Little and Lerner

FAMILY COURT OF AUSTRALIA

LITTLE & LERNER

[2019] FamCA 160

FAMILY LAW – CHILDREN – With whom a child spends time – Best interests of a child – Where the mother seeks to alter the current parenting regime that provides for limited, supervised time with her children – Where the Court is satisfied the mother will not bring the children into contact with her former partner who is accused of grooming the parties’ daughter as well as other sexual offences against children – Where the mother’s inadequate understanding of the personality vulnerabilities that led her to maintain a relationship with her former partner despite evidence about his sexual interest in children continue to impact her ability to put the children’s best interests at the centre of her focus – Where it is not in the children’s best interests to spend unsupervised time with the mother before a trial which can test the evidence in this matter – Where the mother and the children are to continue, and the father and his partner (if she is willing) are to commence, counselling and psychological support – Where this matter is to be given priority for trial as soon as the Registrar is satisfied it is ready for trial.

APPLICANT:

Ms Little

RESPONDENT:

Mr Learner

INDEPENDENT CHILDREN’S LAWYER:

Raelene Ellis

FILE NUMBER:

BRC

1584

2014

DATE DELIVERED:

20 March 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

11 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bunning

SOLICITOR FOR THE APPLICANT:

Daykin Family Law

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITOR FOR THE RESPONDENT:

Lucy Wood Family Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Ellis
Raise Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

That the mother shall continue to engage in weekly counselling and psychological support to help her address some of the personality factors that may have led her to engage in, and maintain a relationship with her former partner and led her to place her children at risk by continuing to engage in such a relationship, in addition to assisting her in dealing with the loss and grief of currently not having the children in her care.
That the father, and his partner, if she is willing, shall engage in counselling support to help them address the emotions and anxiety the situation for the children may have caused them, to assist them in supporting the children and in engaging in a co-parenting relationship with the mother into the future.
That the father shall continue to take the children to psychological support to allow them a space to discuss and gain support to manage their emotions relating to no longer being cared for by their mother and in relation to any experiences they may have had in their contact with their mother’s former partner during his relationship with their mother.
That the listing of this matter for trial be given priority as soon as the Registrar is satisfied that it is ready to be listed for trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Little & Lerner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1584 of 2014

Ms Little

Applicant

And

Mr Lerner

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 25 September, last year, I made Orders in this parenting dispute that limited two children’s time with their mother to two hours of supervised time each week at the B Contact Centre in their local area. I ordered that an Independent Children’s Lawyer (“the ICL”) be appointed and that they arrange a family report to be prepared. I put the matter in the Magellan list and I listed the matter for further mention and the hearing of any further interim applications on 11 December 2018. I published my reasons later that same day.
On 11 December, I began hearing an Application in a Case filed by the mother in which she sought a change to the regime of limited, supervised time with the children. It was adjourned part-heard at the end of that day for a number of reasons.
It was back before me again on Monday 11 March 2019, for the completion of that hearing. The mother was represented by a solicitor and counsel. The father was represented by a solicitor and counsel and the ICL appeared.
In this latest hearing, as anticipated, I had the advantage of having a lot more evidence to consider than I did at the time of the first hearing in September last year. This evidence included the report of a psychiatrist who had seen the mother for the purposes of preparing a psychiatric assessment of her for this Court. It included a report from a clinical psychologist who saw the mother at the retention of the ICL for the preparation of a sexual abuse risk assessment. It included two family reports by a social worker with significant child protection experience and family assessment experience who also had the benefit of seeing the other reports I have mentioned, as well as speaking with the school counsellor at the children’s school and a supervisor from the B Contact Centre who has been supervising the children’s time with the mother since my September Orders were made. I also had more affidavit evidence from the parents themselves, from the father’s partner, from the Queensland Police Service and I had medical records of the mother from a general medical practice she has attended over the last four years in the F Region.

What the mother seeks

The mother wants the Court to order a return to the week about unsupervised equal shared care regimen that was in place by agreement between the parties until August last year when the father obtained Orders from this Court changing that. Her case is presented with multiple alternatives to that, in the event that the Court is not satisfied that a return to equal shared care is in the children’s best interests at this time. The first alternative proposes that the children spend unsupervised time with the mother from after school Friday until before school Monday in one week of each fortnight and then from after school on Wednesday until before school the next morning in the second week of the fortnight. The next alternative proposes that they spend unsupervised time with her between 9.00 am and 6.00 pm each Saturday. The next alternative proposes that they spend time with her, supervised by her sister and brother-in-law from 9.00 am on Saturdays to 4.00 pm on Sundays each weekend. They live in the G Region whilst the children, the father and the mother all live in the F Region. The final alternative proposes that the children spend time with her, supervised by her sister and brother-in-law between 9.00 am and 6.00 pm each Saturday.

What the father seeks

The father opposes any change to the current limited, supervised time pending a trial in which all the evidence is able to be tested.

The ICL’s position

The ICL submits that the children should begin spending more time with their mother, in addition to the current two hours each week at the B Contact Centre, to be in the form of time with their mother each second weekend supervised by her sister and brother-in-law – for six visits to be daytime only on the Saturday in the F Region increasing to weekends in the G Region provided that the mother does not stay overnight on the Saturday in the same residence with the children whilst the mother’s sister and brother-in-law are sleeping and provided that a psychologist who the children are seeing supports the additional overnight time.

Some background and the evidence before me

In short, the father came to the Court seeking a change to the parenting regime in August last year when he became aware of the fact that the mother’s partner of three years from early 2015 to early last year had been arrested and charged by police with several child sex abuse offences, including one offence of grooming the parties’ daughter who is now 10 years of age. There is evidence suggesting that the man has also been charged with possessing illicit drugs and also possessing an illegal substance, though I acknowledge that I have not seen evidence that confirms, formally, what it is that he has been charged with.
When the matter was before me on 25 September 2018, the mother relied upon an affidavit she filed on 13 September. The mother said in that affidavit:
In about March 2018, [my former partner] made a disclosure to me which was of a criminal nature on which [sic] he had interfered with a young girl. I did not have any knowledge of [his] offending early on in the relationship as indicated by [the father] in his affidavit.
Upon [my former partner’s] disclosure I reported the discussion to [the police] in March 2018.
When I contacted the Police, I immediately offered to assist the Police as I did not want this to occur to any other children. …
At the time of swearing that affidavit, the mother had provided the police with a number of signed statements, yet she chose, it seems, to be very sparing in what she deposed to in that first affidavit. She has since told this Court that she did that as the police had told her that the detail was to be kept confidential whilst the charges against her former partner remained outstanding. That said, the mother nevertheless attached a copy of the Application for a Protection Order that police had made on her behalf against her former partner. In the part of that application where the grounds upon which the application is based are required to be set out, the police included three pages detailing the history of the mother’s relationship with this man. The content of that includes some very disturbing assertions. Three, in particular, were grievously troubling, in a context where the mother apparently knew firsthand that the man’s sexual interests and behaviour were far from normal and that they also involved children.
First, it was asserted that the mother “recalled a conversation in 2016 where [her former partner] said he wanted to kidnap a child, use the child as a sex slave and then kill the child”. That was neither reported to police by the mother at the time nor considered as sufficient basis to break off the relationship with him. Two years later, it was asserted that the former partner told her that he had abused a young girl, a friend of his own young daughter, by crushing up a sleeping tablet, putting it in the child’s drink, taking off her clothes whilst she slept and orally sexually abusing her, after which he ejaculated on the naked child, took photographs of her and sent them on to another man to try to win that man’s trust so that he might be able to offend against that man’s daughter.
This Court was informed by the ICL that police have confirmed with that child’s mother that the child did have a sleepover or sleepovers at the home of the mother’s former partner. I do not know whether any of the charges laid against the mother’s former partner relate to this alleged crime.
Thirdly, the application form contained the assertion that the mother’s former partner had asked her if he could give the parties’ daughter a sleeping tablet and have sex with her. That was said to have happened in March 2018, at a time after the mother says the couple had broken up and she was leading the father on so as to be able to get information from him to provide to police.
Significantly, some of the content of that detailed Application for a Protection Order did not seem consistent with the mother’s assertion that she did not have any knowledge of her former partner’s offending “early on in the relationship”.
The consideration of that content and the way it was juxtaposed with the mother’s affidavit evidence significantly influenced my determination of 25 September 2018 that permitting the children to spend other than supervised time with the mother would expose them to an unacceptable risk of harm.
I also observe that the detail in that Application for a Protection Order included the assertion that the mother had “ended the relationship”. The evidence before the Court now does not provide total support for that proposition. The mother’s own evidence is that she required her former partner to end the relationship as she knew she would have difficulty doing that.
In support of her application for a change in the limited, supervised parenting regimen that I put in place in September last year, the mother filed another affidavit on 28 November. She went into a lot more detail in that affidavit about the sexual and emotional abuse she asserts that her former partner subjected her to during their three year relationship. I will not set out all of the detail that she provides in these reasons, but the mother’s evidence is that from about mid-2015, around six months after she commenced the relationship with her former partner, she:
i)Engaged in group sex with her former partner and other partners, sometimes multiple and often strangers who were simply engaged via the internet;
ii)Was subjected to rape and physical assaults by her former partner on a regular basis throughout the course of their relationship and even in the months after they broke up;
iii)Was subjected to surveillance by him through her smart phone and computer;
iv)Was aware that her former partner was sexually aroused by young girls, and that he engaged at least one girl who looked like a teenager of about 14 years of age to perform sex acts over the internet;
v)Was told by her former partner, probably in 2016, that he wanted to kidnap a child, use the child as a sex slave and then kill the child;
vi)Witnessed her former partner viewing an online video of a man having sexual intercourse with a girl who she believed was approximately 8 years old;
vii)Witnessed two videos that her former partner showed her on his laptop computer that she could see had been made by her former partner himself of him having sexual intercourse with two teenage girls in school uniforms that he said happened in a motel room in Sydney;
viii)Witnessed other images of young girls that her former partner showed her he stored on his computer;
ix)Was told by her former partner that he had, long before the two of them met, flown interstate to do an exchange of his own daughter for another young girl for sexual acts but that he had not actually taken his daughter with him, though was still allowed by this other man to have sex with his 10 year old daughter whilst her even younger sister lay beside them on the bed;
x)Was asked by her former partner in early 2017 during sex whether she would consider “trading” her own daughter [presumably to be sexually abused];
xi)Was told by her former partner in telephone conversations said to have been “a few weeks” after they broke up, that he had given his daughter’s best friend a tablet whilst she was having a sleepover at his place and then sexually abused her whilst she slept, took a series of photographs and sent them to another man whose trust he was trying to win so as to secure a chance to sexually offend against that other man’s daughter;
xii)Was told by her former partner that he wanted to join a paedophile group and that he had met with a man from this group already who permitted him to sexually abuse his 11 year old daughter;
xiii)Was told by her former partner, whilst they were having sex about a month after their separation, that he wanted to be the first man to have sex with the parties’ daughter and asked if he could give her a tablet and sexually abuse her.
According to the family report writer, the mother also told her that her former partner used illicit drugs socially, including cocaine and ecstasy.
The mother’s evidence is that after her former partner pressed her in March last year for her agreement to let him drug and sexually abuse her daughter she went and reported it to the police and then became involved, with police approval, in gathering evidence for the police against the man. Evidence from the Queensland Police Service confirms this.
The mother said her last contact with her former partner was in early May 2018 and that he was arrested and charged in May 2018.
The mother’s evidence is that she gave the police a statement on 7 May 2018 and that she signed that statement that day. She now takes issue with a few of the things that are in that statement, saying:
…I was not given the opportunity by Police to give context to some of the things I told them which went in my Statement, as they were only interested in what [my former partner] did and not how I reacted or what I did.
In the affidavit she filed on 28 November 2018, having mentioned that statement she gave to the police, she went on to give evidence that after she made a report to the police, in or about the end of April 2018, her former partner had asked her for a photograph of her daughter. She said she played along with him, trying to get as much information for the police as she could. She said that she took two photographs of her daughter – one in which she was fully clothed and smiling and one in which she was “in her undies picking something up off the floor before bedtime.” She said she sent these photographs to her former partner. She said that she regrets taking them and deeply regrets involving her daughter in this way but she “felt caught up in the covert operation with Police and the lines became blurred for me as to how far I would go to help these other children”.
By the time the matter came before me again in March 2019, there was evidence that the mother had in fact given another statement to the police signed by her in July 2018. The mother said she only received a copy of that on 20 February 2019 and that prior to receiving the copy she “had no recollection of the existence of the Statement since these proceedings were initiated by [the father]”.
In her affidavit filed 26 February 2019, the mother said:
I now have a recollection from later that night, (the night she took photographs of her daughter for her former partner) of going into [my daughter’s] room while she slept. I had consumed around a bottle of wine.
I recall that [my daughter] had kicked the sheets off and she was lying on her stomach and her undies were bunched up into her bottom. I took a photograph on my mobile phone of [my daughter’s] bottom. I then looked at the photo and felt immediately ill at what I had done. I deleted the photo almost immediately. I did not keep a copy of the photo or send it to [my former partner] or anyone else.
I myself do not understand why I did not recall this incident, or why I do not specifically recall signing the Statement…
At the hearing on Monday 11 March 2019, counsel for the father read out the relevant part of the mother’s July 2018 statement to police. In that, the mother had actually said that she had taken a photograph of her daughter’s “naked bottom”.
The psychiatrist, Dr D, saw the mother on 26 October 2018. He reported in his written report that has been adduced into evidence that he does not believe that the mother is suffering from any psychiatric illness or condition. He said further that he did not diagnose the mother as suffering from any psychiatric illness or condition which impacts on her ability to parent or her capacity to function to spend unsupervised time with the children. He said, however, that he believed the mother needed to continue supportive psychological counselling (which she had already begun) to review:
…in particular how [she] could remain in the personal relationship with [her former partner] until February 2018 in light of…
“…[her former partner]… [saying] a few things throughout the relationship that [she] thought were inappropriate and… red flags that just came up everywhere.”

He said that counselling would “need to explore how [the mother] responded to such words, made sense of them, what meaning she had made of them and how she coped with them”. He said that such counselling should be weekly or fortnightly “until the conclusion of the forensic matters before The Court”.
The psychologist, Dr T, a registered clinical psychologist with experience in Victoria in conducting assessment and treatment of individuals convicted of sexual offending saw the mother for three hours on 8 January 2019 and administered a number of tests. He also interviewed, by telephone, the mother’s own father for about 20 minutes and had the benefit of “perusing” many relevant documents that he listed in his written report. His report was adduced into evidence by the ICL.
Dr T was asked a number of questions by the ICL. Those questions and his answers included the following:
Does [the mother] pose a risk of engaging in sexual offending?
The current best-practice guidelines for assessing sexual offending risk dictate that such risk not be assessed except where there is credible evidence that an individual has engaged in sexual offending behaviour in the past. This owes to the very low base rates of sexual offending behaviour in the general community, such that any estimate of risk amongst a member of the general community is almost certain to be an overestimate unless there is a blatant indicator of imminent risk (e.g., a person saying that they intend to commit a sexual offence). This difficulty is compounded with women, who offend sexually at far lower rates than men. From the information available to me, there is no suggestion that [the mother] has engaged or been accused of engaging in sexual offending behaviour. Her risk of engaging in sexual offending is therefore considered the same as any other woman in the community without a history of such offending, which is to say, so low as to be insignificant. Of course, should it emerge that she has engaged in sexual offending in the past then this risk categorisation would likely change.
…
Does she pose a risk of engaging in sexual offending of her own children and/one of her children?
As discussed, [the mother] cannot be considered to pose a risk of any type of sexual offending.
…
Does her sexual interests [sic] or orientation pose a risk of exposing the children to others that may engage in any sexual offending behaviour?
…
There is understandable concern in [the mother’s] case that stems from the fact that she exposed her children to a man who was subsequently charged with child sexual offences. The questions of how and why that occurred are central to the question of whether she would be at risk of exposing her children to dangerous people in future. …
…
There are causes for optimism about [the mother’s] capacity to act protectively towards her children in future. She seems a reasonably intelligent woman with stable employment and a strong stated desire to parent her children in a protective manner. She is engaged in regular counselling about the impact of her relationship with [her former partner]. She expresses prosocial views and does not have a history of serious rule violations, so she would seem able to learn from her mistakes. She has experienced the consequences of her relationship with [her former partner] as very aversive and punishing and this should cause her to respond to indicators of sexual abuse potential in future partners more seriously.
Dr T expressed the opinion that the mother’s “personality pattern and life circumstances” made it difficult for her to end the relationship with her former partner “in a resolute fashion”. He said:
[The mother’s] decision to leave the children with [her former partner] despite statements he made to her reflects a clear error of judgment and she acknowledged this. It seems that this occurred in a context where she would regularly live what seemed like a ‘normal’ family life with [him] and their children, whereby she observed him behaving appropriately with them. Their sexual activities appear to have been very separate from this context, occurring when the children were not present.
Counsel for the father submitted that these reports of Dr D and Dr T remain to be tested by cross-examination of the writers at trial. He submitted with reference to Dr T’s opinions, with some merit I consider, that it could not be accepted that many women in the general population would stay with a partner like the mother did, after experiencing, seeing and hearing all of the things that the mother had. Thus, he submitted, there is much to ask Dr T in the exploration and testing of his opinions.
Significantly, two family reports, both prepared within a relatively short time frame were also adduced into evidence. For the first report, the family was seen and interviewed on 5 November 2018. For the second report, it was 18 January 2019.
At the end of her first report dated 14 December 2018, the writer recommended that the children continue to spend supervised time with the mother as was in place already, but she said that it could be increased to twice weekly if it could be accommodated. She recommended that the mother undertake the sexual abuse risk assessment that subsequently happened. She also recommended that the mother continue to engage in weekly counselling and that the father also engage in counselling support to help him address “some of the emotions and anxiety the situation for the children may have caused him”. She also recommended that the children engage in psychological support.
At the hearing, the Court was told that the father has begun the counselling that was recommended, that the mother continues her counselling and that the children are seeing an experienced psychologist for support as well.
In the evaluation section of her first report, the family report writer wrote:
It is evident based on the information that is before the Court that no disclosures have been made by [the children] in respect to sexual abuse from [the mother’s former partner]. However, it is noted that the children may not be aware that they have been sexually abused, particularly given the reported nature of [his] offending involving drugging children to sexually abuse them. [The mother’s former partner] did have access to the children on at least two occasions on his own as reported by [the mother] and I cannot rule out that abuse would not have occurred, however it can not [sic] be ascertained that abuse occurred either.
[The mother] has presented with some protective factors. There had been some concerns raised that she may seek to engage in a relationship with [her former partner] again, however by her account she has not and certainly [his] bail and Domestic Violence Order conditions prevent this from occurring. The fact that she alerted Police to [his] behaviour is positive and to my knowledge she has not had any charges placed against her regarding her involvement with [him] or in relation to child sex offences. It is also evident that DCYFS have not identified her as risk to the children and it has been confirmed by Police that [the mother] did assist them with an investigation regarding [her former partner] from April 2018.
[The mother] did present with a level of regret and remorse for her actions and has been engaging in therapy in a positive manner. The Court might be assisted by obtaining further information as to the progress of such therapy to inform these proceedings, specifically relating to safety for the children and [the mother].
[The father] makes some allegations that he is concerned that [the mother] may have been implicated in the sexual offending [her former partner] may have engaged in and that her disclosures to Police were effectively a means to deflect any wrong doing on her part. This is very much denied by [the mother]. It is difficult to confirm or otherwise such a claim, however I cannot rule it out based on the information provided to me during these proceedings.
Due to this, my view is that [the mother] would need to undergo a sexual abuse risk assessment to more adequately assess the level of risk she might pose to the children or that she might expose them to prior to her having unsupervised time with the children in the in the interests of safety for the children and thoroughness. Whilst I acknowledge some immediate threats of harm have been eliminated for the children, such as [the mother] no longer being in a relationship with [her former partner], my concerns centre on [the mother’s] significant personality vulnerabilities and the risk these vulnerabilities may place the children in through her actions and behaviours into the future.
If such an assessment did not raise any concerns in respect to [the mother’s] capacity to provide safety and protection to the children and did not assess any sexual abuse risk factors, my view would be that unsupervised time for the children would need to begin immediately for the children with [the mother], with a view that a parenting plan be put in place that would minimise the children’s exposure of conflict whilst allowing the children to spend meaningful time with each of their parents.
…
This matter is complicated by the children’s wishes and feelings around spending time with their mother. By all accounts, they wish to spend more time with and to see their mother and are experiencing strong feelings of sadness and loss at not seeing her regularly, in addition to [the daughter] displaying a level of anxiety about her mother. The children need to continue to be supported through counselling/psychological support and having regular contact with their mother to help them manage these emotions to accept the current situation. ...
Of further relevance, in this first report, the family report writer observed that the mother had reported to her “that she had only left the children in [her former partner’s] care on one occasion” (for two nights in a row).
In an affidavit of the father’s current partner filed by the father on 15 February 2019, his partner detailed the content of a number of conversations she has had with the children in recent months. Most relevantly, she said that on 21 December 2018, the daughter said to her:
[The mother’s former partner] used to treat me different to [my brother]. We stayed at his house a lot when Mummy went to work. [He] always made [my brother] go to bed first, like at 5 o’clock, because he did something wrong even if he didn’t really, and then he would stay up with me and we would watch TV together next to each other on the couch. He would do work on his computer next to me too. He would always ask to make me Milo and I always said yes. …
I told Mummy that [he] watched me in the shower but she told me not to be silly.
The father’s partner went on to say that on 18 January 2019 (the same day they all saw the family report writer), the daughter said to her:
When Mum was away and [my brother] and I would stay at [the mother’s former partner’s place], he always let me stay up very late, like to 9 and then get me to go to bed when I was really tired. In the morning when I woke up I had a sore fanny all… the time. It felt like my fanny was in the wrong position.
Of course, that evidence is, prima facie, extremely troubling.
At the end of her second report dated 4 March 2019, the family report writer recommended that the children “spend supervised time with their mother as is currently ordered by the Court”. However, she immediately went on to say:
If the Court deems it appropriate, following [the mother’s sister and brother-in-law] being given access to all information within these Court proceedings that they could act as supervisors for the children to have additional supervised time with their mother.
In the part of her second report headed ‘Evaluation’, the family report writer wrote:
This is a matter that continues to be complex owing to the serious allegations made against [the mother]. [The father] continues to allege that disclosures by the children and information from Medicare and the [C Town] Magistrates Court indicate that [the mother] placed the children at risk throughout her relationship with [her former partner]. Furthermore, he alleges that [the mother] may have had more knowledge about [her former partner’s] offending and been more involved in the nature of his offending than she has disclosed.
It is evident that information from these sources could suggest that [the mother] may not have been as transparent as she could have regarding [her former partner’s] involvement in caring for the children or about her own use of [a sleeping tablet], [sic] with the allegation being that [the mother] may have accessed [a sleeping tablet] [sic] to provide to [her former partner], in addition to being for her own use. By her own admission, she confirmed during this family report that [her former partner] looked after the children during evenings when she worked and during the day. Such information is different to what she had disclosed at previous family report interviews and it suggests an ongoing pattern of some inconsistencies in her reporting of information that is likely to be relevant to the safety of the children.
Information from the [C Town] Magistrates Court relating to [the mother’s former partner’s] criminal proceedings is likely to continue to produce information that may assist this Court in determining the level of risk that might be posed to the children in [the mother’s] care. [The mother’s] Addendum Witness Statement contained further information about the nature of the concerns for [the daughter] in relation to grooming by [the mother’s former partner] and [the mother’s] involvement in this …
The sexual abuse risk assessment of [the mother] completed by [Dr T] did not identify that [the mother] presented with any features that might mean she is a risk to children or at risk of sexual offending and this is positive. Furthermore, as I had outlined in my previous family report, there are a number of protective factors relating to [the mother] that might support her not being a risk to the children into the future if they were to return to her care. These are that she went to Police about her concerns, that she continues to engage in a consistent and meaningful manner in therapy, that she has continued to attend contact with the children consistently and there is no information to suggest she has had any further contact with [her former partner].
…
I continue to hold some concerns that [the mother’s] ability to acknowledge risk to the children whilst she was in a relationship with [her former partner] and to acknowledge that some of their disclosures may have some truth. [The mother] continues to present with a tendency to attribute all of the disclosures made by the children to being due to the influence of [the father] and presented with a level of defensiveness about disclosures made by the children, for example, regarding [the daughter] stating that [the mother’s former partner] had watched her in the shower when [the mother] stated it had been his son…
… [The mother’s] inability to acknowledge that such disclosures suggest the children did not feel safe or listened to in [her former partner’s] care and company, despite the allegations made about him, is of concern to me. It is possible that her inability to acknowledge these things occurs in the context of this custody dispute and feeling the need to outline the concerns relating to [the father]. Regardless, it does highlight some concerns about her ability to recognise and respond to concerns the children have.
…
[Dr T] highlighted some personality features displayed by [the mother] that evidently have impacted on her engaging in a relationship with [her former partner] despite the ‘red flags’ that occurred throughout their relationship. Such personality features could possibly continue to impact on [her] ability to respond to and safeguard the children into the future and to recognise her contribution to communication difficulties with [the father].
…
Given the children’s current presentation, my view is that at this stage they require a level of constancy and stability in their caregiver arrangements and to not have any changes until risk in their mother’s care has been determined by the Court. The children need to not be exposed to either of their parents views about each other to help them make sense of their own experiences and to continue to develop their relationships with each of their parents. ...
Based on my assessment, in principle I consider that [the mother’s sister and brother-in-law] present as appropriate supervisors of contact for the children’s time with [the mother]. They did not present with any risk factors and showed a positive view about adhering to Court Orders and requests around supervision, despite their views that [the mother] is no risk to the children.
I do however hold some reservations that due to [the mother’s sister and brother-in-law] not having had all of the information relating to these Court proceedings that they may not currently be informed to a level that is required given the nature of the concerns raised in this matter. It is possible that their loyalty to [the mother] may at times make them more relaxed in respect to supervising conversations and that this might cause the children to feel emotionally unsafe if conversations occurred with their mother. Furthermore, given the children’s feelings of overwhelm and confusion, I wonder about whether such an arrangement would be best for them currently from an emotional standpoint.
Of course, I have not seen the family report writer give evidence and be cross-examined in Court about any aspects of her report or her opinions, but nevertheless, prima facie, her opinions strike me as sensible, well founded and child focused.
The references to the sleeping tablet, sleeping tablet, in the material, particularly in the second family report cited above, are to be seen in the context, at least, of the medical records of the mother’s attendances at a particular general medical practice in the F Region since late 2014, just before she started her relationship with her former partner. Those were adduced into evidence.
Those records show that in a consultation that took place on 28 May 2015 (just a few months after commencing her relationship with her former partner), where the mother attended for “insomnia” that she was given a prescription for the sleeping tablet, sleeping tablet. The record says:
Has used a riends [sic] sleeping tablets with good effect and so would like supply of her own - discussed risk of addiction etc. Sensible lady
The records show that on 5 February 2016 the mother phoned the medical practice and asked if a doctor could do a script for sleeping tablets and that she would get her partner to pick it up later that afternoon. The record reflects a script was printed.
The records show that on 13 April 2016 the mother presented to the practice having “[j]ust separated” and experiencing “a lot of Anxiety and panic attacks at least once per day”. She was prescribed depression, sleeping and anxiety tablets. There was also a pathology request for tests for multiple sexually transmitted diseases. The depression tablets is a drug that is used for treating major depressive disorders.
The records show that on 7 October 2016 the mother was prescribed sleeping tablets again as well as two benzodiazepines and another form of medication unrelated to mental health.
The records show that on 16 February 2017 the mother was again prescribed sleeping and anxiety tablets. She was given another script for sleeping tablets again on 2 May 2017. On 12 July 2017, the mother again rang the practice and asked for a script for sleeping tablets and said she would pick it up later that afternoon. She was again prescribed sleeping and anxiety tablets on 3 October 2017 and on 29 January 2018.
Relevantly, in the light of this history, Dr D’s report confirms that he asked the mother during his interview with her whether she had suffered any serious medical health problems and she responded “no”. He also asked her whether she had ever been diagnosed by a General Practitioner as having “some sort of mental health problem”. To that question, the mother is recorded to have said “No, and I actually have a letter from her stating that as well”. Dr D records that he asked the mother “Do you take any medication prescribed each day by doctors?” The mother answered that question by saying “I have just on my request started [a medication for depression]. I was finding it difficult to deal with the kids being gone”. Dr D asked her “How long have you been on that?” She said “Probably three weeks”. He said to her “So far you’re tolerating that?” She said “Yeah, I get a bit of a dry mouth”. He said “Do you plan to continue with that?” She said “Yeah, I just went to my GP and asked him for it”.

In my judgment, having regard to her recent medical records, the mother was far less than frank with Dr D when she answered these questions. She did not inform him of the fact that she sought and obtained sleeping tablets prescriptions over almost the entire three year period of her relationship with her former partner, or that she was prescribed three anxiety tablets and a depression tablet on previous occasions during the three year period and she did not tell Dr D the basis for seeing her GPs and being prescribed those medications over the years. I consider that important information the doctor was not provided with by the mother.
Counsel for the mother was asked some questions about these matters by me. He submitted that the mother did not make any false denials or tell Dr D anything about that which was not true. That may be the case, but she certainly did not give him all of the relevant information and, in my judgment, she should have known that the history of her presentations to her doctors and the prescriptions that she had been given and taken over that three year period might be information that Dr D might have wanted to know.
Reading Dr D’s report and the mother’s Patient Health Summary does, however, reveal some information that the mother gave to Dr D is clearly not correct. Dr D said to the mother “You’ve had two pregnancies I know of, any others?” The mother’s answer is recorded as “Yes, I did have a termination when I was in my 20’s.” The mother was born in 1976, so that reference to her “20’s” would be referencing years from 1996 to 2006. Her Patient Health Summary reveals that she presented to her GP in February 2015 with an “unwanted pregnancy” and that the pregnancy was terminated soon thereafter. I do not know the explanation for why the mother did not tell Dr D of this when he asked her. It was shortly after this termination that she got her first prescription for sleeping tablets from that particular medical practice.
The mother did tell the family report writer at the interviews for the second report that she had been prescribed sleeping tablets from a number of different medical practices “out of convenience” and due to her financial situation on occasions as some of the different doctors “bulk billed”. The report writer wrote that the mother reported that she used sleeping tablets to assist her with her sleeping, anxiety and trauma and confirmed that her former partner had picked up her prescriptions on occasions. She is recorded as having completely denied that she accessed sleeping tablets to give to her former partner or to assist him in offending. The report writer observed the mother appeared “disgusted by such a suggestion”.
The second family report reveals what might fairly be described as a significant change in the presentation of the daughter. She presented this second time as very anxious and nervous to meet with the family report writer and to engage in the assessment process and she looked uncomfortable in the report writer’s observations of her with both of her parents. The report writer noted that the daughter presented “with a very burdened and pressured manner, seeming distant and distracted and appearing to have a flat affect”. After a time she told the report writer that she did not want to speak to her anymore. The report writer ceased the interview with the daughter and she then “sought her father out to seek a hug and some emotional support”.
In her interview with the report writer, the daughter is reported to have said that she was feeling scared because “a lot of people are saying mum has done bad things”. She went on to say to the report writer “I was so confused when I got took from mum, I used to write about missing mum now I don’t want her to get me back I’m scared of what she’ll do”.
It is clear that the father and perhaps other adults have shared much adult information with the daughter. Save for the daughter (and her brother) receiving counselling, as they are, from a psychologist, that must stop.
The ICL submitted to the Court that the observed changes in the daughter’s behaviour and mood suggest that there is an immediate need to reintroduce her to her mother in a setting away from supervision at a B Contact Centre. She submitted that the Court should not punish the children because their mother has made mistakes and exercised poor judgment.
With the utmost respect to the ICL, I am not persuaded that this is what is necessary now, in the best interests of this girl and her younger brother.
There is merit in the submissions of counsel for the father that there are so many matters that need to be tested, explored and considered at a trial in this matter and that a trial, conducted as soon as possible would be what is in the best interests of these children rather than changing the current interim parenting arrangements.

My determination

I determined in September last year that permitting the children to spend unsupervised time with their mother at that time presented an unacceptable risk to their wellbeing. My concern that there was a risk that the mother might bring them into contact again with her former partner was one of the matters that led me to that determination.
Now, just over six months later, I am reasonably satisfied, there being no evidence that the mother has had any contact with her former partner, and having regard to the rest of the evidence that is before me, that she would not bring the children into contact with that man. Nevertheless, I am still very troubled about the risk of emotional harm to these children if they were to begin spending time with their mother on an unsupervised basis or even if they were to spend time with her, supervised by her sister and brother-in-law who do not believe she is any risk to the children whatsoever.
The evidence that has been adduced at this point in time, particularly the evidence that satisfies me that the mother has been inconsistent in the information that she has provided to date about some fairly critical matters, less than frank about some other critical matters, unwilling or unable to accept full responsibility for the circumstances she and the children find themselves in, and not yet able to put the children’s best interests at the centre of her focus, troubles me greatly about the mother’s capacity to appropriately deal with the current emotional needs of the children if they are put in her care without the security provided by completely independent professional supervisors of such time. In this respect, I also reference the family report writer’s reporting in the second family report of the conversation she had with the supervisor of the mother’s time with the children, where, despite the presence of the supervisor, the mother was unable to restrain herself from engaging in some clearly inappropriate conversation with the children for some time, even after being asked to by the supervisor.
I am mindful of the statutory obligation to give greater weight to the primary consideration of the need to protect the daughter from physical or psychological harm than the consideration of the benefit to the daughter of having a meaningful relationship with both of her parents. In any event, both of the primary considerations are, in my judgment, reflected, with the appropriate weight given to each of them, in the continued provision of circumstances where the children are seeing their mother on a weekly basis, but in a reassuringly safe environment.
At this interim stage, without cross-examination and testing of all of the evidence, including, importantly, the mother’s own evidence and the opinion evidence of all the experts, I consider there is much merit in the opinion of the family report writer that the children require “a level of consistency and stability in their caregiver arrangements and to not have any changes until risk in their mother’s care has been determined...”.
Having particularly noted the family report writer’s expressed reservations about having the children’s time with their mother supervised by the mother’s sister and brother-in-law and the expressed reasons for those reservations, and considering those opinions in the light of the fact that I am not yet satisfied that the mother will be able to restrain herself entirely from engaging the children in inappropriate conversation, even if supervised by those two people, I respectfully note that I am not persuaded that supervision by them of the children’s time with their mother is what is in the children’s best interests at this time.
I have decided that it is not in the best interests of the two children in this matter to change the existing Orders that require their time with their mother to be supervised at the B Contact Centre and I will not do so. I will make Orders that obligate the parents to continue the counselling that they are both accessing and that provide for the children to continue to be taken to the psychologist that they are seeing. I did not understand there to be any opposition to such Orders being made.
Finally, I have given serious thought to the question of whether the listing of this matter for trial should be given some priority. Although the disposition of the criminal proceedings against the mother’s former partner could potentially have some bearing on these proceedings, I am conscious that the father’s opposition to the mother’s application for a change in the interim parenting arrangements was, in his counsel’s submissions, all prefaced around a firm position that the matter needs to get to a trial as quickly as it can. There is merit in that. The criminal proceedings against the mother’s former partner may not be finalised for years. I will make an Order that the listing of this matter for trial be given priority as soon as the Registrar is satisfied that it is ready to be listed for trial.
I make the Orders set out at the commencement of these written reasons.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 20 March 2019.

Associate:

Date: 20 March 2019

[2019] FamCA 160

20 March 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness