglect reoccurring is assessed as likely. This is due to there being protective factors present for [X] which include her regular attendance at childcare when in her father's care and time spent with [Ms AD] and her cousins. However, these factors do not mitigate the risk of abuse/ neglect but increase the likelihood of it being reported.
Increase
• [X]'s age and stage of development means she is reliant on her caregivers to ensure her protection
• [Ms Lennan] has previously been substantiated for the emotional abuse of [X]
• [Ms Lennan's illicit drugs] misuse
• [Ms Lennan]'s diagnoses of [mental health conditions]
• Allegations of [Mr AL] and [Mr Gillivray] perpetrating domestic violence towards [Ms Lennan]
• [Ms Lennan] maintaining relationship with unsafe adults, i.e. persons connected to [motorcycle gangs]
• The impact of the parents' acrimonious relationship on [X] at handover and other times
Decrease
• The involvement of extended family in [X]'s life
• [Mr Gillivray] has supportive family members
• [Ms Lennan] has supportive friends from work
• [Mr Gillivray] and [Ms Lennan] have ongoing employment
• [X] attends childcare when in [Mr Gillivray]'s care
• No information to indicate [Mr Gillivray] misuses substances
• Both parents have a regular care routine for [X]
Provide an analysis of the parent’s capacity to protect
Parent’s attitude towards the abuse and/or neglect
Both [Mr Gillivray] and [Ms Lennan] were observed to display concern about the allegations leading to this appraisal. It was noted that [Mr Gillivray] was not surprised by the sexual abuse and physical abuse allegations as he said these allegations have been previously made and also investigated by police. [Ms Lennan] was observed to be very focused on the sexual abuse allegations and gathering "evidence", i.e. [Ms Lennan] taking photos of [X]'s genitals. [Ms Lennan] was not observed to understand how taking photos of [X]'s genitals and arranging multiple genital/ vaginal swabs may impact on [X]. [Mr Gillivray] was aware of [Ms Lennan] taking [X] to have swabs completed prior to the appraisal commencing. It is unclear if [Mr Gillivray] addressed this with [Ms Lennan] or raised concerns with [Ms Lennan] in relation to this occurring.
[Ms Lennan] is likely to be in the contemplation stage in relation to the emotional abuse concerns and the potential impact on [X]. Although it is evident [Ms Lennan] has engaged in therapy at regular intervals, it is unlikely that this would reduce the risk to [X] unless [Ms Lennan] is honest and open with her therapist regarding her substance misuse and her own challenges.
Parents relationship with the child
Both [Mr Gillivray] and [Ms Lennan] clearly expressed their care, love and concern for [X]. [Ms Lennan] was not observed together with [X] during the appraisal period due to [X] not being in her care. Both parents prioritised [X] during the appraisal by engaging in safety planning and being forthcoming in the information they provided to CYPS. No concerns have been identified in relation to either parents' ability to meet [X]'s daily care needs. However, it is likely that [X]'s relationship with her parents would be impacted if [X] were to be made privy to adult conversations or issues raised by one parent about the other. It is concerning that [Mr Gillivray] reports [X] making negative remarks about him whilst in the car. [X] did not talk about any worries or problems with either parent during her interview. [X] was able to speak about what she liked doing with each parent.
Parents relationship with each other
At this time, [Mr Gillivray] and [Ms Lennan] do not have a co-parenting relationship where they can discuss their approaches to parenting or worries in respect of [X]. [Ms Lennan] has identified concerns in relation to her past experience of domestic and family violence reportedly perpetrated by [Mr Gillivray] which is likely to impact any co-parenting relationship [Mr Gillivray] and [Ms Lennan] would have into the future. Based on interviews with [Mr Gillivray], it is apparent that he is not surprised when allegations are raised in relation to him by [Ms Lennan] due to this occurring on a number of occasions. It is likely that a formal agreement in relation to [X]'s care is needed to reduce the possibility of further conflict and to promote consistency and stability in [X]'s routine/ care arrangements.
Functioning of parents
In this appraisal, concerns have been raised in respect of [Mr Gillivray] perpetrating physical and sexual abuse to [X]. However, concerns in relation to [Mr Gillivray]'s functioning as a parents have not been identified. [Mr Gillivray] ensures [X] spends time with extended family and participates in childcare whilst in his care. [Mr Gillivray] also takes [X] to the GP as required. It is likely that [Ms Lennan]'s functioning as a parent is impacted by her [illicit drugs] misuse and mental health. It remains possible that [X] may have been exposed to [Ms Lennan] using or withdrawing from substances. Due to [X]'s young age, it is unlikely that [X] would be able to communicate this to others. There are several risk factors if [Ms Lennan] is using [illicit drugs] or drug affected whilst [X] is in her care. There is the risk that [Ms Lennan] may not be able to respond to [X] appropriately or be emotionally available for [X] if substance affected or managing her own "come down". It is known that [illicit drugs] can result in "crashing" or sleeping heavily which could leave [X] with limited supervision. It is possible that [Ms Lennan's illicit drugs] misuse and mental health contribute to her worry about [X] experiencing sexual abuse. However, this would required further independent assessment.
Strengths
• [Mr Gillivray] and [Ms Lennan] have both expressed affection for [X]
• Insufficient evidence that [Mr Gillivray] and/ or [Ms Lennan] use physical discipline with [X]
• Neither [Mr Gillivray] nor [Ms Lennan] are experiencing long term poverty as they both have employment
• [Ms Lennan] has demonstrated that she is able to access formal support services
Protective Factors
• [X] attends childcare regularly when in [Mr Gillivray]'s care
• [X] regularly spends time with her paternal aunt who is an alternative and consistent caring adult in her life
• [Mr Gillivray] and [Ms Lennan] both have a consistent source of income and maintain good physical standards in their respective homes.
Appraisal Outcome – Summary Findings
1.Is there a reasonable belief that any of the subject person/s has been abused or neglected in the context of the current appraisal allegations?
No
2.Is there serious and persistent conflict between the subject person/s and the person/s with daily care responsibility to the extent that the care arrangements are, or are likely to be, seriously disrupted?
No
3.Is there a reasonable belief that any of the subject person/s is being abused or neglected?
No
4.Have the persons with daily responsibility and care died/abandoned the child/ren and/or young person/s or are unable to be found after reasonable enquiry?
No
5.Is there a reasonable believe that any of the subject person/s is at significant risk of abuse or neglect?
No
6.Is/are the person/s with daily responsibility and care sexually or financially exploiting the child/ren and/or young persons? Or are they unable to prevent this exploitation?
No
Provide a summary and analysis of the outcomes of this Appraisal…
This appraisal assessed the concerns in four CCRs in relation to sexual abuse, physical abuse and emotional abuse. Although the allegations are serious, it has been assessed that [X] has not experienced abuse and/ or neglect at this time based on the information gathered in the appraisal. It is likely that [X] is at risk of experiencing cumulative harm should her parents not work towards developing a relationship where they can at the minimum co-parent in a way which promotes [X]'s wellbeing and ensures her needs are met. It is highly likely that [Ms Lennan] would benefit from engaging with AOD service/ program to address her substance misuse and obtains a harm reduction plan to minimise the impact of her substance misuse on [X]. It is also recommended that [Ms Lennan] engages with her GP to obtain a mental health plan and continues to engage with her psychologist as required. At this time, [Mr Gillivray] has been assessed as a parent who is willing and able to care and protect [X]. Therefore, ongoing statutory involvement is not required at this time.
Appraisal Outcome
Appraisal subject person: [X]
Substantiated Decision: Not Substantiated
Substantiated Abuse/Neglect Types
Appraisal Outcome: Appraised and Closed
Rationale for Decision
This appraisal assessed the concerns in four CCRs in relation to sexual abuse, physical abuse and emotional abuse. Although the allegations are serious, it has been assessed that [X] has not experienced abuse and/ or neglect at this time based on the information gathered in the appraisal. It is likely that [X] is at risk of experiencing cumulative harm should her parents not work towards developing a relationship where they can at the minimum co-parent in a way which promotes [X]'s wellbeing and ensures her needs are met. It is highly likely that [Ms Lennan] would benefit from engaging with AOD service/ program to address her substance misuse and obtains a harm reduction plan to minimise the impact of her substance misuse on [X]. It is also recommended that [Ms Lennan] engages with her GP to obtain a mental health plan and continues to engage with her psychologist as required. At this time, [Mr Gillivray] has been assessed as a parent who is willing and able to care and protect [X]. Therefore, ongoing statutory involvement is not required at this time.
Person believed responsible
Substantiation of abuse in the last 12 months: No
Person able to protect? Yes
Meets s507 criteria? No
Compliance Report Recommended? No
Recommended Next Steps
It is recommended that the appraisal is finalised and [X]'s case is closed. To reduce the risk of further abuse/ neglect, the following is recommended:
- [Mr Gillivray] and [Ms Lennan] ensure [X] only attends one GP practice.
- [X] attends childcare when in the care of either parent.
- [Mr Gillivray] and [Ms Lennan] do not expose [X] to conversations where negative remarks are made about each parent.
- [Ms Lennan] engages with an AOD service/ program in respect of her [illicit drugs] misuse and obtains a harm reduction plan.
- [Ms Lennan] engages with her GP and psychologist in respect of her mental health.
Is a Compliance Report (e.g. Reportable Conduct) indicated? No
…
Recommended by […]
Recommended by Team CYPS
Date Completed [early] 2023
Submit to Team Leader? Yes
…
Approval
Actions and recommendations
Appraisal Outcome and Next Steps Approved? Yes
Restricted Access Required? No
Is this a Reportable Conduct Report? No
Meets s507 Criteria? No
Incident Report Required? No
Approver Comments
Recommendation endorsed, from all the information gathered throughout the appraisal there is not a reasonable belief of sexual or physical abuse by the father. In respect of emotional abuse, the mother’s pattern of attending the doctors to gather ‘evidence’, and [illicit drugs] use which she initially denied is concerning. It is therefore highly recommended for the mother to engage in a AOD service to address her substance misuse and engage with mental health supports. [X] needs her parents to be able to regulate their emotions and ensure adult conversations are not occurring in her presence, additionally have one identified doctor to ensure they have all the information to make an informed decision about [X]’s health. From the information gathered in the appraisal I am satisfied the father is a parent who is both willing and able to provide Care and Protection to [X]. Therefore, CYPS intervention is no longer warranted.
Approval Completed? Yes
Date Approval Completed? [early] 2023
Approved by? […]
Approval Role Team Leader
Approval Team CYPS
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