Newberry and Newberry (No 2)

[2013] FamCA 462

FAMILY COURT OF AUSTRALIA

NEWBERRY & NEWBERRY (NO. 2) [2013] FamCA 462

FAMILY LAW – CHILDREN – With whom children live – With whom children spend time – Where the Mother does not have stable accommodation – Where there were allegations of sexual abuse of the children and of the Mother’s adoptive sister by the Father – Where the Mother resiled from pursuing or maintaining such allegations.

FAMILY LAW – CHILDREN – Parenting orders and credit issues surrounding Mother’s evidence – Witnesses objecting to giving evidence without certificates pursuant to s 128 of the Evidence Act 1995 (Cth).

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Evidence Act 1995 (Cth)

AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010)
Jones v Dunkel (1959) 101 CLR 298
MRR v GR (2010) 240 CLR 461
Sigley & Evor (2011) 44 Fam LR 439
U v U (2002) 211 CLR 238

APPLICANT: Mr Newberry

RESPONDENT: Ms Newberry

INDEPENDENT CHILDREN’S LAWYER: Ms Khushal

FILE NUMBER: BRC 11190 of 2011

DATE DELIVERED: 14 June 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 27, 28, 29, 30 and 31 May 2013 and 5 June 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMillan SC with her Mr Northcott

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

COUNSEL FOR THE RESPONDENT: Mr Shoebridge

SOLICITOR FOR THE RESPONDENT: Lillas & Loel Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Bridges Family Law Specialists

Orders

1. All previous parenting Orders be discharged.

2. The Father shall have sole parental responsibility for the children M NEWBERRY born on … December 2006, L NEWBERRY born on … February 2008 and R NEWBERRY born on … September 2009.

3. Prior to making a significant decision about any such issue of parental responsibility the Father shall:

   (a)use his best endeavours to advise the Mother in writing of the decision intended to be made;

   (b)       seek the Mother’s response in relation thereto;

   (c)consider, by reference to the best interests of the children, any such response prior to making any such decision; and

   (d)advise the Mother in writing as soon as reasonably practicable of his ultimate decision.

4. Each parent is to be responsible for the daily care, welfare and development of the children when the children are living with or spending time with that parent.

5. The children shall live with the Father.

6. The time the children spend and communicate with the Mother shall be as agreed in writing between the parents but in the absence of agreement shall be as follows:

   (a)each alternate weekend with the Mother to collect the children from their school(s) at the conclusion of the school day until 6.00pm on Sunday with the Mother to return the children to the Father’s residence at that time.

   (b)for one half of each school holiday period (as defined in these Orders) with the Mother to spend time with the children in the first half of all such holiday periods which commence in even numbered years, however:

   (i)until the child R commences attending grade one schooling, during the Christmas holiday period the children shall spend time with each of the parents on alternate weeks with the changeover to occur on the Sunday at 6.00pm in each week;

   (ii)if the children are to spend time with the Mother on Christmas Day during the school holiday period pursuant to the foregoing Orders, then the children shall spend time with the Father from 2.00pm on Christmas Day until 6.00pm on Boxing Day with the Father to collect the children from and return the children to the Mother’s residence;

   (iii)if the children are to spend time with the Father on Christmas Day during the school holiday period pursuant to the foregoing Orders, then the children shall spend time with the Mother from 2.00pm on Christmas day until 6.00pm on Boxing Day with the Mother to collect the children from and return the children to the Father’s residence.

   (c)on Tuesday and Thursday afternoon each week, the Mother is to spend time with the children with the Mother to collect the children from their respective schools at the conclusion of the school day and to deliver the children to the Father’s residence at 6.00pm that day;

   (d)in the event that Easter is not part of a school holiday period then the children shall spend time with the Mother from 1.00pm Easter Sunday to 6.00pm on the day prior to the start of school after Easter; 

   (e)by telephone between 5.00pm and 6.00pm on the Saturday of the weekend when the Mother does not spend time with the children;

   (f)if the children are not otherwise spending time with the Mother on Mother’s Day then notwithstanding any contrary provisions in these Orders the children shall spend from 9.00am to 6.00pm on Mother’s Day with the Mother;

   (g)if the children are not otherwise living with the Father on Father’s Day, then the children shall be returned to the Father at 9.00am on Father’s day and the Mother’s time with the children that weekend will conclude at that time; and

   (h)if the children’s changeover is to be at school then that shall be the place of changeover but if the Orders are otherwise silent about the place of handover then if the children are living with the Father and are to transfer to the Mother the changeover shall be at the Father’s residence and if the children are spending time with the Mother and are to transfer to the Father then the changeover shall be at the Mother’s residence.

7. Orders 6(a), (b) and (d) hereof are suspended until the Mother produces to the Father’s solicitor and the Independent Children’s Lawyer proof of her having a permanent residence by providing a copy of a tenancy agreement or lease duly signed by the landlord in her name as tenant, or if in the name of another as tenant, accompanied by a letter from that tenant authorising the Mother (and the children) to reside in the home.

8. From the time the Mother first produces the proof referred to in Order 7:

   (a)the Mother shall thereafter forthwith inform the Father on any occasion where she does not have permanent residence within the meaning of Order 7; and

   (b)Orders 6(a), (b) and (d) hereof shall be suspended during any such period or periods that the Mother does not have such permanent residence and shall revive in their operation upon the Mother producing proof (within the meaning of Order 7) to the Father of her again having obtained and having such permanent residence.

9. During periods when Orders 6(a), (b) and (d) hereof have been suspended pursuant to Order 7 or 8, the Mother is to spend time with the children, in addition to the time provided in Order 6(c), each alternate Saturday and Sunday from 10:00am until 3:00pm.

10. Orders 6(a) and (c) shall be suspended during school holidays and the time provided for in Order 6(a) shall resume:

    (a)when the children spend time with the Mother in the first half of the school holiday period on the first weekend following the resumption of the school term;

    (b)when the children spend time with the Mother in the second half of the school holiday period on the second weekend following the resumption of the school term; and

    (c)when the children spend time with the Mother on the alternate week arrangement before the child R commences grade one, as per Order 6(b)(i), on the next alternate weekend; 

    and Order 6(c) shall resume on that basis.

11. When the children are spending time with the Mother during school holiday periods the Father shall communicate with the children at the same times and on the same terms as is provided for in Order 6(e).

12. Both parents shall be noted as enrolling parents and emergency contacts at the children’s day-care, school and extra-curricular activities.

13. This Order constitutes an ongoing authority to the children’s school(s) to provide to each of the parents copies of school reports and other documents or correspondence mailed to any other parent of a child attending that school and will include all formal notifications relating to either child concerning disciplinary matters or action and or changes or decisions relating to each child’s academic progress.

14. This Order constitutes an ongoing authority to the children’s school(s) for either of the parents to attend the school if requested or invited to attend at the school to discuss the children’s progress at any time including but not limited to parent/teacher interviews/evenings and any other event to which the parents of children at the school are ordinarily invited to attend.

15. In the event the school contacts or otherwise advises the Mother or Father about a significant issue concerning the children including their behaviour at school involving their teachers, their peers, or their progress then that parent shall notify the other as soon as reasonably practicable (but within seven (7) days in any event) of the details of the notification and the concern and the other parent is authorised to contact the school to discuss the matter directly.

16. The parents are hereby restrained by themselves their servants and agents from:

    (a)denigrating the other or any member of the other’s family or household to or within the hearing of the children; and

    (b)discussing these proceedings or any issues between the Father and the Mother with or in the hearing of the children nor permitting the children to view any document containing information relating to these proceedings or any issue between the parties.

17. The parents will:

    (a)keep each other informed at all times of their respective residential address and current email address and telephone number to enable communication between each other and the children; and

    (b)notify each other within 24 ours of any change of email address or contact telephone number (including mobile and landline phones).

18. Each parent will advise the other parent of any significant illness, accident or injury suffered by the children and any significant medical treatment provided to the children as soon as reasonably possible.

19. The Father will keep the Mother informed of the names and address of any treating medical or other health practitioners who treat the children from time to time.

20. This Order constitutes authority for either parent to communicate with the children’s medical or other health practitioners and to request from them such information relating to the children’s health and/or treatment as that parent may desire and at that parent’s cost.

21. The Mother be restrained and an injunction issue restraining her from referring to the children by a name other than (in respect of each child):

    (a)       M Newberry;

    (b)       L Newberry;

    (c)       R Newberry. 

22. The Mother be restrained and an injunction issue restraining her from seeking that any of the children consult with or seek treatment from:

    (a)       a medical practitioner;

    (b)       an allied health worker;

    (c)       a counsellor or therapist;

    unless in the case of a life threatening or other significant medical emergency or routine medical appointment, without the Father’s written consent first being obtained.

23. For the purposes of these Orders:

    (a)‘school holidays’ means the gazetted school holiday period for the State of Queensland if the children attend a state school and means the school holiday period determined and published by the children’s school if the children attend a private school;

    (b)school holidays shall be deemed to commence on the day immediately after the last day of the previous school term and shall end on the day immediately prior to the commencement of the next school term; and

    (c)in order to calculate the length of ‘half’ of the school holiday period, the number of nights in the school holiday period shall be used and divided. In the event that there is an uneven number of nights, then the parent who is entitled to spend the first half of the school holiday period with the children shall be entitled to include the ‘extra’ night.

24. Any notice required to be given by one parent to the other shall be deemed to have been given and received if sent in writing to the residential address of the other, or by SMS text message sent to the mobile telephone number of the other, or by email sent to the email address of the other, as advised by the parents pursuant to Order 17 hereof.

25. The Independent Children’s Lawyer is directed to forward to the Department of Communities, Child Safety and Disability Services, the child safety office and any other officer authorised by the Director General:-

    (a)       a copy of these Orders;

    (b)a copy of the Reasons for Judgment upon which these Orders are based; and

    (c)a copy of the Family Reports of Mr J and Ms B and filed herein;

    within three (3) weeks from the date of these Orders.

26. Each party have liberty to apply to this Court on the giving of seven (7) days notice in writing to the other in relation to the implementation and interpretation of these Orders.  

27. Upon the Mother providing the proof as referred to in Order 7 and the Independent Children’s Lawyer complying with Order 25 the Independent Children’s Lawyer is discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11190  of 2011

Mr Newberry

Applicant

And

Ms Newberry

Respondent

REASONS FOR JUDGMENT

1. M Newberry born in 2006 aged six years, L Newberry born in 2008 aged five years and R Newberry born in 2009 aged three years (“the children”) are the subject of competing applications for parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) by each of their father, Mr Newberry (“the Father”), their mother, Ms Newberry (“the Mother”) and the Independent Children’s Lawyer (“the ICL”) appointed pursuant to s 69L of the Act to independently represent the children’s interests in these proceedings.

2. The Father is 41 years of age having been born in 1972. For some years the Father has resided in a five bedroom home at G, a residential suburb located south-west of Brisbane. The children are familiar with this home having spent significant amount of time there.

3. The Father is tertiary educated holding bachelor degree qualifications in three disciplines. He is the part owner of a small business. The nature of the business is such that the Father’s work arrangements are flexible in that he spends two or three days per week at the office of the business and otherwise is able to work from home.

4. The Mother is 35 years of age having been born in 1977 in the United States of America. The Mother is not in employment and as at the conclusion of the evidence at trial on 5 June 2013, the Mother was temporarily living with friends at an address she could not bring to mind and agreed that she could rightly be described as a person currently of no fixed abode.

5. The Mother has a daughter from a previous relationship, S, born in 1999 now aged 14 years. Relevantly the Mother also has an adoptive sister, Y, who turned 15 years of age in December 2012. Y resides with the Mother’s parents, Ms E and Mr E (“the maternal grandparents”) in the United States of America. The Mother has lived in Australia since about 2004 following her marriage to Mr P, her former partner.

6. The parents met via an online dating site in December 2005. They commenced cohabitation in March 2006. They never married but the Mother changed her surname during the course of their relationship to “Newberry”.

7. On the Father’s version, the parties first separated in July 2008 but there were various reconciliations and subsequent separations following that time with the parties cohabitating for months at a time. On his version, final separation was in December 2010 but the relationship was not irretrievable until 4 January 2011 when he found out that the Mother’s then partner at that time, Mr D, had commenced residing with the Mother and the children. On the Mother’s version, the parents’ relationship was irretrievable as of June 2009. An example of the fluidity of the parents’ relationship is that whilst the Mother applied for a protection order on 10 February 2011 (which application was subsequently dismissed), on 22 May 2011 she asked the Father if she and the children could return to the property at G and that in fact occurred from 22 May 2011 until July 2011.[1]

   [1] See Notice to Admit Facts filed 7 May 2013 and Notice Disputing Facts in Exhibit 4 at [19], [20], [22] and [23].

8. It would seem that on the version of either parent, the periods of their cohabitations overall were relatively brief and punctuated by separations. It would seem that their relationship was largely dysfunctional and difficulties were compounded by their involvement in the commercial arrangements surrounding the C Company involving the maternal grandparents.

9. Taken from the first family report prepared by Ms B, psychologist, it would seem that post-separation the Mother reported that she had some issues about the Father allegedly favouring M and being somewhat unfair to her daughter S. The Mother perceived the Father as being regimented in his approach to parenting.

10. For his part, it seems that the Father reported having concerns about the Mother introducing a series of men into the lives of the children. He also was concerned about what he perceived to be the Mother’s lack of attention to the educational needs of her daughter S and was concerned about her capacity to provide for L’s particular needs.

11. The child L has global developmental delay. Historically she has been diagnosed with mild receptive language disorder and a significant expressive language disorder. She has been assessed as having delayed fine motor skills. Historically the possibility was suggested that she has an Autistic Spectrum Disorder although it appears that paediatric opinion of, for example, Dr W, is to the effect that this is unlikely.

12. At a speech pathology assessment carried out in January 2013 L appeared to the speech pathologist, Ms N, as severely underweight. Ms N recommended that L should consult with a dietician urgently “as she appears frail and appears to lack sufficient muscle strength to support her growth and fine motor development and recover from her injuries and resulting surgeries to her leg.” The reference to “injuries” is to an event in mid-2012 that will be discussed later.  

13. Ms N assessed L’s speech to be moderate-severely delayed and it was noted that L’s expressive language had not statistically improved over the previous eleven months. L was assessed as continuing to have a severe expressive language delay and that her receptive language was falling further behind that of her peers.

14. The child L’s then overall score composite placed her in the tenth percentile meaning that 90 per cent of her peers were functioning at a higher level than she. Ms N opined:

    This categorises [L] as having a Severe Language Delay and she is at risk for ongoing learning difficulties if this is not rectified.

15. Reference in that report is made to it being pressed upon the Mother the benefits of consistent therapy and daily home practice and it was noted that when L was attending weekly speech therapy she showed the ability to learn new skills. The report records:

    When [L] was attending weekly speech therapy, she showed the ability to learn new skills and she temporarily transferred these skills to her spontaneous speech and language. She showed improvements in her ability to complete homework tasks and improvement of such skills was evident in her therapy sessions. This improvement has not been maintained over the past six months and her mother has not continued with therapy other than to attend the one assessment session. [L’s] mother has agreed to allow me to continue to provide weekly treatment sessions for [L] at her school this year if her father is willing to pay for such therapy sessions to which he has agreed.

1. From an occupational therapy perspective L was assessed by Ms T, a paediatric Occupational Therapist, to have underlying low muscle tone and motor planning difficulties were contributing to her performance.

2. The Father has also raised both currently and historically concerns about the Mother’s parenting style and in particular, what he perceives to be a lack of appropriate supervision. He points to accidents and injuries sustained by the children L and S as evidence of this.

Procedural History

1. On 10 February 2011 the Mother applied for a protection order. This was apparently in response to an incident in which the Father retained the children in his care due to his alleged concerns that because of the Mother’s financial difficulties at the time she might abscond to the United States of America. A temporary protection order was made which was later dismissed.

2. In March 2011 the parties privately funded the first family report prepared by Ms B, psychologist. That report was published on 23 May 2011. In summary Ms B recommended that the parents have equal shared parental responsibility and work towards a shared care regime.

3. It seems that following Ms B’s report there was an informal agreement between the parents whereby the children spent approximately equal time with each of them.

4. On 12 December 2011 the Father urgently filed an application in the then Federal Magistrates Court because he had become concerned that the Mother was attempting to obtain passports for the children to travel to the United States of America.

5. On the first return date of that application, on 1 February 2012, the parents consented to interim Orders providing for the children to live with each parent for seven nights per fortnight and with an Order for a further family report.

6. On 8 May 2012 Ms B published the second of her reports. She again recommended that the parents have equal shared parental responsibility for the children and that shared care be continued.

7. Ultimately, the dispute with respect to parenting arrangements was settled by consent Orders on a final basis made on 12 June 2012. Those Orders were made with the benefit of the family reports dated 23 May 2011 and 8 May 2012 provided by Ms B referred to. Those Orders provided for equal shared care on a week about arrangement.

Events Leading to Current Trial

1. Unfortunately the arrangements settled upon as reflected in the consent Orders of 12 June 2012 were in place for only a brief period before further disputation between the parents arose after several incidents.

2. First, on 19 June 2012 L was admitted to hospital following an accident involving a horse. She sustained a lacerated chin, a fracture of the left femur, a fractured mandible and other injuries. The accident involved L being kicked by a horse. The Mother was not at home at the time of the incident and contacted a neighbour to check on the children. That neighbour was Mr U whose affidavit was filed before me in the Father’s case. He was not required for cross-examination. When he attended at the Mother’s property on 19 June 2012 immediately in response to the Mother’s call, S told him that L had walked behind “… a rescue horse which kicked her into a fence.”

3. Mr U further deposes:

   While we waited for the ambulance, [S] explained the incident causing [L’s] injuries to me in greater detail. She told me that [L] had walked behind the rescue horse near the fence and the horse just kicked her. [S] told me that [L] went flying through the air.

4. Apart from Mr U, whose evidence I accept, Ms H (then a tenant at the Mother’s property) has also confirmed that the horse involved was a “rescue” horse explained as a horse recovered from impoverished circumstances. Throughout these proceedings the Mother has maintained that there was no “rescue” horse involved presumably because she understood the added ramifications for her lack of supervision if a horse of unknown propensities was involved in the accident as compared with S’s horse and the pony the family kept at the time. I find this to be one example of the Mother’s capacity for untruthful evidence, and to adhere to such untruths despite overwhelming evidence to the contrary.

5. The accident involving L had added significance for the Father because of previous history of accidents involving horses concerning S.

6. The circumstances surrounding the injuries to L were investigated by the Department of Communities, Child Safety and Disability Services (“DoCS”). It seems this investigation came about because the Father spoke to a social worker at the hospital to which L was admitted about the injuries in the hope that he might have them discuss supervision issues with the Mother. It seems that the hospital reported the matter to DoCS who undertook the investigation. However, it would seem that the Mother perceived that the Father had made the report directly to DoCS.

7. Thus it occurred that during the course of the investigation by DoCS regarding L’s accident the Mother raised with DoCS her alleged concerns about disclosures that the child M had allegedly made about inappropriate sexual conduct by the Father.

8. On the Mother’s case, M began to refuse to readily visit the Father in February 2012 and began to engage in what may be described as sexualised behaviours. On the Mother’s assertion, in June 2012 after she had collected M from the Father, M made disclosures to the effect that she had “…licked Daddy’s peepee.”

9. According to the Notice of Child Abuse filed by the Mother on 30 August 2012 M had alleged that the Father had touched her in the vagina and had also touched L and R in the vagina. The Notice includes the allegation that “…[M] stated she licked her daddys peepee.”

10. On the Mother’s case she did not initially treat M’s alleged disclosures as serious and it was only when in August 2012 her adoptive sister, Y, made statements implicating the Father in sexual abuse of Y that the Mother reassessed her beliefs about M’s statements.

11. More will be said below about the alleged disclosures by Y but suffice to note here that prior to any statements or disclosures she later may have made Y had learned about M’s allegations implicating the Father whilst hearing her own parents talk about that in the United States. Subsequently Y allegedly disclosed that when she was ten or eleven years of age, the Father had sexually abused on an occasion more than three years previously when Y was in Australia.

12. It seems that it was on 7 August 2012 that the maternal grandmother filed a complaint with US police to the effect that the Father had sexually assaulted Y. At about that time the Mother again contacted DoCS and the local Police Station. At the same time she suspended further time between the children and the Father.

13. The effect of the allegations being made was that the Father did not spend time with the children for some three months. In that period the Mother took M to Bravehearts for counselling on the premise that M was a victim of child sexual abuse. Later in August the Mother again took M to the Police but again M made no disclosures and in fact M denied ever licking the Father’s “peepee”.

14. By Order made on 31 August 2012 in the Federal Magistrates Court (as it then was) the proceedings were transferred to the Family Court with a request that they be considered for inclusion in the Magellan list.

15. On 21 September 2012 Registrar Brooks made Orders including an order that the matter be designated Magellan; requesting the intervention of DoCS in the proceedings; that the interests of the children be represented in these proceedings by an Independent Children’s Lawyer and that the matter otherwise be listed for mention on 19 October 2012.

16. On 19 October 2012 the Mother did not appear before Justice Forrest nor was she contactable by telephone. Procedural Orders were made and the Father’s then application in a case was listed for hearing on 15 November 2012. By 15 November 2012 the Father had been advised by DoCS and the Queensland Police Service that neither agency had substantiated the allegations made by the child M and the Father had received advice from Detective A of the Queensland Police Service that he would be recommending no action be taken against the Father in relation to the allegations made by Y.

17. On 15 November 2012 the Father’s application in a case was heard before Principal Registrar Filippello. Orders were made by consent allowing the Father two hour visits each Monday and Friday to take place at F Child Care Centre and be supervised by staff of the centre.

18. On 5 December 2012 Registrar Brooks made directions for the trial of these proceedings.

19. On 21 March 2013 the Father’s application for interim residence of the children was heard before Principal Registrar Filippello. Orders were then made by consent for the Father to commence having split week time with the children and during those periods the paternal grandparents were to reside with the Father at his residence.

20. On 27 May 2013 the trial proceeded before me for five days with further evidence being taken on Wednesday 5 June together with the parties’ final submissions.

21. Whilst, as already referred to, the matter was designated Magellan because of the Mother’s allegations of sexual abuse of the children, in the end result the Mother did not persist with any case to the effect that the Father posed an unacceptable risk of sexual abuse of the children the subject of these proceedings. Less clear was the Mother’s position as regards Y’s alleged disclosures, at least in terms of the Mother’s beliefs or perspectives upon that issue, but nevertheless the Mother ultimately was not pressing for any finding to the effect that the Father had sexually abused Y.

Parties’ Proposed Orders as Ultimately Advanced

1. Each of the parents ultimately proposed orders which differed from their respective positions from time to time during the currency of these proceedings.

2. Most significant to the final orders proposed by each of the parties in final submissions is the fact that as at the conclusion of the trial the Mother had not secured accommodation for herself suitable for the children’s needs. She was living temporarily with friends. The accommodation she had proposed to obtain with the assistance of an alleged friend, Mr K, had not come to fruition and it is something of an unknown as to when or if the Mother will re-establish herself.

3. Thus one fundamental issue in terms of the orders sought by each party surrounded the question of the Mother’s accommodation. For reasons which will be discussed, each of the Father and the ICL have significant reservations about the Mother’s demonstrated history of fraudulently obtaining tenancies via identity fraud and subsequent non-payment of rent leading to the Mother having to decamp or being evicted.

4. The Father’s proposed orders ultimately are those set out in Exhibit 30 although the Father did not pursue order 17.3 about publication of the orders and reasons to Bravehearts in the course of submissions.

5. In summary, the Father’s proposal is that he have sole parental responsibility for the children and for the children to live with him. He proposes that, until the Mother can demonstrate proof of suitable accommodation, the children spend time with the Mother each alternate Saturday from 10:00am until 3:00pm and each Wednesday from after school (or 3:00pm on a non-school day) until 6:00pm that evening.

6. Upon the Mother demonstrating that she has secured accommodation the Father’s proposal would see the children spending time with the Mother each alternate weekend from after school on Friday until 5:00pm on Sunday as well as each Wednesday evening.

7. Other detailed provisions are contained within the final orders sought by the Father.

8. For her part, the Mother ultimately proposed as her primary position that orders be made effectively reinstating the position that was reached by the consent orders made on 12 June 2012 for week about care arrangements. The Mother also contended for an order for equal shared parental responsibility.

9. In the alternative, the Mother contended that if orders were made along the lines contended for by the ICL there should be some expansion of the time she could spend with the youngest child, R, given R’s age and that the provisions where the ICL allows for after school time be extended to being for overnight periods.

10. The orders proposed by the ICL were admitted and marked as Exhibit 29. Counsel for the ICL acknowledged that there may need to be some flexibility about mid-week periods in terms of the actual days or times those occur having regard to the children’s extra-curricular activities but essentially the ICL emphasised the need for the children to spend regular and frequent time with the Mother.  That is, one key difference between the ultimate orders proposed by the ICL and by the Father is the frequency of time with the Mother.

Credit Issues

1. These are child-related proceedings within the meaning of Division 12A of the Act. Whilst there had been some exchanges of lists of objections to evidence I determined at the outset of the trial that section 69ZT(1) of the Act applied.

2. I accept the Mother’s description of herself during her cross-examination that she is an habitual liar. That admission by the Mother has obvious ramifications for the Mother’s case and the resolution of disputed issues of fact where the Mother relies only upon her own uncorroborated evidence in advancing her case.

3. Whilst I initially granted the Mother a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) concerning one aspect of her evidence, and a subsequent further such certificate concerning another, it became obvious as cross-examination progressed that there were so many areas or aspects of the Mother’s evidence under cross-examination where her evidence might tend to prove her commission of offences or her liability for civil penalties that it was necessary to grant the Mother a s 128 certificate in respect of the whole of her evidence.

4. For reasons which follow, I find the Mother to be a witness devoid of credit. I find her to be untruthful not simply in relation to minor issues of detail or issues at the periphery of importance; I find her to be a witness who will manufacture lies of even a gross kind in terms of the potential impact of those lies whenever it suits the Mother’s purpose and no matter how important the subject matter.

5. For further reasons which follow I find the Mother has caused, by inducement of one kind or another, other persons to advance from time to time false evidence in support of the Mother at her behest either to advance or defend the Mother’s position.

6. I find that part of the Mother’s propensity for deception lies in her historical pattern of conduct whereby she entices men to forfeit, for her benefit, sums of money and to then discard them when they are no longer financially viable or useful to her.

7. It is unnecessary to the determination of the issues to be resolved in these proceedings for the Court to identify and expose each and every respect in which the Mother’s deceit can be demonstrated or to resolve each and every aspect raised on the evidence where the Mother’s credit is put in issue. It suffices to record what follows as supporting the principal findings outlined above.

8. As already noted, the Mother admitted in evidence to being an habitual liar. She likewise made that admission during her cross-examination in contested domestic violence proceedings in the Brisbane Magistrates Court in February 2013. That admission was made in the context of the Mother falsely claiming, when interviewed by Ms B, psychologist, in March 2011 for the first of Ms B’s family reports, that she had acquired a Bachelor degree of Business Management from the University of Oregon as well as a Masters degree in Corporate Business. The Mother has no such qualifications.

9. It is to be noted that in her evidence in those domestic violence proceedings, the Mother attempted to blame the Father for lying about her degree qualifications. She gave evidence to the effect that the Father wanted staff, including the Mother, of the C Company to promote themselves by falsely claiming qualifications they did not have. The difficulty for the Mother with that contention is that it does not explain why the Mother lied to Ms B in the context of the family report referred to. This is but one example of the Mother’s preparedness to lay blame at the feet of the Father or others for lies she is caught telling. I reject the proposition that the Mother was habituated to lying because of anything done by the Father.

10. Mr Z was in a relationship with the Mother which broke down in about December 2008. He successfully sued C Company and obtained an enforcement order against the Mother and her father, Mr E, for $132,852.

11. In the course of these proceedings the Father alleged in an affidavit that the Mother had fabricated an allegation against Mr Z to the effect that he had sexually assaulted the Mother’s oldest daughter, S. The Father asserted via affidavit that the Mother had made that allegation in the course of an interview with Electrical Safety Inspectors on 12 March 2010 relating to allegations that Mr E had illegally wired some of the stores operated by the C Company.

12. The Father deposed that he had never previously discussed the allegations against Mr Z with the Mother nor had she told him of the allegations prior to the interview with the Inspectors.

13. The Mother swore two affidavits, one on 15 November 2012 and one on 18 December 2012, denying the Father’s claims in this respect. Indeed in the first of these affidavits the Mother swore:

    I deny [the father’s] claims and delusions that I have ever made any accusations of any kind of sexual abuse against [Mr Z] during any interview. I was emotional about the breakup, but [the father’s] claim is untrue and unsubstantiated. 

14. In the latter affidavit the Mother swore, “I have never made any accusations of any kind of sexual abuse against Mr [Z] during any interviews.”

15. Thus it can be seen that when first raised by the Father, the Mother not only denied any such allegations but went so far as to accuse the Father of being delusional in advancing them.

16. However, when the Mother repeated her denials in the hearing of the domestic violence proceedings she was confronted with audio recordings of the subject interview obtained by the Father and Exhibit 24 in these proceedings comprises a typed transcript and the audio recording of the interview on 12 March 2010.

17. That establishes that the Mother indeed told the Electrical Safety Inspectors who undertook that interview that Mr Z had acted inappropriately with S. The audio recording reflects that to give this false assertion an added touch of authenticity the Mother relayed the information in a crying type or emotional voice.

18. The Mother advanced this information to the Electrical Safety Inspectors on the premise that Mr Z had some axe to grind with Mr E because it was also advanced that Mr E had intervened and confronted Mr Z about his conduct. Of course that was fanciful as no such conduct occurred.

19. Confronted with the hard evidence obtained in the form of the audio recording, the Mother had to admit in the domestic violence proceedings that the allegation that Mr Z acted inappropriately with S was completely false. She then reverted to a version that the Father had put her and her own father, Mr E, up to advancing this allegation.

20. The Mother went so far in the interview with the Inspectors as to suggest that Mr Z had abused his own daughter and that his own daughter was seeing a psychologist ever since such abuse occurred. The Mother also asserted to the inspectors conducting the interview that she had requested that Mr Z undertake a “holograph” (presumably meaning a polygraph) test.

21. Thus to defend her position and that of Mr E the Mother was prepared to advance, falsely to her own knowledge, an horrendous allegation against Mr E in the formal setting of that interview.

1. As I accept the Father’s evidence that he knew nothing about this until it was advanced by the Mother and Mr E in the interview, the Mother’s credit is further eroded (if that be possible) by her attempts to lay blame at the feet of the Father for her having made these allegations in that interview. The same can be said of Mr E who did likewise.

2. Mr P provided affidavit evidence in the Father’s case and was cross-examined at trial. Mr P sponsored the Mother’s travel and that of S from the United States of America to Australia and he married the Mother in May 2004. He established the C Company and invested a substantial amount of money in the business through loans over time.

3. Mr P’s marriage to the Mother broke down in later 2005/early 2006. Mr P had adopted the Mother’s oldest child, S.

4. I accept Mr P’s evidence. Whilst I accept Mr P’s evidence I make it clear that I do not place any weight upon paragraph 15 of his affidavit given the nature of that hearsay evidence and the nature of the allegations advanced in that evidence.

5. It follows from acceptance of Mr P’s evidence that I find that the Mother falsely accused Mr P of a number of serious things. First, during the marriage breakdown she falsely accused him of rape. She also falsely alluded to and threatened Mr P with allegations that he had sexually abused S as well as both of the Mother’s adoptive sisters, Y and X. She also falsely accused him of misappropriating funds from the C Company.

6. I reject the Mother’s denials of Mr P’s evidence.

7. The evidence concerning Mr P and Mr Z demonstrates that the Mother is quite prepared to falsely make allegations of sexual abuse to achieve her ends.

8. Mr D provided affidavit evidence and was cross-examined at trial. He was in a relationship with the Mother for a relatively short period between December 2010 and May 2011. Mr D impressed me as an unsophisticated and guileless person. I accept his evidence. It follows that I accept that:

   a)the Mother persuaded Mr D to borrow $116,000 for her benefit plus take out a credit card used for her benefit. She also had him pay money for a franchise in the C Company which he apparently never received the benefit of. Mr D could not afford these debts and they lead to his bankruptcy;

   b)the Mother represented to Mr D’s mother and step-father, Mr and Mrs MM, that a $100,000 deposit paid towards the purported purchase of a 50 per cent interest in the C Company would be refunded in the event Mr and Mrs MM were unable to secure finance to complete the purchase. When finance was not secured the Mother refused to refund the deposit, leading to the end of Mr D’s relationship with the Mother; and

   c)Mr D observed the Mother to be in possession of a number of obviously fraudulent passports or copies of passports bearing the Mother’s photograph but with different names.

9. I accept the evidence of Mr AD and Dr KN which establishes the Mother’s fraudulent conduct in securing the tenancy of the property at O for the ten month period between late October 2011 until August 2012. That conduct included the Mother providing false documentation including a false driver’s licence and a lease agreement with forged signatures as well as a fraudulent copy Telstra bill in the name of Dr KN.

10. I accept Mr AD’s evidence that the Mother falsely declared at the hearing in August 2012 before the Queensland Civil and Administrative Tribunal (“QCAT”) that she did not recognise any of the signatures appearing on the original tenancy lease agreement which was the same lease agreement that the Mother had personally handed to Mr AD at the commencement of the tenancy.

11. I accept Mr AD’s evidence to the effect that by falsely securing the tenancy the Mother obtained a financial benefit for herself in that she failed to pay a substantial amount of rent but had the benefit of the accommodation. She also caused a significant amount of damage to the subject property.

12. Dr KN was permitted to give evidence via video link. I am satisfied on Dr KN’s evidence, which I accept, that the Mother and her father Mr E effectively defrauded Dr KN of $150,000. I am satisfied that the Mother admitted to Dr KN that she had forged his signature on a contract without any authority to so do.

13. I am satisfied that the Mother fraudulently included Dr KN’s details for inclusion in the rental agreement negotiated with Mr AD.

14. I am satisfied that the Mother sought to have Dr KN swear false evidence in an affidavit she produced for him to sign for the purpose of these proceedings.

15. I am satisfied that the Mother falsely claimed to police that she had the permission of Dr KN as owner to remove property from the C  Company premises located at HP.

16. I accept the evidence of Ms EW that the Mother persuaded Ms EW to attend at the office of her then solicitor, Doug Mclelland to provide a false statement concerning the Father. It is submitted on behalf of the Mother that the Court would not accept Ms EW’s evidence given her admission of her preparedness to sign a false statement or statements at the behest of the Mother. However, it was open to the Mother to call Mr Doug Mclelland, her previous solicitor, if she wished to challenge Ms EW’s evidence that Ms EW later contacted Mr Mclelland’s office repeatedly and Mr Mclelland himself to retract her statement.

17. I accept Ms EW’s evidence that in March 2012 the Mother admitted to Ms EW that she was keeping the children up late that night and not feeding them properly because she wanted the girls to misbehave for the purpose of family report interviews to take place the following day.

18. Each of Ms I, Mr G and Ms H objected to giving evidence within the meaning of s 128 of the Evidence Act without the grant of a certificate under that section. I granted such certificates to each of these witnesses as a result of which each of them provided affidavits correcting earlier affidavits and gave oral evidence under cross-examination.

19. I do not accept the submissions on behalf of the Mother to the effect that the witnesses Ms I and Ms H have resiled from their previous evidence and filed their current affidavits motivated by spite or some agenda or axe to grind against the Mother or, in the case of the witness Mr G, out of loyalty to his partner, Ms H.

20. Each of these witnesses impressed me as recognising the seriousness of the step each was taking to correct the record and the seriousness of them having previously advanced evidence to support the Mother which they knew to be false. Those features give credence, in my judgment, to the affidavit and oral evidence they provided as at the trial.

21. I accept the collective evidence of each of these witnesses to the effect that the Mother had earlier actively enlisted each of them separately to provide false evidence to support her case. That included the grave step of enlisting Ms I as a witness to alleged disclosures of sexual abuse by M when such evidence was false.

22. I accept Ms I’s evidence that M never disclosed to her that M’s father had touched her inappropriately and I find that the Mother included that detail in an earlier affidavit the Mother prepared for Ms I knowing that to be false. I accept the Mother persuaded Ms I to bear witness to such an allegation by convincing Ms I that the children were in need of protection and because she could not obtain the assistance of another person who had actually, according to the Mother, witnessed alleged disclosures.

23. I accept Ms I’s evidence that one of the affidavits previously prepared by the Mother and purporting to bear her signature was not in fact signed or sworn by Ms I.

24. I accept Ms I’s retractions of previous evidence previously attributed to her in affidavits prepared for her by the Mother.

25. I find Ms I’s affidavit evidence as contained in the affidavit filed 27 May 2013 all the more credible given that whilst she has corrected the record so far as previously false information or evidence is concerned she has not resiled from some comments or criticisms unfavourable to the Father. That is, it is a balanced account and credible for that reason.

26. I accept Ms H’s evidence as contained in her affidavit filed 27 May 2013 and the numerous corrections it contains as to her earlier evidence. In particular, I note paragraph 12.12 where Ms H retracts many previous allegations contained in an affidavit or affidavits prepared by the Mother conveying the false impression that Ms H was witness to many statements or behaviours of the children implicating the Father in inappropriate sexual conduct with the children.

27. I also refer in particular to Ms H’s correction of the record concerning the child L’s accident involving as she says a rescue horse. I note that Ms H’s version in her affidavit and oral evidence that a rescue horse was involved is corroborated by the unchallenged evidence of Mr U. I also accept Ms H’s evidence that neither she nor Mr G were supervising L at the time of accident as they were not asked to do so.

28. It follows from my acceptance of Ms H’s evidence that the Mother falsely enlisted Ms H as a witness to allegations of sexual abuse concerning M and L. I accept her evidence that she witnessed the Mother creating false documents including a false licence and false passport.  

29. Mr G provided evidence, which I accept, corroborating that, contrary to the Mother’s contention, L’s accident on 19 June 2012 was in fact caused by the rescue horse and that L was not being supervised by an adult at the time. The child L was then only four years of age with the difficulties already referred to.

30. Moreover, like the other witnesses, Mr G’s evidence confirms that the Mother prepared affidavits containing knowingly false information. I accept Mr G’s numerous corrections to what he describes as “inaccuracies” in previous affidavits. I also accept that he did not sign or execute the affidavit bearing his signature given by the Mother to the Queensland Police Service as referred to in paragraph 7 of Mr G’s affidavit and the obvious inference is that it was created by the Mother.

31. I accept Mr G’s evidence that each of the children R and M have suffered injuries from dogs kept in the household which injuries the Mother has alleged came about in different circumstances.

32. Importantly, I accept Mr G’s evidence of overhearing the Mother saying to S that she needed to allege that the Father had molested her. That is, I accept the Mother was encouraging her daughter S to make a false allegation of the gravest kind against the Father.

33. I accept Mr G’s evidence as to observing what are obviously false passports bearing the Mother’s photographs but containing different names.

34. Mr G acknowledged in cross-examination that he had not actually seen S driving on the highway (as opposed to driving on the road) with the children in the car but otherwise his affidavit and oral evidence was resolute and I accept it. Mr G’s evidence, like the other witnesses already referred to, fundamentally damages the credibility of the Mother.

35. Each of Ms SN and Mr SN were subpoenaed to give evidence in the Father’s case. Exhibits 6 and 7 are the statements admitted into evidence outlining their evidence in chief. Exhibits 6(a), (b) and (c) relate to their evidence.

36. I accept the evidence of those witnesses which acceptance means that the Mother made an array of false representations to those people to secure the accommodation the Mother sought to rent. First and foremost, the Mother perpetrated a fraud as to her identity and falsely created documents to support the false identity of herself as “Ms E”.

37. I reject the Mother’s contention that she eventually volunteered her true identity and find that only when she had no alternative did the Mother disclose the truth. That is, it was Mr and Ms SN who became aware of the false identity by other means first rather than the Mother’s disclosure of it.

38. Relevant to the Mother’s credit is Exhibit 18, the Mother’s criminal history. In June 2012 the Mother pleaded guilty to an offence of dishonesty, namely fraud in dishonestly gaining a benefit or advantage as well as another offence of contravening a police direction or requirement.

39. Much of the Mother’s cross-examination at trial surrounded her use of false identities and the creation of false documents to support those identities. A significant proportion of that related to the Mother adopting false identities so that she might secure rental accommodation given that she is apparently “black listed” from renting properties given her very poor past history of non-payment of rent.

40. It was evident as at trial that the Mother was about to be forced to vacate her then rental premises and that she would need to secure some alternate accommodation. On that basis I directed that in advance of final submissions to be heard on Wednesday 5 June 2013 the Mother provide evidence to the Father and the ICL of having secured alternate premises.

41. In the event, subpoenaed documents produced as at 5 June 2013 revealed that, yet again, the Mother had adopted the course of attempting to assume a false identity, supported by false documents, in an application for tenancy made on or about 27 May 2013.

42. Given the Mother’s experience at trial it might have been thought that the Mother would readily concede in her further evidence on 5 June 2013 that her application to MC Properties to rent a property was the product of the Mother’s modus operandi of attempting to assume a false identity supported by false documents to obtain the tenancy. However, that was not to be. Incredibly, the Mother maintained that she was not involved in the provision of the documents comprising Exhibit 31 to MC Properties. I find the Mother did, herself or by her agent, provide the false documents which were obviously provided in an attempt by her to secure the subject premises.

43. It follows from the above findings that no reliance can be placed on any uncorroborated evidence of the Mother.

44. It also follows that significant doubt attends the credibility of Mr E given his complicity in not only the false allegation against Mr Z but his conduct in various respects with respect to the C Company and to the extent he was involved in relieving persons of substantial sums of money in the respects referred to.

45. A further aspect relevant to the Mother’s credit is her failure to call Mr XL as a witness. Her counsel acknowledged, correctly in my view, that a Jones v Dunkel[2] inference can be drawn in respect of the non-attendance at the trial of Mr XL. It seems to me that if it is to be inferred that Mr XL’s evidence could not assist the Mother it must follow that fundamental questions arise in relation to the content of his affidavit relied upon by the Mother at the outset of the trial containing evidence to the effect that Mr XL was present and witnessed relevant disclosures by M about inappropriate conduct by the Father. The Father advanced a positive case that Mr XL had informed the Father that he did not in fact bear witness to any such disclosures. Taken with the retractions of the other witnesses already referred to the inference open, on the balance of probabilities, is that the Mother enlisted Mr XL, as she had done with other witnesses, to falsely bear witness to the subject disclosures. I draw that inference.  

    [2] Jones v Dunkel (1959) 101 CLR 298.

46. In stark contrast to the Mother I find the Father to be a credible and reliable witness. In various contexts including in family report interviews and his affidavit and oral evidence at trial the Father fairly made concessions where they ought to have been made with respect to his past conduct where it was not optimal or was unreasonable.

47. Some criticisms of the Father were advanced in final submissions on behalf of the Mother by reference to the consent Orders made in June 2012 in the context that those Orders were made when the Father must have been aware of much of the Mother’s past questionable conduct. However, that criticism overlooks that the Mother placed her credibility squarely in issue as at the trial when she was advancing a case that the Father posed an unacceptable risk of sexual abuse. Much of that case depended upon the Mother’s credibility and in circumstances where the Father perceived himself to be the subject of false claims it is no surprise that he would focus his efforts upon discrediting the Mother, including by reference to her past conduct.

48. The further criticism of the Father in this respect contained in the submissions on the behalf of the Mother was that during cross-examination the Father maintained a position that the Mother’s time with the children ought be supervised. However whilst that is so, it is to be understood in the context that at the time the Father was cross-examined early in the trial, the Mother was maintaining that the Court should find that the Father posed an unacceptable risk of sexual abuse. It was only as the trial progressed that the Mother resiled from pressing such a case, which occurred during her cross-examination by Mr McGregor, Counsel for the ICL. In the face of, for example, the most recent Magellan Report dated 24 May 2013 as to concerns expressed about the Mother continuing, relentlessly in effect, to press the allegations, it is unsurprising that the Father’s position was as stated at the time of his cross-examination.  

Evidence of Ms I, Ms H and Mr G

1. Aside from credit issues, the evidence of each of these witnesses assumes importance because each of these witnesses has had the perspective of a close observer of the Mother, the children when in the Mother’s care, and the Mother’s household generally over significant periods of time.

2. Acceptance of the evidence of these witnesses results in findings of fact that can be made relevant not only to the sexual abuse allegations discussed further below, but relevant to one or more of the s 60CC “best interests” considerations also discussed separately below. I will not repeat the findings already made above with respect to credit relating to the evidence of these witnesses but note also that some of those findings are, and some of that evidence is, also relevant to one or both of those topics discussed further below.

Ms I 

1. I accept Ms I’s evidence to the effect that she has never seen the Father physically abuse the Mother and that her observations of arguments between them were to the effect that they argued on an equal footing. That is, her evidence does not support any proposition to the effect that the Mother was fearful of the Father or was overborne by him.

2. I accept her evidence that the Father sought to convince her that she ought not be friendly with the Mother and not trust her. I accept her evidence that he used derogatory terms about the Mother calling her a “liar” and a “slut”.

3. I accept her evidence that the Mother resorted to physical disciplining of the children by smacking them.

4. I accept that  Ms I heard the Mother speak in a negative manner about the Father in front of the girls including, by way of example, the Mother saying to M on more than on occasion, “…I am going to talk to the judge about bad daddy…” prior to court events.

5. I accept the evidence that notwithstanding Ms I’s involvement she never received any disclosure from M about sexual abuse. I accept that the witness never observed the Father emotionally abuse, intimidate or threaten the Mother.

6. I accept the evidence to the effect that the Mother often left the girls at home with S when she went out “…on dates in the evenings...”

7. Ms I was aware from her observations of the multiple addresses at which the Mother has lived in the period since November 2009. She nominates seven such addresses.

8. I accept Ms I’s evidence that the Mother does not maintain a clean and tidy home, with rubbish often being left on the floors; rotten food and maggots in the kitchen and in other places around the home; and from time to time maintains a generally messy household. In particular, with the household containing dog faeces and piles of vomit on the floors which are left uncleaned, it is less than satisfactory.  

1. I accept that Ms I has witnessed injuries to the children caused by dog bites.

2. I accept Ms I’s evidence as to often hearing the children say that they love the Father and being excited about forthcoming visits to see him.

3. I accept that Ms I observed the Mother to discuss sexual abuse allegations against the Father in the vicinity of the children. As already recorded, I accept that the Mother asked the witness to lie about M disclosing to her that the Father had sexually abused M.

4. I accept Ms I’s evidence concerning the Mother not insisting upon the children wearing seatbelts when being driving in a vehicle. I accept her evidence that there have been many occasions when the children have been allowed to stay at home when they are not unwell or simply because they did not wish to go to school.

5. I accept Ms I’s observations about the Mother prior to the second day of the domestic violence proceedings in February 2013.  

Ms H 

1. I accept Ms H’s evidence that she has heard the Mother say to the children on occassions that the Father is “bad” and “naughty”.

2. Like Ms I, Ms H has made observations which I accept as to the Mother physically disciplining the children and S, including smacking S on the face.

3. I accept Ms H’s evidence to the effect that S is often delegated a primary caring role for the other children by the Mother. I accept her observation that S was not attending school and was not being home schooled.

4. I accept the witness’ retraction of any previous statements of having observed any concerning behaviours of the children or as to hearing any disclosures suggesting untoward behaviour by the Father.

5. I accept this witness’ version as to the manner in which L’s accident occurred in June 2012 and that it involved L being kicked by the rescue horse.

6. I accept Ms H’s observation to the effect that the Mother’s house is consistently filthy with piles of rubbish on the floor in the kitchen and maggots present. I accept her evidence to the effect that the Mother allows animals to roam inside and defecate and urinate in the house and that this can remain uncleaned.

7. I accept Ms H’s evidence to the effect that Mr XL was a live-in partner of the Mother as was Mr LB. I accept that Ms H observed the Mother create false documents and that the Mother acknowledged to Ms H that she was unable to be accepted on rental applications in her own name and thus used her mother’s name.

8. I accept that when in November 2012 M was bitten by one of the dogs kept by the Mother, she heard the Mother tell M to tell other people that her injury had been sustained by hitting her head on a table. I also accept that when another dog attacked R in late 2012, the witness heard the Mother tell R to tell others that she had been hurt climbing a pool fence. Notably, both of these episodes involved hospital attendances for each of the girls.

9. I accept Ms H’s evidence to the effect that the Mother discussed sexual abuse allegations in the presence of the children. I further accept her evidence that she heard the Mother discuss these proceedings with M, hearing the Mother tell M that “…mummy has to go and talk to the judge about her daddy being bad.”

10. I accept that Ms H has often heard the children making statements to the effect that they loved their Father and that they wished that they could have more time with him and that they miss him.

11. I accept that the witness has heard the Mother tell the children that the Father “…is a bad daddy…”

12. I accept that the witness has never observed S to undertake any homework or home schooling and that S has not been enrolled in school since Ms H has known her.

13. I accept Ms H’s evidence to the effect that the Mother discusses her relationships with men with S and speaks about extracting money from men with S.

14. I accept Ms H’s evidence as to her observations about S driving vehicles.

15. I accept Ms H’s evidence as to the Mother verbally abusing and physically hurting S and, particularly, the incident which she describes at paragraph 38 of her affidavit.

16. I accept Ms H’s evidence to the effect that S is often left on her own to supervise the other children and is often left to be responsible for their day to day needs in the Mother’s absence.

17. I accept that this witness has never observed the Father to be either physically or verbally abusive of or to threaten the Mother.

18. I accept Ms H’s observations about the lack of supervision provided by the Mother, including issues about the pool fence and accidents or near accidents involving L or R.

19. I accept Ms H’s evidence that there are many occasions when the children do not attend school, simply because they express a wish not to do so and the Mother does not make them attend.

20. I accept that Ms H has observed the Mother creating false documents in the form of false identification by way of a driver’s licence and passport.  

Mr G 

1. I accept Mr G’s evidence as to his observations of the Mother often leaving the children unsupervised.

2. I accept Mr G’s evidence that he has heard the Mother say to S that S needed to stand up in court and say that the Father had molested her and that he heard S say to the Mother that “…she did not want to lie”.

3. I accept that Mr G has often heard the children say that they love the Father and that they miss him. I accept that he has heard the Mother and S say to the children that their daddy is “naughty”, “yuk” and “does yucky things” to the children.

4. I accept Mr G’s evidence that he has heard the Mother repeatedly ask the three young girls “…has daddy ever touched you?” and that the girls were either silent or continued playing in response. I accept that Mr G has also heard the maternal grandmother asking the three young girls if the Father had ever touched them.

5. I accept Mr G’s evidence that the Mother has been prone to tell other people including those that she has just met that her “kids have been molested” and that the children are often playing or running around nearby when she says this.

6. I accept that, from his observations, Mr G has never seen S attend school or attend to any school work at home. I accept that S told him that she hasn’t gone to school “for years” and that she further told him that whilst the Mother tells people she is home schooled, she does not in fact undertake such home schooling. 

7. I accept Mr G’s observations to the extent of S having to care for the other children.

8. I accept Mr G’s observations as to the poor standard of cleanliness of the Mother’s house. I accept Mr G’s evidence to the effect that when the maternal grandparents visited Australia in 2012, negative discussion about the Father often occurred in the household, including at times when the children would be in the vicinity.

Allegations of Sexual Abuse

1. As already noted, by the submissions stage of the trial the Mother had resiled from her earlier position of maintaining either the allegations of sexual abuse concerning Y or the allegations of sexual abuse concerning any of the children the subject of these proceedings.

2. Consistent with that the Mother ultimately sought, as her primary position as already noted, final orders for week about or shared care equivalent to the June 2012 consent Order, subject to her accommodation issues.

3. The evidence before me includes that on the eve of the commencement of trial the Mother had resiled from maintaining the sexual abuse allegations, yet by the commencement of the trial she had returned to a position of pressing such allegations, only for her position ultimately to be as stated.

4. Given the Mother’s ultimate position, at one level it is unnecessary to the disposition of the case to explore an issue no longer pursued by the Mother. However, the submissions of the Father point to the making and maintaining of these allegations, and the Mother’s historical position and conduct in relation to them, as evidencing the Mother’s preparedness to undermine the Father’s parental relationship and as resonating with a number of s 60CC considerations. No explanation or identification of factors was articulated by the Mother in her cross-examination, nor as a consequence were submissions ultimately made on her behalf as to how if the Mother ever genuinely held concerns about the allegations, she had resolved those concerns.

5. In her March 2013 interview with Mr J, psychologist, Mr J records at [4.7] of his report:

   She spoke of her concern that [M] and [L] have been sexually molested by their father. She believes this “99% sure with respect to [M]” and “90% sure” with respect to [L]. She also believes that the father has molested her adopted sister, [Y], when [Y] was 11 years old.

6. The Mother attempted to suggest in cross-examination that Mr J had misinterpreted her but Mr J was clear in his evidence as to the accuracy of his reporting in this respect, and I accept Mr J’s evidence.

7. Relevantly the Magellan Report dated 24 May 2013 includes the following:

   …The current information indicates further concerns that Mr [Newberry] has sexually abused his children. The information has been presented initially as reports by the mother, … that the children have made disclosures to her, including a recorded interview she conducted with [M]. Further to this, [M] has made disclosures to a third party and indicated that “her mother told her that people do not believe that her father tickles her private parts so she should tell other people. Her mother also told her that she will talk to her guidance officer at school and that [M] should tell her.”

   …

   It is clear that the children continue to be chronically exposed to and involved in their parents’ conflict including being questioned repeatedly about sexual abuse allegations and given the lengthy and ongoing family court proceedings, the children are at an unacceptable risk of suffering significant emotional harm as a result of parental behaviours, particularly in relation to [the mother’s] relentless questioning and insistence regarding [M] making disclosures of sexual harm by her father.

   (emphasis added)

8. A genuine belief by the Mother that M and perhaps L also have been sexually abused by the Father might explain the Mother’s apparently relentless pursuit of the issue, in terms of M being encouraged to make disclosures to others and recording M so recent to the trial.

9. However, that is irreconcilable with the Mother’s ultimate position at trial not to press the allegations, absent an explanation from the Mother (which was not forthcoming) as to how she has resolved her concerns; or the factors which now exist, absent previously, that lead her to such a profoundly different position.

10. The Father was cross-examined and was adamant in his denials of anything untoward concerning any of the children or in relation to Y. His denials were convincing in my view but the Mother did not point to this feature as the reason for her profound change in position.

11. The more probable explanation, in my judgment, for the Mother’s differing positions is that she has never actually believed the Father has sexually abused any of the children, or Y, but these allegations were advanced from the outset in defence of her position when conduct in relation to L’s accident came under the scrutiny of DoCS.

12. There is an obvious temporal connection between these allegations first being made and the investigation by DoCS following the June 2012 consent Orders and consequent upon L’s accident. There is the further temporal connection between DoCS and the Queensland Police Service not taking the initial allegations any further and Y soon after making alleged disclosures implicating the Father with respect to conduct by him years earlier.

13. Exhibit 22 reflects that as at April 2013 Y had a diagnosis of Chronic Asperger Syndrome and Post Traumatic Stress Disorder with acute exacerbation. She had suicidal ideation. She was assessed as having a major depressive disorder with a then recurrent episode which was severe.

14. Y’s Aspergers Syndrome obviously pre-dates the period of alleged disclosures and it is obvious that Y has long been a troubled girl.

15. None of the Mother, maternal grandmother or maternal grandfather volunteered the critical piece of information that in March 2012, before the alleged disclosures by Y in August 2012 concerning the Father, Y had threatened to accuse her own father, Mr E, of raping her. At that time Y’s behaviour was so uncontrollable that police in the United States of America had to be involved. It was in that context that Y threatened Mr E that if the Police were summoned again she would inform that Mr E had raped her.

16. Thus it is that well prior to the subject disclosures concerning the Father Y presents as a child willing to make false allegations of a serious kind and specifically a false allegation of sexual assault against her own father.

17. It does none of the maternal grandfather, maternal grandmother or the Mother any credit that this critical piece of information was not forthcoming from any of them. Whilst the Mother asserts that she did not learn of this false allegation until some five months later that nevertheless does not explain why she did not thereafter volunteer that information. Moreover, it must have informed the Mother’s belief system in any event.

18. On the evidence it seems an inescapable conclusion that Y was being pressed about allegations in conjunction with the Mother’s case in these proceedings.

19. The evidence establishes that Y was long ago well aware of the antagonism between the parents and of the negative views held by her own parents towards the Father.

20. Y became aware of allegations of sexual abuse in respect of the child M prior to any alleged disclosure by Y.

21. It is then said that over a period of three weeks (on the Mother’s version) or two weeks (on the maternal grandmother’s version) questioning by the grandmother resulted in Y making disclosures implicating the Father in an incident of sexual abuse that occurred some years previously.

22. It may well be that Y made disclosures implicating the Father but the probable explanation for that is the surrounding circumstances rather than Y actually disclosing a true or factual experience. There is ample evidence that Y was motivated to “protect” M and L and it is hardly a quantum leap that if Y believed they had been abused by the Father that she, in all the circumstances, would resolve to support them by making her own “disclosures”.

23. That pressure was applied to Y about this issue is obvious on the evidence. For example, Exhibit 23 is an email from the maternal grandmother to Y’s then therapist making reference to the USA “detective” pressing her for evidence and asking “…how long would it take for you to change her diagnosis and have a bit more to say about her to send to them?” Plainly Y’s therapists were not receiving the kind of detailed evidence in terms of disclosures satisfactory to press the matter with the police, and that was being sought by the maternal grandmother.

24. Whilst much of the affidavit evidence of Ms Q, one of Y’s therapists, in her affidavits filed 30 January 2013 and 10 April 2013 was excluded as inadmissible, paragraph 2 of the affidavit filed 30 January 2013 contains:

    I have tried to respect her boundaries and not press prematurely, but it is so apparent that she is reacting to past trauma. However, due to this upcoming trial, [Y] has been forced to be more transparent with the abuse.

    (emphasis added)

25. That, taken with Ms Q’s cross-examination, reveals that Ms Q approached her task on the understanding that Y was a victim of sexual abuse and despite, in Ms Q’s case, involvement with Y over many months even as at the time referred to in the affidavit she was having to apply pressure to Y to obtain “evidence”.

26. I do not accept that the Mother ever genuinely believed that Y was disclosing her actual experience in terms of any allegations she made implicating the Father. The Mother prevaricated in her oral evidence at trial, it seemed to me, between some kind of sexual interference having occurred at one end of the spectrum or “something” happening as to cause Y to ultimately make disclosures.

27. I find that it is more probable than not that Y’s allegations concerning the Father are not reality but rather are the consequence of the surrounding circumstances referred to leading to Y, for whatever reason, making such disclosures.  I accept the Father’s adamant denials that he ever did anything untoward in respect of Y. I find it is more likely than not that the Mother has never genuinely believed that anything untoward occurred with respect to Y but has embraced Y’s preparedness to advance allegations so that the Mother might advance the defence of her position in these proceedings or to advance her case.

28. Before leaving this topic, whilst the issue at trial about the Mother’s reliance upon the affidavit of detective TK is probably rendered redundant by the Mother’s ultimate position of not pressing any issue with respect to Y, for the record I refuse to allow that affidavit to be relied upon.

29. At an early stage of the trial I gave leave to allow the Mother to have detective TK give evidence by video link. He was required for cross-examination. Curiously, at that stage there had apparently been no indication from that witness to the Mother’s legal representatives that he would not be available for cross-examination by that means or at any time during the trial.

30. In the event, the witness was not able to be made available for cross-examination by that means and objection was taken to the Mother being able to rely upon that evidence in the circumstances. At that stage I reserved my decision but now, as recorded, confirm that the Mother ought not be permitted to rely upon the evidence of that witness when he was not made available for cross-examination. The seriousness of the allegations alone would make it grossly unfair to the Father and the children that the evidence of detective TK be permitted to be relied upon without being tested by cross-examination. Thus in accordance with rule 15.14(3)(a) of the Family Law Rules 2004 (Cth) I refuse to allow this deponent’s affidavit to be relied upon.

Statutory Framework

1. Part VII of the Act (ss 60A to 70Q) provides the statutory framework in which the Court exercises its power to make parenting orders.

2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)); and the principles which underlie those objects (s 60B(2)). Section 60B(1) provides:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.

4. Section 60CC of the Act identifies the “primary considerations” (s 60CC(2)) and the “additional considerations” (s 60CC(3)) the Court must consider in determining what is in the child’s best interests.

5. Section 65D of the Act provides the source of the Court’s power to make a “parenting order”. Section 64B defines that term and identifies the matters that may be dealt with by a parenting order. Section 65D(1) is expressed in these terms:

   65D     Court’s power to make parenting order

   (1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

1. I accept that the Father has met the children’s day-care fees and school expenses including the uniforms, shoes, books and like expenses.

2. I accept the Father’s evidence and from other sources that he has met medical expenses and costs for the children in particular for L’s ongoing therapy. Obviously he has also met their expenses when in his care.

3. It would also appear that the Mother has maintained the children when in her care although her current financial circumstances remain open to doubt given that there are significant creditors including a judgment creditor or creditors and the extent to which she apparently relies upon others such as her parents and the maternal aunt, and the person identified as Mr K (who was not called to give evidence) for future support.

Likely effect of changes

1. The proposals of each of the Father and the ICL would see the children living primarily with the Father which obviously is a change from the historical context of them experiencing either the shared cared of the parents or the primary care of the Mother.

2. As already noted, a move to the Father’s primary care involves for the children a lessening of their experience of time with their older sibling, S.

3. It would seem that whilst the Mother’s living circumstances remain in such a state of flux as they were as at the end of the trial, such a change was more or less inevitable in any event.

4. That aspect aside, I find that there are positive benefits for the children of a change to the Father’s primary care. He presents as offering stability of circumstances that stands in significant contrast to the circumstances the children have encountered in the Mother’s care historically.

5. First, his employment appears to be secure and he remains living in a home he has occupied for a significant period. His circumstances appear stable and consequently he can provide a stability of circumstances for the children.

6. It would seem that on the medical evidence there are benefits to L in particular from having stability of this kind. It is to be noted that the Mother suggested to Mr J that L appeared to benefit from living primarily in one household when the equal shared care arrangement was interrupted because of the allegations.

7. Over the past couple of years, the Mother has not provided significant stability of circumstances for herself, let alone the children. She has had multiple places of abode and obviously the children have had to adjust with each change of residence. Moreover, it seems that the Mother has presented significant changes to the children from time to time in terms of the significant adults in their life. That includes nannies and housekeepers but also the partnerships the Mother has formed, whether of a “dating” kind as she refers to or whether persons living with the Mother and becoming part of the children’s household.

8. For example, despite the relatively short-lived nature of the relationship between the Mother and Mr D, he had moved into the home within a brief time after meeting the Mother and appears to have taken up a significant role of involvement in the children’s lives and care until the relationship ended soon after.

9. It is instructive that Exhibit 12 reveals that when M was enrolled with F Child Care, in answer to the question, “What is Dad’s Name?” the Mother inserted “[Mr D]” as the answer with the description “step-dad”. No details were provided for the Father.

10. As at the March 2013 report, Mr LB was identified by the Mother as a significant relationship, albeit not one of cohabitation, yet by the time of this trial, that relationship had ended. I have accepted other witnesses who have confirmed that Mr LB was a member of the household as was Mr XL before him.

11. Without descending to the detail of the Mother’s partnerships or relationships, all that needs to be said is that the children have encountered significant change in terms of significant adults in the Mother’s life over a relatively brief period in the past couple of years.

Practical difficulty of spending time

1. The obvious practical difficulty that currently confronts the Court and the parents is the Mother’s present living circumstances in that she is currently a person of no fixed abode.

2. It is less than clear when and if the Mother will establish a stable home suitable for the accommodation of the children. It is equally less than clear if she so establishes such a home, how long she will be capable of maintaining it. As already noted, she has had an extraordinary number of changes of residence in a relatively short period in her recent history.

3. The obvious practical difficulty is the children spending overnight time with the Mother when she cannot accommodate them.

Each parent’s capacity to provide for the needs of the children and attitude to parental responsibility

1. Much of the foregoing is relevant to this consideration and will not be restated.

2. Historically, the Mother has relied upon what at best can be described as questionable conduct in providing for her own financial needs and those of the children. Some of that conduct occurred in relation to C Company to which the Mother no longer has access. Other aspects of the conduct relate to securing rental accommodation which has already been addressed.

3. There must now be real questions about the Mother’s continuing and future capacity to provide financially even for herself, let alone the children. That includes her capacity to provide accommodation. There has to be a serious question as to whether the Mother can actually obtain accommodation without resorting to her historical method of adopting a false identity and providing false documentation.

4. In relation to S, I find it to be extraordinary that the Mother offered evidence to the effect that she gave her then teenage daughter the option of either focussing upon education or focussing upon a horse riding career. When it is understood that S’s competitive status as an equestrian apparently goes no further than her then local pony club, the Mother’s position is all the more perplexing.

5. Whilst the Mother maintained that S has been participating in “distance schooling” for the past two years, the documentation she provided to corroborate that was less than impressive or convincing. (Exhibit 27). I have referred to and preferred the evidence of Ms I, Ms H and Mr G on this issue.

6. Notably, whilst the Mother’s evidence is that S now attends a private school she relies upon the financial assistance of a relative to facilitate that.

7. I accept the Father’s evidence to the effect, in broad summary, that the Mother has been less than diligent in ensuring the attendance of the children at their respective educational facilities. That is corroborated by the other witnesses referred to.

8. In contrast the Father presents in providing for the children’s physical and educational needs.

9. In respect of L, I accept that whilst some of the failures to attend medical appointments following her accident last year are explicable by breakdowns in communication, overall the extent of non-attendance I find to be more probably explained by a lack of diligence on the part of the Mother in this respect.

10. I am left with the impression of the Mother that when things are generally going well for her she has the capacity and does provide for the needs of the children. However, when things are not going so well or pressures overcome her, there is ample evidence for the proposition that she leaves supervision of the children to others and she is less than diligent in other respects in terms of providing for the children’s needs including L’s needs for therapy. I have already referred to the observations of the speech pathologist above.

11. What the Mother may well perceive it as regimentation on the part of the Father in contrast to her, this would seem to be a feature of the Father that works in favour of his capacity to provide for the children’s needs.

12. Neither of the Mother’s multiple changes of residence nor her involvement of multiple significant adults, temporarily, in the lives of the children reflects well upon her capacity to provide for the children’s needs at least ahead of her own needs.

13. As to accommodation, it would seem that the Mother from time to time seeks to achieve a lifestyle she cannot afford within her own resources in the medium to long term. She obviously has left a trail of destruction in terms of former partners or business associates who do not reflect well on their own experience of involvement with the Mother.

14. As evidence of the Mother’s chaotic, or sporadically chaotic, capacities is the evidence of the poor state in which her home has been kept from time to time as reflected in evidence from various sources, Mr and Mr SN; the photographic exhibits and the like.

15. In terms of L’s particular needs, and the educational needs of the children generally, the Father presents as a far more capable parent than the Mother in attending to such needs.

16. A concerning aspect to the case involves the Mother’s involvement of S in what the Mother perceives to be desirable about dating wealthy men and securing financial benefits from them. The evidence of each of Ms EW, Ms I, Ms H and Mr G which I accept, refers to this aspect. I find that to be a troubling feature in terms of the Mother’s role modelling to these female children.

Family Violence

1. The domestic violence proceedings commenced by the Mother on 10 August 2012 were permanently stayed on 22 February 2013 as per the judgment of Magistrate Hall provided as an Exhibit.

2. There are thus no current relevant family violence orders within the meaning of the Act.

3. No relevant inferences can be drawn from the temporary or interim family violence orders made historically.

Order least likely to lead to the institution of further proceedings

1. I have already referred to the prospects now of the Mother persisting in any process of pressure or influence upon the children or any of them to advance allegations against the Father.

2. As already noted, with the end of these proceedings, in circumstances where the Mother resiled from the subject allegations, there will hopefully be an end to this aspect of the parental dispute.

3. Nevertheless, orders need to be made to limit the prospects of this issue unreasonably being revived and I accept the merits of the orders about publication to DoCS proposed by each of the Father and Independent Children’s Lawyer and the orders restraining the Mother from taking the children to counsellors or therapists without reference to the Father.   

Balancing best interests considerations

1. Having regard to the conclusions and findings expressed above and in particular emphasising the stability the Father can provide the children and the capacity the Father has to provide for their physical, emotional and intellectual needs, I am satisfied that it is in the children’s best interests that they reside primarily with the Father.

2. Further, by reference to my findings and conclusions, I am satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them. Past medical treatment for L and therapy is but one example of where there has been dispute between the parents and given all that has occurred between them, I am not satisfied that the nature of their relationship currently or their capacities to communicate with each other would be workable in terms of them consulting upon decisions in the exercise equally of parental responsibility.

3. I am satisfied within the meaning of s 61DA(4) of the Act that it would not be in the children’s best interests for their parents to have equal shared parental responsibility. The Father ought have sole parental responsibility in the children’s best interests, albeit with an obligation upon him to consider the Mother’s views before making any decision of a long term nature.

Orders

1. As already referred to, the orders proposed by the ICL are marked as Exhibit 29 and the orders proposed by the Father are marked as Exhibit 30. The Mother proposed orders that would effectively reinstate the position reached by the consent Orders made on 12 June 2012. In the alternative, Counsel for the Mother made submissions in relation to the orders sought by the ICL if I were minded to make such orders.

2. Both the ICL and the Father sought orders for the Father to have sole parental responsibility and for the children to live with the Father and spend time with the Mother.  However, the proposed orders differed in the frequency and length of time that the children spend with the Mother which will be outlined below.

3. Given the issues surrounding the Mother’s accommodation as already referred to, both the Father and the ICL proposed orders providing for the children to spend only day-time time with the Mother until she provides the Father’s legal representative and the ICL with proof of her having obtained permanent accommodation.

4. The Father sought that the proof of permanent accommodation be in the form of a signed copy of a General Tenancy Agreement in the Mother’s legal name with the tenancy being for a period of not less than six months along with evidence of the payment of six months rent in advance. The Father also sought that the Mother authorise the Father’s legal representative and the ICL to contact the landlord to confirm the accommodation.

5. Counsel for the Mother submitted that it was too great of a burden for there to be a requirement of a lease in the Mother’s own name and that proof of a lease or a “right to occupy” should be all that is required. 

6. The ICL sought that evidence of permanent accommodation be provided by way of a copy of a tenancy agreement or a lease duly signed by the landlord with the Mother named as tenant or, if such lease or agreement is in the name of another tenant, a letter from the tenant authorising the Mother (and the children) to reside in the home. Counsel for the ICL submitted that the Mother may not be able to provide a signed tenancy in her name but still be allowed to live in appropriate accommodation and that the intent of the Father’s proposed order is the same as the ICL’s.

7. The Father proposed that, until the Mother provides evidence of permanent accommodation, the children shall spend time with the Mother each alternate Saturday from 10:00am until 3:00pm and each Wednesday after school until 6:00pm. Upon the Mother providing the evidence of accommodation, the Father proposed an order for the alternate weekend time to increase to after school on Friday until 5:00pm Sunday. Whilst the Father proposed that the children spend time with the Mother on special occasions, the Father did not propose any specific holiday time orders.

8. The ICL sought an order that the Mother spend time with the children each alternate weekend from after school Friday until 6:00pm Sunday; and from after school until 6:00pm on two days during the week, alternating between  Tuesday and Thursday afternoons during the week immediately following the weekend the children spend with the Mother and Monday and Wednesday afternoons during the next week. The ICL sought that the weekend time the children spend with the Mother be suspended until the Mother provides her evidence of permanent accommodation.

9. Counsel for the ICL submitted that there was a need for the children to have short frequent time with the Mother and that it is likely the Father’s proposed order of one day during the week would not be enough. Counsel for the Father submitted that the ICL’s order for two mid-week periods alternating between Tuesday and Thursday one week and Monday and Wednesday the next week would be impractical in terms of the Father being able to put the children into extracurricular activities and maintaining a stable routine. Counsel for the ICL did not have an issue with the days being the same each week and acknowledged the practical difficulty changing the weekdays may create. Counsel for the Mother was also in agreement with the weekday times remaining the same each week. 

10. In relation to holiday times, the ICL sought that, upon the Mother providing her evidence of permanent accommodation, the children spend time with the Mother for half of the school holiday periods however, until the child R attains the age of seven (7) years, the children shall spend time with the parents during the Christmas holiday period on an alternate week arrangement.

11. In relation to changeovers, the ICL sought for changeovers to occur at the parents’ residences when the children were not being collected from school. The Father sought an order that, on any non-school days, changeover shall occur at F day care centre. Counsel for the ICL acknowledged that it may be appropriate for an order to be made for the changeover to be at a place other than the parents’ residences if this was really an issue between the parents. 

12. In relation to the orders proposed by the ICL, Counsel for the Mother sought that the Mother should be able to spend more time with R before she commences prep school and that the times the children spent with the Mother during the week be changed to overnight times. Counsel for the Mother also sought that the school holiday change from alternate weeks to block half-holiday periods sought by the ICL should commence in April 2014 rather than when R attains the age of seven.

13. The Father also sought a number of machinery provisions in relation to the parent’s notifying each other of changes in contact details, noting both parents as emergency contacts and the provision of information relating to the children’s schooling and medical treatment. These were supported by the ICL. The ICL also thought it appropriate for order (14) of the Father’s proposed orders to be made which restrained the Mother by injunction from referring to each child by a name other than that child’s legal name.

14. Further, the Father sought an order that the Mother be restrained by injunction from seeking that any of the children consult with or seek treatment from, a medical practitioner; an allied health worker; or a counsellor or therapist without the written consent of the Father being obtained. The ICL supported such an order and I find it appropriate to make this order in the circumstances.

15. The Father further sought a number of injunctions in relation to the Mother taking the children to the police or DoCS. Counsel for the ICL expressed that such an order might compromise the safety of the children and that it was enough for an order to be made publishing these reasons and orders to DoCS as provided for in the orders sought by the ICL. The ICL had no difficulties with the reasons and orders also being provided to the Police and Bravehearts as sought by the Father.

16. As the Mother is already restrained from taking the children to counselling or therapy, I do not see the merits of publishing these proceedings to non-governmental agencies, primarily based on privacy issues. The ICL agreed that the publication of proceedings to non-governmental agencies does take it further than desirable and ultimately, Counsel for the Father submitted they would not press the order relating to publication to Bravehearts.

17. I accept the submissions on behalf of the ICL to the effect that, having regard to the young ages of these children, frequency of time is an important consideration. I have already observed the importance not just of relationship between the children and the Mother but also that as between them and S.

18. I am not persuaded that it is in the children’s best interests to extend weekday times to overnight periods nor that different provision should be made for R given the imperative of the stability of her circumstances balanced against the need for time with the Mother.

19. I am satisfied that the ICL’s proposed orders for holiday time, with the modifications I make, likewise best strikes the balance between competing considerations in meeting the children’s best interests.

20. I have carefully considered the proposals of each of the parties in relation to the time the Mother spends with the children and formulated the Orders that I find are in the best interests of the children. 

1. As to the accommodation issue it seems to me that the ICL’s proposed orders better strike the balance between the competing considerations of time being achieved and the suitability of accommodation. Bearing in mind that the children will primarily live with the Father the bar should not be set too high upon the Mother fulfilling the condition. After all, in many cases parents visit from interstate or further afield to spend time with their children for similar periods and it would be unduly onerous to expect them to necessarily provide the kind of accommodation for longer term living in respect of accommodation and more fundamentally it may be that the Mother simply cannot achieve accommodation rented in her own name given her history.

2. In terms of publication of the orders and reasons I am satisfied that it is reasonable for these orders and reasons to be published to DoCS particularly in view of the fact that the 27 May 2013 Magellan Report indicates a continuing investigation by DoCS albeit that it is recorded that DoCS did not intend to intervene in these proceedings. There would apparently appear to be no ongoing investigation by the Queensland Police Service so I am not persuaded, balancing rights to privacy and the like, that these orders and reasons ought be published to the Queensland Police Service.

3. Whilst the place of changeovers did not seem to be an issue agitated with much vigour I accept the proposed orders of the ICL with respect to that matter.  

4. I therefore make Orders as set out at the commencement of these reasons.

I certify that the preceding three hundred and five (305) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 14 June 2013.

Associate: 

Date:  14 June 2013