Maurer and Stilinski

[2017] FCCA 2236

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAURER & STILINSKI [2017] FCCA 2236

Catchwords:
FAMILY LAW – Interim parenting – family report raises serious issues of risk – unacceptable risk in interim proceedings.

Legislation:

Family Law Act 1975

Cases cited:

Redmond & Redmond [2014] FamCAFC 155

Stott & Holgar & Anor [2017] FamCAFC 152

Applicant: MS MAURER

Respondent: MR STILINSKI

File Number: AYC 146 of 2016

Judgment of: Judge Harland

Hearing date: 8 & 9 August 2017

Date of Last Submission: 9 August 2017

Delivered at: Melbourne

Delivered on: 9 August 2017

REPRESENTATION

The Applicant: Self-represented

Counsel for the Respondent: Ms Kildea

Solicitors for the Respondent:	Rama Myers Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Tiernan
Solicitors for the Independent Children's Lawyer:	Legal Aid NSW Albury

ORDERS

1. Pursuant to s.62G(2) of the Family Law Act 1975, the mother,  the father and the children [X] born 2007 and [Y] born 2009 (“the children”) attend upon Ms D in (omitted) for the preparation of an updated family report to be given to the court before 30 September 2017.

2. The updated family report deal with the following matters:

   (a)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;

   (b)the information contained in the subpoena documents received from Victoria Police, the Department of Health and Human Services, and (omitted) Medical Centre;

   (c)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (d)any other matters that the family consultant considers important to the welfare or best interests of the children.

3. The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.

4. Within seven days of being notified of the identity of the family consultant, the solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:

   (a)all relevant applications, responses and affidavits filed by that parent in these proceedings; and

   (b)any intervention or restraining orders currently in force.

5. The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent or the independent children’s lawyer.

6. If either parent or the independent children’s lawyer requires the relevant family consultant to attend for cross examination at the final hearing then that parent or the independent children’s lawyer give the relevant family consultant seven (7) days notice in writing.

7. Upon the updated family report being provided to the court, the court will provide a copy to each party (or if represented the party’s lawyer) and to any independent children’s lawyer in the proceedings.

8. Unless a party objects, in writing, within 14 days of the date of releasing the updated family report, the court may provide copies of the updated family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

   (a)a children’s court;

   (b)a child protection authority;

   (c)a state or territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

9. Unless otherwise ordered, no person release the updated family report, or provide access to the updated family report, to any other person.

10. The Independent Children’s Lawyer provide copies of the subpoena documents to the Family Consultant.

11. Until further order, the children live with the father.

12. Until further order, order 2 of the orders made 21 April 2016 be suspended.

13. Within 72 hours, the parties do all acts and things to register themselves (omitted) Contact Centre for the purposes of facilitating supervised time between the mother and the children at dates and times that can be accommodated by the Centre.

14. The mother spend time with the children as can be accommodated by the Contact Centre.

15. The costs of today be reserved.

16. Liberty to apply at short notice be granted to all parties.

DIRECTING

1. The family consultant read the subpoena documents.

NOTING

1. At the date on which a copy of the updated family report is provided to any of those identified above, it may not have been admitted into evidence and may be untested and if admitted would only form one part of the evidence in the proceedings.

2. Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

3. In the event a party to these proceedings objects to the release of the updated family report pursuant to order 1 herein, he or she shall write to the chambers of Judge Harland seeking that the matter be listed on short notice for his or her objection to be heard.

4. It would be preferable for Ms D to prepare the updated family report in this matter. 

5. Any application that comes before the Court at short notice will be heard by Her Honour Judge Harland, or if she is not available, by Her Honour Judge Hartnett.

6. The father’s agent, Ms S, will collect the children from school at the conclusion of school this day.

7. The mother’s agent, Ms J, will deliver a bag containing the children’s school uniforms, night teddy, and any other necessary items to the paternal grandmother’s home between 10.00am and 3.00pm on 10 August 2017.

8. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

AYC 146 of 2016

MS MAURER

Applicant

And

MR STILINSKI

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an urgent interim application for a change in parenting orders that comes before me with respect to two children [X] born 2007 and [Y] born 2009 (“the children”). 

3. The father commenced these proceedings on 5 April 2016 and the matter is currently listed for final hearing in the (omitted) circuit, commencing on 17 October 2017.  The mother filed responding documents on 18 August 2016 seeking to relocate with the children from (town omitted) to Melbourne.  On 21 April 2016, the Court made orders requiring the mother to return the children to (town omitted) after she had removed the children from (town omitted) to Melbourne and enrolled them in Melbourne schools.  They spent about six weeks in Melbourne before returning.  The matter was then before the Court on 18 August 2016, when the matter was listed for a final hearing on 28 November 2016 and the parties were ordered to share equally the costs of a private report by a psychologist.  The matter was then administratively adjourned to 30 November 2016, and then on that date the orders were amended to provide for a Court family report rather than a private report be provided, and the matter was adjourned for hearing, which was initially to be starting on 26 September 2017 but then was administratively changed to 17 October 2017.

4. This matter was before the Court just a few weeks ago, before Judge McGuire.  This case is in Judge Hartnett’s circuit, as she is the docket judge for the Albury circuit.  Due to the number of matters in the Albury circuit currently, it is not possible to have all the urgent matters listed before her.  As I indicated to the parties when the interim hearing started yesterday, I am going to give all parties liberty to apply on short notice, and that any further applications be listed before me, or, if I am not available, before Judge Hartnett, so that it is managed by the two judges who have got some familiarity with the matter.  I have done that in consultation with Judge Hartnett.

5. The submissions, particularly by the father’s counsel, which were adopted by the Independent Children's Lawyer counsel were necessarily detailed, given the subpoena material which is being exhibited and the nature of the application that comes before me today.  It is also necessary to refer to the previous Application in a Case that was filed by the mother on 11 July 2017.  Before turning to that, it is necessary to refer to the family report, which was released on 20 June 2017 and which the parties both say they received about a week later.

6. The family report raises concerns about risk and raises issues about whether or not the interim parenting arrangements should be changed pending the final hearing.  As I emphasised during the hearing and noting that the mother does not have the benefit of legal representation, this is an interim hearing where I cannot make contested findings of fact, and what I must do is make an assessment about allegations of risk, and it has been made very clear by the Full Court of the Family Court of Australia (“Full Court”) in Redmond & Redmond [2014] FamCAFC 155 that the fact that there are allegations made that are contested does not mean that the Court can simply ignore the allegations made. In a very recent decision of Stott & Holgar & Anor [2017] FamCAFC the Full Court helpfully discusses succinctly the law with respect to the unacceptable risk test.

7. The father’s and the Independent Children's Lawyer’s position is that the children are currently at an unacceptable risk if they spend unsupervised time with the mother pending the final hearing where all issues can be tested, and in particular, in the written reasons. I will extract paragraph 34 through to 38 of the Full Court’s decision:

   The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:

   In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence.

   In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:

   the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   As an eminent former judge of this Court has said (emphasis added):^[1]

   ... unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ ...

   We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm.

   (Footnotes omitted)

8. In summary, the Full Court refers to the High Court of Australia’s formulation and the fact that it requires two separate steps.  First of all:  is there a risk?  And secondly:  is that risk unacceptable? 

9. The risks that are identified in this case concern a number of matters that have occurred, and require looking at a series of events rather than events in isolation. The risks that relate to the mother’s mental health and whether the children are at risk of psychological harm in her care, and also the risk with respect to exposure of the children to family violence.  Those risks have been clearly identified. The next issue is whether or not those risks are unacceptable. The Full Court emphasises that it is all about balance, and in some cases the risk will be acceptable when it is balanced against other factors and other orders. I must give real and substantial consideration to the particular facts in this case in deciding whether or not the facts raise an unacceptable risk, and in a matter such as this, the Court is greatly assisted by material that is external to the parties’ own affidavit evidence.  In this case, I have a family report and I have subpoenaed material which has been entered as exhibits from (omitted) Medical Centre, Victorian Police and the Department of Health and Human Services (“the Department”). 

10. I emphasise that the family report has not been tested, and the mother raises various complaints in her affidavit about the family report, and says that the family report writer has not recorded a lot of information that she provided. She says the report is biased. I anticipate that the family report writer will be cross-examined at some length about her report, but as I have just indicated, the fact that the report is untested does not mean that I can simply ignore it, and it is important to bear in mind that it is a report that is prepared by a court expert who does not have a personal stake in the proceedings.  Whether or not the trial judge finds that the recommendations in the report are in the children’s best interests or not will be a matter for that trial judge. 

11. I am also going to order an addendum report being prepared, and have been advised that that is likely to be achievable before the hearing, because it is clear that there have been significant facts that have arisen since the report was prepared. There is also significant subpoenaed material that the report writer will need to consider, and certainly will need to at least interview the parties again.  Whether or not the family report writer thinks it is necessary to interview the children will be a matter for her.

12. The family report writer raises issues of concern with respect to family violence between the mother and her partner, Mr M.  I should say that the mother’s case is that she has been subjected to family violence and financial abuse by the father, and she refers to an intervention order that she took out on 6 January 2016 where the father was placed on a diversion with respect to an assault against the mother.  The father denies the assault, but nevertheless is put on a diversion.  The parenting arrangements that have been in place since the first set of interim orders were made is for the children to live in a shared care arrangement with five nights a fortnight with the mother and nine nights a fortnight with the mother and five nights a fortnight with the father. That has been in place with some interruptions since those orders were made on 21 April 2016.

13. Paragraphs 15 to 17 of the family report address the issue of family violence between the mother and her partner, and subpoenaed material from Victoria Police which the report writer inspected, and refers to, in the police subpoenaed notes, an incident on 27 May 2016 where the mother contacted Triple Zero and is alleged to have said to the police that her partner had hit her in the face and threatened to burn the house down.  The family report writer records that the police records show that the mother then called back and said that the partner had left, and the police did not need to attend.  The police did attend and saw the mother and the two children.  The police record that the mother told them that her partner had punched her in the face but it was not important and the police should leave.  The police made an after-hours report to the Department. 

14. There is a further police note with respect to an incident which is alleged to have taken place on 14 April 2017, again at the mother’s home, where the mother reported that she and her partner had argued for about two hours and that he had punched her mouth.  The police recorded that the two children were inside the house at the time and could hear the arguments but apparently had not seen the assault.  The police records that the mother called Triple Zero to get assistance with having her partner removed from the home.  When the police arrived, he was not there.  I note that, as with the previous occasion, the mother was not cooperative with the police and did not want an intervention order taken out. The police recorded that they would again inform the Department of the incident and the fact that the children were present. 

15. The family consultant then refers to historical subpoenaed records from Victoria Police with respect to Mr M, which is not before this registry, as those subpoenaed documents are in the (omitted) registry. I am not going to deal with the historical matters further, as it is unnecessary for the purpose of these proceedings, given the other material before me. There are some disputes about these events which will be one of the many matters that will be explored at the final hearing.

16. The family report writer expresses concerns about the mother’s responses to issues of family violence between her and her partner and her denials of any family violence taking place in the face of the subpoenaed material.  She addresses this at [62] to [67] and talks about it being of critical concern that the subpoenaed material suggests that the children have been exposed to at least two physical family violence incidents in the mother’s home with her partner, and that the concern is the mother not demonstrating a protective capacity as a parent; and she attempted to deny or minimise the family violence, including to the police as well as to the family report writer.  Those concerns are not about passing judgment on the mother or punishing her.  Family violence is insidious.  It is seen all too often in this Court, and it is very common for the people who are subjected to family violence tto have difficulty facing those issues, and part of it is the whole cycle of it, and one of the probably more damaging effects of family violence – more damaging than the physical assaults is the psychological and emotional harm. 

17. There is no doubt that family violence is extremely damaging to children who do not need to be directly the subject of it.  It is the indirect exposure that can cause real harm. That is really what the family consultant is raising and saying:  that this apparent exposure is extremely serious and concerning.  She raises it as a risk:  something that needs to be tested.  Indeed makes it clear and says there may be very positive attributes of Mr M, but that there are concerns about the family violence and his past criminal record.  She goes on to emphasise that if the family violence is proven, then the inability for him to accept and take responsibility for it suggests a likelihood of there being continuing risk of the mother and children being exposed to family violence. It is for that reason that she recommends that the interim parenting orders be urgently reviewed pending the final hearing, and she talks about the Court determining the issue of the family violence allegations being an important matter in considering the future parenting arrangements.  Of course, that will be an issue that will be of significance in the final hearing. 

1. The other aspects of concerns that come out of the family report is the involvement of the children and their exposure to adult issues that they should be protected from. At [29], the mother tells the family consultant that she has always been open and honest with the children when they ask her questions about the dispute, and that they are well aware that the father has told them lies about the separation.  That is of concern because it involves the children directly in the dispute, and it indicates the lack of insight on the mother’s part about that. It is quite clear that the mother and her parents – certainly as reported by the family consultant – have quite negative views and there is a concern about them not being mindful of the need to protect children from overhearing discussions, let alone there being discussions directly with them about these issues.  Whether it is direct or overheard, it is just as damaging, because, of course, the children love both their parents and as the parents and extended family on both sides clearly love and cherish them. 

2. It is very common in family law matters and in the aftermath of the breakdown of a relationship that parents do not always behave in an ideal manner, because they are human; they are fallible; and it is a really stressful period of their lives.  Again, it is not about punishment, and it is also not a one-sided matter.  It is common for there to be times when both parents will say things to the children that they should not say or will be careless about what is being spoken or unable to shield children from their emotions, because it is not always possible to do so no matter what the intention is.  So it is not to suggest that the mother has done these things deliberately, but there is a concern that there have been discussions taking place that should not.

3. The other major issue with respect to risk arises out of the mother’s mental health.  Her mental health is discussed in the family report at [28], and the family report writer refers to the mother suffering a breakdown in October 2014 and attempting suicide; it refers to her being hospitalised in 2015, and refers to the treatments that the mother has been receiving, and refers to the mother reporting that she continues to attend her regular appointments with her GP and psychiatrist, and is also taking prescribed medication.

4. Where the concern arises is not the fact that the mother has mental health problems, as mental health issues are far more common than the populace is willing to admit. Partly that is because there is still a stigma surrounding it.  The concerns with respect to mental health are multilayered, including concerns about insight, but also concerns about how well-managed the mother’s mental health is currently and her willingness to disclose her mental health.  It is certainly to the mother’s credit that in her closing submissions she said that she is not travelling well currently; that her mental health is declining and that she seeks that the interim parenting arrangements be changed so that the children spend five nights a fortnight with her, because that will give her the opportunity to address her mental health issues. 

5. The fact that someone has mental health problems does not mean that they are not a good parent and does not mean that they do not have capacity to parent.  It is very much a matter of looking at the individual circumstances, the illness, the state of the illness, and the management.  Many parents and children, for that matter, live with mental health issues.  Sometimes a person’s mental health is effected by situational factors and the person’s mental illness resolves once those factors are no longer present. Other times, it is ongoing and chronic. 

6. One of the real concerns is what the family report does not say with respect to two incidents where the mother is reported to have attempted to commit suicide in January and February 2017, and the concern is the fact that the family report writer does not refer to it, particularly in the context of referring to more historical issues. An inference is that the mother did not raise it with the family consultant when discussing those issues.  It is a question mark and it is a red flag, but it is a matter that will need to be tested in evidence, and it may well be the mother’s case that she has discussed those issues with the family report writer and it has not been recorded. 

7. I have to deal with current information before me. Where the concerns arise is from the forensic report conducted by Dr S and dated 2 June 2017, which was conducted in the context of a worker’s compensation claim that the mother has currently.  Dr S had also completed a report in 2014, and I am not going to refer to all of the report, but there is a theme in his report about there being inconsistencies of the accounts that the mother gives about her mental state and also factual matters.  For example, at page 5 of the report, Dr S expresses some concern that the mother has exaggerated descriptions of [X] having anaphylactic reactions.  On page 6 and 7 of the report, he records that the mother attempted suicide by slitting her wrists in February 2017 and that she told him that she was adamant that she was going to die on that day, and that she had previously attempted suicide in January 2017 by ingesting a number of Seroquel tablets.

8. She spoke about the triggers for those attempts:  being seeing her former boss in the street and travelling on a train with nurses who were asking after her, which reminded her of her work situation, and it is the father’s case that the first he knew of those suicide attempts was when informed by his counsel what the subpoenaed material showed yesterday. There is an issue in dispute about a 2016 hospital admission where there is no doubt that the mother informed the father of that admission and asked him to look after the children;  but there is a dispute about what he was told.  It is not necessary for me to go into for these purposes.

9. The report also talks about other inconsistencies in the mother’s descriptions and the medication that she is using. Again, is not a matter I propose to go into further.  At page 11 Dr S records the mother telling him that she has lost weight as a result of watching her diet and that some days she spends in bed, and she might go for two or three days without a shower.  This has been raised as a concern that it is indicative of someone not travelling terribly well in terms of their mental health.  What he goes on to say under the section headed “Mental State Examination” at the bottom of page 11 is that while she gave a logical and coherent account, there were multiple inconsistencies, particularly with respect to her level of functioning and he goes on to talk about that at page 13 in his summary and conclusion, where he says:

   The mother asserts that she has a debilitating psychiatric condition such that she is unable to work, but at the same time talks about being an active participant in the management of her household in (town omitted) and her partner’s household, and being the primary parent of the children.

10. He concludes that the number of inconsistencies in her self-reporting cause him to question the veracity of aspects of her account.  He does not make a diagnosis but says that the prospect of the mother having a factitious disorder is something that needs to be considered, and he recommends that there be psychometric testing, which might be able to clarify the basis of those inconsistencies.

11. Unsurprisingly, upon receiving the family report and reading its content, the father became concerned about the children being exposed to family violence in the mother’s household. This is what led to the mother filing urgent interim proceedings on 11 July 2017 seeking a recovery order with respect to the children.  The father says in his material that he withheld the children because he was concerned for their safety and because the mother would not agree to an injunction restraining her from bringing the children into contact with her partner, and it is clear that the Independent Children's Lawyer had the same concern and also wrote to the mother and asked for her to provide an undertaking. The mother’s response in her affidavit was somewhat equivocal about it.  She would not agree to the orders or the undertaking pending getting independent legal advice and gave some assurance that she would not bring the children into contact with her partner, but given the family report, it is not surprising that the father and the Independent Children's Lawyer remained concerned. 

12. The matter came before Judge McGuire on 18 July 2017 where he made orders after an interim contested hearing that the interim parenting orders remain in place;  that the mother be restrained from bringing the children into contact with Mr M, either directly or indirectly, or allowing any other person to do so; and also made restraints against both parties from discussing the proceedings within sight or hearing of the children or allowing anyone else to do so,  also made non-denigration orders and reserved the father’s costs, and confirmed that the matter remained listed for final hearing in the (omitted) circuit on 17 October 2017.

13. The mother was not successful in obtaining the recovery order. The father and the Independent Children's Lawyer did secure the injunction that was sought. That injunction is sought pending the final hearing that is just a few months away.  It was not necessary for the mother to agree that there was a need for it;  the issue was whether or not she would be protective in acknowledging that there are concerns that have been raised that could not be tested yet.  From my reading of the mother’s affidavit – which I gave leave for her to file yesterday – her narrative is one of her being victimised and her partner being victimised rather than acknowledging any genuine basis for the concerns, and a denial of the family violence. 

14. One of the risk issues that is raised is whether or not the mother remains in a relationship with Mr M.  She says in support of her application she filed an undertaking – including an undertaking from her partner that he would not commit family violence.  According to the mother’s affidavit they decided to end their relationship on that day after Court because they both agreed, at [13] of her affidavit:

    As of 18 July 2017, Mr M and I have decided to end our relationship after court as we both agreed that the applicant would not stop trying to find any reason that would put me in a bad light in the eyes of the court whilst continuing a relationship with Mr M.

15. She goes on to talk about the children being distressed about not being allowed to see him, and that the children were asking to be able to see him.  That is of concern because it ignores the fact that there is a family report that refers to subpoenaed material that is raising concerns.  It is one thing to say that the allegations are denied and are going to be challenged, accepting in the face that there are allegations and saying nonetheless we will comply with orders. However, this is really suggesting that there is no reasonable basis for those concerns, which are concerns not just by the father but by the family consultant and the Independent Children's Lawyer, and that heightens the issue of risk rather than lessens it.  The mother refers to Mr M to the family report writer as being her rock and one of the reasons that she was seeking to relocate was to live with him.  There were other reasons that she has given, including employment opportunities. 

16. One question mark that is raised is whether or not the mother has in fact ended her relationship with Mr M, and that will be an issue that will feature in the final hearing, and whether she continues to be in a relationship with him or not, there is still a concern about risk arising out of it.  If she continues to be in a relationship with him, then it raises issues of insight and raises issues about the risk of family violence.  If she is not in a relationship with him, it raises concerns about triggers for her, which is a feature in the material, and the difficulties that she faces in not having his support. Relationships characterised by family violence are not black and white, and it is also very common for people to love each other deeply, even though one person subjects the other to family violence.  It is a complex dynamic.  I cannot make a finding about it, but it is a question mark, and I accept the submissions by the father’s counsel that in either case there remains real concerns.

17. The father argues that there is a pattern in the mother’s conduct which adds to the concern, and says that the timing of the mother contacting the police and making applications for intervention orders are significant. He refers to January 2016, he says after he informed the mother that he was not able to afford to continue to pay her car repayments, which led to the car being repossessed. Again, there is a dispute between the parties about the nature of what occurred.  The next day, the mother made a report to police and applied for an intervention order, which she later withdrew.  The father emphasises the timing of the mother withholding the children in July 2017, which resulted in him filing an urgent application in a case on 26 July 2017 and issuing further subpoenas just within a couple of weeks of the matter being before Judge McGuire.

18. The father points to the timing of the mother withholding the children and the allegations she raises as being after the restraint was made with respect to her bringing the children into contact with her partner.  The mother took [Y] to the doctor for a urinary tract infection, which she has had before, and says that she was shocked when [Y] made comments which were suggestive of the father sexually abusing her.  The mother says she did not make allegations out of spite and did not make allegations without having something to base it on, and says that she was hoping that it was not true and was simply seeking to investigate the comments that were made by her. 

19. The doctor’s notes form part of the exhibits before me and records that on 21 July 2017 – I note that the matter had been in court on 18 July 2017 – the doctor records the mother as having serious concerns about sexual interference with [Y] from her father, and talks about her having UTI symptoms whenever she returns from her father’s care, that [Y] is displaying inappropriate sexualised behaviour and that the father is inappropriately toileting her, and reports multiple family members expressing concerns about the father’s inappropriate behaviour towards [Y].  What is of concern about that is it suggests, again this is assuming that the doctor has recorded it correctly, and I note he does not have any personal interest in the matter, that this is an ongoing concern or a concern that has been there for some time, yet is only raised on that occasion. It is not raised as an issue before the family report writer.

20. The mother says she withheld the children because of her concerns about possible sexual abuse, and reported the matter to the police and the Department.  The father highlights the text message that the mother sent on 23 July 2017 where she tells him that she is not withholding the children out of spite but because of grave concerns for their safety and for the children’s safety.  She talks about the father accusing her of not being able to look after the children, which she denies, and says that she is not doing it out of spite or to get him back for his treatment of her in the past few months, but says that now he knows how it feels when your rights are taken away from you in regards to your children.

21. I would emphasise: parents do not have rights with respect to their children.  They have responsibilities.  Children have the rights.  They have the rights to have a meaningful relationship with both of their parents, as long as it is safe for them.  That is a real issue in this case.

22. The report from the police, being an investigation and full response report dated 24 July 2017, is concerning.  It is clear that the police interviewed the children, as did the Department, and the Department was involved in the discussions with the police and the mother. 

23. Towards the end of the report, the police officer records [Y] saying to the police officer that what she wants is what her mother wants, which is to move to Melbourne so that the mother can live with her boyfriend and his children, and that [Y] was told that she does not need to know about adult concerns and secrets about Court, because what is clear from [Y]’s interviews with the Department is that she is critical of her father for keeping secrets from her, being what is happening at Court, whereas the mother tells her the truth.  That is incredibly concerning because the complaints indicate the father acting in a way the parent should, in terms of shielding children from the Court disputes.  The children know that there is Court proceedings on foot, because they are taken for family report interviews.  The concern is not the general nature of knowing that a judge might have to decide the issue if the parents cannot agree;  the concern is knowing the details of when the matter is in Court, what is being applied for, what is being said, and criticisms of the other parent.  It is of some concern that a police officer is telling her exactly what the family consultants would tell the children; the Independent Children's Lawyer would tell the children – is that they do not need to be concerned about the issues between their parents; that all they need to know is that their parents love them and want them to feel safe and happy.

24. It is clear, then, that the police officer records some concerns about what the mother was saying and inconsistencies with respect to her partner physically assaulting her. Where she says that she is telling the police officer that he did not physically assault her, but the Department worker who was also present contradicted this and is saying that, you know, she had called the police about the assault, and that is certainly consistent with the records from the police.  It seems somewhat concerning that the mother then tries to place blame on the paternal grandmother, then talks about wondering why the doctor would make a notification to the Department, and when told that it was because he was mandated to, given her report, to him, she tried to deny it. The report writer says:

    She clearly would not take responsibility for her part in this matter.

25. The report concludes with the following comments, where the officer reports telling the mother and the Department worker that in the officer’s opinion, the mother:

    ... is clearly trying to manipulate the children to get what she wants in relation to her living arrangements and family law court, and believe it is likely she will continue to manipulate the system and make further reports against her ex-husband.

26. It is again necessary to refer to the subpoenaed material from the Department. The Department has a detailed first visit case note of an interview with the mother on 26 July 2017 where [Y] was also seen.  The case note records at the top of page 2 that the mother denied that her partner assaulted her and said that the police were involved due to a neighbour calling the police, which is inconsistent with the police records, which indicate that the mother called them and that the mother complained she was physically assaulted.  It is also clear from what is recorded that the mother continued to discuss matters with [Y], including telling [Y] that she is not allowed to see her partner for three months and that the judge would not let her explain why, and it is in this case note at page 5 where it is recorded that [Y] complains that her father likes to keep secrets and will not tell her what is happening and going on at court, but her mother tells her the truth.

1. The department worker discussed that with her and said that it is hurtful for her and her brother to be caught up in the grownup’s disputes and that the report writer could see that [Y] did not want to disappoint her mother. I have no doubt that she does not want to disappoint either of her parents and feels conflicted.  She is not of an age where she can cognitively and psychologically cope with that kind of pressure.  The same would be true of [X].

2. The Department notes also deal with the contacts from police.  What is also of significance is case note records on 21 July 2017 that it was agreed that the file would be reviewed and that SOCIT would be called to obtain an assessment.  It significantly records:

   It was agreed that at this point in time, CP cannot support any breach of access between the father and children, and that this is the mother’s decision at this time.  Also, for the school to be contacted to ascertain whether there has been any observations of sexualised behaviour, changes in behaviour, or disclosures of any kind.

3. That point is emphasised because of the mother saying in her evidence that she was advised by the Department to withhold the children, whereas the records suggest the opposite.  What all of this shows is a very concerning pattern and a concern that things have escalated in recent months. 

4. I am satisfied, having considered the material and being mindful as I emphasised previously that these are interim proceedings, that the children are at an unacceptable risk if they spend unsupervised time with the mother, and that is based on a multitude of factors. These include the concerns about family violence and whether or not she continues to be in a relationship with Mr M, also, and importantly, her mental health, and one of the real risks that has been identified are triggers for her, and the fact that there is no doubt that this whole process, including the decision that I am making today, will be extremely difficult for the mother, and there is a concern about this and the fact that she currently, on her evidence, is not with her partner who she describes as her rock, means that she is facing a lot of triggers and difficulties without the supports that she has previously had.  It is not to suggest that she does not have the support of her maternal family;  it is clear that she has the support of her parents and her sister;  but that does not ameliorate the risk.

5. The mother urges me to make orders for her to have unsupervised time with the children and to have telephone contact with the children. I understand her desire to see and speak to the children, but I am satisfied on the material before me that I would be placing the children at an unacceptable level of risk if I allow there to be any unsupervised contact or contact that is not supervised by a professional.  I am not satisfied that the maternal family would be in a position to do that, and part of that concern is what the mother may say to the children.  That is not suggesting that it would be malicious or deliberate, because there is a real question mark about insight here.

6. The Independent Children's Lawyer made inquiries of the (omitted) Contact Centre, which has indicated there is about a four-week waiting list, which, compared to Melbourne, is very short indeed.  I will order that the parties do all acts and things to enrol with the (omitted) Contact Centre within 72 hours and that the mother spend time with the children at the contact centre as can be facilitated by them, pending the final hearing.

7. I have given some consideration about whether or not there should be telephone contact, and whilst I have no doubt that the children are going to be distressed by not seeing their mother and not speaking to her, my concern about telephone contact is that the mother may say things to the children that are inappropriate and continue to involve them in this dispute. I considered whether or not having the children on speaker phone would ameliorate that, with the father being entitled to terminate the call, but the problem is once things are said the damage is done, and there is enough material here to point to there being a real concern about that happening.  One concern is that by making this decision, that it is going to have a real impact on the mother’s mental health; and as I indicated before, it is to her credit that she raises this as an issue and has indicated that she has made further appointments with her doctors.  It is of some comfort that the hearing is a few months away rather than longer, and, as I indicated, the family consultant is likely to be able to prepare an addendum report, which is important, given the shift of the nature of this case in recent weeks. 

8. I will direct that the parties have liberty to apply at short notice to my chambers and it be listed before me in the first instance, and if I am not available, it be listed before Judge Hartnett.  One issue may be whether or not the final hearing can be heard during the circuit and whether or not it needs to be heard in Melbourne urgently, because, of course, circuits are notorious in terms of having limited ability to have uninterrupted complex hearings.

9. I will give parties liberty to apply at short notice. That could be one reason for it being brought on short service, so it might be that is something that is given consideration as well as the timing of the family consultant.  I will make an order that the family consultant prepare an amended report, and that the family consultant be directed to read the further filed material on the file and the updated subpoenaed material.  I otherwise suspend the other interim parenting orders with respect to time.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 13 September 2017