MELLER & FABIAN

[2021] FamCA 259

FAMILY COURT OF AUSTRALIA

MELLER & FABIAN [2021] FamCA 259

FAMILY LAW – CHILDREN – Best interests – interim parenting orders

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637
Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Meller

RESPONDENT: Mr Fabian

FILE NUMBER: BRC 14978 of 2019

DATE DELIVERED: 30 April 2021

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 24 & 31 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Borsley

SOLICITOR FOR THE APPLICANT: DA Family Lawyers

THE RESPONDENT: In person

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Other than is provided below, the Application in a Case filed 12 May 2020 is dismissed.

2. The Response to an Application in a Case filed 4 June 2020 is dismissed.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Other than for the purposes of therapeutic counselling, neither parent discuss or permit any third party to discuss with the children any matters concerning the criminal charges against Mr Meller, the Department’s involvement with the children and the family and the proceedings in this Court.

AND IT IS FURTHER ORDERED THAT

1. The parties have liberty to apply to the Court following the finalisation of the criminal proceedings against Mr Meller, upon the giving of 24 hours’ notice in writing, for the allocation of an expedited hearing of the parenting proceedings.

2. Any application made by any party pursuant to Order (4) shall, upon the same being made, be immediately brought to the attention of the Associate to Hogan J to enable the urgent listing of the matter for the allocation of trial dates and Directions.

3. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

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  Meller & Fabian 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 14978 of 2019

Ms Meller

Applicant

And

Mr Fabian

Respondent

REASONS FOR JUDGMENT

1. The parents of ten year old X[1] and eight year old Y[2] are in dispute about aspects of the parenting orders which are in their children’s best interests on an interim basis.[3]

   [1]Who was born in 2011.

   [2]Who was born in 2012.

   [3]See: Application in a Case filed 12 May 2020, Response to Application in a Case filed 4 June 2020 and Amended Application in a Case filed 23 July 2020.

2. Both parents have formed differing views about what is in their children’s best interests given that the mother’s husband (Mr Meller) is currently facing sexual abuse charges in relation to his daughter, J. Whilst it seems that Mr Meller was committed in 2020 to stand trial in the District Court, there is no information before this Court to indicate when his trial will occur.

3. In addition to this matter, the determination of those interim parenting orders in the children’s best interests also has to take into account that it appears that the children have not spent time or communicated with Mr Meller since 31 October 2019.

4. By way of broad overview, the mother wanted the children to resume spending time with Mr Meller, in a graduated manner and for increasing periods of time on days when they are in her care and under the supervision of herself and one of their maternal grandparents; in contrast, the father’s position was that the children should not resume interactions with Mr Meller until the outcome of the criminal proceedings against him is known.

The operative interim parenting order: 26 February 2020

1. On 26 February 2020, Forrest J made interim parenting orders on the basis of, relevantly, a “without admission” undertaking by Mr Meller tendered to the Court on 10 December 2019.

2. The February 2020 Order provided that the children live with their mother and spend time with their father during school terms:

   a)each alternate weekend from after school or 3.00 pm Friday until before school or 9.00 am Monday; and

   b)in each other week:  from after school or 3.00 pm Thursday until before school or 9.00 am Friday.[4]

   [4]Orders made 26 February 2020, Order [3].

3. In addition, the order provided that the children spend half of the school holidays at the end of Terms 1, 2 and 3 with each parent[5] and spend about half of the school holidays at the end of Term 4 with each parent.[6]

   [5]Orders made 26 February 2020, Order [4].

   [6]Orders made 26 February 2020, Order [13f].

4. Additional orders were made by consent, including that the parents have equal shared parental responsibility for the major long-term issues relating to the children  and that the mother be restrained from permitting the children or either of them to spend time or communicate or come into contact either directly or indirectly with Mr Meller.[7]

Proposals

[7]Orders made 26 February 2020, Order [6].

The mother

1. The children’s mother sought orders as particularised in an Amended Application in a Case filed on 23 July 2020 and as amended during discourse with Counsel.

2. Such orders included that: upon Mr Meller undertaking that any contact he had with the children occur only on the days and the times specified and that the same be supervised by the mother and one of the maternal grandparents, the undertaking he previously provided to the Court on 10 December 2019 be discharged; Order 6 of the Orders made on 26 February 2020 (by which she was restrained from permitting the children, or either of them, to spend time or communicate or come into contact either directly or indirectly with Mr Meller) be discharged; she be at liberty to facilitate the children spending time with Mr Meller, supervised by herself and one of their maternal grandparents, between various specified hours on various specified days they are living with her. Her proposal did not include Mr Meller spending overnight time whilst the children were in her care, but it did culminate in him being able to spend between noon and 8.00 pm on the Saturday and Sundays the children were in her care.

3. The mother also sought that: an order be made that she be guided by and responsive to the children’s reactions and willingness to engage with Mr Meller on any occasion they spend time, communicate or come into contact with him; the father be restrained from facilitating or permitting any third party to facilitate the children spending time with J, J’s mother and J’s siblings; the father be restrained from engaging or discussing or permitting any third party to discuss with the children any matters concerning the criminal charges against Mr Meller, the Department’s involvement with the children and family, the Court proceedings and the time the children are spending, communicating or coming into contact with Mr Meller; if the children initiated a discussion with the father or another person in his hearing or presence about any matters concerning the criminal charges against Mr Meller, the Department’s involvement with the children and family, the Court proceedings and the time the children are spending, communicating or coming into contact with Mr Meller, the father be required to encourage them to speak to G Services about such matters; and that the father be required to communicate the content and intent of specified aspects of the orders she sought to his wife, the children’s paternal grandmother and J’s mother.

The father

1. By way of broad summary, the children’s father sought in his Response[8] that: following a graduated increase in the time the children were spending with him and from a specified date, the children live with their parents in an equal-time, week-about basis with changeovers to occur on Fridays; the restraint imposed on the mother by the terms of Order 6 of the Orders made by consent on 26 February 2020 (namely, that she be restrained from permitting the children or either of them from spending time, communicating or coming into contact either directly or indirectly with Mr Meller) remain in force until an outcome of the criminal proceedings against Mr Meller is known; the proceedings be adjourned until after the outcome of the criminal proceedings against Mr Meller is known; and that the mother be required to advise the Court as soon as an outcome of such proceedings is known.

   [8]Response to Application in a Case filed 4 June 2020.

2. Whilst the father also sought that there be an order according the parents equal shared parental responsibility for the major long-term issues relating to the children, such order is unnecessary given that, on 26 February 2020, Forrest J made an order in those terms by consent.[9]

   [9]Order 26 February 2020 at [5].

3. The mother opposed there being any variation to the time the existing parenting orders provide for the children to spend with each of their parents.

Broad overview of some of the relevant matters

1. The children’s parents started to cohabit in April 2006, married in 2008 and separated finally on 31 January 2014. At that time, X had turned three years of age and Y was about 16 months of age.

2. The children’s father met his second wife, Ms Fabian, in July 2018. They were to have their first child together in late 2020.

3. It seems that the mother and Mr Meller met in June 2014. They started to live together in about July 2016 and married in 2018. Their first child together – Z – was born in 2017. Their second child was due to be born in 2020.

4. Mr Meller has three other children from his previous marriage with Ms H: 17 year old J[10], 15 year old K[11] and 11 year old L.[12] All of these children lived primarily with their mother after their parents separated in 2013: they spent time with their father, generally every second weekend and for block periods of time during the school holidays.

   [10]Born in 2003.

   [11]Born in 2005.

   [12]Born in 2009.

5. It appears accepted that, with the agreement of her mother and with the support of her psychologist, J moved to live with her father and Ms Meller in February 2019.

6. It appears accepted – at least for the purposes of this interim hearing – that, until allegations of sexual abuse were made by J against Mr Meller, all of the adults involved in the children’s lives had been able to co-parent them co-operatively enough.

7. I also accept, as was assessed by Ms B (who, after conducting interviews and observations on 23 March 2020, authored the 13 April 2020 Family Report), that there is no doubt that: the children are loved by both of their parents, have been well parented by their parents to date and have good and established relationships with each of their parents.

The allegations against Mr Meller

1. It seems that J has alleged that:

   a)between 1 August 2019 and 15 August 2019, her father forced her to masturbate him; and

   b)later in August 2019, after she had been at an after school activity, her father sexually abused her.

2. On the father’s evidence, Mr Meller had last in-person contact with his children J, K and L in September 2019.

3. Following Mr Meller being charged with offences against J, he was the subject of bail conditions which prevented him from contacting or approaching J and from having anyone else contact or approach her on his behalf.

What happened after the allegations were made against Mr Meller?

1. The evidence before the Court establishes that the Department of Child Safety, Youth and Women (as it was then called – the Department) became involved with the parents and the children as a consequence of the charges brought against Mr Meller.

Departmental involvement[13]

[13]Affidavit of Ms N filed 19 February 2020; Exhibit 1 (Affidavit of Ms N affirmed 22 July 2020).

1. According to the contents of its records, the Department was informed on 11 September 2019 that Mr Meller had been charged with sexual abuse charges in relation to J. The contents of Departmental records include the assertions that J: had made clear disclosures about the abuse; had reported feeling scared and having pain; told the Department and police that Mr Meller would yell at her, laugh at her when she was in pain and upset, told her what to wear and made comments about her appearance which made her feel uncomfortable and unsafe.

2. The Department also recorded assertions that J: had made comments to her psychologist, police and the Department that Mr Meller had touched her on her body (which had made her feel uncomfortable and had meant that she had not previously wanted to spend time with him); had also made disclosures on other occasions about inappropriate touching by Mr Meller and feeling uncomfortable around him – it was recorded that, during a meeting in early 2019 between a psychologist, J and her parents about her moving in with her father, it was raised that J would need to be supervised by X and Y’s mother due to previous concerns J had raised about Mr Meller.

3. The Department also recorded that the mother and Mr Meller denied the alleged sexual abuse: they said J was lying and making up the allegations.

The 11 September 2019 Safety Plan

1. The information provided by the Department establishes that, on 11 September 2019, it implemented an immediate Safety Plan, the terms of which required the children to remain in their father’s care and Z to remain in his maternal grandparent’s primary care until the matter was reviewed and a further plan developed.

2. It also seems that, on the basis of an agreement that Mr Meller not live in the family home and have no direct or indirect contact with X, Y or Z,  the children and Z returned to their mother’s primary care on 13 September 2019.

3. The information provided by the Department establishes that, on 17 September 2019, the Department developed a new case plan to ensure that, whilst the mother was overseas, the children were cared for by someone approved by the Department.

4. According to Departmental records, on 31 October 2019, the Department was notified that:

   a)the children had each said on separate occasions that they had been told that they were not allowed to speak about their home otherwise their mother could get into trouble; and

   b)the children believed that they would be blamed if anyone found out that their mother and Mr Meller were not adhering to the Safety Plan; and

   c)both children had said that J had told lies to the police and that was why their living arrangements had changed – Y had indicated that children were sent away when they lied; and

   d)Mr Meller was regularly involved in the children’s lives as he was at the mother’s home every day in the mornings and in the afternoon/evenings until past their bedtimes.

5. It seems that, after this information was received, Departmental officers interviewed each of the children at school so as to ensure that neither parent knew about this course of action.

The October 2019 Safety Plan

1. According to information provided by the Department, an agreement reached between it, the mother and Mr Meller on 31 October 2019 provided that:

   a)Mr Meller would continue to live out of the family home whilst the mother provided primary care to the children there; and

   b)Mr Meller could spend between 4.30 pm and 6.30 pm with the children each weeknight, provided this time was supervised by the mother; and

   c)a Departmentally approved person would supervise Mr Meller’s interactions beyond two hours with the children on weekends.

2. As I appreciate the information before the Court, the Department imposed these conditions because, following the concerns notified on 31 October 2019, it had concluded that Mr Meller had in fact spent unsupervised time with the children and Z despite the prior agreement that this not occur.

The “Investigation and Assessment Outcome” dated 20 November 2019

1. According to Departmental documents, having completed its investigations and assessment in relation to J’s allegations against Mr Meller and the resultant sexual abuse charges on 20 November 2019, the Department recorded a “substantiated” outcome in relation to Z, Y and X being at an unacceptable risk of physical and emotional harm as a result of sexual abuse by Mr Meller. It also substantiated an unacceptable risk of harm caused by neglect (failure to protect) against the mother.

2. The contents of the “Investigation and Assessment Outcome” dated 20 November 2019 includes that the Department was worried that:

   a)the mother would allow Mr Meller to be alone with the children and Z and that he (Mr Meller ) would touch them on their vagina/penis or bottom or ask them to touch him on the penis; and

   b)the mother and Mr Meller had blamed J for her statements of sexual abuse by Mr Meller – which was said to indicate that, if the other children in their care made such statements, they would not be supported or believed; and

   c)the mother had been unable to recognise Mr Meller’s behaviour in segregating J and making her appear as a troubled child – which behaviour was assessed as having allowed Mr Meller to control J and as having increased the chances that she would not be believed by others if she disclosed abuse; and

   d)the mother had limited understanding of sexual abuse and the nature of control by an abuser – which was thought to increase the vulnerability of the children in her care to suffering sexual abuse in the future.

3. The Department’s November 2019 assessment that X, Y and Z were at an unacceptable risk of suffering significant harm in the care of their mother and Mr Meller was made despite neither X or Y, when interviewed, making any disclosures about Mr Meller to suggest that they had been sexually abused by him.

4. It seems that the Department’s November 2019 assessment really rested on the following:

   a)that charges had been brought against Mr Meller following from and arising out of J’s complaint of abuse; and

   b)that the mother had made comments to imply that J had made the allegations up due to parental/adolescent conflict and that this was something she had previously done at school – although it was said that there was no evidence of this; and

   c)despite the existence of a Safety and Support Plan whereby Mr Meller was not to have any unsupervised time with X, Y and Z, the mother had acknowledged that there were times when, because Mr Meller was in the home for extended periods of time, the children’s interactions with him were not supervised; and

   d)that the mother had justified her lack of supervision of the interactions between Mr Meller and the children on the basis that it was not possible to have eyes on the children “24/7” – an explanation that the Department regarded as worrying as she had not previously raised any issues about being unable properly to supervise the children under the terms of the Safety Plan.

5. As at November 2019, the Department appeared to conclude that the father was also not a parent who was “willing and able” to protect the children: it seems this conclusion was reached because he had indicated an intention to return the children to their mother’s care without there being any family law orders in place. As I understood the contents of the documents before me, the Department’s perspective was that this would mean that the children would be predominantly living in a home where they were at risk of having unsupervised contact with Mr Meller and, consequently, they would be at risk of suffering sexual abuse and emotional harm.

Some events in December 2019

1. On 10 December 2019, Registrar Brooks made interim parenting orders by consent. These orders were made upon Mr Meller’s written undertaking dated 10 December 2019 and included that the mother was restrained from permitting X or Y from spending time, communicating or coming into contact either directly or indirectly with Mr Meller; that the children live with her from 5.00 pm on 13 December 2019 until 5.00 pm on 20 December 2019 and each alternate week thereafter and otherwise live with their father.

2. According to information provided to the Department, the father had retained the children in his care from the end of October 2019 in order to ensure their safety.

3. It appears that, on 12 December 2019, the Department agreed that Mr Meller would spend time with Z between 4.30 pm and 7.30 pm on week nights.

4. It also appears that, on about 13 December 2019, the Department learned that Mr Meller had had unauthorised contact with Z. I accept that both the mother and Mr Meller confirmed that they had breached the operative Safety Plan. According to Departmental records, the mother outlined that, despite her knowledge of the allegations, she believed Mr Meller to be a safe person and had facilitated him spending long periods of time in the home and spending time with the children and Z; she accepted that she had failed, at times, to provide adequate supervision for the children.

5. Having concluded that the mother had breached the Safety Plan in relation to Z to which she had previously agreed as part of an Intervention by Parental Agreement (IPA), the Department applied for and obtained a non-custodial Temporary Custody Order from the Children’s Court. This order, which expired on 18 December 2019, mandated that, whilst an application for a Protective Supervision Order with Directive Orders was filed, Mr Meller not have any contact with Z unless a Departmentally approved person was present.

6. According to Departmental records, a further Safety Plan was entered into on 18 December 2019, the terms of which included that: the children remain in their father’s primary care; the children not have any form of contact with Mr Meller and not attend his address; the Department would assess Ms P in terms of her suitability and availability to supervise contact between the children and their maternal family; if the safety person was present, the children could have contact with them at the maternal grandparents’ house until 7.00 pm at night; any sleep-over time should occur only at an approved person’s home and not be for more than one consecutive night; the children be provided with a high level of supervision at all times.

7. It seems that, in December 2019, the Children’s Court made a Protective Supervision Order with Directive Orders in relation to Z’s contact with his father, Mr Meller.

Some events in January 2020

1. According to Departmental records, when the 18 December 2019 Safety Plan lapsed on 6 January 2020, the Department’s view was that the parents should continue to adhere to the existing orders (those made by consent on 10 December 2019) which provided for the children to live with each parent on an alternate week basis.

2. It appears that the Department reached this view because: there had been no indication of breaches of the more recent Safety Plan; the Children’s Court had approved other people as suitable in relation to Z’s time with Mr Meller and they could be used to support the mother having all three children in her care; the mother had been able to articulate her plans about safe contact between Z and Mr Meller when the children were in her care; it was thought to be in the children’s best interests to have more contact with their mother and maternal family as this was what they were used to and would help them settle into a routine before the start of the school year; the mother had signed an undertaking in the Court which confirmed that the children would not have contact with Mr Meller – a matter which the Department considered, at that time, to be an additional protection for the children.

The Department meets with the father: 6 January 2020

1. According to Departmental records, when the father met with Departmental officers on 6 January 2020, he advised he was supportive of the 18 December 2019 Safety Plan lapsing and acknowledged that the children needed to spend time with their mother and the maternal family and said X, in particular, had been upset and had regularly asked when he could see his mother. I also accept the father said that he had wanted “50/50 custody” for a long time.

2. According to information provided by the Department, the children were comfortable and happy in their mother’s care and spoke positively about spending time with both of their parents when Departmental officers attended the mother’s home on 15 January 2020.

3. According to Departmental records, a January 2020 Case Plan included the following assertions: the mother had breached the Safety Plan in December 2019 and allowed Mr Meller contact outside of the authorised hours and later reported that this was because she was not coping; the Department was worried the mother did not believe Mr Meller had sexually abused J and thought him to be a safe person to be around the children and Z; the mother had said that the issue had brought them closer, that they had re-examined how to do things and that they were “still standing” and together. It seems that the Department resolved to conduct both announced and unannounced home visits to the mother and to review matters in mid-July 2020.

Mr Q’s sexual risk assessment report dated 16 January 2020

1. It seems that the Department engaged Mr Q, a psychologist, to conduct a sexual risk assessment of the mother and Mr Meller. He interviewed and assessed them on 19 December 2019 and prepared a report, dated 16 January 2020, the primary focus of which is “an assessment of risk”.[14]

   [14]See paragraph 8.

2. In his report, Mr Q recorded that the mother told him that: she had never had concerns about Mr Meller’s sexual behaviours; she did not believe Mr Meller was guilty of what he had been charged with; she had been upset with the Department as it seemed to believe that she would compromise her parenting because of Mr Meller and that she was not the sort of person who could separate her parenting and her relationship with him; she had reflected on everything to do with Mr Meller and, especially, J and had never seen anything to cause her to have any concerns about him being inappropriate with children; if she ever noticed anything of concern, she would act on it and would never allow anyone, including Mr Meller, to take away the life she had established with her children.

3. According to Mr Q’s report, Mr Meller told him that J had a history of saying things that were not true and could react really badly when caught out. He said that, on the day of the alleged incident, she was seen doing things she should not have done: when he later attempted to confiscate her phone, she basically over-reacted by packing her bags and going to the local McDonald’s and contacting her boyfriend’s mother – who he thought was the person who eventually contacted the police. Mr Meller also told Mr Q that he had not spoken to J since that day.

4. Mr Q’s conclusions, summarised broadly, included that:

   a)given there was no significant evidence of the “typical cluster of behavioural, interpersonal and intrapsychic features of concern” in relation to him, there was a “low risk” that Mr Meller would sexually offend against the children; and

   b)he assessed that Mr Meller was unlikely to offend/sexually act out, even under conditions of ready access to identified targets of concern and with nil supervision over lengthy periods; and

   c)he had no concerns that the mother was enmeshed or aligned with Mr Meller – which he said offered some reassurance about her protective capacities and motivations in her parenting; and

   d)he could detect no reason – based on any concerns of sexually inappropriate risks of acting out and/or attractions on Mr Meller’s  part towards children – that unsupervised contact arrangements should not be reinstated between the children and Mr Meller; and

   e)Mr Meller may benefit from receiving professional support, including to target his level of anxiety and distress.

The Department’s position as at mid-February 2020

1. According to Departmental information, as at 19 February 2020, X and Y continued to be subject to an IPA between it, the mother and Mr Meller. The conditions of the same included that: the mother and Mr Meller engage with a psychologist on a regular basis around protective behaviours and parenting; the mother and Mr Meller support X and Y to engage with a counsellor and learn protective behaviours; Departmental staff undertake weekly visits to their home and that the mother and Mr Meller follow any recommendations from the Sexual Risk Assessment report.

2. The Department noted that, as at 19 February 2020, it had not received any information that either the mother or Mr Meller had breached any existing order or the terms of any existing Safety Plan. Further, the mother had earlier advised (on about 16 January 2020) that she and Mr Meller had engaged with their own individual psychologists and that both had competed the Triple-P Parenting Programme.

3. The Department’s assessments as at mid-February 2020 included that: the children were heavily reliant on their caregivers to protect them from harm; the children’s age meant that they were highly vulnerable to any lapses in a caregivers’ decision-making and behaviour that put their safety and wellbeing at risk; the mother and Mr Meller had been able to consistently demonstrate their commitment and engagement with the Department and linked-in services to work toward addressing the child protection concerns and mitigating the risk Mr Meller posed to the children; the mother’s support network was aware of Mr Meller’s “offending history” – something which was said to mitigate the risk of sexual harm to the children.

4. According to Departmental records, as at mid-February 2020, the Department considered, despite Mr Q’s expressed opinions, that both Y and X were “children in need of protection” because it remained of the view that the children remained at an unacceptable risk of sexual harm from Mr Meller. The Department also concluded that a continuation of the IPA was the most appropriate intervention to ensure the children’s safety and to continue to monitor the mother and her network’s ability to act protectively toward the children as this would enable weekly home visits to continue and enable the Department to seek feedback from G Services (with whom the children had engaged). The Department also recorded that the existence of the IPA would enable: it to work with the mother and Mr Meller to work toward Mr Q’s recommendations; it to work with the mother and Mr Meller and their support network to provide monitoring to ensure the children’s safety; it to link the children with specific services with respect to sexual abuse and protective behaviours to develop the skills to mitigate any future risk to the children; the children to receive the same Departmental support as if they were subject to Court orders for supervision or directive orders about contact.

5. Further, the Department recorded that, as at February 2020, Mr Meller was maintaining separate accommodation and, given the family law orders and the restrictions about his presence in the home when the children were living with their mother, had not returned to the shared home – something the Department thought ensured the ongoing protection of the children and was an “extra layer of protection” to ensure their safety during the IPA period.

Departmental interviews of the parents: February and March 2020

1. According to the contents of Departmental documents, the mother told an officer during an interview on 27 February 2020 (the day after the operative interim parenting order was made) that she did not believe the charges against Mr Meller; she said that, at the times alleged, “it” could not have happened, discussed that she did not know why J had accused her father and said that she had never lied to this extent in the past.

2. According to the contents of Departmental documents, the father told an officer during an interview on 12 March 2020 that he had first been told about the charges against Mr Meller by the mother, who had also told him that they were not true.

Ms B’s interviews (23 March 2020) and subsequent report (dated 13 April 2020)

1. I accept that Ms B interviewed each of the parents and Mr Meller on 23 March 2020. I also accept she interviewed Mr Meller separately to ensure he was not in contact with the children.

2. I accept that, according to Ms B, the information the mother provided to her included that:

   a)the father had watched pornography (which to her knowledge did not involve anything other than adult women) during their relationship, including in Y’s presence when she was a few months old; she said she (the mother) did not like him watching pornography and it became an issue for them and contributed to the end of their relationship; and

   b)after their separation, the children spent time with their father from Friday afternoon to Sunday afternoons; and

   c)when in about July 2013 she decided she wanted to move to live in Queensland, she spoke to the father about this and he agreed to the move; and

   d)after she and the children moved to live in Queensland, the father relocated to live here as well and the children then spent time with him  each weekend (from Saturday morning until Sunday afternoon) and for dinner each Thursday night – an arrangement which worked well;  and

   e)until about mid-June 2019, she and the father had had a flexible co-parenting relationship, although it started to deteriorate at this time; and

   f)J had moved to live with her and Mr Meller in February 2019 as her mother could not manage her behaviour: she said there had been problems with J’s use of technology; that J had sent naked photos of herself out there; that there had been arguments (including one where J elbowed the wall, hit her head and swore a lot) and a lot of tension in the household initially but this settled after J was enrolled to attend a private school and participated in dance lessons; and

   g)in about June 2019, J got a boyfriend and became cagey about her laptop and started to lock it; and

   h)on 9 September 2019, J threatened to pack her bags and ran off when her father (Mr Meller) confronted her about her phone – when, having looked for her unsuccessfully, Mr Meller made a missing person’s report to police, he was told she had returned to her mother’s place; and

   i)following this, police attended at her home and said it was a crime scene: whilst they took things away, they did not tell her about the allegations; and

   j)she later learned that Mr Meller was accused of sexually abusing J and having her masturbate him; and

   k)the Department subsequently attended and told Mr Meller to leave and she (the mother) contacted the father and his partner and asked to meet and told them about “it”; and

   l)in about late October 2019, the father thought she was not keeping Mr Meller away from the children in accordance with the Departmental Safety Plan, so he withheld children and home-schooled them for two weeks; and

   m)after this, and after she gave an undertaking not to let the children spend time with Mr Meller, they started to spend time with her each alternate weekend; and

   n)after she filed proceedings on 9 December 2019, interim orders were made for the children to live with her and spend time with the father; and

   o)it had been alleged that she had breached the Safety Plan by arranging for Z to see Mr Meller [his father] for five minutes – an interaction that had been seen by a Departmental officer; and

   p)there was no Departmental intervention in place for Z and the IPA in place for X and Y was managed by the Department’s office; and

   q)she would undertake to the Court that X and Y have no contact with Mr Meller until the criminal matter was dealt with.[15]

   [15]Ms B’s Family Report dated 13 April 20202 at [3.42].

3. According to her report, Mr Meller told Ms B that J had made two allegations against him: first, that between 1 August 2019 and 15 August 2019 he had allegedly had her give him a ‘hand job’; and, secondly, that on 22 August 2019, after she came home from an after school activity, he had sexually abused her. He also provided other information which included the following:

   a)J had come to live with him in February 2019 after her mother was having problems managing her behaviour – he described J as lying and manipulative, said that she destroyed relationships and that she had been taken to see a child psychologist due to possibly having borderline personality disorder; and

   b)he was not aware that J had made previous disclosures of abuse against any of her mother’s previous partners; and

   c)he knew that J had a boyfriend at the time and thought they were sexually active; and

   d)he did not ever think J would make up these allegations against him; and

   e)he thought the allegations made his and the mother’s relationship stronger – he said he was seeing her every second weekend and overnight on Thursdays when the children were with their father; and

   f)he had had a good relationship with the father before the allegations were made; and

   g)whilst, he had been diagnosed with post-traumatic stress disorder from his time in the army in 2012, he was stable.

4. According to Ms B’ report, the information the father told her included the following:

   a)he had previously watched adult female pornography and had felt that he had an addiction; he had worked on this, had talked to his current wife and minister about it and had not watched pornography since his relationship with his wife; and

   b)after the mother sent him a text on 11 September 2019 telling him that she and Mr Meller wanted to meet him and his wife, they met at a local tavern where they were told about the charges/allegations: he said he had said that he understood J was a difficult child to manage and they had said that she had told lies and there was nothing to worry about; and

   c)whilst he was not sure he had been told the Department had a Safety Plan in place, he thought that, if there had been concerns, all of the children would have been removed from the house; and

   d)he knew that only the mother and the children were going to Country M (and not Mr Meller), so there would be no interaction between the children and Mr Meller and he and his wife were then due to go on their honeymoon; and

   e)he had only ever seen good things between the children and Mr  Meller and earlier thought he seemed remorseful for what had happened but, at the time of interview, was not sure; and

   f)a Child Safety officer had told him that there were multiple witnesses to  J’s allegations, that the information was correct and that it had occurred over multiple incidents – which differed to the account the mother had given him; and

   g)a psychologist [Ms R] had reported inappropriate dealings between Mr Meller and J – which caused him to change his mind; and

   h)X had told him that he and Y had been left alone with Mr Meller lots of times when, because of the Departmental Safety Plan, that was not supposed to happen – whilst the children could not say when or where this had happened, he told the Department and they developed a new Safety Plan and confirmed the children had been left with Mr Meller outside terms of the Departmental Safety Plan and also told him that the mother had let Z see Mr Meller and that she, Z and Mr Meller had travelled interstate – despite her saying she would not and despite her having undertaken not to; and

   i)on 28 November 2019, the Department told him that if he returned the children to the mother they would be regarded as being at an unacceptable risk of harm as the Department thought neither the mother nor Mr Meller were considered protective – following this, he gave the mother (who he thought did not, at that time, take the charges against Mr Meller seriously) a copy of the letter and, because there was no Court order in place, kept the children in his care; and

   j)the children did not see their mother between 29 November 2019 and 14 December 2019; and

   k)whilst the mother filed an urgent Application on 10 December 2019 and also gave an undertaking that the children would not see Mr Meller, she subsequently allowed Z see him; and

   l)between 6 January 2020 and 26 February 2020, the children spent week-about time with their parents, before returning primarily to live with their mother following the school being concerned about Y’s wellbeing and that the children were not spending enough time with their mother.

1. It seems that the father also told Ms B that he thought the children would benefit from spending more time with him than they were then spending; that they were safe and not seeing Mr Meller and his primary concern was that the mother had not followed the Safety Plan. He also said that he wanted the children to spend equal time with each parent – something that would result in them having to take a 45 minute bus trip to school when with him. Ms B reported that, whilst the father said that he wanted an injunction in place until Mr Meller’s trial, he also told her that if it was found that J had lied or if Mr Meller was found not guilty, then the injunction should cease immediately.

2. Ms B reported that, when she spoke with X, he told her that:

   a)Mr Meller, who he said he had got on well with, used to live with them, but did not then; and

   b)he liked spending time with both parents, but did not like taking stuff to school with him for that to happen; and

   c)he liked it with his mother and it was going well and that he had been a bit sad at Christmas when he had not seen her as much, but it was back to ‘normal’ now.

3. Ms B reported that, when she spoke with Y, she told her that:

   a)she liked living with her mother; and

   b)Mr Meller, who she said she got on well with, used to live with them, but not now and he lives with friends; and

   c)she liked to spend time with her father and Kay and she liked her and got on well with her.

4. Ms B reported that neither X or Y said they had felt unsafe with either parent or in the care of either of their parents.

5. Ms B reported her perusal of Departmental information, revealed that the Department had recorded J’s complaint as “substantiated” and the children as in need of protection. She noted Mr Q’s assessment and his conclusions. She also noted that the mother and father appeared to have a demonstrated history of co-operative parenting and shared decision-making. She also said that the children did not see catching a bus to school when in their father’s care as a major concern. Ms B remarked that she did not regard distance as a preventative issue to “shared time” and recommended that, in order to reduce the children’s instability, their overnight Thursday time be added to the weekend time. She also recommended that, until Mr Meller’s criminal matter was finalised, the children not spend any time with him and live with their mother and spend time with the father each alternate weekend from Friday after school until Tuesday morning. She recommended that, after Mr Meller’s criminal proceedings were finalised, the children live in an equal-time parenting regime: she commented that the time between her report and the finalisation of the same would enable the children to adjust to travelling to and from the father and spending time with him.

Some events after the April 2020 Family Report

1. The father’s evidence included that, when he contacted the Department on 6 May 2020, he was told that: the mother of Mr Meller’s children continued to prevent their children from spending time with Mr Meller; Mr Meller had not initiated proceedings to spend time with his children; J continued to be consistent in her allegations and that the mother and Mr Meller had not responded to the Department’s request for X and Y to participate in additional protective behaviours counselling.

2. According to the contents of Departmental documents, the mother informed, during a home visit on 28 May 2020, that Mr Meller had been committed and was awaiting a date and that at the next date his lawyers would cross-examine J and hopefully there would be an outcome.

3. The father said that, on 4 June 2020, Mr Meller’s ex-wife told him that Mr Meller had been video-calling his children on Tuesday and Thursday (days when X and Y were in their mother’s care) from the mother’s residence. He also said that, when he asked the children on 6 June 2020 if they had seen or spoken to Mr Meller, they said they did not know, forgot or would not tell him if their mother asked them not to.

4. According to the contents of Departmental documents, the mother said, during a home visit on 12 June 2020, that, as Mr Meller had been building a cubby house at her home when the children were not there, they asked questions about him from this. She also said that she had evidence that Mr Meller was not guilty and, despite asking to be able to provide this to the Department and father, she had been told not to: she said she had been told that, if this was shown to them and J was told about it, she could change her story. The mother was also recorded as having said that she and Mr Meller had not refused to see Mr S, but she did not want to go back to square one and have him recommend supervised time. The Departmental records also note that, when asked about the children disclosing during the IPA period that Mr Meller would yell and get angry, she said that this was what J had disclosed.

5. It seems that, when he met with Departmental officers on about 15 June 2020, the father asked about the Department’s position vis-à-vis the mother’s interim application during a meeting on about 15 June 2020. It also seeMs Be was told that the Department did not have a position and would work with the family regardless of the outcome, which was said not to change the type of Departmental intervention. He said he was told that the Department’s current safety assessment for the children was “safe”; he also indicated that X had told him that ‘he wouldn’t tell anyone if he was told not to say anything’. The father also indicated that he was considering telling the children about the charges against Mr Meller as he felt he had a duty of care to them and that they needed to be aware of this in order to keep them safe and understand the situation: he also said the children were aware that Mr Meller had hurt J but did not know further details. The Departmental officer noted discussing with the father that the details could be very difficult for children of X and Y’s ages to process and recommended that the father seek advice around this issue from G Services.

6. The father also said that, during this meeting, he was told that the mother had yet to agree to an extension of the current IPA or to enter into a new IPA with the Department.

7. According to Departmental documents, when, during a meeting on 24 June 2020, the mother said that the father had advanced that the Department was supportive of there being no contact between the children and Mr Meller because the Departmental investigation was ongoing, she was advised that this was not the case. It appears that the officer later told the mother that the Department accepted Mr Q’s report and did not intend to ‘go back to square one and have contact supervised.’ Apparently, the mother said that she felt that, if the children were fearful or had any worries with Mr Meller, they would have disclosed this to their counsellors at G Services by now; she said it was very difficult, as the children (especially Z) asked for Mr Meller when he was not there. She also said she was upset with the father for raising that X had said something along the lines of “if I loved someone I would keep the secret and not tell anyone”- she advised that she had never told the children to keep a secret for her.

8. The 25 June 2020 progress report by G Services in relation to Y’s attendance there informed that, whilst the mother had not told the children the reason why Mr Meller had moved out of the home and was not having any contact with them, the father had been concerned that the children had not been previously informed about this and had recently spoken to them about the charges.

9. The G Services 25 June 2020 report outlined that: Y was “well versed in protective behaviours concerning private and public body parts, safe and unsafe touch”; had consistently identified her support network of trusted adults to seek help and support from her mother, father, grandparents and Ms O; had more recently said she had seen her step-siblings (including J) at a park for a play-date with her father and looked conflicted when asked if she had been happy to see them after such a long time – nodding “feebly”. The report recorded that the subsequent recent disclosure about why Mr Meller had left the home had been confusing and upsetting for Y. 

10. According to the information provided by G Services, during her tenth counselling session, Y appeared visibly affected by what was described as “the recent disclosure” by her father about the charges of sexual abuse made by J against Mr Meller and disclosed feeling sad and confused.

11. The report recorded that Y consistently identified her mother, father, grandparents and Ms O as safe adults. It was recommended that Y continue in counselling and be assessed again after the end of the 26 sessions so that she could be supported to process the information about the charges against Mr Meller; further, the father was to receive support to know how to manage what was described as “the thin veneer” between his own intense emotions and the effect the situation was having on Y.

12. The 2 July 2020 progress report by G Services in relation to X’s attendance on that service included that: X had been apprehensive during the first session and had reported feeling unsure about why he was attending counselling – he agreed that his step-father had moved out, but could not identify a reason for this; he identified that, if he had a concern at his mother’s home, he would seek out his father for support and vice-versa if he had a concern at his father’s house; he too spoke, more recently, of seeing his step-siblings (including J) at a park and said he had enjoyed seeing the boys and being able to play with them.

13. The G Services 2 July 2020 report also informed that, whilst X had willingly engaged in the content of “protective behaviours”, he had not identified a link in his personal life to the content until the disclosure of the reasoning underpinning the counselling was made to him. It was also reported that he was guarded when conversations related to his home life occurred and frequently deflected question which would cause discussion about the role of his mother and Mr Meller in his life. The report opined that this behaviour may have indicated X had some confusion around who the safe adults in his life were – although the report also assessed him as having strong bonds with his maternal and paternal grandmothers and his cousins. He had also spoken about spending time with Mr Meller and his sons and had said that Mr Meller had taken him scootering and had spent time outside with him.

14. According to the information provided by G Services, X did not link the content about protective behaviours which had been provided to him with a personal need to be safe until his tenth session of counselling. It was noted that, during this session, he presented as unsettled and dysregulated in his behaviour and appeared visibly affected by his father’s recent disclosure of the allegations of sexual abuse: he said the information came into his head and he tried to make it go away. When he was asked if he knew why he was attending counselling, he was able to connect the disclosure his father had made to the Departmental referral.

15. According to Departmental documents, the mother advised the Departmental officer, during a home visit on 10 July 2020, that the children had said that the father asked them lots of questions when they were with him. She also reported that she and Mr Meller had not breached the injunction, despite suggestions of this being made.

16. According to Departmental documents, the IPA between the mother and the Department expired on 16 July 2020.

17. According to the contents of Departmental documents, when the father asked the Department on 20 July 2020 whether there was a further IPA, he was told that the mother had agreed to extend the same for 12 weeks and that he would be advised once the case plans were finalised. He was also told that the Department considered it necessary for the mother to engage with Mr S (more for educational purposes than assessment) before the matter was closed and that 12 weeks would be sufficient to allow this to occur.

18. It seems that, when the Departmental officer told the father she was aware, from the G Services reports, that the children had been told information and that the reports indicated they had been emotionally impacted by what they had been told and asked him and Ms Fabian what the children had been told, Ms Fabian advised that they had not been told the full nature of the offences. The officer was told that she and the father had sat the children down, explained Court processes and applied that to Mr Meller’s charges and also provided the children with education about private parts and puberty. According to the Departmental records, both the father and Ms Fabian maintained that the children were not aware of these matters and said that they had wanted to increase their awareness in order to enhance their safety. Ms Fabian was recorded as having told the officer that she had told the children “you know how we have talked about special places and that no one has the right to touch them” and that “Mr Meller touched J in her special place and asked J to touch his special place”.

19. According to the contents of Departmental documents, when the father was asked why he and Ms Fabian had acted as they had and if he had sought advice from G Services, he expressed his concern that the children were making “Slime” during the sessions and did not appear to be increasing their understanding of protective behaviours. He also advised that a counsellor had told him, in essence, that the fact that the children did not know why they were receiving counselling was a barrier to the process.

20. According to the Departmental documents, the father and his wife both told the Departmental officer that they had approached the subject gently with the children and had not told them the full details of the charges. He said the children had told him that they did not want to see Mr Meller if he had done something bad.

21. The father also was concerned that the children were blaming the Department for the disruption to their lives and believed that they would be taken away for lying – as this was their understanding of what had happened to J.

22. According to the Departmental documents, when the father raised that, in the last Departmental meeting, it had appeared to him that one of the officers appeared concerned that the children did not know about the charges, he was told that this had not been the case; it was recommended that he seek advice from G Services about how best to approach the issue. It appears that the father maintained that, as the children’s father,  he had a duty of care to them and wanted them to be safe; he was recorded as being agreeable to the suggestion that he engage with a service to assist him to manage the situation appropriately.

23. According to Departmental documents, during a meeting with the mother and Mr Meller on 22 July 2020, a Departmental officer raised concerns about the children having been told details of Mr Meller’s charges. It seems that the mother advised that she was upset that “these details” had been disclosed to the children – she said that she did not want to force the children to have contact with Mr Meller if they did not want to and he agreed with that position. It also seems that the mother indicated that she would consent to entering into a further IPA with the Department.

The Department’s position as at July 2020

1. Departmental information included that, since the IPA commenced on 25 November 2019 and other than during the COVID-19 period when no home visits were conducted and only telephone check-ins occurred, they had conducted fortnightly home visits to the mother: for example, home visits were conducted by the Department on 6 February 2020, 28 May 2020, 12 June 2020, 24 June 2020 and 10 July 2020.

2. The Departmental information included that, since February 2020, there was no evidence to suggest that the mother had allowed Mr Meller to have unsupervised contact with the children.

3. The Department recorded that both parents had supported the children in attending G Services to enhance their understanding of healthy relationships and protective capacity.

4. The Department also noted that the mother had consented to a further IPA extension (to allow the Department a further case planning period) such that Z remained subject to an extended IPA, which would remain in force for 12 weeks from 16 July 2020.

5. The Department’s position remained that the children remained in need of protection as they were at an unacceptable risk of harm as a result of risk of sexual harm by Mr Meller. Despite Mr Q’s assessment of him as ‘low-risk’, the Department considered that, as this was not a ‘no risk’ assessment, further intervention was required to mitigate the risk they had assessed Mr Meller posed to the children.

6. The Department noted that the continuation of the IPA would allow: the children to attend all of the 26 sessions with G Services; the Department to continue with its fortnightly visits and receive information back from G Services; the mother to continue to learn protective behaviours and articulate the same during home visits and continue to attend regular appointments with her psychologist; the mother and the maternal grandparents to engage with Mr S (a psychologist) to develop a long-term safety and support plan around mitigating any sexual risk Mr Meller may pose to the children.

7. The Department noted there was no statutory intervention with respect to Z as it had not been granted a directive order after Mr Q’s ‘low risk’ sexual risk assessment. It seemed that the Department’s intention was to close the IPA after the expiration of this additional period of time if the articulated goals of the same were met.

G Services progress reports about the children: 17 July 2020

1. The Department’s summary of the 17 July 2020 G Services report about Y included that she had never brought Mr Meller up independently in conversation and had replied consistently and almost dismissively with a shrugged ‘yeah’ when asked if she missed him. The Department also noted that the report recommended that Y’s counselling be assessed after the competition of 26 sessions so that she could continue to increase her knowledge of protective behaviours and be supported in processing the information about Mr Meller. The progress report for X included that he had become more relaxed as the sessions progressed.

2. According to the IPA Safety and Support Plan dated 22 July 2020, the Department assessed that the things that were “working well” included that the operative parenting orders ensured that Mr Meller was not in the family home on the days that the children were in their mother’s care. The Department also recorded that its Plan was not impacted by, or contingent on, the Court’s determination of the mother’s application for orders to permit Mr Meller to spend time with the children under her supervision and that of one, or both, of the maternal grandparents.

Ms B’s oral evidence

1. Counsel for the mother was given leave to cross-examine Ms B in order to address what the mother contended was Ms B’s misapprehension that she (the mother) had agreed, when speaking with her, that the children should not spend time or communicate with Mr Meller until his criminal proceedings were concluded and, consequently, failed to consider whether – as the mother advanced – it was in the children’s best interests to spend supervised time with Mr Meller pending the resolution of the criminal proceedings.

2. The mother’s evidence included that she did not tell Ms B that she would continue to prevent the children from spending time with Mr Meller; rather, she said that she had said that time was prevented by the current orders and that she would continue to comply with such Orders until they are varied.

1. The contents of paragraph [3.42] of Ms B’s report include that:

   ….. Ms Meller thought that the parents could make decisions together for the children and she will continue to undertake that the children have no contact with Mr Meller until the criminal matter is dealt with.

2. When cross-examined, Ms B said that it was her understanding of the mother’s position at interview that there was no real desire on her (the mother) part to recommence any time between the children and Mr Meller; she also agreed that, given her understanding at interview that the mother was willing to agree to the father’s proposal that the children not have any contact with Mr Meller until the outcome of this criminal proceedings were known, there was no real need for her (Ms B) to consider the issue of the children’s interactions with Mr Meller much further.

3. Ms B also agreed that her recommendation at paragraph [14.2] of her report that the children spend no time with Mr Meller until the outcome of the criminal proceedings was known was premised in part on her understanding that the parents had almost agreed about that; however, she also said, in essence, that she was also influenced by the fact that the criminal proceedings were at a very early stage and she did not have a lot of information about where they were at.

4. When the mother’s account of her conversation with Ms B at interview – namely, that she did not tell Ms B that she would continue to undertake that the children would have no contact with Mr Meller until his criminal matter was dealt with but, instead, said that, at present, under the current orders, the undertaking remains in place – was put to Ms B, she said that there was a possibility that there was a potential that there had been some confusion on her part about what the mother had been proposing when she interviewed her. However, Ms B then also referred to her notes: she said that, during this part of her interview of the mother, the mother told her that “mother gives undertaking no contact with X and Y for Mr Meller” [Mr Meller].

5. Whilst Ms B readily accepted the possibility of a misapprehension on either her part or that of the mother, she also noted that, at the relevant time in their conversation, she and the mother had been specifically talking about future views and wishes; she said she had certainly perceived that the mother’s future view was that she would continue to undertake that Mr Meller have no contact with the children until the criminal matter was dealt with.

6. When asked her opinion about the mother being suitable to supervise the children’s time with Mr Meller pending the finalisation of his criminal proceedings, Ms B noted that there had previously been difficulties with the mother on her own in that there had been some “breaches” of the Departmental Safety Plan. She also said that the mother probably had not been aware of the seriousness of the Departmental involvement (as she had not previously been engaged with the Department) and probably had not been aware of the seriousness of breaching the terms of the Safety Plan. Ms B also said that the mother had told her she had a greater respect and understanding for the Department’s involvement since the breaches had happened.

7. Ms B also said that the mother had also mentioned that she could not have her eyes on the children at all times because, for example, she had to go to the bathroom at times. Ms B said she thought the maternal grandparents appeared to be good people, who appeared highly focused on the children, and who appeared to have good relationships with them.

8. Ms B said that, if the Court was minded to allow supervised time between the children and Mr Meller, she would be more comfortable with one or both of the maternal grandparents being present with the mother to ensure that practical issues – such as one child wanting her to be in one part of the house or her needing to go to the toilet – could be accommodated without the loss of supervision over the children’s interactions with Mr Meller.

9. Ms B said that, while the mother appeared cognisant of the issues associated with supervising Mr Meller’s interactions with the children, she did not believe that he had done the things he has been alleged to have done. She also said that it would have been confusing for the children to have been told about J’s allegations against Ms Meller.

10. Ms B said that, if the Court was minded to commence the introduction of supervised time between the children and Mr Meller, it would be beneficial for the children to process any information and feelings they had about it, with an independent person such as a counsellor. She also thought it really important that, if there was to be a reintroduction of time between the children and Mr Meller, both parents be “on the same page” so that the children did not receive different information from their parents’ households and suggested that this could be coordinated by a therapist at G Services. She also thought it appropriate that, if the children raised concerns about any supervised time they may have with Mr Meller, the parents should direct them to discuss these with their counsellors at G Services. 

11. Ms B said, in essence, that the children would have to adjust to the following whether they were reintroduced to Mr Meller now or later: the graduated reintroduction of time; the ongoing involvement of G Services; their mother’s insight into the seriousness of the concerns about Mr Meller; the Department’s role; and the nature of the charges. She also said that the support provided by the counselling done by G Services may also assist the children in supporting them through any reintroduction to Mr Meller.

12. Ms B also said, however, that if the children were already showing a level of distress, were unsettled and dysregulated and feeling confused, it might be that introducing them to spending supervised time with Mr Meller now might exacerbate that and that the children’s counsellors were probably in the best position to provide information to the Court about whether they believed that reintroducing the children to Mr Meller when they are exploring such feelings was helpful or unhelpful to the children.

13. Ms B also said that, in essence, that there was, at present, a status quo in place in that the children had not had contact with Mr Meller for a significant period of time. Given this, she thought that, if the children were reintroduced to him and he was subsequently convicted and incarcerated, this would significantly impact on their relationship with him again, might be emotionally harmful for them and could have a very detrimental effect on them.

14. Ms B also said, in essence, that as the children were now aware of the nature of the allegations against Mr Meller and were engaged in a therapeutic process which was intended to help them understand and deal with their emotional responses to the information, an issue arose with whether they should be asked to deal with reintroduction of time with Mr Meller simultaneously or, rather, be given time to settle, understand their own emotional responses and process everything.  She also thought that if the children were already showing stress, having difficulty with emotional regulation, being conflicted and sad, this would suggest that they were already being asked to deal with lots of different emotions. Ms B also said that it was concerning that the children were reportedly showing some emotional instability and manifesting some emotional distress and confliction and that this made her unsure about the added impact on them of reintroducing Mr Meller to them. Ms B also said, in essence, that she thought that the children’s counsellors may be better placed to address  whether reintroducing Mr Meller to the children whilst they were still processing the information they had been given about the allegations against him was likely to be too much of an emotional burden for them or not.

15. Ms B also raised the issue of whether the extent of the interactions between the children and Mr Meller proposed by the mother would have an adverse impact on the children if he was ultimately incarcerated.

Principles

1. The manner in which the Court is to approach, consider and determine applications for interim parenting orders such as the present is well-known and requires no further elucidation.[16] As noted in Banks[17], it is unnecessary for each statutory consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion. Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those interim orders which, in the current circumstances, are currently in the children’s best interests.

   [16]Goode & Goode (2006) FLC 93-286; Banks & Banks (2015) FLC 93-637.

   [17](2015) FLC 93-637.

Overview of submissions

1. I accept the proper acknowledgment by Counsel for the mother that the allegations and charges against Mr Meller are severe and serious. I also accept her proper acknowledgement that this Court is unable presently to assess the risk – if any – which Mr Meller may pose to the children if they recommence spending time with him: in part at least, this is because – understandably given that he is engaged in criminal proceedings – Mr Meller has not yet gone into evidence in this Court (although he was interviewed by Ms B) about the allegations underpinning the charges he faces.

2. Counsel for the mother also accepted on behalf of the mother that reintroducing Mr Meller to the children created an additional level of risk for them vis-à-vis that which exists at present; however, she submitted that the risk was not an unacceptable one given the structures the mother proposed be implemented to support the supervised time. Counsel submitted that the mother’s proposal addressed practical shortfalls by having a second supervisor present at all times, that the Department had identified the maternal grandparents as safe people within the children’s safety network and that, given their undertakings, the Court would be persuaded that they would take their role as supervisors seriously and supervise any time between the children and Mr Meller appropriately.

3. Counsel for the mother submitted that the Court would be persuaded that it is in the children’s best interests that to be reintroduced to Mr Meller because of the relationship they previously had with him, noting that, when interviewed by Ms B in March 2020 (at which time they had not spent time with him for six months), each child reported having got along well with him and did not report feeling unsafe in either parent’s home. Counsel submitted that a further consideration to be weighed was that the children knew that Mr Meller was present in their mother’s home when they were not there and knew that he continued to interact with Z.

4. Counsel for the mother also submitted that Ms B’s concerns about the possible future impact on the children if they resumed spending time with Mr Meller and he was subsequently incarcerated could be met by making orders for supervised time that do not go as far as the mother proposed in the latter aspects of her proposal; she also submitted that the presence of one or both of the maternal grandparents in the home would support the mother and she would also be able to garner additional practical support from Mr Meller if orders were made in the terms she sought.

5. Counsel submitted that, whilst the father was concerned that reintroducing Mr Meller to the children before the finalisation of the criminal proceedings may cause them further upheaval (that is by reintroducing time only to remove it again if he is incarcerated), the mother’s proposal only involved limited changes for the children and the implementation of the same would, in essence, be driven in any event by the children’s willingness to engage with Mr Meller and their reactions to engaging with him.

6. Counsel also submitted that, if the Court was concerned with the phrasing of Mr Meller’s undertaking to use “reasonable endeavours” not to spend unsupervised time with the children, an order could be made to ensure that his supervised time with them not commence until he filed an undertaking in more directive terms (for example, one which replaced the phrase “will use all reasonable endeavours to ensure that” with the phrase “will ensure that”). It was also submitted that it was relevant to note that J’s mother has agreed to Mr Meller’s sons spending time with him under supervision at a Contact Centre and that his bail conditions had been changed to facilitate this and that, save as outlined earlier, the Department had not acted to prevent Mr Meller from spending time with Z or living at the home when X and Y were not present.

7. Counsel for the mother submitted that the Court would be persuaded that the mother’s proposal mitigated the potential the children may suffer emotional harm from being reintroduced to Mr Meller because she proposed that she would engage with the children’s counsellors and seek their guidance and assistance about how best to manage the reintroduction process. It was submitted, in essence, that the mother was seeking the opportunity to manage the children’s reintroduction to Mr Meller, guided by her observations of their reactions to him and that the Court would accept that, if she saw the children manifest distress, anxiety concern and/or upset in or about being reintroduced to and interacting with Mr Meller, she would manage the same in some way, including with the benefit of assistance from and input by G Services counsellors.

8. Counsel for the mother also submitted that the benefits in having the children reintroduced to Mr Meller now, rather than awaiting the conclusion of his criminal proceedings, included that they could be supported through the reintroduction process by their current counsellors. It was also submitted that the children had been engaged in developing protective behaviours and an awareness of how best to deal with any concerns they might have; that the Department was provided with the G Services progress reports and, as such, would be informed of any concerning developments. In a sense, Counsel for the mother submitted that, as the children had been engaged in the counselling process and had developed alliances with their counsellors from whom they could seek support if needed, now was as good a time as the future to reintroduce Mr Meller to them.

9. Counsel for the mother also submitted that the father’s actions in telling the children about the allegations Mr Meller was facing made it more important to reintroduce them to Mr Meller in a way that ensured that any risk that they might suffer harm as a result be minimised.

Is it in the children’s best interests to resume spending time with Mr Meller or to change to live in an equal-time parenting regime?

1. In arriving at my determination that it is not in the children’s best interests to be reintroduced to Mr Meller until the criminal charges he faces are finalised, I have taken into account the submissions made by Counsel for the mother, including those summarised above. Whilst others may disagree, I am not persuaded that it is in the children’s best interest to require them to reacquaint them with Mr Meller in circumstances where it is unknown whether he will be found guilty of the serious charges he faces and imprisoned. Given that the children have not spent any time or had any communication with Mr Meller since 31 October 2019, I am not persuaded that it is beneficial for them to be required to reacquaint themselves with him, where they may later be required to endure a further disruption to their relationship with him if he is imprisoned. The emotional distress and upheaval that they have experienced, as established by the evidence before the Court, persuades that it is not in their best interests to be required to undergo further likely distress and upheaval until it is known whether Mr Meller will remain available to participate in resumed in-person relationships with them or will become unavailable as a result of incarceration.

2. In arriving at this interim decision, I have not been persuaded to accord Mr Q’s assessment and/or opinion that he could see no reason why unsupervised time between the children and Mr Meller should not be reinstated particular weight because the same clearly proceeds on the implicit assumption that Mr Meller did not act toward J as she has alleged that he did.

3. I am also unpersuaded that it is in the children’s interests to move now to live in an equal-time parenting regime, given the terms of the existing interim parenting orders and that the mother’s position on a final basis is that the children’s best interests will be served by a continuation of their current parenting regime. I consider that, until Mr Meller’s charges are finalised, the priority should be to accord the children stability and certainty in their parenting regime, rather than to require them to accept changes to the same in circumstances where, depending on future events, new circumstances might persuade of the necessity to make further changes.  I am not persuaded that the children should be denied the opportunity to interact with Mr Meller’s children, with whom they have some relationships.

4. I am persuaded that the children’s best interests will be met by the making of an order which restrain their parents from discussing those matters particularised in the order to be made.

5. For the reasons expressed above, I make orders in the terms set out at the commencement of these Reasons.

I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 30 April 2021.

Associate:     

Date:              30 April 2021