PALAGI & MADILL

[2019] FCCA 1626

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALAGI & MADILL [2019] FCCA 1626

Catchwords:
FAMILY LAW – Interim parenting – where concerns exist about parenting capacity of both the Mother and the Father – risk assessment and management exercise – use of chronologies and summaries of evidence.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 91B

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS PALAGI

Respondent: MR MADILL

File Number: WOC 73 of 2019

Judgment of: Judge Altobelli

Hearing date: 3 June 2019

Date of Last Submission: 3 June 2019

Delivered at: Wollongong

Delivered on: 20 June 2019

REPRESENTATION

Solicitors for the Applicant:	MDV Family Lawyers
Solicitors for the Respondent:	Hansons Lawyers
Solicitors for the Independent Children’s Lawyer:	Legal Aid NSW Nowra Family Law

ORDERS PENDING FURTHER ORDER

(1)The parents have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children W (born in 2007), X (born in 2010), Y (born in 2011) and Z (born in 2013) (“the children”).

(2)The children live with the Respondent Father.

(3)That the children spend time with the Applicant Mother, as follows:

(a)From 10:00am Saturday to 4:00pm Saturday and from 10:00am Sunday to 4:00pm Sunday on consecutive days each alternate weekend; and

(b)From after school to 7:00pm each Tuesday;

provided that the Mother has entered into undertakings provided by the Father’s Solicitor.

(4)The Child, W, spend no time and have no communication with her biological father, Mr A.

(5)On the following occasions of special significance and conditional upon the Mother providing a clear hair strand in strict compliance with Order 7 herein the children shall spend time with the parties as follows;

(a)Notwithstanding any other order the Mother shall have care of the children from 10:00am to 4:00pm on Christmas Eve in even numbered years and from 10:00am to 4:00pm on Christmas Day in odd numbered years.

(b)Notwithstanding any other order the Father shall have care of the children from 10:00am to 4:00pm on Christmas Eve in odd numbered years and from 10:00am to 4:00pm on Christmas Day in even numbered years.

(c)The person who does not otherwise have care of the children on their birthdays will spend time with the children, from after school until 6:00pm if it is a school day or from 2:00pm to 5:00pm if it is not a school day, unless otherwise agreed.

(6)All changeovers take place at McDonalds Suburb B.

(7)Within 1 week of the making of these Orders, the Applicant Mother is to submit to hair strand testing in accordance with the following procedure:

(a)The Mother is to arrange for a hair testing kit to be sent to her GP, or in the event that her GP is not able to facilitate such test, to another GP; and shall advise the other side and the Independent Children’s Lawyer in writing that she has complied with this order;

(b)The Mother is to attend upon such GP and submit to the collection of a 3cm hair sample within 7 days of the GP receiving the testing kit; and the GP shall then return the sample to the lab for testing for all drug types; and the mother shall advise the Father’s solicitor and the Independent Children’s Lawyer in writing that she has complied with this order;

(c)The Mother is to irrevocably authorise the lab to send their report to her solicitor and a copy of that report to the Father’s solicitor and the Independent Children’s Lawyer within 7 days of completion of each such report;

(d)The Mother is responsible for payment of all fees associated with the conduct of the test including the GP’s fees and the lab’s fees.

(8)The Applicant Mother undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) supervised chain of custody urinalysis for drug screening on no more than one occasion each month and within 48 hours of receipt of a request to do so from the Independent Children’s Lawyer with such request to be communicated by email, SMS communication or facsimile transmission to the Solicitor for the Applicant or the party directly and provide copies of the results of the test to the Respondent Father’s solicitor and the Independent Children’s Lawyer within 48 hours of receipt of same. For the purposes of this order each party if unrepresented shall within 24 hours provide to the Independent Children’s Lawyer details of their mobile phone number, email address if available and facsimile phone number if available.

(9)The Applicant Mother and the Respondent Father undertake a Carbohydrate Transferrin (“CDT”) test noting that the CDT test is to be analysed using the High Performance Liquid Chromatography analysis method with the request from the Independent Children’s Lawyer to be restricted to one request in each three month period.

(10)In the event the Mother produces a positive drug test, or fails to undertake a drug test in accordance with Orders 7 - 9 above, the Mother’s time with the children pursuant to Order 5 above shall be supervised by the maternal grandfather or his partner until such a time that she produces a complying negative drug test result.

(11)The Applicant Mother and the Respondent Father are restrained from:

(a)Consuming or being in any way affected by illicit substances or drugs in the presence of the children, or allowing the children to be in the presence of any other person who is consuming or any way affected by illicit substances, alcohol or drugs during any period that they are spending time with the children, or in the period 12 hours prior to spending time with the children and they will do all things necessary to ensure that the children are removed from any situation in which there are illicit substances, alcohol or drugs.

(b)Making critical or derogatory remarks about the other parent, or members of the other parent's family in the presence or within hearing of the children and that each parent shall do all things reasonably necessary to ensure that no other person make any critical or derogatory remarks about the other parent, or members of the other parent's family in the presence or within hearing of the children;

(c)Using any form of social media to make derogatory comments about the other parent and to the best of their ability not allowing any third party to make such comments;

(d)Physically disciplining the children or allowing any third party to do so;

(e)Speaking in the children's presence about the current proceedings before the Court;

(f)From allowing the children to come into contact with or communicating with Mr A, Mr C, or Mr D; and

(g)Enrolling the children in any other school without the express written consent of the other parent or court order.

(12)The Applicant Mother be restrained from;

(a)scheduling any medical appointments for the children without the prior written consent of the Respondent Father;

(b)allowing or permitting any male adult to reside at or stay overnight at her place of residence.

(13)That the children are to remain enrolled at E Public School.

(14)The parents will both be entitled to attend all events involving the children including:

(a)Sporting fixtures;

(b)Extra curricular activities that allow for parental attendance

(c)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions

(15)The Applicant Mother and Respondent Father do all acts and things and give all irrevocable authorities necessary to ensure that the school the children attend may forward directly to each parent copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic, behaviour and extra-curricular activities.

(16)Each parent be permitted to attend any specialist medical appointments including with any psychologist, psychiatrist, counsellor or therapist, speech therapist, occupational therapist (hereinafter referred to as “consultant”) in relation to any of the children and such appointments, such attendance or attendances to be at the sole discretion of any such consultant.

(17)Each parent shall keep the other informed of his or her residential address and telephone contact numbers and will advise the other party in writing of any change to the details no less than one month prior to any change in residential address and within 7 days of any change of the contact telephone numbers.

(18)The Applicant Mother shall ensure that the Respondent Father is kept informed of:

(a)any medical problems or illnesses suffered by the children while in the Mother’s care;

(b)any medication that has been prescribed for the children;

(c)any social, school or religious functions which the children are to attend;

(d)the residential address of the Mother and particulars of any other adult who may reside with the children;

(e)any other matter relevant to the children’s welfare.

(19)The Respondent Father shall ensure that the Applicant Mother is kept informed of:

(a)any medical problems or illnesses suffered by the children while in the Father’s care;

(b)any medication that has been prescribed for the children;

(c)any social, school or religious functions which the children are to attend;

(d)the residential address of the Father and particulars of any other adult who may reside with the children;

(e)any other matter relevant to the children’s welfare.

(20)The Respondent Father is to inform the Applicant Mother’s solicitor and the Independent Children’s Lawyer within 48 hours of any of the following occurring:-

(a)The police attending upon the Father’s residence;

(b)Any incidents of violence that have occurred at the Father’s residence or in the presence of the children or any of them;

(21)The Applicant Mother is to inform the Respondent Father’s solicitor and the Independent Children’s Lawyer within 48 hours of any of the following occurring:-

(a)The police attending upon the Mother’s residence;

(b)Any incidents of violence that have occurred at the Mother’s residence or in the presence of the children or any of them;

(c)If the Mother is contacted by or approached by Mr D;

(d)If the Mother resumes an intimate and/or romantic relationship with Mr C.

(22)The Applicant Mother and Respondent Father shall ensure that the children attend medical appointments as reasonably recommended by their treating medical practitioners, including:-

(a)Dr F, paediatrician;

(b)Dr G, ear nose and throat specialist (W only);

(c)Dr H, dentist;

(d)Dr J;

(e)Dr K, podiatrist;

(f)Dr L, speech pathologist;

and that any reasonable medical fees (out of pocket/medicare gaps) to be borne equally between the parents.

(23)Each parent enrol in and complete the following programs within 10 months of the making of these Orders:-

(a)Keeping Kids in Mind

(b)Circle of Security

(c)Early Days: Understanding Behaviour Through Autism Spectrum Australia

(24)The Respondent Father is to engage and to continue to engage with the following:-

(a)The caseworkers of Family and Community Services for as long as this service deems necessary and is to follow all reasonable recommendations, directions and referrals made by the caseworkers;

(b)his treating GP, and is to follow all reasonable recommendations made by his GP, attend all medical appointments made with his GP and is to take medication as recommended and/or prescribed by his GP:

(25)The Applicant Mother is to engage and to continue to engage with the following:-

(a)The case workers of Family and Community Services for as long as this service deems necessary and is to follow all reasonable recommendations, directions and referrals made by the caseworkers;

(b)The caseworkers of Health Services for as long as this service deems necessary and is to follow al reasonable recommendations, directions, and referrals made by the caseworkers;

(c)her treating GP, and is to follow all reasonable recommendations made by her GP, attend all appointments with her GP and is to take medication as recommended and/or prescribed by her GP;

(d)her treating therapist for as long as her therapist deems necessary, and is to follow all reasonable recommendations made and attend all appointments made with her treating therapist.

FURTHER ORDERS

(26)Pursuant to section 91B of the Family Law Act 1975, the Secretary of the Department of Family and Community Services is requested to intervene in these proceedings in relation to the W (born in 2007), X (born in 2010), Y (born in 2011) and Z (born in 2013).

(27)The Independent Children’s Lawyer is to forward to the Solicitor for the Secretary of the Department of Family and Community Services at its Head Office in Suburb M, not later than 4.00pm on 5 July 2019;

(a)Copies of the documents filed by each of the parties to date; and

(b)Leave be granted to the Independent Children’s Lawyer to provide a copy of these Reasons for Judgment to the Department of Family and Community Services.

(28)Upon request from the nominee of the Secretary the Registry Manager permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.

(29)The matter be set down for a 4 day Final Hearing on 17 – 20 August 2020 at 10:00am.

(30)The matter be adjourned to 18 October 2019 at 9:30am for Mention.

(31)Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 7 days’ notice by application to the Court in Chambers in appropriate circumstances.

(32)The parties are at liberty to file terms in the Registry for the purposes of orders being made in Chambers in relation to the appointment of a Single Expert Witness.

NOTATION

(A)The purpose of the Mention is to review the progress in implementing these Orders and to consider further trial management.

(B)For the purposes of the notification pursuant to section 91B, the subject children presently live with the Respondent, Mr Madill.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 73 of 2019

MS PALAGI

Applicant

And

MR MADILL

Respondent

REASONS FOR JUDGMENT

Introduction

1.This very difficult case is about four children; where they should live, and how much time they should spend with each of their parents. W was born in 2007 and is currently 11 years old.  She has been diagnosed with autism spectrum disorder.  X was born in 2010, and is 9 years old.  He has been diagnosed with autism spectrum disorder and global development delay.  Y was born in 2011 and is currently 7 years old.  He has been diagnosed with autism spectrum disorder and intellectual delay.  Z was born in 2013 and is currently 5 years old.  She has also been diagnosed with autism spectrum disorder.  It is common ground that each of the children have special needs which makes parenting them difficult.

2.W’s biological father is Mr A. He has not been joined to the proceedings as yet, but is expected to because he is aware of the same.  The First Respondent Father, biological father to the three younger children, considers himself to be, in effect, W’s psychological Father.

3.The most current Orders of the Court were made by consent on 13 March 2019. Those Orders provide for the children to live with the First Respondent Father and spend time with their mother from 5:00pm to 7:00pm each Tuesday, and from 2:00pm to 4:00pm each Saturday, in each case with the supervision of the maternal grandfather.  These Orders were, however, clearly contemplated to be temporary, and were expressed to be on a without admission and without prejudice basis.  An earlier Order of the Court, made 1 February 2019, provided for the children to live with their father and to spend time with the Mother as agreed between the parents, but on a supervised basis.  The children came into the Father’s care on 10 January 2019.  Prior to that they were in the Mother’s care.

Background

4.As a result of the extraordinary work undertaken by the parent’s lawyers and the Independent Children's Lawyer, there was available to the Court at the Interim Hearing a vast amount of evidence relating to both parents, and the children, which enables the Court to undertake the very difficult risk assessment exercise it has undertaken.  Each of the lawyers, but particularly the Independent Children's Lawyer Ms Ung, are to be commended for the exemplary work they have put into this case.  Not only was the evidence marshalled, but it was then ordered chronologically, summarised and cross-referenced.  This evidence will be discussed below. 

5.It is abundantly clear that both parents have had very difficult lives.  They have experienced significant dysfunction, both as children and adults.  The challenges of raising these four children, with their special needs, needs to be acknowledged.  Nonetheless, the Court’s role is to assess risk in relation to the children, to create safe spaces for them and to provide as long a period of stability as is possible under the circumstances.  The starting point of this exercise is to recognise that there is risk in both households, and all the Court can do is to attempt to establish where there is least risk.

6.The sheer volume and, indeed quality of the material before the Court enables it to make the following broad findings about the parents, even at an Interim Hearing. 

7.The Mother had a very difficult childhood in which she was both abused and neglected.  She commenced using drugs at an early age.  Whilst she deposes in her Affidavits to have ceased using drugs in 2006, the objective evidence before the Court suggests that she continued to use illicit substances until at least a year ago.  W was born positive for benzodiazepine.  Indeed, the Court cannot be reasonably satisfied that there is no genuine risk of relapse for the Mother.  Even if she has, hypothetically, ceased taking drugs, she has not excised herself completely from what the Court will describe as a drug culture, i.e. associating with people who use and/or deal illicit substances.  The Mother has been in a series of violent relationships.  Indeed, she has left one violent relationship and rapidly entered into another one.  One of the violent relationships was with the Father, the First Respondent.  He perpetrated violence on her.  It may well be that part of the explanation for the Mother’s propensity for violent relationships is that she suffers from dependent personality traits.

8.The Mother’s mental health has suffered as a result of all the above factors.  In addition, she has experienced postnatal depression after the birth of X, and Z and one of the many risks to be managed in this case is the risk of relapse into postnatal depression after the forthcoming birth of the Mother’s new baby which is expected to be later this year.  The Mother is engaged with a psychologist who has diagnosed post-traumatic stress disorder.

9.The material available to the Court creates the strong impression that the children have, at times, been exposed to the extensive family violence which the Mother experienced. 

10.The Mother herself appears to have a tendency for aggression, and emotional dysregulation. 

11.The Father has had multiple apprehended violence orders against him, and he has been charged and convicted of assaulting the Mother. 

12.Allegations have been made, historically, against the Father and one of the Mother’s subsequent partners, in relation to sexual abuse of the children. 

13.The material before the Court suggests that not only were the Mother’s subsequent partners violent, but they also experienced significant drug and/or alcohol problems. 

14.The Mother and the Father probably separated in 2013, or 2014, but very little turns on this.  Since then there have been periods of time when the Father has consistently spent time with the children, but at other periods his time has been inconsistent, indeed ad hoc.  It is not entirely clear from the evidence, at this stage, whether this is attributable to reluctance by the Mother, or the Father, or for some other reason. 

15.It appears that, from the Mother’s perspective, the maternal grandmother has had a very negative influence on her life, has been mischievous in making reports to the child welfare authorities, and is not necessarily available to assist in the care of the children. 

16.Several of the children have reported being assaulted by the male figures in the Mother’s life including the Father, and the Mother’s later partners. 

17.Since the children went into the Father’s care on 1 February 2019, there have been times when he has struggled to care for them.  There is an issue about whether he has been able to facilitate the children consistently engaging with all of the support services that were in place to assist them having regard to their special needs. 

The competing proposals

18.The Independent Children's Lawyer proposed that the Mother and First Respondent have equal-shared parental responsibility for the children.  The Mother was to submit to hair strand testing.  The children were to live with the Mother, until a clear hair strand test was received, from 5:00pm to 7:00pm each Tuesday, and from 2:00pm to 4:00pm each Saturday, in the presence of the maternal grandfather or his partner.  Once a clear hair strand test was produced, however, the children would live with the Mother from 3:00pm on Tuesday to 3:00pm on Saturday each week, and with the Father the rest of the time.  The precise minute of order proposed by the Independent Children's Lawyer is reproduced in the First Schedule to these Reasons. 

19.The Father’s proposal was that he have sole parental responsibility for the children, and that they live with him. The children would spend time with the Mother from 10:00am to 4:00pm on each alternate Saturday and Sunday, and from after school to 7:00pm each Tuesday, subject to the Mother entering into specific undertakings.  The Father proposed that W spend no time and have no communication with her biological father.  The precise minute of order sought by the Father is also reproduced in the First Schedule to these Reasons. 

20.The order proposed on behalf of the Mother was that the children live with her, remain enrolled at their present school, and spend time with the Father from after school on Thursday to before school on Monday each alternate week, and from after school on Thursday to before school on Friday in the other week.  The Mother proposed that school holidays be, in effect, shared equally between the parties.  The minute of order proposed by the Mother is reproduced in the First Schedule to these Reasons. 

21.It is common ground, therefore, that the current Orders were no longer suited to the best interests of the children.  Inherent in the Mother’s proposal is the contention that there was no unmanageable risk of harm if the children lived with her, but spend time with their father on a substantial and significant care basis.  Inherent in the Independent Children's Lawyer’s proposal was the notion that if the Mother was found to be drug-free, the Children should substantially live with her for four nights each week, and the remainder with the Father.  To be fair to the Mother, the detailed minute of order she proposed contained a number of safeguards about the children’s welfare whilst in her care.  By contrast, the Father’s proposal was premised on the basis that the risk to the children in the Mother’s care could only be adequately managed by the children living primarily with him, and spending only daytime contact with their Mother, together with a number of protective measures reflected in the order proposed by him. 

22.The Court infers from the Mother’s proposal that, despite the many concerns she raises in her evidence about the Father’s capacity to parent the children, she has no concerns about his ability to adequately care for the children during the time that they spend with him pursuant to her proposed orders (i.e. 5 nights out of 14).  That confidence in the other parent’s parenting capacity was not, however, shared by the Father, as is reflected in his proposal.  An impression that may be formed from the Independent Children's Lawyer’s proposal was that her main concern was drug taking. 

23.It was common ground at the Interim Hearing that the children would remain at their present school.  Moreover, neither parent dissented from being subjected to quite a strict regime of drug and/or alcohol testing.

The evidence before the Court

24.In the Mother’s case, reliance was placed on the following documents;

a)Initiating Application of Ms Palagi filed on 25 January 2019;

b)Affidavit of Ms Palagi filed on 22 May 2019;

c)Affidavit of Ms Palagi filed on 17 May 2019;

d)Affidavit of Ms LL filed on 21 May 2019;

e)Notice of Risk filed on 25 January 2019.

25.In the Father’s case, reliance was placed on the following documents;

a)Response to Initiating Application of Mr Madill filed 6 March 2019

b)Affidavit of Mr Madill filed on 22 May 2019; and

c)Affidavit of Ms O filed on 6 March 2019.

26.In the Independent Children's Lawyer’s case, reliance was placed on the following documents:

a)Child Inclusive Conference Memorandum dated 6 May 2019;

b)Documents produced pursuant to subpoena on the Department of Family and Community Services;

c)Documents produced pursuant to subpoena on E Public School;

d)Documents produced pursuant to subpoena on Dr F;

e)Documents produced pursuant to subpoena on Region P Speech Pathology;

f)Documents produced pursuant to subpoena on NSW Police;

g)Documents produced pursuant to subpoena on Dr P;

h)Documents produced pursuant to subpoena on Dr J;

i)Documents produced pursuant to subpoena on The Smith Family;

j)Documents produced pursuant to subpoena on Autism Spectrum Australia;

k)Documents produced pursuant to subpoena on Region P Local Health District;

27.From a forensic perspective, the most useful documents to the Court were the following:-

a)A chronology prepared by the Independent Children's Lawyer;

b)A summary of issues prepared by the Independent Children's Lawyer;

c)A summary of subpoena material prepared by the Father’s Solicitor;

d)A subpoena inspection schedule prepared by the Mother’s Solicitor.

Each of these documents is reproduced in the Second Schedule to these Reasons.

28.Each of the documents were aide memoires which greatly assisted the Court.  The most that could be said against these documents is that, in the case of the Mother and the Father, the summaries were prepared from their perspective.  Nonetheless, what was striking from a close examination of these documents was the consistency of the summary of the materials referred to. 

29.The use of summaries of evidence, and chronologies, in complex interim cases is to be encouraged, indeed lauded.  These documents reflect diligent, indeed intense preparation by each of the lawyers.  It is highly likely that all of the lawyers represented clients who were in receipt of grants of legal aid.  The effort undertaken by each lawyer is impressive, and is appreciated by the Court. 

The applicable law

30.The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

31.The objects and principles of Part VII are set out at s.60B:

60B  Objects of Part and principles underlying it

(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.

(2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

(a)    children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c)    parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d)    parents should agree about the future parenting of their children; and

(e)    children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)    to maintain a connection with that culture; and

(b)    to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)    to develop a positive appreciation of that culture.

32.At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

61DA  Presumption of equal shared parental responsibility when making parenting orders

(1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

(2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)    family violence.

(3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

33.If the presumption applies, the Court is required to consider certain things:

65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time

(2)    If:

(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3) will be taken to spend substantial and significant time with a parent only if:

(a)    the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii)    days that do not fall on weekends or holidays; and

(b)    the time the child spends with the parent allows the parent to be involved in:

(i) the child’s daily routine; and

(ii)    occasions and events that are of particular significance to the child; and

(c)    the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)    how far apart the parents live from each other; and

(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)    the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)    the impact that an arrangement of that kind would have on the child; and

(e)    such other matters as the court considers relevant.

34.Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

Determining child's best interests

(1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)  The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3)  Additional considerations are:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child);

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)  any family violence involving the child or a member of the child's family;

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

35.In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

36.A little later in the judgment the High Court said:

13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

37.At [15] the High Court emphasised the need for a practical approach:

15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

38.The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

…

72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

…

82. In an interim case that would involve the following:

(a) identifying the competing proposals of the parties;

(b) identifying the issues in dispute in the interim hearing;

(c) identifying any agreed or uncontested relevant facts;

(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Discussion

39.The evidence before the Court as to the history of parenting in this matter, and even the Mother’s own proposal, reflects the reality that these children have a meaningful relationship with both their mother and father.  Little is known about W’s biological father.  The Mother submitted that she has been the primary carer for all children since birth.  This is probably correct.  She submits that the totality of the evidence would lead the Court to be satisfied, even at an Interim Hearing, that the children have a strong attachment to her.  That is also probably correct.  Nonetheless, the fact remains that the children have a meaningful relationship with their father.  In a prospective sense, the children would benefit from having a meaningful relationship with both parents. 

40.The manner in which all cases were presented reflects the reality of this matter:  the primary focus of the Court should be, as far as possible, to make an order that protects the children from the risk of physical or psychological harm, whether that be as a result of being subjected to, or exposed to, abuse, neglect, or family violence.  Within the broad parameters of this primary consideration are other relevant factors which go to the parenting capacity of the Mother and the Father, their attitudes towards each other and to the responsibilities of parenthood, and their ability to prioritise the children’s needs above their own. 

41.The Mother’s proposal that the children live primarily with her is strongly contraindicated by the material before the Court.  The Mother’s case demonstrably minimised the impact of the matters to which the Court will now refer. 

42.The starting point is the Mother’s evidence in her Affidavit that she ceased using drugs in 2006.  There can be no doubt that the Mother understood the significance of the issue of drug use at the time she made her Affidavit on 17 May 2019.  Even her own evidence demonstrates her understanding that one of the main reasons why the children had, in effect, been placed in the Father’s care by the Department of Family and Community Services was that she had been using and was under the influence of drugs.  Whilst the Court accepts there is some ambiguity around the precise circumstances of the children firstly being removed by the Department from the Mother’s care and placed with the maternal grandfather and his partner, and then subsequently going into the Father’s care, ultimately whether this was a formal or informal placement is irrelevant.  The Mother knew that one of the issues of concern was her use of drugs.  Knowing that, the evidence she gives at paragraphs 137 and 138 is clear.  She was not recently under the influence of drugs.  She had not used drugs since 2006. 

43.The objective evidence is different.  For example, on 4 May 2007 the Mother told her social worker of her extensive drug history including intravenous heroin and ice.  She told her social worker that the last time she used was in March 2007. 

44.W was born in 2007.  Drug analysis of the Mother tested positive for benzodiazepine.  The baby’s urine was positive for benzodiazepine. 

45.On 23 February 2015 the Department of Family and Community Services’ records report that: “The Mother attended childcare today and appeared to be under the influence of alcohol or drugs.” The Court believes that it is significant that the report was made by staff at a childcare centre who are not only focused on child protection but, the Court infers, would not necessarily be strangers to the experience of dealing with drug-affected parents.  In any event, that night there is a hospital record indicating that the Mother was admitted to City Q Hospital Emergency Department.  The record states: “She presented to the facility with vomiting.  This is a likely effect of amphetamines which were found in her urine.” The Mother apparently gave an explanation: “Worried her drink may have been spiked at a party on Saturday night, left drink unattended.  Denies taking any drugs herself.” The incident occurred on 23 February 2015, which was a Monday.  Whilst it is possible that the Mother was still affected by a spiked drink on the previous Saturday night, it is not likely.  It is more likely than not that the Mother was drug affected on 23 February 2015, and obfuscated about this.

46.On 25 November 2016 Mr C, the Mother’s current partner, tested positive to methylamphetamine at a roadside test.  Indeed, on 3 February 2017 there is a police record of the Mother calling the triple O emergency number, and the Police attending her home as a male had taken a substance and overdosed.  The male was found to be unconscious but breathing.  The record states that the male, once conscious, told the Mother to shut up and not say anything.  The Mother apparently became hysterical and hostile towards the Police.  A reasonable inference to draw is that the said male was Mr C.  This, of course, does not establish that the Mother was taking drugs, but does suggest she was associating with, and indeed partnered with, a drug user. 

47.On 30 November 2017 a police record indicates that a vehicle registered to the Mother, and in which she was a passenger, was pulled over for a random breath test.  The Mother was noted to be aggressive and attempted to flee from police.  The police search resulted in finding a packet of .44 grams of crystal meth on the person of the male who was driving the vehicle.  He also tested positive for a roadside drug test for methamphetamine. 

48.On 4 January 2018 a police report indicates they found two cannabis plants at the home of Mr C.  On 6 April 2018 he was pulled over by police and found to be in possession of ice.  On 20 April 2018 he was again pulled over by Police, described in the record as a known drug supplier, and a search of the vehicle revealed a small black bag containing ice pipes, a lighter, and a set of scales. 

49.On 6 November 2018 a report to the Department from Z’s childcare centre referred to the Mother being passed out in the car, and seemingly under the influence of drugs or alcohol. 

50.On 29 November 2018 the Child Z disclosed to a person who then reported to the DOCS/FACS helpline: “Mummy drives people around for work at night and Mr C is the driver and mummy just goes.” Whilst a number of issues arise from this, a reasonable inference to draw is that the Mother was involved in drug sale and distribution, given the Police observation that Mr C was involved in drug supply. 

51.On 30 November 2018 a caller to the FACS helpline records that they observed the Mother arrive at the Early Learning Centre, not make eye contact, and then seemingly being passed out in the car. 

52.On 4 December 2018 a departmental file note records the Mother and her partner presenting to the FACS office as anxious and evasive.  Again, a reasonable inference to draw is that a departmental worker would have some experience of observing drug-affected parents. 

53.On 10 December 2018 another FACS record records the Mother and her partner attending the FACS office.  Mr C appeared to have constricted pupils and the Mother’s pupils were dilated.  The Mother used erratic hand and arm gestures when speaking and could not keep still.  FACS suspected drug use and this was raised.  Both Mother and Mr C denied drug or alcohol use. 

54.On 8 January 2019 there is another call to the FACS helpline.  The reporter was a caller to the house.  The record refers to the Mother coming to the door very drug affected.  She was walking very strange, had pinprick dilated pupils, was pregnant and rubbing her belly and her legs were very wide.  She was on tiptoes standing and was gesturing with her hands and legs.  The impression formed was that the Mother was drug affected. 

55.On 9 January 2019, 10 January 2019 and 11 January 2019 the Department requested the Mother and Mr C to undergo drug testing, but they did not attend.  On 14 January 2019, however, the Mother voluntarily undertook urinalysis, and the results were clear.  Indeed, all subsequent drug tests have been clear. 

56.The evidence before the Court enables it to be reasonably satisfied that the Mother is currently not on drugs.  The risk of relapse is, accordingly, the major concern.  In assessing this risk, however, the Court must take into account whether the Mother has been forthright in what she tells the Court about her drug use.  In this regard, not only did she swear an Affidavit that seems materially false on the question of drug use, but in the Child Inclusive Conference Memorandum of 6 May 2019 she admitted that she last used ice recreationally “about one year ago, one-off”.  The Mother is clearly not a reliable historian when it comes to matters of her drug use.  Moreover, in assessing the risk of relapse, the Court is entitled to consider broader factors.  For example, the Mother’s partner Mr C seems to be both a drug user, and involved in the drug culture.  And yet the Mother says nothing about Mr C in her Affidavit leading the Court to infer that this relationship still exists. 

57.The Court concludes, on the available evidence, and for the time being, that the risk of relapse for the Mother is a real one.  Little, if anything, is known about why the Mother uses ice, and, therefore, what could trigger a relapse. 

58.Implicit in the Mother’s case, and to a certain extent the Independent Children's Lawyer’s case, is the contention that random drug testing, and a hair test, would make the risk of relapse a manageable one.  In a theoretical sense, that is so.  But there is still an inherent risk to the children which is an actual one if the Mother does relapse into drug use and not a theoretical one.  Drug testing will merely indicate what the Mother has already done, not what the Mother is likely to do. 

59.The other significant risk to the children is exposure to family violence.  The Mother’s own evidence is that her relationship with W’s father was a violent one.  The Mother’s evidence is that her relationship with the Father was likewise a violent one and this is amply demonstrated in the records in evidence.  This evidence suggests that the Mother obtained multiple Apprehended Violence Orders against the Father, and that he was charged and convicted of violence offences against the Mother.  All the same, she kept allowing him back into her life and actively sought to reconcile their relationship.  The Court accepts that it is more likely than not that the children were exposed to this violence between their father and mother.  The risk, however, of continued exposure to violence between their parents is, in the circumstances, low.  There is minimal contact between them.  The Mother has re-partnered.  The Father is fully engaged with the care of the children.  The vigilance of current proceedings will be a protective factor.  The focus, for present purposes, is the risk of the Mother exposing the children to further violent relationships, and not being able to adequately protect her children from violent partners. 

60.After the separation between the parents the Mother appears to have re-partnered fairly quickly.  There was a report to the FACS helpline on 4 March 2015 referring to a man called Mr D who hit both X and W.  There is a COPS record of 18 February 2016 recording a man, which the Court infers was Mr D (sometimes referred to as Mr D) grabbing the Mother around the throat and saying, “I’m going to fucking kill ya”.  An Apprehended Domestic Violence Order was made for the Mother’s protection.  But when the police attended the Mother’s residence on 18 May 2016 the Mother denied that her partner was there.  Notwithstanding, they found him there, arrested him, and noted that he smelt of intoxicating liquor.  A few days later there was a FACS report to the effect that the Mother assisted her current partner Mr D to breach the AVO and to return to the family home despite it being highly likely that the children would be exposed to ongoing domestic violence.  There was a further FACS report on 15 June 2016 to the effect that Z had disclosed three times that Mr D hurts her, pushes her Mother and hit her with a fishing rod.  On 29 July 2017 there is a COPS record referring to an incident between the Mother and Mr D which refers to the latter striking the Mother in the face with his forearm, cutting the Mother’s lower lip.  The injury was sighted.  On 30 November 2017 the Police records indicate that the Mother’s car was pulled over for a random breath test.  The Mother was in the passenger seat.  The records note the Mother to have become aggressive and attempted to flee from Police.  The Mother’s partner, the subject of a current Apprehended Violence Order, was found in the car, and arrested for breach of the order.  He was also found to be in possession of methamphetamine. 

61.On 1 April 2018 the police records suggest that notwithstanding the Apprehended Violence Order, and the previous violence, the Mother nonetheless invited her partner into the home.  He began abusing her, calling her names, and then punched her in the back several times.  The Mother reported the matter to Police, but declined to make a police statement.  The next month, on 8 May 2018, there was a further incident involving the Mother’s partner involving a threat:  “I’m going to fucking kill you.”  The Mother did not call the Police, concerned members of the public did.  Eventually the Mother’s partner, Mr D, was sentenced on 1 June 2018 to 18 months’ imprisonment for contravene apprehended violence order and stalk/intimidate.  His non-parole period expires on 11 November 2019. 

62.The Mother appears to have fairly quickly re-partnered with her current partner Mr C.  The Father alleges that in November 2018 the children disclosed an incident between the Mother and Mr C where the latter sought to stop the Mother from leaving in her motor vehicle.  From November 2018 there are a number of reports which strongly suggest that the Mother’s current partner continues to use, and possibly deal in drugs.  In any event, on 28 November 2018 there is a report to the FACS helpline from the staff at Z’s early learning centre.  It is unclear whether this is something they witnessed, or whether it is something that Z told them.  The record refers to Mr C banging his head on a wall inside the house until he broke the wall and was bleeding.  Mr C was also reported to have punched walls.  On 10 December 2018 there is a report to the FACS helpline.  The narrative suggests that the reporter was someone involved in providing support services to the Mother.  There was a violent incident between the Father, the Mother and Mr C.  The COPS entry of that date suggests that this was an incident at changeover.  The Police took statements but took no action given the opposing versions of the event. 

63.There is a further report to the FACS helpline on 26 December 2018 to the effect that the Mother told the reporter that an incident occurred where Mr C had locked the Mother in her room, ejaculated on his hand and threw it in her face. 

64.The totality of the evidence before the Court creates a strong impression that during the lives of the children the Mother has had four violent relationships in which the children have been exposed to varying degrees of violence as well as sometimes subjected to violence.  One of those violent relationships was with the Father in the present case.  A common theme from the evidence is that the Mother went from one violent relationship to another, missed opportunities to extricate herself and the children, and/or to make the violent perpetrator accountable through the law.  There is nothing in her evidence to suggest that she has gained insight about the effect of this on both her and the children.  There is evidence to suggest that there is violence in the current relationship, even putting aside the drug issues discussed above.  The Mother’s case does not address this concern in any meaningful way and her proposal likewise is silent about it.  The Independent Children's Lawyer’s proposal does not adequately deal with this issue and, potentially increases the risk to the children of exposure to violence because of the children spending greater time with their mother.  The Father’s proposal minimises the Mother’s time with the children and is thus deemed to be more protective. 

65.The Court accepts that there is a risk of harm to the children in the Father’s care, as well.  He was clearly violent during the relationship.  He accepts that Apprehended Violence Orders were made against him.  He deposes to pleading guilty to assault charges involving the Mother.  Despite this, he asserts in his evidence that the Mother was violent and he acted defensively.  There is some limited support for the contention about the Mother’s violence in the other evidence before the Court.  An impression can be formed from the Father’s Affidavits of minimising the violence and failing to take responsibility for what he did, even if, as he contends, his role was limited.  There is no evidence, however, of the Father continuing to expose the children to violence whilst in his care. 

66.Since the children went into the Father’s care he appears to have struggled at times to support them in their involvement with the many activities and services with whom they are engaged because of their ASD.  On 29 January 2019, in a conversation with a FACS worker, the records suggest that he was struggling to keep up with the children’s existing level of activities.  He was concerned about how he could get by financially.  The Mother contends that the Father has failed to get the children to significant medical appointments, including the children’s psychological treatment.  She contends that he does not understand the children’s needs and does not accept that they have ASD.  She contends, and this may well have been true at one stage, that he wanted to remove the children from their current school to one closer to his home.  As noted above, that is no longer an issue.  There is an element of truth to these assertions, but it now seems that the Father is no longer working and is thus able to devote his time full-time to the care of the children, and is in receipt of Centrelink benefits. 

67.The Court was asked to consider making an order under section 91B of the Family Law Act, requesting the Department of Family and Community Services to intervene in this case. At this present point of the proceedings, and based on the evidence before the Court, whilst a section 91B order will be made, the Court’s impression from the evidence is that the purpose of departmental intervention would be to support the Father in meeting the demanding needs of these children, pending a Final Hearing at which the longer term decisions about the children can be made. It is possible that if the Father is well-supported, he could cope with the children on a long-term basis. The family violence he perpetrated, its impact on the Mother and the children, and the Father’s attitude and insight about this, needs to be thoroughly examined. What is clear to the Court in the present context is that, for now, he presents less of a risk to the children than the Mother does.

68.Whilst what the Court considers to be the main risks to the children have been discussed above, the Court must acknowledge that the Child Inclusive Conference Memorandum suggests the children really would like to go back into their Mother’s full-time care.  That is, of course, a factor but, for the time being, the Court considers it to be subservient to risk considerations. 

Decision

69.The evidence set out above rules out making the order proposed by the Mother.  In short, the Court believes that there is an unacceptable and unmanageable risk of the Mother relapsing into drug use and thus exposing the children to harm.  A drug testing regime, even an onerous one, will monitor what has happened but not the risk of something happening.  A series of clean drug tests does not mean that there is no risk of relapse.  This is particularly the case when there is no evidence in the Mother’s case of accepting responsibility for past drug use, attempting drug counselling or rehabilitation, or acknowledging the added risk to her because of involvement in a relationship with a person who may well have an ongoing drug use problem.  Moreover, there is the risk of the Mother continuing to expose the children to family violence. 

70.Whilst the Independent Children's Lawyer’s efforts to marshal and arrange the evidence before this Court has been exemplary, the minute proposed does not, with respect, reflect the magnitude of the risk that is manifest.  The Independent Children's Lawyer’s proposal that the provision of a hair strand test is, in effect, the gateway for the Mother to have additional time with the children does not address the issue of risk of relapse which is foremost in the Court’s mind.  The minute seems to assume that the Mother’s relationship with Mr C is over, but that is not the evidence before the Court.  In any event, the Mother’s history of letting violent partners back into her life is self-evident.  The risk to the children, therefore, is unmanageable and unacceptable if they are spending extended periods of time with their mother. 

71.The Court considers the Father’s proposal, at least for the time being, the most protective one.  Limiting the Mother’s time to daytimes should limit their exposure to the risks identified. 

72.The Father seeks an order for sole parental responsibility.  The Court does not consider that to be appropriate, or in the best interests of the children, given that he has not really been able to prove himself as a longer term primary carer for these children.  As all of the children have special needs, and as it may well be the case that the Mother is more familiar with these needs, giving to the Father sole responsibility would potentially be counterproductive.  For the time being a better outcome is equal-shared parental responsibility which thus creates an obligation to consult. 

73.The Father sought an order that W spend no time and have no communication with her biological father.  The Solicitor for the Father mentioned from the bar table that W’s father had communicated with her, and foreshadowed an intent to intervene in these proceedings.  If he does, he will be heard, of course.  In the meanwhile, and on the basis of the Mother’s own evidence about the violent relationship she had with him, and his absence from W’s life, the order proposed for no time and communication is appropriate.  The remaining orders also seem appropriate in the circumstances. 

74.There are a number of orders proposed by the Independent Children's Lawyer, that are nonetheless useful.  The Independent Children's Lawyer proposed that the Mother submit to hair strand testing.  There is a forensic benefit in so doing.  The Mother must do so within one week, however, otherwise the forensic benefit of seeking to ascertain her recent drug use is minimised.  An order will be made to that effect. 

75.As a hearing of this matter will probably be over 12 months away, the orders proposed by the Independent Children's Lawyer in relation to special days need to be addressed, though modified, to remove overnight time.  An order will be made to this effect, varying order 5 proposed by the Independent Children's Lawyer.  Orders 6, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 23, 24 and 25 are appropriate.

76.The Father’s Solicitor sought a transfer of this matter to the Family Court of Australia in Sydney.  The Court declines to do so.  Whilst the case is unquestionably complex, it is no more complex than many cases in this Registry.  Despite the complexity, it should be contained to no more than four days.  The Court will be able to allocate a specific hearing date in 2020 thus giving the parents the certainty of a final Court event.  It is unlikely that this matter would be accepted into the Family Court’s Magellan Program given the historical child sexual abuse allegations that appear to have no present bearing on the issues confronting the children. 

77.An Expert’s Report is needed in this case and the Independent Children's Lawyer is requested to facilitate this occurring, at the earliest possible time.  On receipt of that Expert’s Report, the Court foreshadows its willingness to reconsider the interim arrangements that have been entered into. 

78.An order pursuant to section 91B will be made. The Independent Children's Lawyer is granted leave to provide a copy of these Reasons for Judgment to the Department, so that it might consider intervention.

79.The matter will be brought back for Mention in four months’ time to review the progress in implementing these orders and to consider further trial management.  The Independent Children's Lawyer will have leave to relist on 7 days’ notice. 

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 20 June 2019

Schedule One

Minute of order proposed by the Independent Children's Lawyer

(NB: Orders typographically amended on 17 June 2019 as per underlined amendments).

FAMILY LAW ACT 1975

IN THE FEDERAL CIRCUIT COURT
OF AUSTRALIA  File No:  (P)WOC73/2019

BETWEEN:          MS PALAGI

(Applicant - Mother)

AND:  MR MADILL

(Respondent - Father)

AND:  INDEPENDENT CHILDREN'S LAWYER

BEFORE:JUDGE ALTOBELLI

ICL MINUTE OF ORDER

THE COURT ORDERS THAT UNTIL FURTHER ORDER:

1.That the mother and the first respondent (hereafter referred to as the “father”) have equal shared parental responsibility for the children W born in 2007, X born in 2010, Y born in 2011 and Z born in 2013.

2.That within 8 weeks of the making of these orders, that the mother is to submit to hair strand testing in accordance with the following procedure:

2.1The mother is to arrange for a hair testing kit from the lab to be sent to her GP, or in the event that her GP is not able to facilitate such test, to another GP; and shall advise the other side and the Independent Children’s Lawyer in writing that she has complied with this order;

2.2The mother is to attend upon such GP and submit to the collection of a 3cm hair sample within 7 days of the GP receiving the testing kit; and the GP shall then return the sample to the lab for testing for all drug types; and the mother shall advise the father’s solicitor and the Independent Children’s Lawyer in writing that she has complied with this order;

2.3The mother is to irrevocably authorise the lab to send their report to her solicitor and a copy of that report to the father’s solicitor and the Independent Children’s Lawyer within 7 days of completion of each such report;

2.4The mother is responsible for payment of all fees associated with the conduct of the test including the GP’s fees and the lab’s fees.

3.That the children are to live with the mother as follows:-

3.1Until such time that the mother provides a clear hair strand test in strict compliance with Order 2 herein to the father’s solicitor:-

a)   From 5.00pm to 7.00pm on each Tuesday;

b)   From 2.00pm to 4.00pm on each Saturday;

c)   To be in the presence of the maternal grandfather or his partner;

3.2Thereafter to 3.1 and conditional upon the mother providing a clear hair strand test in strict compliance with Order 2 herein, then the children live with the mother as follows:

a)   From 3.00pm on Tuesday to 3.00pm on Saturday in each week;

b)   From 3.00pm on Saturday preceding Mother’s Day to 3.00pm on Mother’s Day in each year.

3.3That in the event that the mother is unable to provide a clear hair strand test in strict compliance with Order 2 herein, then the children’s time with the mother is to continue in accordance with Order 3.1

4.That the children are to live with the father at all other times.

5.That on the following occasions of special significance and conditional upon the mother providing a clear hair strand in strict compliance with Order 2 herein the children shall spend time with the parties as follows:-

5.1That the notwithstanding any other order the mother shall have care of the children from 2pm on Christmas Eve until 2pm on Christmas Day in even numbered years and from 2pm on Christmas Day until 2pm Boxing Day in odd numbered years.

5.2That notwithstanding any other order the father shall have care of the children from 2pm on Christmas Eve until 2pm on Christmas Day in odd numbered years and from 2pm on Christmas Day until 2pm Boxing Day in even numbered years;

5.3The person who does not otherwise have care of the children on their birthdays will spend time with the children, from after school until 6pm if it is a school day or from 2pm to 5pm if it is not a school day, unless otherwise agreed.

6.The parents will both be entitled to attend all events involving the children including:

6.1Sporting fixtures;

6.2Extra curricular activities that allow for parental attendance

6.3School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions

7.That for the purpose of facilitating changeovers:-

7.1All changeovers that coincide with the conclusion of a school day are to occur at the children’s school;

7.2The parties are to do all things necessary to changeover the children at the service station on S Street and T Street for all other changeovers.

8.The mother shall ensure that the father is kept informed of:

8.1any medical problems or illnesses suffered by the children while in the mother’s care

8.2any medication that has been prescribed for the children

8.3any social, school or religious functions which the children are to attend

8.4the residential address of the mother and particulars of any other adult who may reside with the children

8.5any other matter relevant to the children’s welfare

9.The father shall ensure that the mother is kept informed of:

9.1any medical problems or illnesses suffered by the children while in the father’s care;

9.2any medication that has been prescribed for the children;

9.3any social, school or religious functions which the children are to attend;

9.4the residential address of the father and particulars of any other adult who may reside with the children;

9.5any other matter relevant to the children’s welfare.

10.That each parent refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each parent do all things necessary to ensure that not third party makes critical comments about the other parent in the presence or hearing of the children.

11.That each party advise the other parties and keep the other parties advised of their current address and contact telephone numbers (including both landline and mobile number if applicable) and advise the other parent of any changes to these details within 7 days of such change occurring.

12.That each parent be permitted to attend any specialist medical appointments including with any psychologist, psychiatrist, counsellor or therapist, speech therapist, occupational therapist (hereinafter referred to as “consultant”) in relation to any of the children and such appointments, such attendance or attendances to be at the sole discretion of any such consultant.

13.That the mother and father do all acts and things and give all irrevocable authorities necessary to ensure that the school the children attend may forward directly to each parent copies of all of each child’s school reports and merit cards, any written material pertaining to each child’s academic, behaviour and extra-curricular activities.

14.That each parent enrol in and complete the following programs within 10 months of the making of these orders:-

14.1Keeping Kids in Mind

14.2Circle of Security

14.3Early Days: Understanding Behaviour Through Autism Spectrum Australia

15.That the father is to engage and to continue to engage with the following:-

15.1The caseworkers of Family and Community Services for as long as this service deems necessary and is to follow all reasonable recommendations, directions and referrals made by the caseworkers;

15.2his treating GP, and is to follow all reasonable recommendations made by his GP, attend all medical appointments made with his GP and is to take medication as recommended and/or prescribed by his GP:

16.The mother is to engage and to continue to engage with the following:-

16.1The case workers of Family and Community Services for as long as this service deems necessary and is to follow all reasonable recommendations, directions and referrals made by the caseworkers;

16.2The caseworkers of Health Services for as long as this service deems necessary and is to follow al reasonable recommendations, directions, and referrals made by the caseworkers;

16.3her treating GP, and is to follow all reasonable recommendations made by her GP, attend all appointments with her GP and is to take medication as recommended and/or prescribed by her GP;

16.4her treating therapist for as long as her therapist deems necessary, and is to follow all reasonable recommendations made and attend all appointments made with her treating therapist

17.That the father is to inform the mother’s solicitor and the Independent Children’s Lawyer within 48 hours of any of the following occurring:-

17.1The police attending upon the father’s residence;

17.2Any incidents of violence that have occurred at the father’s residence or in the presence of the children or any of them;

18.That the mother is to inform the father’s solicitor and the Independent Children’s Lawyer within 48 hours of any of the following occurring:-

18.1The police attending upon the mother’s residence;

18.2Any incidents of violence that have occurred at the mother’s residence or in the presence of the children or any of them;

18.3If the mother is contacted by or approached by Mr D

18.4If the mother resumes an intimate and/or romantic relationship with Mr C.

19.That the mother be and hereby is restrained from allowing or permitting any male adult to reside at or stay overnight at her place of residence.

29.01.2019	Ms LL has conversation with FaCS case worker.  Notes record that the caseworker said, “Caseworker has informed Mr Madill that the grandparents would like to see the children and that FaCS have no concern for this occurring and this was something for the family to arrange”. “Caseworker continued to explain that as FaCS had not removed the children from Ms Palagi’s care, we also had no concerns for the children having contact with their mother and this would need to be discussed with the father”. Ms LL said, “They were working with Ms Palagi and had seen some improvements”	ICL Tender Bundle 19
29.01.2019	GP Clinical Notes- mother- still suffering morning sickness- Zofran wafers	ICL Tender Bundle 56
30.01.2019	Mental Health Assessment, Care Plan and Referral Form signed by mother and GP Patient- Y	ICL Tender Bundle 58
31.01.2019	GP Clinical Notes- Mother- BP 130/80 Nexium 20mg	ICL Tender Bundle 56
31.01.2019	Mental Health Assessment, Care Plan and Referral Form signed by mother and GP Patient- W	ICL Tender Bundle 59
31.01.2019	Dental Xray of W.  Shows impacted upper and lower 8s	ICL Tender Bundle 60
31.01.2019	Mental Health Assessment, Care Plan and Referral Form signed by mother and GP Patient- Z	ICL Tender Bundle 61
Feb 2019	Father says that he is aware that the children’s psychologist contacted the school to work with the children.  The father said, “yes but I would like to sit down and talk to you about the purpose of the counseling”	F1 7
01.02.2019	Mental Health Assessment, Care Plan and Referral Form signed by mother and GP Patient- X	ICL Tender Bundle 63
01.02.2019	Order made by the court for Children to live with father and spend supervised time with mother as agreed.  Children to remain at E Public School Parents are directed to undergo urinalysis by 12noon on 4 February 2019.  Father is ordered to undergo CDT testing by 12noon on 4 February 2019
01.02.2019	Mother attends urinalysis.  Clear results	M Annexure C ICL Tender Bundle 62
01.02.2019	COPS Records Passer by witnessed incident at RRR Pathology.  Partner was trying to calm mother down because she was going off her head about her court case. She was highly emotional and acting very irrational and he was trying to calm her	ICL Tender Bundle 145
01.02.2019	GP Notes- mother- referred to antenatal clinic	ICL Tender Bundle 56
01.02.2019	Father says that he receives 3 boxes of meat that were ordered and paid for by the mother	F 68
02.02.2019	GP clinical notes- mother Mental Health Case Plan	ICL Tender Bundle 56 64
03.02.2019	Father submits to urinalysis.  Clear results	F Annexure B
03.02.2019	Father submits to CDT Test.  CDT is 1.8% consisting of 0.01% asialotransferrin and 1.77% disialotransferrin.  Notation on  report says that although raised, this CDT is not high enough to indicate probably recent alcohol excess	F Annexure B
04.02.2019	GP Notes- Mother- refer date scan, urine for drug screen	ICL Tender Bundle 56
06.02.2019	Further interim orders are made for mother to have supervised time5pm to 7pm each Tuesday and Saturday.  MGF or his partner to supervise
07.02.2019	GP Clinical Notes- Mother- Request urine for drug screen	ICL Tender Bundle 56
07.02.2019	Mother attends urinalysis.  Clear results	ICL Tender Bundle 65 M Annexure C
08.02.2019	FaCS complete a risk assessment.  Risk level is recorded as moderate.  Notes no risks reports since children came into father’s care	ICL Tender Bundle 20
09.02.2019	Father says that he resigns from his job but still works there casually.  He says that he has not accepted casual shifts since April 2019	F 151 I
13.02.2019	Mother attends urinalysis.  Clear results	ICL Tender Bundle 66 M Annexure C
13.02.2019	COPS Records Mother receives text message from ex partner in jail “he used to love her and she has thrown it all away by putting him in jail”  Mother responded, “She used to love and care for him”. Texts have gone back and forth over night and following day before becoming nasty. AVDO in place	Icl Tender Bundle 143
15.02.2019	GP Clinical Notes- Mother- Script Zofran wafers	ICL Tender Bundle 56
15.02.2019	Telephone conversation between case worker and the father.  Father is record as having said, “My legal aid has been approved but I have to pay the $75 application fee.  I can see this getting expensive but I will sick with it because it is the right thing to do”. “The visits between Ms Palagi and the children have been going well.  Ms Palagi is taking them swimming and they also had a BBQ with their family in the park” “I just want Ms Palagi to get the help that she needs, things cant keep going on like this with the children and they need to opportunity to have a normal life, to see what that is like” “I know Ms Palagi is spending a lot of time at the school and Ill have to ask the lawyer about that as her visits are meant to be supervised.  Its difficult because she signs things for the kids there and I have no idea what the kids are booked in” “Ms Palagi is making appointments for the kids and then telling me about them last  minute, its like she is setting me up to fail.  Of course I want them to attend the appointments but I need to be the one to make them and at a time that I can take them”.	ICL Tender Bundle 22
15.02.2019	Home visit- Caseworkers met with mother and the maternal grandfather is present. Summary of some of the notes of the lengthy conversation that took place on this day, CW “The events occurred after Ms Palagi had fled from FaCS on two separate occasions and following from a number of reports for the household.  We needed to conduct a safety assessment that could not be achieved”. CW “Acknowledge that Ms Palagi is beginning to work with us now and I can see that with Region P Health Service involvement and family assistance she is getting the right assistance and Im hoping that together we can all work towards the same goal” CW “Noted to Ms Palagi that she looked healthy and appeared more settled today” CW “Maybe in our plan that we develop together we can have activities for the children but maybe not as much as before and also add some one on one time with the children” CW “I have discussed the concerns with you and your family with I came with Mr SSS on the first visit.  We informed you that we had received 6 reports from different places… such as domestic violence in the home, driving around late at night, unrestrained children in the car, unsupervised at the pool, presenting to care in wet clothing.  To which you have previously stated did not occur”. CW “I think that you will need to start addressing things Ms Palagi.  You cant have an excuse for everything, its better that you work with Ms HH to make changes”.	ICL Tender Bundle 23
18.02.2019	Mother attends urinalysis.  Clear results	ICL Tender Bundle 66
18.02.2019	Police apply for a variation of ADVO (with mother’s ex-partner) to be extended for another 2 years and to add no contact whatsoever	Icl Tender Bundle 144
20.02.2019	Father solicitor sends letter to mother’s solicitor requesting that she stop attending school until interim hearing	F 69
20.02.2019	Children had appointment with a podiatrist to cut their toe nails. Father cancels appointment.  He says that the podiatrist agrees to cancel the appointment if he is able to care for toenails himself	F 118
22.02.2019	Mother attends W’s swimming carnival.  She was not supervised and this was without the father’s knowledge or consent	F 70
22.02.2019	Father says that the police did a welfare check  at 10pm	F 71
27.02.2019	Father receives telephone call from the school and is informed that the mother had been to the children’s GP and the GP had called the school requesting a urine sample as the GP believed that Y may have been suffering from a UTI	F 73
28.02.2019	Father receives a call from the chemist informing that the mother had filled a prescription for antibiotics for Y.  Father says that the GP did not see Y before prescribing antibiotics	F 74
04.03.2019	Letter of children’s dentists.  Concerns raised that the children have missed appointments since being in the father’s care	M Annexure H
06.03.2019	Father files his response
06.03.2019	Letter from Dr K, podiatrist.  Confirms that father has cancelled ongoing appointments and that he will be looking after their feet	M Annexure H
13.03.2019	Further interim orders made by consent.  Interim orders require children to continue with their treating doctors
14.03.2019	Mother is confirmed to be an Aboriginal Person by City UUU Local Aboriginal Land Council	M Annexure G
15.03.2019	Father receives call from school informing him that the mother had arrange for W to attend an upcoming Aboriginal Education camp.  He says he was not aware that she had been included without his consent.	F 75
27.03.2019	Mother attends urinalysis.  Clear results	M Annexure C
Late March 2019	Mother ceases treatment with Dr J and commences counseling with Ms VVV of WWW Counselling.
30.03.2019	Children attend appointment with their psychologist.  Father speaks to him before their session.  Father says that children are hard to occupy in the waiting room.  Father sees this as counterproductive.	F1 9
31.03.2019	Father says that the police did a welfare check at 10am	F 80
Early April 2019	Father’s brother moves out of father’s residence	F 151 (b)
04.04.2019	Mother attends urinalysis.  Clear results	M Annexure C
06.04.2019	Father says that after this appointment X said to him, “he is just going to ask me the same thing again, where I want to live”.	F1 11
08.04.2019	ICL requests mother and father to undergo chain of custody urinlaysis.  No report is received in response from father.
08.04.2019	Mother attends urinalysis.  Clear results	M Annexure C
09.04.2019	Mother completes “My Kids and Me” Parenting Course with CatholiCare	M Annexure K
12.04.2019	Father is informed by the school that W and X had been included in a school camp for the first week of the school holidays.  He was not aware of the camp and does not consent due to late notice and because the children had medical appointments	F 78
15.04.2019 16.04.2019	Father says that children have appointments with their dentist, Dr H	F 130
16.04.2019	Father instructs his solicitor to write a letter to psychologist about questioning the children about where they wish to live	F1 12 F1 Annexure A
18.04.2019	Incident where Y falls from monkey bars	F 131
19.04.2019	Father takes Y to Suburb TT Medical Centre and then to City Q Hospital for x rays	F 132
22.04.2019	Father says that the police attend his residence to do a welfare check	F 95
27.04.2019	Father takes children to an appointment with psychologist with a view to speak with him.  He is informed that session is cancelled because they had received a letter	F1 14
01.05.2019	Psychologist sends email to ICL	F1 Annexure B
02.05.2019	W has appointment with ENT- Dr G.  The father’s mother takes her to the appointment.  She informs father that no further visits are required unless there is a further issue	F 121
06.05.2019	Parties attend CIC Interviews with  Ms XXX.  Mother is supported by her caseworker from Region P Health Services. Mother informs family consultant that she last used ice recreationally about 1 year ago “one off” Father reports that the children’s health issues have been “extremely exaggerated by the mother” All four children disclosed that they want to be with their mother.	CIC Memo 06.05.2019
06.05.2019	Letter of support to mother of Ms YYY of ZZZ Support Services.  Mother has engaged their services for antenatal support.	M Annexure H
17.05.2019	Mother has a meeting with Mr C, supported by Region P Health Services caseworker and informs him that she is ending the relationship	M1 6
20.05.2019	Letters of Region P Speech Therapy confirming that children will continue to benefit from weekly sessions	M1 Annexure B
25.05.2019	NDIS appointment in relation to the children	F 116
28.05.2019	Mother submits to urinalysis and report shows clear results	To be tendered
30.05.2019	ICL request mother to undergo chain of custody urinalysis
30.05.2019	ICL request father to undergo CDT testing
June 2019	Children’s applications for NDIS due
04.06.2019 05.06.2019	Children have appointments with Dr F - Pediatrician	F 122
2019	Mother is due to have baby.  She says that Mr C is the father of her baby	M14

Summary of issues prepared by the Independent Children's Lawyer

SUMMARY OF ISSUES

MATTER OF PALAGI MADILL AND MR A
WOC73/2019

AIDE MEMOIRE

ISSUE RAISED/ PROPOSITIONS	CORRPORBORATING EVIDENCE	REF	WEIGHT & OTHER CONSIDERATIONS
DRUG USE 2 (a)
Mother
That the mother has had a past history of poly-substance dependency	Midwife notes in 2007 record that the mother reported drug use including heroin (IV) and ice during her relationship in 2006.  DV Relationship had separated and mother reports no drug use since March (no year provided in notes).	ICL 133	Mother was 17 years of age and pregnant at the time of this report. It is concerning that the mother’s drug use had progressed to a seriously risky and highly addictive substance such as heroin at such a young age of 17 yo.
Region P Mental Health refers mother for assessment in May 2007.  Psychologist assesses that the mother’s problems are “predominantly poly-substance abuse” including IV heroin and speed.  Psychologist assesses there are no psychotic symptoms and she is not clinically depressed.  There are obvious dependent personality traits	ICL 134	This handwritten document makes no reference to the mother’s childhood trauma.  It also makes no reference to the two “life threatening” traumatic incidents that the mother disclosed being:- ·    Having her head held in a sink full of water by her step father ·    Having her aunt hold a gun to her head
Urinalysis test of mother when W is born tests positive for benzos but no other illicit drugs.	ICL 135, 136, 137	Hospital makes a referral to FaCS and mother is referred to Brighter Futures. Other subpoena records record that the maternal grandmother has abused prescription medication.  It is concerning that the mother had used benzos in her pregnancy.
The mother’s brother Mr WW is placed in her care by FACS in 2009.  It is assumed that an assessment would have been undertaken and the mother was considered safe at the time.  It is doubtful that the Department would have placed with mother if she had a poly-substances addiction at the time
GP refers mother to Dr J on 23.06.11.  Letter refers to her as an “ex drug addict- stopped in 2006 (ICL 67)  This also suggests that the mother’s treating GP was of the view that her drug addiction had resolved by 2006.
That the mother has had an ongoing drug dependence	A Report is made to FACS on 20.08.2014 that Z is not being feed breakfast before child care Caller reported, “…mother has appeared jittery and itchy as though she was using a substance”	ICL 212	Also this appears to be a report of a lay person.  It is concerning that an independent person such as a childcare centre would report these behaviours and have formed the view that the mother has been substance affected.
Mother’s admission to hospital on 23.02.2015 for negative reaction amphetamines	Mother is admitted to City Q Hospital emergency department on 23.02.2015.   “She presented to the facility with vomiting.  This is a likely effect of amphetamines which were found in her urine” “Teary and anxious, worried she is going to die. “Worried her drink may have been spiked at a party on Saturday night, left drink unattended Denies taking any drugs herself	ICL 127	A FACS Helpline Report is also made on 23.02.2015 “Ms Palagi attended child care today and appeared to be under the influence of alcohol or drugs.  Staff were concerned that Ms Palagi might drive with Z under the influence of drugs.  Mr D was driving but they could not tell if he was under the influence” (ICL 216) One must be skeptical of the mother’s report that her drink had been spiked at a party, when it appears that she was observed earlier the same day to be under the influence of a drug by the child care workers.
That the mother misused methamphetamines from sometime in 2018 until 12 January 2019.	Mother informs family consultant on 06.05.2019 that she last used ice recreationally about 1 year ago “one off”.	CIC Memo	There is a plethora of subpoena material that suggests that the mother was drug effected on numerous occasions over 2018 and the beginning of 2019. The mother discloses in both affidavits that she had not used drugs since 2006.  Clearly that cannot be accepted when she has subsequently told the family consultant that she used ice “once” in 2018.
A FACS report of 1.06.18 states the caller contacted the mother a couple of weeks ago when they (sic) came to school without school bags.  Mother confused another child as her child at school.  Children have come to school today without adequate food.  This was considered by the caller to be unusual.	It appears that this call was made by Mission Australia.  The caller reported concerns that the mother was using drugs and this may explain how she could possibly mistake another child as her own.
A FACS Helpline Report is made on 06.11.2018 Caller suspected the mother to be influenced by drugs or alcohol because of the ways he was passed out in the car.  Caller did not notice any smell of drugs or alcohol.  Mother no longer coming to the centre.	ICL 9	The mother has given an alternative explanation for this behaviour in her affidavit material.  She says that she was suffering from severe morning sickness and was in the early stages of pregnancy at this time.
Caller to Helpline reports on 29.11.2018. Z disclosed, “Mummy drives people around for work at night time and Mr C is the driver and Mummy just goes” “I sleep in the car while Mummy is working.  Sometimes the other kids come, but mostly me”	ICL 9	It is implied by this disclosure made by Z that the mother was participating in drug dealing with her then partner Mr C.  Police records suggest he is a known drug dealer. It is concerning that the children have possibly been taken to drug dealers houses.  It is equally concerning that some of the children may have been left at home unsupervised at night.
Caller to Facs Helpline on 30.11.2018 observed mother to came into centre and did not make eye contact with educators.  When educators approached car, mother appeared to be passed out in the car, popped head up and then back down.  She appeared lethargic.	ICL 9	The caller interpreted her behaviour as being drug or alcohol affected. The mother has given an alternative explanation that she has been suffering severe morning sickness.
FaCS file noted that on 10.12.2018 the mother and her partner were seen to be whispering behind a wall before coming into the FACS office.  Mr C appeared to have constricted pupils and mother’s pupils were dilated.  Mother used erratic hand and arm gestures when speaking and could not keep still.  FaCS suspected drug use and this was raised.  Both mother and Mr C denied drug or alcohol use. The Caseworker then calls Region P Health Services about her concerns.  The Region P Health Services caseworker said that it was out of the ordinary behaviour but that the mother had dropped off with engagement with service over the last few weeks (also unusual).	ICL 5	One week later on 18.12.2018, the mother’s treating  GP Notes- Morning sickness.  She prescribes Maxolon 10mg (ICL 56). Although the mother appears to have been treated for morning sickness at the time, it can also be assumed that FACS caseworkers are highly trained in welfare and well equipped to gauge if a parent is under the influence of drugs.
Call to FaCS Helpline 08.01.2019 by caseworkers Mr C answered the door.  Mother came to the door very drug affected, she was walking very strange, had pin pick dilated pupils, was pregnant and rubbing her belly and her legs were very wide.  She was on tip toes standing and was gesturing with her hands and legs. Caller suspected that Mr C was also drug affected because his eyes were pin pricked	The mother is recorded as denying the allegations of being drug affected.  She claims that she had been really sick.  The mother however refuses the caseworkers from entering her house. Ms Palagi is reported to have then put the children in the car without shoes and said, “Get the kids in the car and take off.  Get the kids out of here.  Go, go, go”. Caller suspects that the children had no seat belts on. Clearly the mother’s attempt to evade the caseworker suggests that either she or her partner or both were drug affected and they were concerned that the children would be removed from their care.
FaCS caseworkers attend mother’s house on 09.01.2019.  Mother again said that she was suffering from morning sickness and had been taking medication.  The children were with her father at the time.  Ms Palagi said that it was because mother was too unwell to care for the children.	M 114-145	This report does not make comment of whether the mother appeared drug affected or suffering from morning sickness on this day.
FACS arranged for mother and Mr C to undergo immediate urinalysis for the next three days. Mother fails to undergo urinalysis with FACS on 10.01.2019, 11.01.2019 and 12.02.2019	Mother does attend upon GP on 10.01.19, not for urinalysis but for medical certificate that she is suffering morning sickness and not drug effected. (M Annexure B) Handwritten GP notes also record that the mother attended the GP on 10.01.19 for morning sickness and was prescribed Zofran for vomiting (ICL 56) Mother returns to GP on 11.01.2019 and is provided a further script for Zofran (ICL 56).  She returns again on 15.02.2019 for script for Zofran wafers (ICL 56) No explanation has been given by the mother as to why she was able to attend the GP for prescriptions and a medical certificate but was not able to undergo a urinalysis. One would assume that the mother would have known that a clear urinalysis would have assisted her to have her children returned to her care.  An adverse inference can be drawn that the mother had been using drugs at the time that the children left her care.
Whether the mother has misused methamphetamines since 12 January 2019	Mother undergoes urinalysis paid for by FACS on 14.12.19.  I t was not in answer to a FACS request, however the report is clear	ICL 15
The mother has undergone subsequent urinalysis on 01.02.2019, 07.02.2019, 13.02.19, 18.02.2019, 27.03.2019, 04.04.2019, 28.05.2019. All urinalysis is clear	ICL 62, 65, 66, M Annexure C,	FACS case worker notes on 29.01.2019 that “Caseworker continued to explain that as FaCS had not removed the children from Ms Palagi’s care, we also had no concerns for the children having contact with their mother and this would need to be discussed with the father”. (ICL 19). This record indicates that the FACS caseworkers had no child protection concerns as at 29.01.19 FACS case workers further note on 15.02.2019 “Ms Palagi looked healthy and appeared more settled today” they also acknowledged that “Ms Palagi is beginning to work with us now and I can see that with Region P Health Services involvement and family assistance she is getting the right assistance and Im hoping that together we can all work towards the same goal” (ICL 23) These case notes suggest that the FACS caseworkers have observed change in the mother.  She is now able to engage and is working towards goals.  She is appearing as healthy.
ALCOHOL MISUSE 2 (a)
Father
Whether the father has had a past history of misusing alcohol	Emergency City Q Hospital records record that the father attempted suicide on 25.05.2009.  His father found him with tape and hose and was headed for Suburb SS.  Father was intoxicated and had drank in excess of 10 standard drinks Records indicate that he had broken up with the mother	ICL 120	This evidence suggests that the father drinks alcohol to excess in moments of stress.  It also suggests that alcohol impairs his judgment.
Mother deposes that in mid 2009, (half way through her pregnancy) that father was drinking heavily	M83 -90
Mother deposes that on one occasion after X was born (2010) that father was sent to shops to by formula and return with a case of beer and told her he had forgot the formula	M 79	This evidence suggests that alcohol impairs the father’s capacity to focus and to care for the children
Father is sentenced to a s10 GBB on 15.06.2012 for middle range PCA at Town ZZ Local Court	ICL 53
Father is sentenced to $800 by Town DDD Local Court for Assault Occasioning Actual Bodily Harm (DV).  Offence occurred on 10.08.2013.  Police observed father to be drinking XXXX beer on this day	ICL 53	This evidence suggests that alcohol was present on the day of this FV incident.
Father is sentenced to s9 bond for common assault (DV) by Town XX Local Court on Offence occurred on 29.12.2013.  Father states that he drank 4 – 5 beers on this day	ICL 53	This evidence suggests that alcohol was present on the day of this FV incident
Mother writes a handwritten letter to Magistrate on 22.01.2014. States, “I love Mr Madill very much.  Mr Madill has a drinking problem and an anger problem.  We have relationship problems.  We have a volatile relationship.  I have depression and I believe Mr Madill does as well.	ICL 72	The mother also makes a link between alcohol and the father becoming aggressive.
Whether the father has a present alcohol dependence	Father submits to CDT Test on 03.02.2019.  CDT is 1.8% consisting of 0.01% asialotransferrin and 1.77% disialotransferrin.  Notation on report says that although raised, this CDT is not high enough to indicate probable recent alcohol excess	F Annexure B	Although the CDT has a notation about these results.  It would appear that a CDT test result of 1.8% is a high result and that the father is drinking significant amounts of alcohol whilst he has care of the children.
MENTAL HEALTH
Mother
That the mother has PTSD	Dr J supports mother to make an application for Disability Support for PTSD	ICL 69
Clinical notes from social worker in July 2011 record that the mother has nightmares, flashbacks up to 2 times per week and panic attacks. Mother reports she has violent outbursts and describes them as blacking out and losing it	ICL 122
The mother reports to mental health in 2006 that her family members ‘beat her up’. She placed with her aunty.  She discloses that her aunty held a gun to her head and it affected her sleep.	ICL 133
Progress report to Victim Services- Mother- by Dr J dated 11.04.2016 states “These are memories she finds hard to overcome:- ·    On one occasion, her step father push the client’s head in the kitchen sink which was full of water trying to drown her briefly while briefly living in City JJJ ·    Some other time he allegedly tried to drown all of them in Lake KKK ·    On one occasion, Ms Palagi saw her mother smashing her older sisters head against a door having the child’s face split open also in Suburb KKK
That the mother suffered childhood trauma	Hospital records record in October 2011 Previous history of childhood abuse (Mother)- sexual, physical and emotional.  Currently seeing psychologist and Zoloft.  Past involvement with Brighter Futures.	ICL 123	There is a plethora of subpoena material to support the premise that the mother suffered very serious childhood trauma at the hands of her caretakers.
Psychologist records in risk assessment in May 2007, that mother feels that brain won’t stop.  She can’t sleep and hasn’t slept for 1-2 months.  She reports that her mother is “messing with her head”. Notes state that Ms Palagi gets very angry.  Ms Palagi says she “just snaps” and that “she punched her boyfriend and didn’t know what she was doing”	ICL 133	This report suggests a link between the mother’s outbursts and her childhood trauma.  It implies that her behaviour is a reaction or a “flipping the lid” response rather than to be controlling or manipulating.
Initial report to Victim Services- Mother-  by Mr Dr J dated 08.02.2016states “From Ms Palagi’s 4th until her 11th year of age, her stepfather lived with her mother, herself and her siblings and abused them all physically, psychologically and verbally.. Most arguments were alcohol related.  She also recalls how her step father pointed knives at her mother	ICL 75
That the mother has suffered from depression	Midwife notes in May 2007 that mother had depressed mood.  She notes Ms Palagi has history of thoughts of self harm and is having thoughts of self harm currently	ICL 116	The subpoena records suggest that there have been times when the mother has suffered depression.  It appears to be primarily in the form of Post Natal Depression.  She appears to respond to antidepressant medication (Zoloft).  The mother is currently pregnant and there may be a risk that she may develop PND after the birth of her baby.
GP refers mother to Dr J on 23.06.11 for depression and notes she has been prescribed Zoloft 50mg	ICL 67, 68
Mother deposes that she suffered from PND after X was born	M 73
Father deposes that he felt mother suffered from PND after Z was born.  He deposes that mother had fluctuating moods, she had outbursts and became violent and aggressive towards father	F 16
Mother has dependent personality traits	On 07.01.2014 Dr J records “Ongoing calls every day from Ms Palagi even during my leave.  Ms Palagi is still insisting on reconciling with Mr Madill	ICL 70	Psychologist at City Q Hospital in 2007 also raised the issue that the mother has a dependent personality.  This may possibly explain why the mother has had such difficulty to leave violent relationship.
Dr J notes on 23.04.2014 …”She told me that if Mr Madill did not plead guilty then “it will be bad for him” and if he goes to prison she would still visit him in goal.  Ms Palagi appears to be obsessed with Mr Madill and will not accept the fact that the relationship is over and she has no control over the outcome”	ICL 70
Father
That the father had past historical suicide ideation	Emergency City Q Hospital records record that the father attempted suicide on 25.05.2009.  His father found him with tape and hose and was headed for Suburb SS. Father was intoxicated and had drank in excess of 10 standard drinks Records indicate that he had broken up with the mother and that they were under considerable stress from the maternal grandmother around issue of custody of W	ICL 120, 121	Both the mother and the father report to health care workers that the maternal grandmother was placing them under intense stress and pressure.
That the father has suffered from depression	Mother writes a handwritten letter to Magistrate on 22.01.2014. States, “I love Mr Madill very much.  Mr Madill has a drinking problem and a anger problem.  We have relationship problems.  We have a volatile relationship.  I have depression and I believe Mr Madill does as well”	ICL 72	Other than the mother’s feelings expressed in the letter to the Magistrate and the presentation to hospital in 2009, there does not appear to be any other evidence to suggest or support the proposition that the father suffers from depression.
FAMILY VIOLENCE 2 (a) 3 (j) (k)
Mother
Whether the mother has perpetrated family violence in her relationship with the father	Psychologist records in risk assessment in May 2007, that Ms Palagi gets very angry.  Ms Palagi says she “just snaps” and that “she punched her boyfriend and didn’t know what she was doing”	ICL 133
Social worker clinical notes record in July 2011 that “Ms Palagi did report that she can be prone to “violent outburst” when she just loses it.  Records an incident from 2 months ago when she became angry at Mr Madill and his brother and blacked out and lost it.	ICL 122	At the same time, Ms Palagi reports nightmares and flashbacks of up to two times per week and panic attacks.  She states that relationship with Mr Madill is DV free but if he raises his voice she experiences flashbacks
Father deposes that he felt mother suffered from PND after Z was born in 2013.  He deposes that mother had fluctuating moods, she had outbursts and became violent and aggressive towards father	F 16
Incident of 16.01.2014	Father deposes that an incident occurs where the mother followed him in her car.  He went to the police station but it was unmanned.  Father says that the mother contacted him and begged for her and the children to stay with him.  He agreed for 1 night only and informs the police.	F28	Dr J also notes on 28.01.2014 “Ms Palagi arrived at Town DDD at night with the children  and asked to come in as she needed to use the toilet and change the baby.  Mr Madill let Ms Palagi stay the night and he left and stayed with a mate…. “The next morning Ms Palagi was still there.  Mr Madill called the police and told the police that Ms Palagi was at the house” This file note corroborates the father’s evidence that the mother was trying to manipulate the father into a reconciliation with her. (ICL 70
Incident of 22 October 2017- OOO Hospital	Father’s Affidavit Evidence Father says that the mother brought children to the hospital unannounced and this was overwhelming for his father.  Mother arrived at 7pm to collect children and she did not have car seats.  He says he started filming mother and she grabbed his arm and pulled him away from the car.  He says that she then punched him in the head.	F 46	COPS Record of 22.10.2017 states Father notices vehicle had no child restraints.  He got out his phone in an attempt to film that there were no seats. Mother’s partner then got out of the car and accused the father of hitting the mother.  Mother prompted the partner that the father was filming.  Partner screamed at father, “Youre fucking gone cunt, your car’s gone, sleep well tonight, your fucking car’s gone”.  They leave in their car. Accused is charged with breaching an AVO Provisional ADVO made against mother for the protection of father. (ICL 151, F Annex A) The father’s version of events in his affidavit and that reported by COPS differs.  However, both forms of evidence show the father to be the victim in this incident.
Father deposes that in late 2017 the mother’s behavior was more erratic and explosive and he forms view that she may be using drugs.	F 44	No other evidence to corroborate the father’s belief at this time.
Whether the mother has perpetrated family violence in subsequent relationships	Caller to Helpline on 29.11.2018 reports that on this day caller had a conversation with Z. Caller asked Z, “Does Mummy and Mr C yell?” Z, “Yes big yells” Caller, “Does that scare you?” Z, “Yes, I block my ears”	ICL 9	This evidence suggests that the mother has continued to have “outbursts” in her most recent relationship.
COPS Entry of 01.02.2019 Passer by witnessed incident at RRR Pathology.  Partner was trying to calm mother down because she was going off her head about her court case. She was highly emotional and acting very irrational and he was trying to calm her	ICL 145	This is another piece of evidence recording the mother to be “going of her head”.  Not much is known about this incident other than the mother had an impending court date and may have been under stress.
Whether the mother has exposed the children to partners that have perpetrated family violence	FACS Helpline Report on 04.03.2015 records that mother’s partner hit X with a wooden spoon and broke his toe.  W told her grandmother that “Mr D” also punched her in the back 3 times	ICL 217
COPS Record dated 18.02.2016 records that mother ex-partner entered Ms Palagi’s home when an ADVO was in place.  Report states that the ex partner went into the bathroom and mother followed.  He shut the door and grabbed her around the throat with both hands.  He says “Im going to fucking kill ya”.	ICL 160	Further subpoena records suggest that the mother reconciled with this partner Mr D after this incident.  This suggests that she has limited insight into the effects of family violence upon the children.
COPS Report dated 18.05.2016 ADVO has been made for mother’s protection. Police attend the mother’s residence and sight accused.  Mother denies he is there.  Police are concerned it will escalate and they draw taser.  Accused is arrested and smelt of intoxicating liquor.	ICL 158	Facs Report dated 21.05.2016 also states, Current report indicates that mother assisted her current partner to breach AVO and is actively supporting Mr D returning to family home despite it being highly likely the children will be exposed to ongoing DV.  Current report indicates mother has little insight into the impact of DV (ICL 222)
COPS Records dated 29.07.2017 Mr D struck mother in the face with a forearm strike.  Impact cut mother’s lower lip and it started bleeding.  Police are called and they sight injury	ICL 152	Facs Report 15.06.16 states, “Z has disclosed 3 times that Mr D hurts her mum… Mr D pushed her mother on the road… Mr D hit her with a fishing rod… today Mr D hit mummy and made her cry. (ICL 222) Notwithstanding FACS complete a Safety Assessment and they consider the mother’s home to be safe.
COPS Entry dated 30.11.2017 There is current ADVO in place between mother and accused. Police have pulled over a vehicle for an RBT.  Car is registered to mother.  Police sight mother in passenger seat and they ask for her details.  Mother was aggressive and attempted to flee from police. Accused is arrested for breach of ADVO. Police search accused and find a packet of 0.44 4 of crystal meth.  Accused tests positive for roadside drug test for methamphetamine	ICL 150	This is the second instance that the police have found the mother to be with Mr D in contravention of the ADVO that had been put in place to protect her. The mother again attempts to flee from the police.  It is assumed that this was done to protect him from the consequences of being found in breach of the ADVO. It is further concerning that the mother is partnered with a person who uses methamphetamine when she herself has had poly-substance addiction history.
COPS records dated 01.04.2018 record that the mother invited the partner around to her house because it was Easter.  There was an ADVO in force between them. The partner got up from bed to go to the toilet and when he came back he began abusing the mother and calling  her a “slut” and punched her in the back several times.	ICL 149	Police records go on to report that the mother left the house but later declined to make a police statement.
COPS Record dated 08.05.2018 record Mother’s partner was seen to have punched the mother by informant.  Breach of ADVO.  Order to be in force for 1 year. Argument occurs at Suburb U in relation to lunch.  Partner yells at mother, “I don’t want fucking Maccas” “You are a fucking slut, a user and abuser, I know you’ve been rooting around”. Whilst daughter is in the car, the partner yells at mother, “You are a slut.  By the smell of your pussy, I can tell you have had condom sex”. Mother says, “No I haven’t been with anyone” Partner says, “Im going to fucking kill you”. Partner grabs mother’s bag takes her wallet and removes her money and says, “You fucking owe me money”. Mother attempts to grab money and partner says, “Im going to fucking kill you”.  He then grabs the steering wheel and attempts to run the car off of the road and into vehicles.  Mother is able to pull over car.  Partner grabs mother’s mobile phone and exits car. Mother ran after the partner and partner throws her phone and it smashes.  Mother returns to car and members of the public contact the police.	ICL 148	FaCS report is also made to the FACS Helpline.  During police event, Z (4) was in the car when the mother and partner had an argument.  He recklessly attempted to crash the car with no regard for the safety of Z or mother.  During a discussion with the mother about the impact of DV upon children, she continued to dispute the impact upon her children, or acknowledge the seriousness of the incident and the danger that her child was placed in.

FaCS Helpline Report dated 01.06.2018 Caller spoke with Mission Australia caseworker who had said that ex-partner in jail but that he had tried to contact mother from jail.  Mother has new boyfriend. There has been property damage due to a DV incident.  Caller aware that mother will not let Mission Australia into the house to assess property damage that was done a few weeks ago.	ICL 3	This evidence suggests that the mother commenced a relationship with Mr C very shortly after Mr D was sent to jail. It again supports the proposition that the mother has dependent personality traits.
Father deposes that in November 2018 is informed (by children?) that Mr C put a wheelie bin behind the mother’s car to stop her from leaving and that mother reversed over the wheelie bin and drove to the children’s child care with the bin stuck under her tyre	F 97	There is not subpoena evidence to corroborate the father’s evidence.
FaCS report to Helpline on 28.11.2018 Mission Australia Early Learning Centre staff report that Z had disclosed that Mr C banged his own head on a wall inside the house until he broke the wall and was bleeding.  MR C is also reported to have punched walls.  Z’s behavior  was observed to have changed suddenly.	ICL 6	Reporter also says that quite suddenly there is a new man Mr C in the picture.  Mother’s ex partner has been recently incarcerated. Report comments that Ms Palagi has always been an active in the community for the last 5 years.  Mr C is now doing the pick up and drop offs.  Z attended the preschool graduation on her own and Mr C dropped her off.  It is not usual for the mother to miss this. This evidence of sudden disengagement by the mother suggests that something has occurred suddenly.
Caller to FaCS Helpline report 26.12.2018 that they were told by the mother that an incident occurred on this day where Mr C locked mother in her room, ejaculated on his hand and threw it in her face.	ICL 11
COPS Records of 13.02.2019 Mother receives text message from ex partner in jail “he used to love her and she has thrown it all away by putting him in jail”  Mother responded, “She used to love and care for him”. Texts have gone back and forth over night and following day before becoming nasty.	ICL 143	It would seem that the mother is still in a relationship with Mr C at the same time as texting Mr D in jail.  She is exchanging in text messages with him despite there being an AVDO in place. It is concerning that the mother would continue to communicate with Mr D even whilst these proceedings are on foot about the welfare of her children.
Mother has a meeting with Mr C, supported by Region P Health Services caseworker, on 17.05.2019. Mother informs Mr C that she is ending the relationship	M1 6	This evidence suggests that the mother is responding to the casework offered by Region P Health Services and FACS. If her evidence is to be accepted, it means that she has decided to end her relationship with Mr C and she has engaged the support of the Region P Health Services caseworker to ensure that it is done civilly. It will be essential that the mother continues to engage these services to keep her accountable.
Father
Whether the father has perpetrated family violence	Helpline report made that caller is concerned that Mr Madill is coercive and had badgered Ms Palagi to quit tafe and had denigrated her achievements around this	ICL 200	Not known who caller is and what their relationship was to Ms Palagi or Mr Madill.
FACS Helpline made in December 2011 Report “Mother has reported that father is controlling over her, limiting her freedom…. Caller is aware that there are fights between them and 1 occasion the mother reported he hit her”	ICL 303	Not known who caller is and what their relationship was to Ms Palagi or Mr Madill.
Mother deposes that an incident occurs during her pregnancy with Y.  She says that Mr Madill grabbed her by her hair and slammed her head into a coffee table.  She deposes that the children were present	M 83-90	No corroborating evidence in subpoena material about this incident
FV Incident of 10.08.2013	Mother’s Affidavit Evidence about incident Mother says an incident occurred when she was still breastfeeding Z.  She says that she arrived home at 6.30pm from taking W to sports training.  She says that she was angry at the father because he had been drinking all day and had not prepared dinner.  She says that the father’s brother Mr UU was present. The mother says that she put Z on a blanket and that Y ran past and accidentally jumped on Z. Mr UU said, “Why would you put her on a blanket on the floor, what are you doing” Mother said, “I didn’t mean for anything to happen Mr UU said, “Seriously, don’t you know how to be a mother. Mother said, “When you’re a parent, come and talk to me then”. Mr UU yelled, “You’re nothing but a slut.  Mother says that father grabbed her by her hair and smashed her head into the brown lounge causing her nose to bleed.  She says that the children were present.  Mr UU said to father, “That’s enough” Mother took the children and herself into a bedroom and she was frightened. Mother says that police apply for ADVO following this incident.	M 96-104	Letter of Town XX Family Support Service dated 14.08.2013 states (ICL 71) On a home visit the couple requested assistance with child care and relationship counseling as Mr Madill works shift work they have conflict due to his long work hours and they have no other supports There was incident with his partner where he was charged with domestic violence The couple wish to resolve the issues and resume their relationship.  Ms Palagi has requested that the charges be withdrawn… Dr J notes on 23.09.2013 (ICL 70) Phone call received from mother Ms Palagi reported that she and Mr Madill was to still try to stay together and work their relationship issues out.  There appears at times to be a lot of aggression from both sides.  We discussed some strategies for both of them to defuse the situation before it becomes violent… “Mr Madill reported that he tries to walk away but Ms Palagi follows him and just wont let up until they end up in conflict.  It appears that Ms Palagi is also very verbally abusive to Mr Madill” These pieces of evidence suggest that the mother maintained that the incident occurred, she however, wanted to be able to set the incident aside and continue her relationship with the father.
Father’s Affidavit Evidence About the Incident Father provides an alternative version of events.  He says that his brother was visiting from Perth.  Father says that they had not been drinking during the day.  He says that he went out with his brother for about 1 hour and when he returned to the home, the mother began to verbally abuse the father in front of his brother. The father says that the mother blocked the front door and he pushed passed her to get out.  He denies another other violence occurring on this day.	F 19-23	The COPS records including the observations made by the police on this day suggest that the father was intoxicated on this day, he was arrogant and he was self interested. The police record that they heard the father being verbally abusive towards the mother and speaking with coarse denigrating language. The father is charged and ultimately sentenced following this incident.
COPS Entry Records that father grabbed mother by the hair tightly causing paid and she cried. Entry states, “…The accused grabbed the victim by the hair again and said, ‘You’ve got no right to tell my visitors to get out of my house’.  He then pushed her head down onto the longue and the victim felt her head connect with the frame of the lounge… “The victim watched the accused walk into the kitchen and start hitting his head on the cupboard….. she felt a warm liquid coming out of her nose (blood) Father was calling mother names and at 6pm he went up to the pub.  At 11pm her returned home. “…the accused started verbally abusing the victim and calling her a “fucking mole”…the accused grabbed the victim  and pushed her down onto the floor Police attend and ask father to leave for the evening so mother can get some sleep.  Father says, “No she can leave”.  Police explained that she has four young children and a 2 week old. Father says, “I don’t give a fuck.  This is my house.  She is full of shit.  I want her out of here.  Youre the police.  I want you to remove her.” Police try to reason with the father but he becomes increasingly arrogant and argumentative. Father went into the kitchen and police followed.  Father took a can of XXX Gold Beer from the fridge.  Police ask for can of beer and father refuses. Father states, “She is a fucking bitch.  She can fuck off out of this house.  What a fucking piece of shit”.  Police heard his repeatedly call the mother “fuckwit” “idiot” “bitch” and “Fucking nuts” Father also states in front of police, “Hey want to go to  Town CCC fishing?  Maybe we can beat up a few kids and even bash a woman or two”. Father is arrested	ICL 165	Father is sentenced to $800 by Town DDD Local Court for Assault Occasioning Actual Bodily Harm (DV). Charge of Common Assault (DV) is withdrawn. Charge Number (ICL 53)
FV Incident of 29.12.2013	Mother’s Affidavit Evidence About this Incident Mother says an incident occurs during an argument about a heater.  She says that the father slapped her in the arm and kicked her out of the house.  The mother says that she left the house with the children in the early hours of the morning. The mother says that she is pulled over by the police and the police followed her back to the house and arrest the father.  Mother says that final separation occurs on this day	M 107-111	Report of Dr F dated 07.10.2014 states “Ms Palagi reports her partner Mr Madill is returning from Town XX and this may help with the children’s care.  This document implies that the parties may have had periods of reconciliation after the separation date of December 2013 that has been stated in both of their court documents.
Father’s Affidavit Evidence About this Incident Father says that an incident occurs at the house.  He was resting and he awoke by mother hitting him with a closed fist in the chest and stomach.  Father got up.  Mother blocked the front door and the father pushed past her.  The mother called the police.  The police arrested the father.	F 25-26	The police attend the house on this day and the father is charged.  He is later sentenced following this incident
COPS Records Father was playing with the children in the backyard pool and drank 4 – 5 beers.  Mother was inside preparing dinner.  Father came in and said “Why are all the fucking lights on?”  He has then began to rant and rave at the mother. Mother tries to sooth father and he punches her in the arm with a clenched fist.  Father starts yelling at mother to get out.  There is an ADVO in place at this time.  Police attend and father is arrested	ICL 164	Father is sentenced to s9 bond for common assault (DV) by Town XX Local Court Charge number (ICL 53)
Changeover Incident 9.12.2018	Report to FaCS Helpline about incident on 9.12.2018 Caller had a planned appointment with mother, but called to cancel due to a DV incident that occurred night before. Mother said that last night she was running late to changeover, which upset father.  He sent mother a text message calling her an “f’ing c”.  Father approached her vehicle at changeover and children were locking in his car, this made mother feel fearful and she locked her doors. Mother’s details were vague but somehow mother and Mr C were out of the car.  The father grabbed Ms Palagi and slammed her into the car causing her nose to bleed. Mr C grabbed the father by the throat and while that was happening the mother went and got the children.  Children were very distressed and crying. Mother not very engaging.  Mother will arrange for children to see their psychologist. COPS report	ICL 146	Mother had been at FACS office previously on this day and had appeared eractic and under influence of drugs. There is also a COPS Report of this incident dated 10.12.2018 COPS note that it was agreed that the pick up time was 5pm but the mother was 3 hours late, blaming the traffic for the delay.  Upon arrival father was highly upset with the mother.  After about 5 minutes mother’s partner becomes involved and they got in each other’s faces.  Police took statements and parties gave opposing versions “All parties were warned by the police that all their behavior was inappropriate and that the children who have autism are the true victims of their poor behavior and they should all grow up and be role models”. Children were observed by police to be sound asleep
Maternal Grandmother	There is a plethora of subpoena material about the maternal grandmothers behaviour including:-
Hospital notes records maternal grandmother is removed from maternity ward in 2007 because of hostile behavior towards mother	ICL 135
Hospital records record that three days after W is born, mother is assaulted by the maternal grandmother during an argument about child’s name	ICL 119
Ms Palagi’s brother Mr WW is placed in the mother’s care by FACS in 2009	ICL 66
FACS case notes record maternal grandmother is violent, reportedly takes ice and prescription drugs and large doses of alcohol
Dr J Notes as at 23.03.13 “Ms Palagi report that her mother was very abusive.  At one time, she saw Ms Palagi at the train station and assaulted her while pregnant.	ICL 70
Dr J notes on 08.01.2014 Mother receives call from her mother and her mother states, “Youre a dead bitch.  Im going to put a bullet in your head and I going to report to the police that the kids are in danger”	ICL 162
CHILD PHYSICAL ABUSE 2 (a)
Mother
Whether the mother has excessively disciplined the children	Facs Helpline Report dated 08.12.2016.  Z disclosed that her mother hit her and she nearly fell on stairs.  Possible excessive discipline by mother	ICL 228
Father
Whether the father has excessively disciplined the children	Facs Helpline Report dated 22.01.2017 Y has said, “I don’t like (my dad).  He hits me and hurts me and then I have to go and sit in the corner”	ICL 229
CHILD SEXUAL ABUSE 2 (a)
Historical allegation that preschool boy sexually abused W	FACS Investigation.  W discloses that she was digitally penetrated by a boy named AAA at preschool.  Details are too vague.  Cannot be substantiated	ICL 205	Dr J Notes on 23.03.13 “There was an incident at school with an older boy who allegedly sexually molested W…. I suggested she phone the on-call sex assault worker…W reported that she went to the hospital…. Dr BBB examined her and there was evidence that suggested that she was digitally penetrated…(ICL 70)
Historical allegation that father sexually abused W	MGM makes report to FaCS on 06.01.2014 that W had disclosed to her that Mr Madill had touched her private parts “W asked Mr Madill to get off the bed but he did not and instead he out his hand under her pajamas and touch touched her private” Referred to JIRT.  Not substantiated	ICL 207 208 210 211	MGM is not considered credible.  She has been known to have a history of making false reports to gain custody of W. W’s disclosure did not have detail and it was therefore not substantiated.
Allegation that Z had an STD	FaCS Helpline report on 07.03.2015 Caller says that Z has a rash on her vagina that looks like an STD JIRT investigate this allegation and it is not substantiated	ICL 219	Facs records state on 15.04.2015, “Of further concern is the family involvement with police regarding child pornography being located in the family car” (ICL 220) The records imply that whilst the police were conducting investigations about Z, they located child pornography in the mother’s car.
Allegation that Mr D sexually abused	Mother deposes that she became aware that her former partner Mr D had sexually assaulted X in November 2018 Mother says that X disclosed to her, “I did a wee and Mr D touched my private part from behind and squirt squirt.  He said that if you tell mum, I will murder you.  I didn’t know what murder is so Mr D told me I would have to eat my vegetables”. Mother reported disclosure to police and a JIRT investigation takes place. Father says that he received a call from the mother and that she said to him, “Mr D fiddled with X” On the following weekend with the father, they have a conversation:- Father says, “Mum’s told me that somethings happened with Mr D.  Can you tell me about it? X said, “Mines bigger than yours.  If you tell anyone I’ll kill you”	M 125	X discloses to the police in COPS Report dated 16.11.2018 About 8.15pm, mother and X walk into City Q Police Station.  X disclosed to her earlier on this day to mother an indecent assault.  He was unsure of exact time of assault, however believes it occurred sometime last year in 2017. Police took account- At an unknown date in 2017, X was standing while facing the toilet attempting to urinate.  POI has taken down his pants and underpants .  POI was holing his penis and said to X, “my dick is bigger than yours”.  X was shocked by this and turned back around to face toilet.  POI grabbed hold of X’s penis for about 5 seconds.  POI said to X “squirt, squirt”.  X turned around and saw that POI’s penis was very big and erect POI said to X, “Don’t tell mum, do you want to be murdered or no vegetables on your plate”.  X did not understand the word murder and so said no vegetables on his plate. (ICL 7)
NEGLECT 2 (a)
The state of the mother’s home	There have been reports made by the maternal grandmother about the state of the mother’s home.	Following the children leaving the mother’s care, the maternal family were seen by FACS caseworkers to be helping the mother clean up the home and the caseworkers were happy with the state of the home.
Whether the mother has left the children without adult supervision	There have been some suggestion in the FACS records that the children have been left unsupervised and that W had been left unsupervised at the pool.	There is not much by way of detail of these issues and it is denied by the mother
Inadequate food	Report made to FACS on 20.08.2014 that Z is not being feed breakfast before child care.  Caller has reported, “…mother has appeared jittery and itchy as though she was using a substance”	ICL 212
Driving without child care restraints	The father reported that the incident at the OOO Hospital arose because the mother did not have child restraints for the children when she came to collect them.
Driving without child care restraints	FACS Helpline report on 06.11.2018 Z was collected from child care by Mr C at 3.45pm.  She was put in the car without a child restraint and no seatbelt.  He was driving a large vehicle and he was seen to drive off with Z still walking around in the vehicle.  This is first time that they have seen Z in the car without a restraint.	The caseworkers also suspected that the children were put in the car without car restraints on the case they did the home visit/safety assessment on 9 January 2019.
MEANINGFUL RELATIONSHIPS 2(a)
Mother
There is a plethora of subpoena material to support the proposition that the mother has been the primary carer of the children.  The father has spent long periods away and working in the Employer YY and he has acknowledged that he took opportunities to work overtime if these opportunities arose.All four children disclosed to the family consultant that they want to be with their mother.
Father
Father deposes that relationship was on and off but that they lived majority of time together	F5	Subpoena material suggests that the father spent long periods working in the Employer YY at Town XX.  There are a number of records indicating that the mother is caring for the children with little support from the father. Vast amount of medical reports about the children record the mother as bringing the children to their appointments/assessments.  The father is not recorded as being present.
Dr J records in Progress Report- W dated 05.01.2014 “She seems to be in an ambiguous relationship with her stepfather: she says she loves him “but not when he’s cranky”.  She remembers clearly some of the events and is quite mature for her age and understands what was happening”	ICL 85
SPECIAL NEEDS OF THE CHILDREN 3 (g)
Past Medical Issues	·    X has grommets on 30.05.2011 ·    W has grommets and adenoidectomy on 09.10.2012 ·    W has had dental involvement regarding her dental crowding ·    Y has post-viral hip synovitis in October 2018 ·    Y had adenotonsillectomy in 2015	It would appear that the mother has arranged for these surgeries to take place.
W	Dr J records in his report about W dated 27.05.2015 W has been diagnosed as having a disorder under the autistic spectrum,  Nonetheless she has been flourishing in the last couple of years, having the capacity to form relationships and learn.	ICL 86	W has been diagnosed with ASD
Report from Region P Speech Pathology in relation to W dated 17.05.2018 Report states, “Her speech was within normal limits for a child of her age” W finds it difficult to maintain eye contact and use appropriate turn taking.  This is shown in the classroom where she often interrupts the teacher.  W continues to find it difficult to stay on topic in a conversation. “However, W has made steady progress in her language and is now able to use correct past tense approximately 90% of the time.  Her vocabulary has improved to the point where she is able to correctly identify flashcards 90% of the time. “It is recommended that W attends further speech therapy	ICL 52	W will benefit from further speech pathology
X
Dr J Notes- in relation to X “I saw X for the first time on 24.04.2012…. Later, he locked up in a repetitive pattern, he would jump and land on his knees on the floor (with such force that I would say he was hurting himself)…	ICL 88	Dr J has himself observed behaviours of X that are flags that he has ASD such as locking up in a repetitive pattern.
X is assessed by Region P Speech Pathology on 12.01.2017 Summary- X presented with a severe receptive language disorder and mild expressive language disorder	ICL  138 139	Speech therapist has observed that X has flags for ASD because his has a language disorder.
Report of Dr F dated 23.05.2017states, “X is having some issues at school with absconding and being aggressive at times.  Teachers have been involved.  He attends the support unit…… Additionally he has developed significant sleep onset delay, often not asleep until 10.30pm and continuing to wake at 6.30am….. “He should continue to have ongoing support with Dr J”	ICL 34	Pediatrician has observed that X has flags for ASD.  He has some behavioural issues and has been aggressive at school.  He also has sleep disturbance. He recommends that X continue with Dr J.
Report of Dr F dated 16.12.17 states, “Behaviours at school have been problematic.  He has been suspended. Mother has had discussions with Department of Education and he will be transferred to the E School Autism Unity 2018.  Mother is waiting to hear back from NDIS after putting her application in some time ago”. “X continues to have regular reviews with Dr J and has a range of regular activities including swimming, craft through the Disability Trust, vacation care through Smith Family, physiotherapy advice and Dietitian advice”	ICL 40	Pediatrician has notes that X has flags for ASD.  He continues to have behavioural issues and has been suspended from school.  He notes that he will be transferred to E School. He notes all of the allied health services working together for X
Letter of support from Region P Speech Pathology in relation to X dated 28.03.2018 Weekly appointments would be hugely beneficial. “X has difficulty with eye contact, staying on topic in conversations and maintaining topics.  This makes it extremely difficult for him to make friends and to socialize appropriately with his peers” “X also has a number of receptive and expressive language difficulties.  This is includes his ability to follow instructions, remember instructions, formulate grammatically correct sentences and understanding spoken paragraphs.  These difficulties have also led to behavioural issues in the classroom as he does not understand what the teacher requires of him.  This leads to behavioural issues in the classroom and can greatly affect his learning”	ICL 51	Speech therapist notes that X continues to have flags for ASD. She recommends that weekly ST continue.
Y
Report of Dr RR, pediatrician I saw Y on 30 August 2013 with is mother.  He is showing signs of abnormal development… Watching him, he demonstrates frenetic motor activity ..”hyperarroused” and there is no planned activity behind his motor activity, it’s just frenetic.  He is showing delay with speech and language development	ICL 106	Pediatrician has notes that Y has flags for ASD.  He observes frenetic activity and language delay. This is a different Pediatrician to the children’s usual treating pediatrician.  This suggests that more than one specialist is able to see signs of abnormal behaviour.
Dr RR, pediatrician, reports 26.09.13 In the meantime, his behaviours are very abnormal.  He is “hyper-arroused” and is showing delays with his speech and language development and socialization.  He needs intensive one on one support at this time to improve his abnormal developmental progress	ICL 107
Dr F refers Y to undergo Diagnostic Assessment with Autism Spectrum Australia on 22.10.2013.  ASA conducts a comprehensive diagnostic assessment and he was assessed as requiring “very substantial support (Level 3)” in terms of social interaction and social communication difficulties.  Overall, Y’s presentation met the sufficient criteria for a DSM-5 diagnosis of autism spectrum disorder.	ICL 25	Formal ASD diagnosis.
Report of Dr F dated 07.10.2014  Y is making steady progress.  He is receiving appropriate services.  Mother is managing well”. Recommends psychology support for sleep and consider other strategies if his sleep remains a significant problem	ICL 27	Recommends psychological support for sleep
Report of Dr F dated 22.09.2015 “He continues early intervention two days a week and three days at day care…. He continues to be seen by a psychologist and a speech therapist on a regular basis.  There have been aggressive and challenging behaviours at daycare….he had a successful adenotonsillectomy one month ago”. “Y has significant challenging behaviours.  I have recommended more appropriate arrangements in daycare to avoid overstimulation with aggressive behaviours.  Continued involvement with a psychologist and speech therapist is advised.  Mother is doing an excellent job with very challenging behaviours”	ICL 29
Report of Dr F dated 11.10.2016 He continues to receive regular intervention with OT psychology and speech.  His behaviours remain a challenge and he does get sensory overload at times. Y is likely to benefit from the Support Unit next year, transitioning to mainstream if there is a positive adjustment	ICL 31
Dr F report of 11.04.2017states, “Y has commenced Kindergarten in the Suburb NN support unit… There has been some biting and spitting which may represent adjustment issues”. His sleep has deteriorated with a significant onset delay and intermittent waking…” “He continues to have psychology support”	ICL 33
Report of Dr F dated 20.03.2018 Report states, “He has made steady progress in the support unit at Suburb NN.  He does not socialize with main stream.  He attends after school care and regular swimming which he enjoys.  There are some sensory issues around food but this is being helped by dietitian input.  He continues regular psychology support with Dr J.	ICL 41	Dr F supports Y continuing with supported classroom. “There are some issues regarding father’s infrequent contact” This suggests that the father is not engaged with the children and is not involved with their complex special needs.
Z	Clinic Report of Region P Diagnostic and Assessment Service dated 11.05.2016.  Z meets the diagnostic criteria for autism spectrum disorder (Level 1) requiring support for social communication and (Level 2) requiring substantial report for restrictive, repetitive behaviors. Z’s intellectual skills were rated to be in the average range overall. Recommended- ongoing OT to improve attention and address sensory issues.  Ongoing psychology intervention for behavior management and sleep initiation.  Z would benefit from speech therapy.  A collaborative approach among allied health professionals is beneficial.	Mother and her partner Mr D attend this assessment.  Father does not appear to be in attendance
Report of Dr F dated 20.03.2018 “Insomnia is a significant issue.  She is not often asleep until 11pm.  Strategies were outlined” “She attends prep 3 days per week, early intervention, daycare of two days.  She is generally happy.  She accesses regular speech and psychology support.  Father reportedly has little contact”	ICL 42
EXTENT TO WHICH PARENTS HAVE TAKEN OPPORTUNITY TO MAKE DECISIONS AND SPEND TIME 3 I (i) (ii)
Mother
Report of Dr F in relation to Y dated 07.10.2014. Ms Palagi does an excellent job with the children who all have behavioural and medical issues” Y has been accepted into Early Intervention as has X. “Y is making steady progress.  He is receiving appropriate services.  Mother is managing well”.	ICL 27
School Counsellor Report for W dated 30.10.2014 “W was referred by her mother, after consultation with her class teacher.  W is moving from a mainstream class to a special education setting to assist with her learning”. “W …cognitive development and functioning is within the average range… she does struggle with attention, focus and concentration on most tasks within the schooling setting.  She finds it difficult to remain seated, to use fine motor skills to write for any length of time and to concentrate on a task for more than a few minutes even in a one on one situation.  This makes participation in educational activities difficult for W”. W is well places in her current special education setting.  Important that she remain in such setting for 2014/2015 to enable her to access the school curriculum	ICL 28
Father
The father’s commitment to spend time with the children during their relationship	The father deposes that he was working in Town XX in the Employer YY in 2011.  He deposes that he did the commuting to and fro to spend time with the children	F 15	Clinical notes of July 2011 record that the father is living at his parents’ house.  He goes over mother’s house 4 times a week and helps with meals and cleaning and has X each alternate weekend (ICL 122) FACS Helpline- Anonymous Report of December 2011 “The father of the children is not a permanent resident in the home.  He lives in Town XX for work… (ICL 303) This suggests that the father was not living with the mother and children two months after Y was born.  The mother is caring for the 3 children, one being a newborn.
Hospital records note as at 17.11.2012 “Dad works away in Town XX?.  Mum has some support from mother-in-law who is looking after other siblings at present	ICL 124
Dr J Notes as at 23.03.2013 “Ms Palagi has a supportive partner but he works long hours at the Employer YY….	ICL 70	Dr J further notes as at 15.07.13 Mr Madill got a new job at the Employer YY (ICL 70)
Father says that in 2013 they had significant financial difficulties and that he worked as much overtime as possible.  He says that he did 12 hour alternating shifts to help financially support the family	F 17
Dr J Notes on 15.10.2013 “Ms Palagi still has a Dept of Housing home in Town EEE and comes and goes between houses and is claiming parent’s pension (what is this?) Mr Madill reported he was concerned that the children were going backwards and forwards between the houses.  W is in school for 2 weeks in Town EEE and then back at Town FFF…. “I have discussed with Ms Palagi how disruptive this might be as two of the children are autistic. And then on “They (Early Intervention) are concerned that she disrupts the children with constant travel up and down to Town EEE	ICL 70	These records indicate that the children were living in a set up where the father was working the Employer YY in Town XX and the mother was staying in Dept of Housing accommodation at Suburb NN. It would appear that for long periods she was caring for the children by herself.  It appears that she was commuting them between Suburb NN and Town XX. Concerns were raised by the support services that this was not in the children’s best interests particularly with ASD, however both parents continued this arrangement irrespective.
Father’s commitment to the children at separation	Father is referred to Interrelate by Dr J at the time of separation in or around January 2013.  He applies for their service to assist him to STW the children but it is not known how long it to the father to make an application.	ICL 70, 26
Father deposes that he was unable to spend time with the children for a period of 9 months after separation.  The mother then agrees to supervised time to be supervised by her.  The first supervised time occasion starts on this day at Suburb HHH McDonalds.  Mother and her partner Mr D supervise the father’s time. Father says that time quickly progresses to weekends at his parents’ house at City Q on each alternate weekend	F 33, 35, 37	Interrelate letter inviting mother to mediate is dated 15.05.14.  This is about 5 months after separation.  There is no evidence from either party about any efforts made in this period to arrange for the children to spend time with the father. It is therefore unclear if this period of 9 months of no time was because the mother actively refuse or whether the father was inactive.
Report of Dr F in relation to X dated 23.05.2017 states,  “Mother feels his home behaviors are variable and he is missing access with his father.	ICL 34	This is evidence in more recent times of the father being absent from the children’s lives.
Report of Dr F in relation to Z Report dated 16.10.2018 states, “Mother continues to report that children’s father, Mr Madill has limited access and often does not arrive for scheduled contacts.  I have suggested Dr J engage with both parents and provide a way forward”	ICL 48
The father’s commitment to the children’s medical treatment during relationship	Progress Report of Dr J to Victim Services dated 2.07.2014 states, “She also explained he ex-partner used to blame her for everything (he even walked out from a consultation with specialist who diagnosed her children with autism saying “it’s all your (the victim’s) fault”	ICL 74	This evidence suggests that the father has had some difficulty accepting the children’s diagnosis that they genuinely have ASD which requires significant interventions and ongoing treatment.
The father’s commitment to the children’s medical treatment after separation	Report of Dr F in relation to W Dated 3.10.2017 states,  “Mother continues to do an excellent job.  All her children have developmental issues with ASD features and father’s involvement appears sporadic,  mother is supported with friends and FaCS is involved”	ICL 37
Telephone conversation between case worker and the father on 15.02.09.  Father is record as having said, “My legal aid has been approved but I have to pay the $75 application fee.  I can see this getting expensive but I will sick with it because it is the right thing to do”.	ICL 22
Father reports that the children’s health issues have been “extremely exaggerated by the mother” to the family consultant on 06.05.2019	CIC Memo	This recent evidence suggests that the father remains of the view that they do not possess the complex special needs that they have been diagnosed with and have been supported by a large team of specialists and allied health workers.
ATTITUDES 3 (i)
Mother
Descriptions of mother’s capacity to parent	Dr J describes the mother as “A single mother of a 3.5 yo girl and an 18 month boy.  She’s expecting her third baby.  She’s excellent in her role as a mother but due to her levels of anxiety, she will find it difficult to cope with the workload and it will exacerbate her condition”	ICL 69	This letter was written only about 2 weeks after she had recommended therapy with Dr J. It appears that he had some working knowledge of her childhood trauma.  This is referred to in GP referral letter
Dr J observes in 2012 X was playful and loving towards his brother, but at times rather rough fashion and their mother was very alert about it as well as protective	ICL 88
Letter of Dr F dated 09.08.2018 States, Ms Palagi is a devoted to the care of her children, advocating for additional support and providing appropriate environments for their developmental needs”.	ICL 44
Father
The father’s commitment to the children’s extra-curricular activities	Father has conversation with the FaCS case worker on 29.01.2019.  Notes record that he said, “Ms Palagi has sent me the children’s after school activities, its so extensive and even though she said it is all paid for the is no one (sic) I can manage this.  Its too much” “Mr Madill is concerned about getting the children back and forth to school being so far away.  Not sure how I can afford to continue this, with fuel prices and no job and no help from Centrelink”	ICL 18
LIKELY EFFECT OF CHANGES IN CHILDREN’S CIRCUMSTANCES 3 (d) including separation
Changing Schools	Letter by Dr L of Region P Speech Pathology dated 23.01.2019.  Supports children remaining at E Public School.  Mainstream school would be detrimental to their speech therapy.	M Annexure H	This is a recent letter supporting the children to remain at their current school.
ABORIGINALITY
The children’s Aboriginality through maternal line	On 14.03.2019 Mother is confirmed to be an Aboriginal Person by City UUU Local Aboriginal Land Council	M Annexure G
Children’s engagement with their Aboriginal culture	There is more recent evidence of the children engaging in their culture and being proud of their heritage.  X receive an award in 2018 for Aboriginal student of the year. The children have started to be able to partake in school camps for indigenous children.