Noble & Noble
[2021] FamCA 363
•9 June 2021
FAMILY COURT OF AUSTRALIA
Noble & Noble [2021] FamCA 363
File number(s): BRC 2693 of 2018 Judgment of: BAUMANN J Date of judgment: 9 June 2021 Catchwords: FAMILY LAW – PARENTING – Final Hearing – Contested residence – Where at the conclusion of the evidence at trial the father contended for an interim order to be made for a change of residence and a moratorium of time with the mother – Where the Court does not find the father presents as an unacceptable risk of harm to the children – Where the Court finds the children are at a form of risk of emotional harm in the care of the mother – interim Orders made for the children to live with the father and a moratorium of time with the mother – matter adjourned for three months. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Cases cited: Hall & Hall (1979) FLC 90-713 Number of paragraphs: 93 Date of hearing: 31 May and 1 June 2021 Place: Brisbane Counsel for the Applicant: Mr J Bunning Counsel for the Respondent: Mr J Thomas ORDERS
BRC 2693 of 2018 BETWEEN: MR NOBLE
Applicant
AND: MS NOBLE
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
9 JUNE 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That all previous parenting Orders are discharged.
2.That the mother shall cause the children, X born … 2007 and Y born … 2007 to attend upon a Family Consultant of the Family Court of Australia at 10.45am on 9 June 2021, on Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.
3.That pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) a Family Consultant of the Family Court of Australia is required to:
(a)explain to the children the Order dated 9 June 2021;
(b)to give effect to the Order dated 9 June 2021, read the Reasons for Judgment delivered 9 June 2021 contemporaneously with the Orders dated 9 June 2021; and
(c)effect a changeover of the children such that the children shall come into the care of the father once the Orders dated 9 June 2021 have been explained to the children.
4.That upon the Orders being explained to the children pursuant to Order 3 and from 9 June 2021, the children shall live with the father.
5.That once the children live with the father, the children shall not spend time nor communicate with the mother pending further Order of the Court, and in that regard:
(a)pursuant to s 68B of the Act, the mother is restrained from:
(i)contacting, attempting to contact or asking anyone else to contact, the children by way of telephone, email or any other means of communication;
(ii)attending upon the children’s school being D School and is not to come within one-hundred (100) metres of that school and
(iii)removing the children from any place where they may be residing or attending.
6.That nothing in Order 5 prevents either parent being at liberty from obtaining any and all information and/or documents from the children’s school and/or any doctor or medical professional upon whom the children attend, and these Orders authorise each of the parents to be able to obtain such information.
7.That the father shall ensure that the children continue their attendance at D School.
8.That the father shall forthwith contact both Dr E and Ms F (the counsellor, whichever one is available first pursuant to this Order) and shall arrange for the children to attend at the first available opportunity on the first of those two practitioners who are available, and the first available practitioner shall be the counsellor pursuant to these Orders.
9.That in relation to the counsellor/counselling for the children:
(a)the father shall, upon the first appointment being made, advise the mother (or her solicitor) in writing of who the counsellor is;
(b)the father shall ensure that the children attend all sessions at a frequency and for a duration as advised by the counsellor;
(c)the parents shall bear the costs of the counsellor equally;
(d)the father is to attend upon a General Practitioner and obtain referrals for both children under a Mental health plan;
(e)the counselling shall be for the children;
(f)the involvement of either of the parents in the counselling by the counsellor shall be at the sole discretion of the counsellor and each of the parents shall attend as directed by the counsellor upon her (should she so direct);
(g)the counselling is reportable; and
(h)prior to the first session with the counsellor the father shall provide to the counsellor a copy of the following documents and has leave to do so pursuant to s 121 of the Act:
(i)the Orders dated and Reasons for Judgment delivered 9 June 2021;
(ii)subpoena documents produced from the G Contact Centre;
(iii)the reunification report prepared by Ms F; and
(iv)each of the family reports prepared by Ms H.
10.That the children be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings and further, the Independent Children’s Lawyer be at liberty to issue any subpoena they deem relevant to these proceedings.
11.That the Independent Children’s Lawyer be granted leave to inspect and photocopy all documents produced pursuant to subpoena.
12.That two (2) weeks prior to the Court date, the Independent Children’s Lawyer (if appointed) or failing the Independent Children’s Lawyer being appointed, the father, shall illicit from the counsellor a report which shall be filed and served upon each of the parties, which shall deal with, but is not limited to, the following issues:
(a)How the children are progressing with their counselling; and
(b)A view (if any) as to whether the children should spend time with the mother and under what conditions.
13.That seven (7) days prior to the next Court date the mother and father shall each file an affidavit and minute of orders which sets out the orders they seek the Court make at an Interim Hearing for the next six (6) months.
14.That these proceedings be listed for Case Management Hearing at 9.30am on 1 October 2021 in the Family Court of Australia at Brisbane, with a view to listing the proceedings for an urgent Interim Hearing, if deemed necessary by the Court.
IT IS NOTED:
A. That the Court requests Legal Aid Queensland appoint as soon as possible an experienced Independent Children’s Lawyer, the Court being of the opinion that the complexity of the matter requires that an Independent Children’s Lawyer be appointed as soon as possible.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Noble & Noble has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
INTRODUCTION
The Applicant father, Mr Noble, and the Respondent mother, Ms Noble, were in a relationship which commenced with cohabitation by early 1999; were married in 2000 and finally separated in August 2012. At the time of separation, they were caring for four then infant children, Mr B born in 1999, Ms C born in 2002 and two twin daughters X, and Y born in 2007.
As the history below sets out, significant and ongoing litigation has occurred since separation. However, no trial has ever been required or necessary, and “final orders” by consent had been made by a Court at the request of the parties in May 2013 and then, most recently, in October 2018. Although the remaining infant children, the twins, are the focus of the current dispute, the curious historical past, not essentially in dispute, is that since separation until July 2019 these children generally spent substantial time with both parents, and at least between early 2015 for over four years, a week about arrangement.
Yet the competing proposals now of the parties are stark and polarised. How we got to this sad situation is better understood from the historical context provided below. What orders for the future are in the best interests for these twins is a very difficult decision. The conclusion reached is explained also below.
COMPETING PROPOSALS
Both parents departed from the orders set out in their case outlines, both filed on 30 April 2021. The father’s initial position was for the children to live with him; that the parents have equal shared parental responsibility; that the children spend unsupervised time with the mother each alternate weekend, Friday to Sunday; half of holidays and special days and regular telephone time two times a week. A fairly usual suite of orders to facilitate communication about special issues were proposed, including a restraint as to the parents’ physically disciplining the children. Proposed orders 22, 23 and 24 in the case outline are noted as follows:
22.That, within 7 days of the date of this Order, the parents ensure that the children are engaged with Ms F to participate in therapy to assist them to explore and appropriately manage the complex dynamics of their family, with the parties to share equally in the costs of such therapy.
23.That Ms F be provided with a copy of the Family Report and Addendum of Ms H.
24.That the Mother engage in ongoing emotional therapy regarding her emotional and attachment vulnerabilities, and provide a copy of the Family Report and Addendum of Ms H to her chosen therapist.
At the completion of evidence, Counsel for the father, Mr Bunning, articulated reasons why the father’s position had significantly altered, now seeking the Court to make an interim order with an immediate change of residence and a moratorium against the children spending any time or even communicating with the mother for a period of three months. The orders sought on an interim basis are now attached to these reasons and marked Appendix One.
The mother’s initial position in her case outline was for the children to live with her and for her to have sole parental responsibility. She proposed that for six months the children spend supervised time with the father, during which period the father submit “to an alcohol test 24 hours before his supervised contact.” If there were no difficulties with this time, at the conclusion of six months the children would spend, on her proposal at that time, time with the father each alternate weekend, Friday to Monday. Her proposal did not include any holiday or special occasion contact other than by telephone, which was to increase to three times a week and on special days. A suite of orders similar to the general orders the father proposed were sought.
Before evidence was taken, Mr Thomas of Counsel for the mother said the mother no longer pressed for order 6 (alcohol testing), or supervised time such that “unsupervised time could commence each alternate weekend almost immediately.” However, as the evidence progressed, Mr Thomas at the commencement of the second day of the hearing tendered the mother’s revised position, marked Exhibit 6, and which are annexed to these Reasons marked as Appendix Two. The minutes provided two alternatives: an interim order and a final order.
By final oral submissions, and after all the evidence had been heard and the cross-examination of the report writer undertaken, the mother’s Counsel, in addition to written submissions offered to the Court which I have read and considered, indicated the mother’s preferred position was the interim order in Appendix Two. Mr Thomas accepted at the time of submissions that the fundamental requirement moving forward was the proposed reunification therapy to be undertaken by Dr E or perhaps Ms F, and the way in which that would occur is as set out in a general pamphlet offered by Dr E marked as Exhibit 8. The mother strenuously opposed orders for an immediate change of residence or a moratorium.
To be fair to both parties, their case outlines were filed before the limited updated family report by social worker Ms H was available. The delay in producing that update (in which only the children were interviewed) was not attributable to any fault of the report writer. Rather, it was desirable for her to view the notes from the G Contact Centre of the interaction observed of contact between the twins and the father from the first visit of 14 December 2019 to the last visit of 30 April 2021. The report was filed by Ms H without having read those notes, which she regarded as unfortunate. Regrettably, for reasons not necessary to recall, Ms H only viewed the full notes 30 minutes before her cross-examination commenced, as the last witness in the trial, on the afternoon of 1 June 2021.
Although this matter commenced in the Federal Circuit Court of Australia by the father’s application filed 7 August 2019 and was transferred to the Family Court of Australia thereafter, it was managed by Registrars and was not allocated to the trial pool until 19 May 2020. No Independent Children’s Lawyer (“ICL”) had ever been appointed. It is not clear whether any application by either of the parties had been made for such appointment. I expressed my surprise at this when during the course of a callover of trial matters awaiting allocation in the Brisbane Registry on 24 February 2021 (when this matter first came before me). The non-appointment of an ICL was mentioned. However, the parties agreed that appointing an ICL at that late stage would have delayed a final hearing, and both parties, who were competently represented, urged the Court to allocate an early hearing date so that the situation then existing could be remedied in an effective and child-focused manner.
I yielded to that request, the trial commencing on 31 May 2021. Although I am glad I did (in hindsight), I express a level of frustration that no attempt was apparently made by either parent’s legal team to adduce any evidence about the children’s counselling; the mother’s counselling and/or the father’s counselling – all areas of inquiry I would have expected an ICL to undertake.
Sadly, that was not the only gap in the evidence, however with only the mother, father and report writer subject to cross-examination, the mother sensibly electing not to cross-examine the parties’ now 21 year old son Mr B on his short affidavit relied upon by the father, the trial and submissions were completed within two long days.
STATUTORY PATHWAY
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
CONTEXTUAL HISTORY
Statements of fact which follow should be construed as findings of fact.
Neither Counsel made a submission as to credit, which, having observed the parties in the witness box, was not necessary. The father and the mother are, on my assessment, essentially decent people; generally law-abiding citizens and who have done their best to parent four children under some significant stresses. Their ability to co-parent since separation in 2012 has been tested at times and some “hiccups” have occurred. However, generally the inclusive care arrangements that have operated, have operated well until mid-2019 – a period of nearly seven years. As a result, I choose in these Reasons not to make specific findings about a number of matters that were referred to in the material when things were essentially going well, preferring to identify and more closely assess in the history which follows some significant events from around the start of 2018.
As I indicated, the parties separated in August 2012. The twins were nearly five years of age at the time. As a result, the twins have really had no recollection of their parents ever parenting them under the one roof. Before separation and even as early as 2013, the mother had some mental health issues that included attempts at suicide. In this case, although no comments were made about the mother’s mental health condition now, there was no evidence that I was taken to, nor was there any assessment by an independent medical profession or even a treating health professional of the mother, that could enable me to make any adverse or concerning assessment of the mother’s current mental health functioning. The father did not, in respect of her mental health, raise any concerns that she presents as a risk to the children.
In May 2013, the parties entered into consent orders for sharing of care, the majority of care being held by the mother. It is to be remembered, of course, that Mr B was 13 at the time of separation and Ms C 10 year of age, and that much of the shared parenting arrangements included the older siblings as well. I am satisfied that from around the start of 2015, by the parents’ agreements and, I infer, the needs of the children to spend more time with the father and to give each parent’s household a rest from the rigours of maintaining the primary care of four children, the children began spending equal time with the parents.
There were disruptions to the arrangements from time to time and certainly after an incident, to which I will return, between Y and the father in January 2018, the father felt compelled to bring an application to restore time, which he did on 12 March 2018. Certainly the incident in January 2018 between Y and the father, I am satisfied over homework, upset Y and was also felt emotionally by her twin sister X, who are very close. I am prepared to accept that the father, in an attempt to encourage homework to be completed, used inappropriate disciplining.
As I say, it disrupted the flow of time for a time. However, the parties were able to engage in an early family report by Mr J, released in July 2018. I have not read the report, but it had been referred to in cross-examination of the parties and they recall it. My understanding is that it is not in dispute that Mr J recommended that the parties return to an equal time regime and made positive comments about the relationship between the children, particularly, at that stage, the twins and the father and the mother. Nonetheless, as a result of orders by the Court, some form of “unification” therapy was undertaken by Ms F, a social worker who undertakes this work in the Brisbane area.
Ms F was not offered to the Court for cross-examination, nor was it required. Ms F’s report about the only session that took place on 23 July 2018 is annexure 20 to the father’s tendered bundle. Importantly, in her conclusions at paragraphs 3.1 to 3.3, she says:
3.1Having witnessed the children engaging with their father in a positive and a relaxed manner, it is disappointing that Y, at least, was upset when she returned to her mother. Nonetheless, it is not unusual for child who has had a rupture in a relationship with a parent and then engages with them in a positive manner to feel quite distressed upon returning to the ‘primary’ resident. The cognitive dissonance that a child experiences can manifest in tearfulness, protestation, confusion and general upset.
3.2It is likely that there are covert dynamics afoot in this matter – not the least of which is the grief Ms Noble is undoubtedly feeling around her relationship with her older children.
3.3.With regard to further counselling, given the successful unification between the twins and their father, I do not believe they require further therapeutic intervention. I believe the Court will need to consider the information provided in this report (combined with Mr J’s report) and provide direction moving forward.
There is some evidence that the mother had some disquiet with Ms F’s report (see her email Exhibit 4). However, more importantly, as the history reveals, the parties took account of this evidence from Ms F. Before moving from Ms F’s report, it has become somewhat prophetic that Ms F identified the source of some “covert dynamics afoot in this matter” – a matter to which the family report writer before me, Ms H, also referred.
After this report was available to the Court on or about 2 July 2018, the matter came before Judge Jarrett in the Federal Circuit Court of Australia on 8 August 2018. This was a result of an Application in a Case filed by the father on 7 August 2018 when he sought, on an interim basis, to change residence and require the mother’s time to be supervised. His Honour did not accede to that request. However, he did order that the father spend additional makeup time for 20 continuous days and suspended time during that period between the children and the mother.
I infer from the evidence that after this short period of time, the Orders for equal time or the understanding about equal time resumed.
The Orders of Judge Jarrett might be seen as the first opportunity for the mother to consider whether her behaviour had been appropriate. However, I note that on 23 April 2018, his Honour had earlier ordered the parties to attend the Parenting Orders Program. The evidence is the father did so but the mother did not. The reason the mother gives for not completing the course which was directed to enhancing the capacity of parents to communicate after she had enrolled, was less than convincing. I find that she made a decision not to complete the Court ordered program. It is impossible to know if she had, whether her insight into some of the matters which were to come to pass, might have improved.
In any event, as a result of these issues at that time, the mother did purport to agree to final consent orders again before a Registrar within three months when, on 23 October 2018, a Registrar made final consent Orders including that Ms C live with the father and spend time with the mother in accordance with her wishes, and that the twins spend week about time with the parents. These Orders were made despite the father’s express concerns about the mother complying with Orders (see in particular pages 49 to 52 of the father’s affidavit annexures) and the mother asserting that the children had, in around July 2018, threatened to commit suicide if they were forced to spend time with their father. In the trial before me, when reflecting on that period of time, the mother accepted that she did not regard the children’s threat at the time as a serious self-harm threat, but one more akin to either gaining attention or calling for some assistance. It is not clear that the mother took that view at the time.
Within weeks of this Order being made by the Court, Ms C, who both parents reluctantly and sadly admit suffers a range of mental health challenges, began to live with the mother and by February 2019, this child was alleging the father had “raped her”. This allegation has been shared with the twins and is still alive in their mind, as can be seen from the remarks they made to Ms H as recently as April 2021. The father denied any such sexual assault and investigations by the Department and Police established little evidence to reveal any offence had occurred. The mother, again, at the hearing before me accepted that there was no basis at all for the allegation by Ms C.
Sadly, however, although Ms C fell out with the mother after a violent incident including an alleged attempt to stab the mother and domestic violence proceedings between them, this troubled 18-year-old girl is living in circumstances unknown to either parent from whom she is entirely estranged at this stage. There is no doubt that this creates an enormous amount of sadness and perhaps a share of blame directed to the other parent held by each.
Although the mother deposes in her trial affidavit there were some misgivings about consenting to the Orders in October 2018, again, generally, the Orders operated well. Some reluctance at changeovers moving from the mother’s home or care to the father’s home were asserted by the mother as more often occurring. However, I accept the father’s evidence that, when in his home, the twins settled down well and he experienced few issues. At this time, his home included at times Ms C, the eldest child, Mr B, now 21 years and his partner since 2013, Ms M and her children including the youngest son, P, who is approximately two or three years older than the twins.
However, an incident on 27 July 2019 between the father and X whilst on a family bush hiking activity brought any resemblance of harmony to this family to an abrupt end. I more closely analyse this event when discussing whether the father is an unacceptable risk to the twins below. Suffice it to observe that as a result of that event, the father brought an Initiating Application on 7 August 2019 seeking a change of residence. Judge Purdon-Sully, on 28 November 2019, made interim consent Orders for the twins to spend supervised time with the father commencing 30 November 2019 at G Contact Centre. At that time, the investigations by Police as to the “hiking” incident were pending.
Her Honour also ordered a family report to be privately funded and transferred the matter to the Family Court of Australia. Social worker and family report writer Ms H conducted interviews initially on 16 January 2020 and 10 February 2020, resulting in a report published 17 July 2020, to which I refer to shortly. Importantly, at the time of the interviews, the father had just been formally charged with the offence of assault occasioning bodily harm upon X, arising from the hiking incident. As I do discuss later in these Reasons, the father plead guilty to that charge on 18 August 2020 with a bond of 18 months to be of good behaviour imposed and no conviction recorded. There is no evidence of any other criminal activity or convictions against the father.
On 24 February 2021, I listed this matter for final hearing in three months’ time and ordered the preparation of a limited family report focusing on the children’s wishes. The interviews took place on 28 April 2021 and the report was published by Ms H on 27 May 2021. I find that the children who were in the care of the mother at this time well knew that this matter was coming up for trial and that they were going to go through an interview process with Ms H to assist the Court at that trial. The relevancy of this statement and their knowledge of the process, will become apparent. At the time of these interviews by Ms H, it is not apparent if Ms H was aware of the twins’ joint efforts to seek to “entrap” their father or at least gather evidence for this hearing through the telephone conversation recorded by them without the father’s knowledge on 7 April 2021. The recording was played in Court and I have listened to it a second time. I make the findings about that call as follows:
(a)By giving the date of the call and time leading up to the commencement at 6.04, it is clear the children intended to give context to the discussion. I am satisfied the father had no idea he was being recorded. The girls caused the finishing time (6.13) to be recorded;
(b)The girls spoke at different times, and despite the father’s calm demeanour, the children’s words became more aggressive and direct, including:
Please stop calling.
…we don’t want to talk to you. We don’t want to talk to you, see you, have a relationship with you.
Can’t you please respect our decision…
… you lost the right to get your decision because you hit us…
… we don’t want to be your daughters.
The point is that you’re a bad person because no one should ever hit their child or make them feel scared of them.
But you’ve only caused bad stuff in our life.
(c)Certainly both girls raised what they described as hitting; choked by Dad; handprints on Y’s neck; soft tissue damage to my shoulder; strangulation. They expressed a lack of trust for their father;
(d)The father tried to direct the conversation to “good” subjects; their dog K; how they were feeling about bouts of chickenpox; school and the like – but every attempt to do so was rejected;
As I discuss later, although there is evidence (including an acknowledgement by Y to Mr J) of the father having apologised about the incident in January 2018, and his attempts to do so in the subject telephone call – the girls’ words maintain a resistance to discuss the matter with him.
Words cannot properly convey the distressing nature of the call where the children were “hellbent” on saying hurtful things to the father – to be contrasted with the interactions at the supervised visits.
I am not satisfied the mother encouraged or coached the girls to record the father, but I certainly feel the girls did so, thinking this would assist the mother in her litigation. Rather than see it for what it was, the mother chose to effectively rely upon the discussions in her case.
G CONTACT CENTRE NOTES
The full notes from the supervision service were received at the Court on 27 May 2021 in response to a subpoena issued by the father on 10 March 2021. No evidence was produced as to the reason why G Contact Centre failed to produce documents as ordered by 31 March 2021. Perhaps a little fortuitously, the delay enabled notes produced to include the last visit between the father and the twins on 30 April 2021 (which I note is two days after the twins spoke to Ms H).
The late delivery of the notes prevented the parties having any opportunity to read them before they prepared their affidavit of evidence-in-chief or finalising, effectively, their case outlines. In the father’s case, of course, he was there, but the mother was not. I chose to delay the completion of mother’s cross-examination on Monday, 31 May 2021, to allow her overnight to view the notes as I did. The next morning, the mother gave evidence that she was surprised by the warmth and engagement for much of the time between the father and the twins which was not what the girls had told her and what she had expected was going on.
To a large degree, I believe, her expectation was shaped by what she said was the reluctance and opposition the children demonstrated on most occasions on beginning the supervised visit as the notes also observed. At its highest, however, when questioned by the Bench about whether (having now read the notes) she agreed the girls may have been telling her untruths, she agreed, even acknowledging that “they have been manipulating me a lot” and that she needs to be more aware of this and that things can change now because she is “not going into it blind.”
Whether or not this should be construed as a further “light bulb” moment as so described by Counsel for the father, will be discussed. The notes are part of Exhibit 5 and really speak for themselves, however to give some flavour to those notes, I record the following matters of relevance and/or interest, some of which were discussed with the parties, particularly the mother, in cross-examination.
The first recorded visit is 13 November 2019. Considering that the children would not have spent any physical time with their father for something like five months, I am not surprised that the children were “both very nervous.” However, the observations of this four-hour session showed that whilst they were initially hesitant to greet the father, they both gave him a cuddle after he said hello. They played games, had food and drinks, played songs, and sang. They appeared to be more comfortable as the visit progressed and gave their father a “quick hug” and said goodbye when they returned to the mother. They were observed as saying to the mother that “they missed her”.
The visits that thereafter took place on 14 December 2019; 28 December 2019; 4 January 2019 are unremarkable and are overall positive, the children greeting their father and parting from the visit with affection and “leaving happy.” Some visits in early January 2020 were cancelled by the father due to work commitments. However, this did not seem to affect the children’s clear, positive interaction with the father when observed on 25 January 2020 and then on 7 March 2020, even despite, as I say, some missed visits in January and February 2020.
A further interruption occurred between 14 March 2020 and 16 May 2020 because of COVID-19 restrictions and the children having the flu, but, again, the visit on 16 May 2020 shows the children interacted with the father positively, showing him things about their engagement with a platform called TikTok, playing dinosaurs, and generally positively engaging with him.
The visits on 6 June 2020 and 13 June 2020 were unremarkable and positive. Although the visits were to take four hours, after the visit on 13 June 2020, at the father’s request, the visits were only two hours. Considering the age of the children and the limited ways in which you could engage children of this age in that environment, moving to a two hour visit made some sense and seemed to have been supported by the mother and the children. The visits thereafter that took place for two hours on 27 June 2020, 4 July 2020 and 18 July 2020 were positive.
However, it can be observed that on most of the visits the person who prepared the notes, who may have been a lady called Ms L (although no evidence from her has been called), were consistently observed that the children, whilst arriving well dressed, were hesitant to come in and needed encouragement, reassurance that they were safe and that the supervisor would be there, and that that encouragement was also required and given by the mother. I make the observation that once inside and seeing their father at this stage there seemed to be no difficulties. It is open for me to find, and I do find, that to some degree the children knowing they were being observed by the mother, as they were, could well have led them to demonstrating a reluctance, because that is what they felt the mother may have thought they would demonstrate.
The visit of 12 September 2020 is important. On that day the note reveals the following:
They gave Dad a cuddle and sat on the couch talking. They were excited to show Dad a picture of their dog K and the couch she had chewed up. They all laughed about it.
The issue of K the dog has been a matter that, apparently and allegedly, according to the children’s version to the mother and to Ms H, was one of the reasons why they no longer wished to see their older brother, Mr B. They asserted that they had shared with Mr B that they had a dog and that they had told Mr B he was not to tell the father anything about the dog or their life. The narrative that the children sought to convey was that Mr B had breached that trust and shared information about the dog with the father. This is clearly inaccurate. The notes from the contact centre make it clear that it was, in fact, the children who raised the issue about the dog first.
Mr B felt it necessary to swear an affidavit on 15 September 2021 which included the following paragraphs:
5.For most of their lives, the twins and I enjoyed a wonderful, healthy, and loving relationship. I treasure and adore them, and I am confident they are, or were, equally attached to me. Since early 2019 however, the relationship I enjoyed with the twins has begun to deteriorate.
6.I try to text the twins as often as I remember to do so. Prior to 2019, they were usually quick to respond. Since that time however, I increasingly receive either no response from them, or a response which is sad and upsetting. For example:
(a)On 6 September 2020 I arranged to go to Mum’s house for dinner to see her and the twins. I received a text from Mum which said that she was looking forward to seeing me that night for dinner. Several minutes later, I received a further text, this time from the twins. They told me not to go over for dinner as they did not want to see me because they believed that I had told Dad they were getting a new dog. I was astounded by the message, as I had not previously even been aware that they were getting a dog.
(b)On 25 December 2020 (Christmas Day) I sent a text message to the twins to say Merry Christmas. I did not receive a reply until Boxing Day. When I eventually did receive a reply, they told me they did not want to see me because I had told Dad they were getting a dog.
It is particularly sad that not only did the mother accept what the children told her, but that they had continued to repeat this fallacy to Ms H and anyone who will listen. It has caused a breakdown in the relationship between Mr B, their only and older brother, and the twins.
The visits at G Contact Centre continued to occur, and the next significant event to which I refer is the visit at the contact centre on 17 October 2020. The notes from the contact centre, and consistent with the father’s sworn evidence, is as follows, inter alia:
They got the cricket set out and began to play. While playing cricket, the ball got hit over the fence. Y ran over to the fence and started to climb up it to get the ball, that was just the other side of the fence. Dad ran over to help her, he thought she might fall. He said that he would go get it, but Y said she wanted to. Once she was on the fence, she changed her mind and said she did not want to do it, Dad said “Just grab it, it’s just there!” She went to jump down the other side and scratched her finger on the fence. She had a tiny scratch and a drop of blood on it. The supervisor advised her to go and wash it and then applied first aid. Finger washed, disinfectant on it and a band aid. Once washed, there was no blood and a small red scratch remained. X kept yelling, “She’s going to get tetanus.” This really upset Y. Dad did not intervene, and the supervisor reassured Y that she was ok.
After this visit it is apparent that the children gave a totally different version of this incident to the mother, which she, as has been her parenting style, accepted without any form of questioning, filtering or adult reflection. The notes refer to the fact that the supervisor received a message from the mother stating that the father had pushed Y.
The supervisor is recorded as saying she reassured the mother that that had not happened and explained how it had happened. The mother’s email about the finger incident was put to the mother and is marked Exhibit 10. The mother, in her advocacy for the children based entirely on their distorted and inaccurate version of the facts, in my view, again shows a troubling attitude by the mother.
In early December 2020, the children arrived well dressed and happy, and they came straightway to the father, said hello and gave him a cuddle. The note observes that the father “gave them some gift vouchers for their birthday”. There is nothing in the note to suggest, as apparently the children told the mother, and I accept was probably true, that they did not take the gift vouchers home to the mother. In fact, they told the mother that they hid them in the cushions at the contact centre “as they did not want them”. I find it difficult to accept that two young girls of this age, provided with the opportunity to buy clothes, toys or something of their desire, would have not “wanted them”. To me, the most likely result is that they did not wish to appear to the mother to be thankful for the gift vouchers which the father had given them.
The next event on 19 December 2020 commenced with Y crying and saying she did not want to come in. She did. The visit continued happily and well, including a form of a cooking competition, and a similar theme on 2 January 2021 visit can be seen.
Sadly, the notes reveal that really the last positive interaction between the children and the father was the visit on 22 January 2021. The note shows a good exchange between the children and the father about K, the dog, and other events. The father, during the course of this event, indicated to the children that a relation of the children on the paternal side had passed away. After further questioning in cross-examination about this, it became apparent that the person was an aunty who the mother also knew well during her period of the relationship with the father. After the visit, and no doubt discussion between the mother and the child, the mother emailed the supervisor to let her know the children were very upset about the family death and that they did not know straightaway.
I am satisfied, after the mother’s cross-examination, that the person really upset was the mother, who may have well had an earlier good relationship with this aunty person. The mother again allowed her feelings to invade, in my view, the thought processes of the children but use it as an example to be negative about the father in her email to the supervisor.
Sadly, the event of 22 January 2021 was the last really positive interaction. The father cancelled a visit on 26 February 2021, which meant that the next visit on 5 March 2021 took place some six weeks from the previous visit. It is abundantly clear from the notes of the supervisor that the visit was troublesome, and this is best dealt with by including in these Reasons the note as set out, namely:
Mum messaged saying the girls had a difficult phone call with Dad and may be difficult. The children arrived well-dressed but said they did not want to come inside. They came in with some encouragement from both Mum and supervisor. They said hello to Dad and got the paints out. They made some artwork that had domestic violence theme. They made the white ribbons and wrote on it, ‘we survived domestic violence’. Dad was upset but he did not say anything. They then made more ribbons that they said were to give to Mum. Dad just changed the subject and spoke about their schooling. They kept their answers very short, and Dad had to continue to ask questions to keep the conversation going. The children did not say goodbye to Dad but left happy.
It is to be observed, and I find, that the “difficult phone call” was one that we now know was overheard by the mother between the children and the father on 4 March 2021. The father, after this difficult phone call, asked the mother to speak to the children about being more respectful to him. The father’s email to the mother did not reveal anything inappropriate in its content, but properly raised the fact that the children were yelling at him (see Exhibit 11).
Whilst the mother says she was disgusted with the way the children spoke to him, I am not satisfied, despite her evidence to the contrary, that she really genuinely did anything about it. It is, of course, to be seen within the context of the latter telephone conversation in which the children spoke to and recorded the father referred to earlier in these Reasons. After this incident, and also the circumstances where the children, I am satisfied, knew the matter was progressing towards trial, the visits on 9, 10, 26 March 2021, 16 and 30 April 2021 (the last visit), reveal an increasingly oppositional, belligerent, and in my view, inappropriate conduct by the children. They did ignore the father. They told Ms H they did so. Compared to the earlier visits, the children by this stage were not saying goodbye to him or showing any affection towards him.
FAMILY REPORT
I will discuss the critical issue of the children’s wishes and what weight ought to be applied to them when considering the competing proposals within the matrix of the primary and additional considerations prescribed by s 60CC(2) and (3) of the Act. It is, of course, trite to say that a Court is not bound by the recommendations or opinions of a family report writer (see Hall & Hall (1979) FLC 90-713). However, where the evidence of the report writer is based on facts as established by and/or findings made by the Court, then it is appropriate to give appropriate weight to the recommendations of the report writer.
This is a case where, after the cross-examination of Ms H by both the father’s Counsel, Mr Bunning, and the mother’s Counsel, Mr Thomas, I am comfortable in accepting the opinions, cautious though they may be expressed at times, given in both the report and the cross-examination by Ms H. In that regard I refer to parts of her evidence and report at this stage in this way:
(a)At paragraph 169 of the initial family report, the positive observation made by Ms H at that time (noting this was in February 2020) is entirely reflected in the positive interaction at G Contact Centre;
(b)Ms H had the opportunity of listening to the recorded telephone conversation. She expressed concern about why the children would engage in this manner, noting that they had not in any way mentioned this to her during the latter interviews. She regarded the father’s response to the continually probing, aggressive and angry comments of the children as calm, reasoned and persistently child-focused. I agree, having heard the tape. I can only assume that the children thought they would be able to get a reaction from the father such that they continued in that telephone conversation, as earlier observed, to make more and more aggressive comments and hurtful comments to him. That was not achieved;
(c)Ms H indicated that it was not unusual, in her opinion, in high-conflict families for children under the stress of such conflict to align with a primary carer so as not to disappoint them. Ms H continued to say that the way in which the children manifest this alignment with the mother has now reached an extreme level and the way the mother has dealt with issues such as the rape allegation by Ms C; the father’s conviction for the assault, and her support of the children’s version over the oldest boy Mr B’s version of the dog, all are reflective of the children expecting that their mother will accept whatever they say to her;
(d)Ms H indicated that the children, in her view, have formed the view that the mother holds the belief that the children are unsafe with the father and, either directly or otherwise, the children had adopted that belief for the mother’s benefit. Concerningly, Ms H opined that it appears the children are becoming quite dependent on the mother and that this co‑dependency is likely to increase their vulnerability. Whilst noting that the children appear to have a limited number of friends at school (essentially spending most lunch breaks with each other) and there is no evidence of extracurricular activities or other engagement outside the home of any significant nature, Ms H opined that this has narrowed the children’s support to just the mother and this is a significant, problematic issue at this stage of their development;
(e)Ms H, referring to the words of Ms F in her earlier report, says that this has played out in a way which is likely to be less than optimal for the development of these children, and in her view, the children’s need to seek to escalate their “fear” without any appropriate reality testing or evidence to support that fear, presents as a major issue for these children in the future;
(f)Ms H, after reading the report notes from G Contact Centre and hearing of some of the other evidence before the Court, expressed significant concern about the mother’s insight. Ms H opined that the mother’s perceived needs, as demonstrated to the children, have encouraged the children to adopt the narrative that she wants to hear and this puts the children in an unsafe situation. As a result of the current state of the evidence, the trajectory for these children is, unless something changes, that there is every likelihood they will end up having no relationship at all with their father. Further, if the Court forms the view that the children are colluding with the mother, this could result in further allegations without a foundation. As a result, a change of residence and a moratorium for three months is appropriate and in the best interests of the children.
Importantly, in my view, under cross-examination by Counsel for the father, Ms H strongly asserted that despite what the children are recorded as saying and perhaps the impression they believe they must give the mother, she is satisfied the children want a relationship with their father.
The Court noted it had no evidence from Ms M, the father’s partner, but that Ms H had interviewed Ms M. Ms H indicated that she assessed Ms M as mature, forthcoming and, although she acknowledged that at times her relationship with the father had not been a bed of roses (see paragraph 105), her view was that Ms M and the father were in an intact relationship where they recognise that good communication is the key to their relationship.
Mr Thomas, Counsel for the mother, was confronted with, as the second cross-examiner, the difficult exercise of seeking to persuade Ms H to depart from her considered ultimate view that a change of residence at this time, and quickly, was in the best interests of the children. Ms H acknowledged that there could be a number of factors that are attributable to the presentation of the twins, their articulated views and a resistance and breakdown of their relationship with their father that is apparent. She acknowledged, for example, that:
(a)the conduct of the father may, in the past, have been heavy handed but it was not, in her view, of such a nature or frequency as to be an unacceptable risk;
(b)she said that the incidents with Y in January 2018 and X in July 2019 were likely to have been significant to the children at the time, but did not accept they were of such a nature, and bearing in mind the time that had occurred thereafter, that should have been defining; and
(c)the mother’s approach to parenting is such that she has passively, at least, contributed to the children’s attitude to the father and that this has been an important factor.
Ms H expressed a degree of uncertainty about whether the mother had had a true realisation that her children have not always been truthful to her and that this would shape her future parenting style. She left it to the Court to assess whether the mother’s evidence was a genuine reflection of an improvement into the mother’s insight or not.
Importantly, and without doubt, Ms H indicated that a change of residence and moratorium would be a significant and likely distressing event for the twins. I infer, to some degree, this would include from the twins’ perspective that they have not been “listened to” by Ms H or the Court. Ms H indicated also that there was no guarantee that this would repair the relationship with the father as the mother is still their primary source of security. When dealing with the children’s wishes, Ms H made the observation that these children do not present to her as mature and that their wishes should not be seen as a reflection of a mature assessment of what has occurred in the past. Again, it is a matter that lays heavily in the consideration of the Court and as identified in the reports of Ms H and in her evidence, that even a temporary cessation of time between the children and the mother as suggested by the father’s proposal could create enormous stress for these children. This may be alleviated by some form of therapeutic intervention quickly arranged.
It was raised with Ms H whether the children would “vote with their feet” and Ms H said, although there was no evidence this has occurred in the past, she could not discount it. I note that even recently the mother was due to collect the children from school but that the children, without any reference to the mother, chose independently and unilaterally to take the school bus home. That is yet another small but important example of these children who have not yet reached the age of 14, feeling they are in control of their life in a way where they can do as they wish, in my view. For the reasons which Ms H identifies in her reports and her evidence, the father’s proposal is the one, at this stage, although it comes with risks, of course, that the report writer ultimately adopted.
PRIMARY CONSIDERATIONS
I am satisfied that the children will benefit from having a meaningful relationship with both of the children’s parents. I have formed the view that unless something changes, there is a real risk that they will lose the relationship with their father which they seek and which they will obtain benefit. In so saying, I accept that if the children are required to adopt a different belief system in their father’s household about the mother’s conduct, they may well think highly negatively of their mother and that could have an effect upon their relationship with their mother. These children need both of these parents in their life in a meaningful way.
Section 60CC(2)(b) requires the Court to consider and give greater weight to “the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect, or family violence.” When interim Orders were made where evidence is untested and when proceedings of a criminal nature against the father were unresolved, the cautious approach on an interim basis is, of course, to consider ameliorating the unknown risk and supervision is often the preferred approach.
However, at the end of the day, Mr Thomas fairly, in my view, conceded that the evidence does not support a finding by this Court that the father is an unacceptable risk of harm to the children by way of physical conduct or disciplining (and certainly sexual abuse). I am not satisfied that the father is a risk of psychological harm in any way to the children. In so saying, the father’s conduct in January 2018, and I find in July 2019, could have been better, and it may at the time have revealed a lack of emotional attunement to the needs of these children. I have read the Police brief commonly known as the “QP9” which is in Exhibit 4 at pages 7 to 10.
I am satisfied that an incident occurred between the father and X and that she did feel hurt and may have been hurt. To some degree, the father minimised his role in that event to Police in his interview as set out in the Police brief. However, this should not be characterised as an attack upon the child. The father was angry. He could have reacted better. I am satisfied that the mother, armed with a child’s version of the event, went to the Police. It was ultimately a matter for Police whether they should prosecute. They chose to do so. The father cooperated with the Police. He ultimately pleaded guilty to the charge and, as I indicated, no conviction was recorded, and he was placed on an eight month good behaviour bond.
The effect of that event has, however, caused a deterioration which to a large degree runs from the lack of time the father has spent with the child X and her twin sister Y, and the way in which the events of January 2018 and July 2019 have created a narrative, I believe, in the mother’s home about the father being a risk of abusing the children. With the mother supporting at least that narrative, without any proper explanation to the children and further that he could also have been a risk to these young girls of raping them like their older sister is, in my view, a reflection of the mother’s inability to react in an insightful way.
In my view, the children are at a form of risk of emotional harm in the care of the mother, although I do not say it is deliberate, vengeful or vindictive conduct of the mother. On my assessment on the evidence, more likely her conduct is a product of passive indifference; a need for her children to feel that their mother believes everything they say, and through a sense of insecurity the mother has (certainly not helped by the deterioration and estrangement of her relationship with Mr B and Ms C), a need for the mother which has, and will if nothing alters, prove problematic for the twins.
ADDITIONAL CONSIDERATIONS
In a narrative form, I deal with the additional consideration set out at s 60CC(3). It is apparent for the reasons reflected in this Judgment that I am not able to give determinative weight to the children’s wishes. They are immature, in my view, and have sought, whether rightly or wrongly, to support what they believe is their mother’s desire that they not have a relationship with their father. They also take advantage of the mother’s parenting style, where she is passive and, I think, accommodating of what they assess as an easier outcome for them than what has been their lived experience in the past with their father. At times, but not always, the father’s parenting style is a more disciplined or rigid parenting style where rules, behaviour and responsibilities have some prominence. He loves them no less than the mother.
There is no doubt that the children have a strong relationship with the mother. She has created an emotional scaffold around them which they may be fearful of losing. I accept the evidence of Ms H that they want a relationship with their father and that it would be for their benefit. Although it is not a determinative issue in this matter, a better relationship with the father is likely to have the prospect of allowing them to have an ongoing relationship with at least their older brother Mr B. I am unable to make any findings about how the relationship between the twins and their older sister, Ms C, could be advanced.
Certainly during the period where the father has been having supervised time, the relationship that may have existed between the children and extended members of the paternal family has been unfulfilled. The mother provides little evidence about the relationship with the maternal extended family. However, I can accept that at least during the four years of week-about time, it is most likely that these children did form and develop relationships through their parent with that parent’s extended family, and that those additional connections are important to their development and support.
The father has always, in my view, participated, as has the mother, in decision making in relation to the children until these events of recent times. In that regard, the father pays child support of approximately $2,000 a month, and the mother concedes he is never late and never in default. There is also evidence that, upon request over the time, he has provided the mother additional funds to meet some needs of the children, although the mother might, at times, have dictated it be provided to her in a particular way or form.
I deal with s 60CC(3)(d) of the Act, namely, the likely effect of any change in the children’s circumstances when discussing the ultimate orders I will make in this matter. There are no practical difficulties or expenses in the children spending time with either of the parents. They live close to each other, and both homes are within five kilometres of the children’s secondary school, D School. There is no suggestion that if there was a change of residence to the father that the children would go to any other school than D School.
I have in these Reasons already dealt with issues such as the capacity and attitude of the parents to the responsibilities of parenthood. As I say, this is not a case where the Court would make any finding that the capacity of the parent has been diminished by diagnosed mental illness, personality defects, drug use, alcohol use or the like. It is just a sad reality that we have got to the position we have at this time.
There are no family violence orders in respect of this couple, nor is there any evidence of family violence between them. As I have already indicated, there appears to be a family violence order protecting the mother from the child Ms C.
Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings. In this case, both parties, for different reasons and through a different process, submit to the Court that an interim order ought be made. Considering the cost of parties preparing for trial and the emotional cost of doing so, noting, I believe, that the mother is legally aided whilst the father is privately funding litigation, there is certainly the usual intention of Courts hearing a trial to make a final order. Of course, as this case also reflects, final orders in respect of children are never really final, as, if there is a change of circumstances from the date such orders are made, the Court can, through an appropriate process of vetting, allow further litigation to be undertaken, provided it can meet the test of being in the best interests of the children to do so.
However, the uncertainties of how this matter may evolve once an order is made, compel me to the view that it would be inappropriate to invite the parties to further litigation by speculating about what will be the result after any one of the, if you like, factors that the parties rely upon as being the change agent, namely, the father’s case, a change of residence and moratorium, and, in the mother’s case, reunification therapy.
DISCUSSION
I find it challenging to completely ignore the efforts the girls have gone to, to convey they do not wish to have a relationship with their father, including:
(a)the actions at the contact centre on 5 March 2021 that was preceded by the “difficult phone call” between the children and the father. This, the mother says, was the only phone call she had overheard over the period of nearly 12 months;
(b)the recorded telephone call of 7 April 2021;
(c)the observed “rejection” of the father at the supervised visit from 5 March 2021 until the last visit on 30 April 2021;
(d)the comments to Ms H in the last interviews,
and the strong words they have used.
However, as the mother conceded, these girls have become manipulative. They are prepared to avoid a relationship with their brother Mr B by telling a lie.
The limited evidence of school behaviour seems to suggest that they do not often carry their anger into that environment (although there was a bullying incident).
It would not be surprising really if the father simply gave in to the girls’ statements as all too hard. However I assess it to be a testament to the father’s genuine love of his children and his wish to support them that he has persisted in this litigation.
The orders I propose to make will likely create some challenges. He cannot “lock up” his daughters. It cannot be asserted that the father has not ever “hit” the children, however the evidence points to only two incidents and in the context of the ongoing relationship the father then enjoyed – they must have found some way to move forward.
I have been persuaded that there needs to be some decisive action and would not place the children in the care of the father even for three months, if I found the father is a risk to them. He is not.
The difficulty with the mother’s interim proposal, is that I have little confidence that she truly accepts that her children have been “playing” her. I accept she is greatly saddened by the older children’s decisions – perhaps even more so Mr B who went as far as to swear an affidavit in the father’s case. However, in the face of the girls’ lies, she apparently did not encourage Mr B to visit in September and at Christmas 2020. He may see this as a further rejection by his mother which the mother could have dealt with but chose not to do so – preferring to accept the girls’ version.
Because of the mother’s beliefs and parenting style, any reunification therapy where the children are living almost exclusively in the mother’s home is, in my assessment, doomed to fail. The chance for some successful therapeutic intervention is, in my view, enhanced if the children live with the father – albeit temporarily.
I have an open mind as to what ongoing parenting orders are in the best interest of X and Y in the future as much will depend on:
(a)the children’s reactions;
(b)the mother’s reactions; and
(c)the therapy,
however I am comfortable in finding that the father at this point is more genuinely capable of supporting the twins’ relationship with the mother, than the mother has demonstrated towards their relationship with the father.
CONCLUSION
In the preparation of these Reasons, and so as to seek to minimise emotional stress to the children, I made a chambers Order for the children to come to the Court at 10.45am on Wednesday, 9 June 2021 – with this Judgment to be delivered at 11.00am.
The Orders I now make are broadly in line with the interim orders proposed by the father, with some slight variations. They are, in my assessment, on the evidence, in the children’s best interests.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 9 June 2021
APPENDIX ONE
1.All previous Orders are discharged.
2.The Mother shall deliver the children X born … 2007 and Y born … 2007 (‘the children’) to the Child Dispute Resolution Centre, Level 3 Commonwealth Law Courts, 107 North Quay on (date to be inserted by the Court).
3.Pursuant to Section 65L of the Family Law Act 1975 a Family Consultant of the Family Court of Australia is required to:
a.Explain to the children this Order,
b.To give effect to that Order the Family Consultant shall read the Reasons for Judgment of Justice Baumann delivered contemporaneously with these Orders,
c.Effect a changeover of the children such that the children shall come into the care of the Father once the Orders have been explained to the children.
4.Upon the Orders being explained to the children pursuant to Order 3 and from (Court to insert same date as in Order 2), the children shall live with the Father.
5.Once the children live with the Father the children shall not spend time nor communicate with the Mother, pending further Order of the Court and in that regard:
a.Pursuant to Section 68B of the Family Law Act 1975 the Mother is restrained from:
i.Contacting, attempting to contact or asking anyone else to contact, the children by way of telephone, email or any other means of communication,
ii.Attending upon the children’s school being the D School and is not to come within 100 metres of that school,
iii.Is prevented by injunction from removing the children from any place where they may be residing or attending.
6.Nothing in Order 5 prevents either parent being at liberty from obtaining any and all information and/or documents from the children’s school and/or any doctor or medical professional upon whom the children attend and these Orders authorise each of the parents to be able to obtain such information.
7.The Father shall ensure that the children continue their attendance at the D School.
8.The Father shall forthwith contact both Dr E and Ms F (the counsellor, whichever one is available first pursuant to this Order) and shall arrange for the children to attend at the first available opportunity on the first of those two practitioners who are available, and the first available practitioner shall be the counsellor pursuant to these Orders.
9.In relation to the counsellor/counselling for the children:
a.The Father shall upon the first appointment being made advise the Mother (or her solicitor) in writing of who the counsellor is,
b.The Father shall ensure that the children attend all sessions at a frequency and for a duration as advised by the counsellor,
c.The parties shall bear the costs of the counsellor equally,
d.The Father is to attend upon a General Practitioner and obtain referrals for both children under a Mental Health Plan,
e.The counselling shall be for the children,
f.The involvement of either of the parents in the counselling by the counsellor shall be at the sole discretion of the counsellor and each of the parents shall attend as directed by the counsellor upon her (should she so direct),
g.The counselling is reportable,
h.Prior to the first session with the counsellor the Father shall provide to the Counsellor the following documents and has leave to do so pursuant to Section 121 of the Family Law Act 1975:
i.A copy of these Orders and the Reasons for Judgment of Justice Baumann,
ii.A copy of the Subpoena documents produced from the G Contact Centre,
iii.A copy of the Reunification Report of Ms F,
iv.A copy of each of the Family Reports of Ms H.
10.Pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed in the matter and in that regard:
a.The Independent Children’s Lawyer once appointed be provided by the Court with all of the filed documents in the matter,
b.The Independent Children’s Lawyer has leave to copy all of the documents produced pursuant to Subpoena.
11.Two (2) weeks prior to the next return date of the matter the Independent Children’s Lawyer (if appointed) or failing the Independent Children’s Lawyer being appointed, the Father, shall illicit from the counsellor a report which shall be filed and served upon each of the parties, which shall deal with, but is not limited to, the following issues:
a.How the children are progressing with their counselling,
b.A view (if any) as to whether the children should spend time with the Mother and under what conditions.
12.One (1) week prior to the next return date the Mother and Father shall each file an Affidavit and each of the parties shall file a Term of Order which sets out the Orders that they seek the Court make at the Interim Hearing.
13.The matter is listed for Interim Hearing at 9.30am on (Court to insert date).
Notation
1.The Court requests Legal Aid Queensland to appoint as soon as possible an experienced Independent Children’s Lawyer, the Court being of the opinion that the complexity of the matter requires that an Independent Children’s Lawyer be appointed as soon as possible.
APPENDIX TWO
It is ordered, until further order:
Live with/Time with
1.That the Children live with the Mother.
2.That the Children spend time with the Father, each weekend, for a period of no less than 2 hours, or such further time as the children wish.
Reunification Therapy
3.The parents and the children will engage in reunification therapy with Dr E of N Psychologists, Q Street, Brisbane.
4.For the purpose of the said family therapy, both parents will:
a.Ensure that the children attend as required by the therapist;
b.Attend as required or recommended by the therapist;
c.Following the directions and recommendations of the therapist; and
d.Participate in continued therapy so long as the therapist recommends.
5.Each party will approach their general medical practitioner and request a referral (for themselves and the children) to participate in the therapy and each shall pay their own costs associated with the therapy.
Other Matters
6.The Mother will encourage the children to refer to the father as “Dad”.
7.Both parents will encourage the children to spend time with the father and will facilitate any wish expressed by either or both of the children to spend more time with the father than what is otherwise provided for in these orders.
Telephone Communication
8.That the Father be at liberty to contact the Children by telephone:
e.Between 6:00pm and 6:30pm:
i.Each Tuesday, Thursday, and Saturday evening;
ii.On the Father’s birthday; and
iii.On each of the Children's birthdays;
f.Between 9:00am and 10:00am on:
i.Father’s Day;
ii.Christmas Day;
iii.New Year’s Day; and
iv.Easter Sunday.
9.That, for the purpose of facilitating telephone communication pursuant to these Orders:
a.the Father will communicate with:
v.X and Y by calling the Mother's phone (or X and Y's phone).
b.the Mother will:
vi.Ensure that X and Y are available to receive calls from the Father at the appropriate times; and
vii.Ensure that the Children have privacy during their communication with the Father.
Specific Issues
10.Neither parent shall:
a.be “under the influence” of alcohol (to be interpreted consistently with the meaning of that expression as it applies in the Transport Operations (Road Use Management) Act 1995 (Qld)) whilst the Children are in their respective care; or
b.allow another to care for the child whilst that other is under the influence of alcohol.
11.Neither parent shall:
a.physically discipline the Children whilst the Children are in their respective care; or
b.allow another to discipline the Children whilst the Children are in their respective care.
12.That the parents communicate by phone or email or text message in relation to the Children.
13.That the Children attend D School and schooling and the Mother shall be solely responsible for all tuition fees.
14.That the parents will both ensure that each of their names will appear on any enrolments in schools, or attendance at medical practitioners, relevant to the Children.
15.That this Order is an authority for the Mother and Father to obtain from the Children's day-care provider, school, and/or other extracurricular or social organisations in which the Children are enrolled, copies of reports, photographs, and other documents regarding the children’s progress or achievements and notification of events such as sports days, assemblies, and concerts.
16.That each parent is permitted to attend any sporting or extra-curricular activity, notwithstanding that the Children may be in care of the other parent.
17.That this Order is an authority for the Mother and Father to obtain information from any treating medical practitioner, hospital, and/or health care professional concerning the health of either of the Children.
18.That the parents undertake to the Court that whilst the Children are in their respective care they will not denigrate the other parent, their family, or their partner in the hearing or presence of the Children and will use their best endeavours to ensure that others do not denigrate the other parent, their family, or their partner in the hearing or presence of the Children.
OR IN THE ALTERNATIVE, it is ordered, by way of final order:
19.That the Orders of the Federal Circuit Court of Australia of 23 October 2018 be discharged.
Parental responsibility
20.That Mother have sole parental responsibility for the Children:
a.X, born … 2007 (“X”); and
b.Y, born … 2007 (“Y”).
(Collectively, “the Children”).
21.In the exercise of her sole parental responsibility (except for emergent circumstances) the Mother shall consult with the Father as follows:
a.Keep the Father informed at all times of the Mother's respective residential addresses, landline and mobile telephone numbers, and email addresses;
b.Keep the Father informed of the names and addresses of any treating medical or other health practitioner who treats either of the Children and authorise the practitioner to provide the other parent with information that the practitioner is lawfully able to provide about either of the Children;
c.Inform the Father as soon as reasonably practicable of any medical condition, significant health issue, or illness suffered by either of the Children; and
d.Refrain from discussing any adult issues with or in the presence of the Children.
Living arrangements for the Children
22.That the Children live with the Mother.
23.That the children spend time and communicate with the father, at such times, and in such a manner as the children wish.
24.The mother will use her best endeavours to encourage the children to spend time and communicate with the father.
Other matters
25.The Mother will use her best endeavours to have the children refer to the father as “Dad”.
26.Neither parent shall:
a.be “under the “influence” of alcohol (to be interpreted consistently with the meaning of that expression as it applies in the Transport Operations (Road Use Management) Act 1995 (Qld)) whilst the Children are in their respective care; or
b.allow another to care for the child whilst that other is under the influence of alcohol.
27.Neither parent shall:
a.physically discipline the Children whilst the Children are in their respective care; or
b.allow another to discipline the Children whilst the Children are in their respective care.
28.That the parents communicate by way of email or text message (in case of an emergency) in relation to the Children.
29.That the Children attend D School and schooling and the Mother shall be solely responsible for all tuition fees.
30.That the parents will both ensure that each of their names will appear on any enrolments in schools, or attendance at medical practitioners, relevant to the Children.
31.That this Order is an authority for the Mother and Father to obtain from the Children's day-care provider, school, and/or other extracurricular or social organisations in which the Children are enrolled, copies of reports, photographs, and other documents regarding the Children's progress or achievements and notification of events such as sports days, assemblies, and concerts.
32.That each parent is permitted to attend any sporting or extra-curricular activity, notwithstanding that the Children may be in care of the other parent.
33.That this Order is an authority for the Mother and Father to obtain information from any treating medical practitioner, hospital, and/or health care professional concerning the health of either of the Children.
34.That the parents undertake to the Court that whilst the Children are in their respective care they will not denigrate the other parent, their family, or their partner in the hearing or presence of the Children and will use their best endeavours to ensure that others do not denigrate the other parent, their family, or their partner in the hearing or presence of the Children.
NOTATION
A.The parties intend that the time that the children spend with the father will increase in accordance with the willingness of the children to spend more time with him, and that such increase will occur by agreement between the parties, with the children to spend as much time as possible with the father.
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Appeal
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Charge
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Costs
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Damages
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Duty of Care
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Expert Evidence
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