Peck and Peck
[2016] FCCA 2561
•14 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
PECK & PECK [2016] FCCA 2561
Catchwords:
FAMILY LAW – Interim parenting – where mother has unilaterally relocated from (omitted) region of New South Wales to central Queensland – where serious issues about mother’s parenting capacity and insight.
Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA
Cases cited:
Goode & Goode [2006] FamCA 1346
Morgan & Miles [2007] FamCA 1230
Applicant: MR PECK
Respondent: MS PECK
File Number: WOC 535 of 2016
Judgment of: Judge Altobellli
Hearing date: 26 September 2016
Date of Last Submission: 26 September 2016
Delivered at: Wollongong
Delivered on: 14 October 2016 REPRESENTATION
Counsel for the Applicant: Ms Doosey
Solicitors for the Applicant: Rossi Simicic
The Respondent appeared by telephone.
Solicitors for the Independent Children's Lawyer: Legal Aid New South Wales Wollongong Family Law ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
(1)Final orders made on 10 February 2009 be suspended.
(2)The Father have sole parental responsibility for X born (omitted) 2001.
(3)The Father and Mother have shared parental responsibility for Y born (omitted) 2003 and Z born (omitted) 2006.
(4)The child X live with and spend time with her mother and father in accordance with her wishes.
(5)The children Y and Z live with the Father.
(6)The Mother cause the child Z to be delivered to the Father’s care at Brisbane airport:
(a)No later than 21 October 2016 at 5.00pm;
(b)Not earlier than 19 October 2016 at 5.00pm;
(c)At a time and place nominated by the Father on at least 72 hours’ notice
with the cost to be borne by the Mother.
(7)The Father do all things necessary to re-enrol the child Z at (omitted) Public School as soon as possible.
(8)The Father is to do all things necessary to enrol Z at (omitted) Public School for the commencement of the 2017 school year.
(9)The Father is to do all things necessary to enrol Y at (omitted) High School for the commencement of the 2017 school year.
(10)In the event that the mother resides in the (omitted) area, the children Y and Z are to spend time with the mother as follows:
(a)from after school Friday until before school Monday each alternate weekend;
(b)from after school Thursday until before school Friday each week;
(11)In the event that the Mother continues to reside in (omitted), Queensland, the children Y and Z are to spend time with the Mother in the (omitted) region as follows:
(a)for a two week period during the NSW Christmas school holiday period in 2016/2017 as agreed; with the mother to give the Father 60 days written notice of the dates she will be available to spend time with the children in the (omitted) area and in the absence of an agreement, from 10am 2 January 2017 until 10am 16 January 2016;
(b)for two week period as agreed at the end of each NSW school term but in the absence of an agreement, from 10am on the first Saturday after the children break up from school until 10am on the last Saturday of the school holiday period.
(12)To facilitate order 10, changeover is to take place at the children’s schools and to facilitate order 11, changeover is to take place at an agreed location in the (omitted) region.
(13)The children are at liberty to communicate with either parent by telephone, Skype or other electronic communication and each parent is to ensure that these facilities are available to the children.
(14)The Father is to keep the Mother advised of:-
(a)any serious medical problems or illnesses suffered by the children whilst in his care;
(b)any occasion that the children are due to be hospitalised or have been hospitalised;
(c)the name and address of the children’s General Practitioner and Dentist from time to time;
(d)details of any Specialist Medical Doctor, Psychiatrist, Counsellor or Therapist for the children;
(e)copies of any medical or clinical report prepared for the children by a Specialist Medical Doctor, Psychiatrist, Counsellor or Therapist;
(f)information about any extra-curricular activities that the children are involved in from time to time such as sporting activities, tutoring and specific lessons;
(g)any change to his residential address and particulars of any other person who may be residing with the children from time to time within 72 hours of such change; and
(h)any change to his telephone contact numbers and E-Mail address within 72 hours of such change.
(15)The Mother is to keep the Father advised of:
(a)any serious medical problems or illnesses suffered by the children whilst in her care;
(b)any occasion that the children are due to be hospitalised or have been hospitalised;
(c)any occasion that the children have had to attend upon a General Practitioner or Dentist;
(d)any change to her residential address and particulars of any other person who may be residing with the children from time to time within 72 hours of such change; and
(e)any change to her telephone contact numbers and E-Mail address within 72 hours of such change.
(16)The Mother is restrained from arranging an appointment with a Specialist Medical Doctor, Psychiatrist, Counsellor or Therapist for the children without the written consent of the father.
(17)The Mother and Father are to keep the Independent Children’s Lawyer advised about any appointment scheduled for the children with any Specialist Medical Doctor, Psychiatrist, Counsellor or Therapist.
(18)The Mother and Father are restrained from discussing the contents of any Affidavit filed by the mother and father or any other party in relation to these proceedings.
(19)Except in the case of an emergency, the mother is to take the children to the same General Practitioner or Dentist as nominated by the father if the children need to attend.
(20)The Father and Mother each undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2008 or any subsequent approved standard) chain of custody urinalysis for drug screening on no more than one occasion each calendar month and within 24 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 party or the party directly and provide copies of the results of the tests to the other party 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.
(21)Pursuant to section 11F of the Family Law Act 1975 the parties attend a Child Inclusive Child Dispute Conference with a Family Consultant in this Registry on 24 January 2017 at 9.00am AND the parties are advised that if a person fails to comply with this order or any instruction the Consultant gives to the person the Consultant must report the failure to the Court AND the Applicant and Respondent are to do all things necessary to facilitate the attendance of the Children promptly at the commencement of the Conference.
(22)The matter be adjourned to 31 January 2017 at 11.30am for Mention.
(23)Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 72 hours’ notice by application to the Court in Chambers in appropriate circumstances.
NOTATIONS:
A.It is noted that the Father’s partner Ms K has agreed to undertake a random drug urine test at the request of the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Peck & Peck is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONGWOC 535 of 2016
MR PECK Applicant
And
MS PECK Respondent
REASONS FOR JUDGMENT
Introduction
1.These Reasons for Judgment explain the Interim Orders the Court has made in relation to three children, X, aged 15, Y, aged 12, and Z, aged 10.
Background
2.The Applicant in this case is the children’s father. He is a 37-year-old (occupation omitted) living in the (omitted) region of New South Wales. The children’s mother is the Respondent. She is 35 years old and has recently relocated to a (omitted) town in central Queensland. The parents met in 1999. The Mother fell pregnant shortly afterwards, and they commenced cohabitation in (omitted) 2001 when X was born. In 2002 they married and moved to a suburb in the (omitted) region of New South Wales. Y was born shortly thereafter and then Z in 2006, by which time X had commenced kindergarten in a local school. The parental relationship up until now appears to have been quite unstable. Shortly after Z was born the Mother took the children and relocated to the (omitted) area of New South Wales. By about July 2006 it seems that the parents regarded themselves as formally separated. The Father commenced spending time with the children and entered into an informal agreement about child support. There was tension, indeed frequently conflict, at change-overs. A number of incidents occurred between them, and where relevant, these incidents will be discussed below. In 2006 the Father also spent some time working on an island in far-north Queensland.
3.By about January 2007 the parents had reconciled, though the impression formed from all the material before the Court is that it was not a particularly stable relationship. Certainly from the Mother’s perspective, from about 2007 she regarded the relationship as on and off, and she entered into a number of relationships with other men. The parents seem agreed that the final separation was in August 2008. The Father had by about that time moved to the (omitted) of New South Wales and then moved closer to the children in the (omitted) area.
4.In 2008 the Father commenced a relationship with his current partner, Ms K. The parents divorced. On 10 February 2009 the parents enter into Consent Orders at the Local Court at Nowra. These are the only Orders in place prior to the commencement of the present proceedings. The Orders in question provide for the Mother to have sole parental responsibility and for the children to live with her. Significantly in the present context, Order 4 of the Orders states:
In the case the Applicant Mother and the children move interstate or of a fair distance from the Respondent Father’s residential address, the following time spent with the three children is as follows:
A, from 10 am Saturday until 10 am Saturday of each school holiday block in April, July, October and December,
B, such other times may be agreed between the parties.
C, any travel expenses incurred are to be shared with the applicant mother.
5.The Father alleges, but the Mother denies, that he did not receive legal advice about the content of the documents and in particular did not understand that he had agreed to sole parental responsibility to the Mother.
6.In any event, after the Orders were made the situation was that the parents lived within a reasonable distance of each other and the Father spent regular time with the children in accordance with the Orders. The parents were living parallel lives. The Father was living with his current partner, Ms K. The Mother was, from 2009, in a relationship with a Mr A. As a result of that relationship the Mother’s daughter, A, was conceived and subsequently born on (omitted) 2011. A continues to live with the Mother. A’s relevance to these proceeding is because of the nature of the sibling relationship she has with X, Y and Z. By the time A was born X was in year 5 and Y had commenced in year 1.
7.After A was born the Mother had a series of other relationships with men and then in 2012 met and commenced a relationship with a Mr P. The significance of this relationship will be discussed below. That relationship breaks down and the mother enters into a series of subsequent relationships with other men.
8.On 21 May 2016 the Mother announces to the Father that she is relocating with the children to a (omitted) town in central-western Queensland. As it turns out, neither X nor Y move with their mother, preferring to stay with their father in the (omitted). However, Z, A and the Mother do move. The Father commenced the present proceedings, and the Mother responded.
9.It is common ground that the Mother lives in a township about 250 kilometres west of (omitted). The township has a population of about 2000 people. The Mother, in fact, herself explained to the Court that it is about a three-hour drive to (omitted) and about a 10-hour drive to Brisbane Airport.
Present Proceedings
10.The Father’s application to the Court was to discharge the 10 February 2009 Orders, to have joint parental responsibility in relation to Y and Z but sole parental responsibility for X. He sought orders that both Y and Z live with him and that Z be returned to him, failing which a recovery order would issue. He proposed orders for Z and Y to spend time with their mother during school holiday periods.
11.The Mother sought orders for all three children to live with her, for her to have sole parental responsibility and for recovery orders to implement the orders that she sought.
12.A very experienced Independent Children's Lawyer was appointed for the children. She sought orders suspending the 10 February 2009, that the Father has sole parental responsibility for X and the parents equal shared parental responsibility for Y and Z. The Independent Children's Lawyer proposed that X live with and spend time with her parents as she chooses but that Y and Z live with the Father. She sought a number of consequential orders. She proposed school holiday time with the children, should she continue to reside in central-western Queensland.
13.The evidence before the Court was as follows:
Applicant father:
1.Affidavit of the Father sworn 19 September 2016
2.Affidavit of the Father’s partner Ms K sworn 19 September 2016
3.Case Outline Document dated 22 September 2016
Respondent Mother:
1.Response filed 29 June 2016
2.Notice of Risk filed 29 June 2016
3.Affidavit of the mother sworn 23 June 2016
4.Affidavit of the mother sworn 13 July 2016
5.Unsealed Affidavit of the mother dated 13 September 2016
6.Case Outline dated 25 September 2016
Independent Children’s Lawyer:
1.Notice of Risk filed 12 September 2016
2.Portions of Subpoena documents.
The applicable law
14.The applicable law is found in Part VII of the Family Law Act 1975. 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.
15.The Full Court in The Full Court, in Morgan & Miles [2007] FamCA 1230 made a number of comments relevant to these circumstances in paragraphs 82 to 88 (emphasis added):
82. It is important to note that there are no separate provisions in the Act dealing with interim, as distinct from final orders, although s 61D(3) does not require mandatory application of the presumption of equal shared parental responsibility on the making of an interim order. Thus there is no legislative mandate to consider different criteria in interim parenting application involving relocation to final applications, although the former will of necessity, be an abridged enquiry.
83. I have noted above that cases before the introduction of amending Act generally applied principles enunciated in Cowling, and particularly had regard to those factors relevant to a child’s stability as the foundation for orders maintaining existing arrangements. Thus generally courts prohibited a relocation on an interim basis, or made orders which provided for the return of a child if only a short period had elapsed after a unilateral relocation by one parent
84. The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII.
85. In Goode the Full Court considered whether the principles in Cowling remained applicable after the introduction of the amending Act, particularly paragraph 22 in Cowling which talks about a “well settled environment”. The Full Court determined the amending Act had effected change which required reconsideration of that paragraph. Whilst lengthy, it aids understanding to set out the relevant passages from Goode:
71. The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.
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.
73. That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
87. As explained in Goode, the circumstances of the child at the time of the application or immediately before an unauthorised removal, particularly absent issues such as abuse or violence, may well be likely to be extremely relevant.
88. It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in C and S remain apt and relevant to determination of these cases.
16.In the proceedings to date the Father has been represented by his solicitor, Ms Kuemmel and Counsel, Ms Doosey. The Mother has represented herself and Ms Temelkovska from the Legal Aid Commission at Wollongong has represented the children.
17.Ms Temelkovska prepared a very detailed chronology to assist the Court at the interim hearing held 26 September 2016. That chronology is reproduced in the first schedule to these reasons. It is a particularly helpful document as it draws on not just the material filed on behalf of both parents but also on the more objective material contained in the documents produced on subpoena that came into evidence.
18.The Court has conducted its own review of the evidence and is satisfied that the chronology is reliable and, indeed, paints an accurate picture of what can only be described as a turbulent relationship between the parents and an often-unsettled and at times dysfunctional family life for the children. Indeed, the chronology accurately summarises the complex issues that the family has experienced, as well as the complexities confronting the Court in making interim orders.
The Evidence
19.It is clear, for example, that both parents have had issues in the past with drugs, alcohol and mental health. The Father’s partner, Ms K, has had past mental health issues. The relationship between the parents was highly conflictual and often violent. The clear impression formed by the Court from the aggregated and objective material before the Court, as well as from the parents’ own accounts, is that the family violence was often mutual. As a result of the Mother moving around, the children often changed schools. The Mother has a series of relationships with different men, some of whom became an integral part of the lives of the children, albeit not on a long-term basis. For most of the period the children have been in the care of the Mother, and for most of the period their father has been a fairly consistent part of their lives. The New South Wales child welfare authorities have been involved in the family. For example, Y made disclosures of inappropriate sexual behaviour at school in 2009. His disclosures were substantiated and he was referred to counselling.
20.A significant event occurred in X’s life in 2012. During the period when the Mother was in a relationship with Mr P and cohabitated with Mr P and his son, X alleges that Mr P’s son sexually assaulted her. X told her mother within a short period thereafter, but the Mother did not report it. The fact of the sexual assault appears to be common ground between the parents. The Father and his partner Ms K did not become aware of it until later. The Mother concedes that she knew about it shortly after it occurred. It is common ground that it was not reported to any authority, and indeed, no notification was made until X disclosed this to the Independent Children's Lawyer, who filed a Notice of Risk on 12 September 2016. The Mother’s response to X’s disclosure becomes a significant issue in this case, even though the event took place four years ago.
21.From February 2013 it is clear that X started manifesting behavioural issues at school. This seems to have snowballed over the years to include truancy and violence, including against the Mother. The Independent Children's Lawyer submits that the Court should be concerned that X’s behaviour commenced shortly after she appears to have been sexually assaulted by Mr P’s son.
22.The chronology also establishes that some of the Mother’s relationships in the post-separation period may not have been appropriate from the children’s perspective. Mr P’s son was, at the very least, involved in inappropriate sexual behaviour with X, who was 11 years old at the time. Mr P’s son was also a minor. Mr P was involved in the cultivation of drugs and subsequently jailed. The relationship between Mr A and the Mother appears to have been a violent one.
23.There are some important pieces of evidence that need to be the subject of specific comment. For example, annexed to the Mother’s affidavit of 13 September 2016 is a letter from Z, dated 16 September 2016, addressed “Dear judge”. It states:
“My name is Z. I am 10 years old, and I want Y and X to move up here to (deleted). I am happy at (deleted) with mum and A but I miss dad a lot and I want to see dad on the holidays.”
24.The Independent Children’s Lawyer submitted that this letter was highly inappropriate. She submitted that consistent with much other evidence before the Court it reflected the Mother’s willingness to inappropriately involve the children in adult matters and was symptomatic of much deeper issues about her lack of insight and inability to draw proper boundaries. She submitted that it was yet another example of the Mother being unable to prioritise the needs of her children, over that of herself. As it turns out, the Court accepts this submission, not just because of the letter itself, but because of the totality of the evidence before the Court. The Court does not believe that it is a reliable indicator of Y’s view to remain in the town where he currently lives with his mother. It does suggest, however, the strength of his relationship with his siblings and also his father.
25.The second piece of evidence is also attached to the Mother’s affidavit sworn 13 September 2016. It is a letter from the school that Z is attending, dated 15 September 2016. It explains that he started at the school at the end of term 2 2016 and that during term 3 he was absent from school for nine days due to illness and has arrived late twice. In addition, the letter states: “Z is on an individual support plan for English and Maths and is performing below benchmark across most curriculum areas.”
26.The Independent Children's Lawyer pointed out that Z’s schooling has been disrupted as a result of the Mother’s relocation, and that the letter in question is not necessarily of reassurance to the Court. Indeed it is not.
27.Because of the urgency in which these proceedings came before the Court, it was not possible to arrange a Child-Inclusive Conference with a view to attempting to ascertain the views of the children. However, Ms Temelkovska did meet with both X and Y. She explained to the Court that her proposal about X and Y was consistent with what she had told them. She emphasised, however, that the children’s desire not to relocate with their mother is entirely consistent with the evidence of the Father and, even to a lesser extent as regards X, with the evidence of the Mother. Whilst the Mother is clearly aggrieved at the circumstances in which Y returned to his father’s care, and declined to relocate with her, she does not suggest that Y was under pressure to make a decision or even that he has told her he wants to live in Central Queensland. In relation to X, even the Mother deposes to the fact of the breakdown in her relationship with X. Indeed, it beggars belief that the Mother’s proposal to the Court would be that X is returned to her full-time care. A Child-Inclusive Conference will be ordered at the earliest possible time, as part of the orders made in the present proceedings. Doing the best the Court can, in the circumstances, the Court believes that neither Y nor X desire to live with their mother in Central Queensland and, indeed, it is quite clear that X will decide for herself where she lives.
28.There are other important aspects of the evidence to be acknowledged. For example, in the Mother’s affidavit of 23 June 2016 she makes a number of important admissions that are relevant to the present decision. At paragraph 5, for example, she acknowledges that her relationship with the Father was “a very dysfunctional marriage”. At paragraph 9 she acknowledges that: “Mr Peck and I had violent destructive moments within our marriage and separation.” It is important to note the mutuality of the concession. At paragraph 17 she acknowledges that “For the last four to five years Mr Peck has been more regular with fortnightly access with the children”. She also acknowledges at paragraph 17 that “Mr Peck’s parents often cared for our children when he couldn’t and I’m happy for our children to have a bond with them”. At paragraph 25 she acknowledges that one of her partners, “Mr P and his sons had a close significant relationship with all my four children and myself”. She concedes that Mr P was arrested for possession of cannabis and jailed for four months. Indeed, the other evidence before the Court demonstrates that Mr P was involved in quite a substantial drug cultivation enterprise and the Independent Children’s Lawyer submitted that the Court could certainly infer that the Mother was aware of this enterprise. In any event the Mother concedes at paragraph 25 that Mr P “was officially released from jail to reside in my home and I was on his parole conditions”. At paragraph 32, clearly faced with the contention made in the Father’s evidence she deposes: “I disagree I ever put any relationship, any man including Mr Peck himself before my children or my children’s best interests. My children’s needs and wants have always come before my own.”
29.At paragraph 40 she deals with a violent incident that took place at her home in December 2015. She deposes: “I told him to get off my property because he was screaming at me. I pushed my front door and pushed him off my property. He slapped my face, I pulled his hair and was unaware that his neck was scratched as I don't have long nails. I collected A and went inside and closed the door. All four children were out the front and witnessed the incident.” It is beyond doubt, therefore, that the Mother was an active participant in a violent incident that the children witnessed.
30.At paragraph 44 of this affidavit she explains that she purchased the property where she currently resides but provides no timeframe. She explains that it is in “a small (omitted) town. My reason for relocating is due to the financial hardship I have endured for the past two years as Mr Peck is not contributing financial support due to leaving long-term employment on wages, I am less $360 pw from CSA.” The evidence before the Court is clear, however – the Father has been paying child support as assessed. In any event at paragraph 44 the Mother acknowledges that she does not have a mortgage now and “only need to cover the basic living expenses”.
31.At paragraph 48 she makes this statement: “I do not agree that a 15 year old or 12 year old are old enough to make life decisions or to be placed in a position of manipulation of choosing a parent.” This is an interesting comment to make in light of Z’s letter to the judge dated 16 September 2016 which she annexed to her affidavit.
32.In the Mother’s affidavit of 13 July 2016, at paragraph 9, she deposes to a conversation between the Father, and the Maternal Grandmother in which the latter said to the Father: “If you have paid child support she would not have needed to”, referring to the relocation. This creates a strong impression in the Court’s mind that the relocation was motivated, at least in part, due to child support issues.
33.At paragraph 14 of this affidavit the Mother responds to concerns that the Father raised about the school attendance records of Y and Z before relocation. She concedes that both Y and Z were regularly late at school, but this was a practicality because of the need to have A get to kindergarten first. The difficulty with this contention is that the records produced by (omitted) Public School also refer to other excuses for not attendances such as “mum’s friend came over”, “slept in” (several entries). In these circumstances, the Mother’s explanation in paragraph 14 is not reassuring.
34.At paragraph 26 of this affidavit the Mother deposes: “I have not had so many boyfriends…”, responding to concerns raised by the Father about the Mother’s multiple relationships, and the potential impact on the children. In relation to the Mother’s relationships, however, in her affidavit of 13 September 2016 she refers to the following men with whom she had a relationship: Mr P, Mr C, Mr F, Mr M, and Mr A, who she has met since moving to central Queensland. In addition, of course, the Mother has previously deposed to relationships with Mr S, and Mr A. The strong impression formed, even from the Mother’s own evidence, is that the children were exposed to a series of men in the Mother’s life after separation.
35.The Mother’s affidavit of 13 September 2016 responds directly to the Notice of Risk filed by the Independent Children’s Lawyer, and the concerns that Ms Temelkovska expressed in Court about the disclosures made by X. In this affidavit she explains about her relationship with Mr P, and how his son, C initially regularly stayed at the family home, and then moved in on a full-time basis. Mr P’s other son, B, was also a frequent visitor.
36.At paragraph 4 the Mother explains that: “Mr P and C moved into my home on a full-time basis just prior to his arrest in March 2013.” This must mean that C continued to live in the family home after his father was in jail. The Mother acknowledges at paragraph 5: “X…had a noticeable crush on C…”. She was clearly concerned about the nature of their relationship because she deposes to having conversations with both of them. She knew, at the very least, that C had kissed X. By her evidence, it is clear that she suspected that more was going on between them, but X denied that they had sex. It must be remembered that X was only 11 at this time.
37.The Mother’s evidence does not appear to be organised in a chronological fashion. At some point what is apparent from paragraph 13 of her affidavit is that she asked Z what he recalled about an incident and she deposes: “Z recalls the kids playing trust, dare, double dare, kiss a girl or torture.” The Independent Children’s Lawyer raises concerns about the Mother discussing these issues with Z, let alone her placing any weight on what Z might have said to her, given that then events took place in 2012, when Z was only 6.
38.In any event, the Mother deposes at paragraph 13 of this affidavit: “C and X confessed to laying on their side, cuddling in a spooned position, C aroused with his penis behind ‘going up the bum’, I questioned that description X said she felt nothing, not inside her! So the conclusion drawn was there was no penetration involved just cuddling and kissing.” The Mother goes on to explain that this admission apparently took place a month after the event. She then deposes: “Mr P and I deal with this matter at home as parents and didn’t feel at risk or need to report to authority. Mr P has a significant relationship with all my children as I did with his and considered them ours. Our children were considered siblings and treated equally and love the same…”.
39.The Independent Children’s Lawyer, and the Father, both submitted that the Mother was, in effect, prioritising her relationship with her then partner over the need to protect her children.
40.X disclosed the incident to Ms K, the Father’s partner. This evidence is found at paragraph 61 of Ms K’s affidavit of 19 September 2016. She deposes that in early 2015, she and X were having a discussion about sex. Paragraph 61 states:
I asked, “Was this the first time you had sex?” X said to me, “Yes, we used a condom but I didn’t bleed.” I found this quite strange and asked X, “Are you 100 per cent sure you had sex?” After X explained a little, it was clear that she had sex and I started to wonder if this really was the first time. I said, “Are you sure you haven’t had sex another time or is there anything you can remember?” X then said to me, “One time with C at mum’s house when I had a friend sleeping over, he climbed into bed with me and something happened.” I asked X, “What do you mean?” X said, “I was half asleep so I don’t really know, but when I woke up, there was a puddle of blood on the bed.” I said, “That sounds like the first time you had sex.” X would have been 11 at the time and I do not think would have had any understanding of what really happened. I said, “Did you try to push him off or say, ‘No, get off me,’ or anything?” X said, “I can’t remember, I was half asleep at the time. I told mum about the blood and she just said, ‘Oh, my baby is a woman now. You’ve got your first period.’ Mr P was really angry with C and yelled at him, ‘Stop.’ Mr P wanted to take me to the hospital or doctors to be checked out but mum didn’t want to. Mr P and mum got into an argument over about it.” I believe this happened in the Christmas school holidays of 2012.
41.At paragraph 64 of Ms K’s affidavit, she explains that X also said to her, “I then started being bullied at school and people were saying that I fucked my brother.” This is significant because it provides an understanding of how X perceived the event in question.
42.The Independent Children’s Lawyer caused to be filed a Notice of Risk on 12 September 2016. The Court can only assume that this was based on a disclosure that X made to Ms Temelkovska. In section 2, dealing with allegations relating to child abuse, the form indicates in the affirmative that a child to whom proceedings relate has been abused. At paragraph A, asking for particulars, the form reads:
·At the end of 2012, C (aged approximately 13 or 14) sexually assaulted X, aged 11, in her home. During this period, C occasionally stayed in the same home with his father, Mr P, the de facto partner of X’s mother, Ms Peck.
·In the same week that X was sexually assaulted by C, she told her mother, Ms Peck, about the sexual assault and her mother did not report it.
·Ms Peck encouraged X to keep the sexual assault silent.
43.The differences in the accounts given about this incident are, of course, quite disturbing.
44.By the time the Mother swore her affidavit of 13 September 2016, it was quite clear that she was aware of the significance of this event, ie, X’s disclosure, and that her response to X’s disclosure was an issue of concern to the Court. This is the case because Ms Temelkovska clearly articulated the same in Court but, in any event, it is obvious from the Mother’s affidavit. The Independent Children’s Lawyer submits, therefore, that the Mother’s response in her affidavit merely exacerbates the concern the Court should have about her. Indeed, at paragraphs 14 and 15 of her affidavit of 13 September 2016, she sets out at length the attempts that she made to enlist the support of Mr P and, indeed, it would seem, C, for the purposes of the present proceedings. Indeed, she sets out the text message sent to Mr P wherein she states:
Hello Mr P, could you please both provide me with an affidavit for a Federal Circuit Court hearing. ASAP!!? Serious allegations have been made. I need evidence to be filed and served!! In regards to a sexual assault between C and X in 2012. I need both of you to do a recall of events and be truthful. I need you to support me in how we deal with this issue!
45.The Independent Children’s Lawyer submitted, and the Court accepts, that the last sentence is particularly instructive: “I need you to support me in how we dealt with the issue!”
46.Clearly, the Mother was enlisting support to justify the position that she had adopted which was, in effect, one of inaction. The Mother’s inaction following X’s disclosure is not in contention, even if other issues surrounding the event remain in contention. In the communication referred to above, she was enlisting support to justify her inaction. Nowhere in the Mother’s evidence is there any concern about the impact on the event on X. Nowhere in the Mother’s evidence is there even the faintest glimmer of acknowledgement of the traumatic impact this event might have had on X, and that “X’s subsequent going off the rails” might be related to the incident? The Mother’s response, as set out in her affidavit, was to enlist support to justify the position of inaction that she took back then.
47.At paragraph 16 of her affidavit of 13 September 2016, the Mother explains that it was not just financial reasons that caused her to relocate, “although that was a huge reason why I made the decision I did”. She also refers to criminal activity in the vicinity of her home in the (omitted), as another reason for moving.
48.At paragraph 36, the Mother explains that on 5 July 2016, a relatively short period after relocating, she met Mr A. She explains that they then met in person on 12 July 2016, thus suggesting they may have met online. She explains that she has been dating him since then. She makes the statement: “My children seem to be quite fond of him,” an impression formed on the basis of a very new relationship.
49.Annexed to the Mother’s affidavit is a document that is headed affidavit, but is in effect an unsworn statement by Ms J, who is the Maternal Grandmother. It is difficult to tell how much of this document was prepared by the Mother, and how much by the Maternal Grandmother. Irrespective of that, what becomes clear is that the Maternal Grandparents, who continue to live in the (omitted) area of New South Wales, had a close involvement with the children, and played an important supportive role for the Mother. This support system has now been removed, as a result of the Mother’s relocation. The Maternal Grandmother closes her statement by explaining how much she misses the Mother, and the children.
50.Unsurprisingly, the Mother raises several issues in relation to the Father, and his partner, Ms K. The chronology prepared by the Independent Children's Lawyer would certainly confirm some of the issues that the Mother raises about the Father’s past drug and alcohol issues, and his partner’s past mental health issues.
51.What is clear from all the evidence, however, is that these are past issues, and even the Mother in her affidavit acknowledges that whatever concerns she might have had about the Father and his partner, the fact is that for the five-year period preceding the unilateral relocation, the children regularly spent time with their father, and his partner. Indeed, the impression created from the evidence of the Father, and his partner, is that the children’s relationship with them was a sound one.
Submissions made and discussion
52.The Independent Children's Lawyer’s case focused on her concerns about Z in the Mother’s care. She submitted that when the material before the Court was reviewed with a degree of objectivity, the Court would be seriously concerned about the Mother’s inability to prioritise the children’s needs, over her own. This submission gains further poignancy when context is considered.
53.On an objective review of the material before the Court, there are concerns about the Mother’s ability to prioritise the children’s needs over her own, even before she relocated from the (omitted) area. When she was in the (omitted) area, she had a support system in place consisting not just of the Maternal Grandparents but, it must be noted, even the Father, who regularly spent time with the children and thus, in effect, gave her a break from them. The concerns about the Mother are therefore magnified in a situation where she seems to be in an isolated town and in a situation where history might be repeated in terms of a new relationship for her.
54.The Independent Children's Lawyer’s submission was unequivocal. On any view, the evidence before the Court about X’s disclosure of sexual abuse by C, the Mother’s inaction was plainly unacceptable. Many issues flow from this, but for present purposes, the focus remains on her capacity to prioritise her children’s needs over her own.
55.The Independent Children's Lawyer submitted of great concern was the Mother’s willingness, seemingly without any insight at all, to enlist Z in her present cause. The Independent Children's Lawyer also emphasised the increased vulnerability to the children of having siblings split. Indeed, she submitted that the sibling relationships are a critical factor in this case, especially the relationship between Y and Z.
56.Ms Temelkovska emphasised that this was not a case where the children did not have a relationship with their father – indeed, he had a proven track record of regular time with them. He was, on any view of the evidence before the Court including the Mother’s, regularly, and actively involved in their lives for many years before this relocation.
57.Ms Temelkovska was concerned about the impact of change in Z’s life, particularly if the Court ordered him to live with the Father. She emphasised, however, the broader context. As a result of her unilateral relocation, the Mother has taken Z away from the school at which he has attended for most of his life, taken him away from the community that he has known for most of his life, taken him away from his siblings, his father, and even the maternal grandparents.
58.To take him away from his mother, and put him back with his father and siblings in a familiar geographical area is, she submitted, a change which whilst significant, could nonetheless be managed. It would be a return to a familiar environment, even if it constituted a removal from the Mother, who has, unquestionably, been his primary carer for all of his life.
59.The Independent Children's Lawyer submitted strongly that the best outcome for Z was if his mother returned to the (omitted) area, but the Mother made it clear to the Court that this was not going to happen. But as the Independent Children's Lawyer pointed out, whether the Mother remains in Central Queensland, or whether the Mother and Z remain there, the distances are so great, and the cost of transport so expensive, that maintaining anything but a relationship based on holiday time would be beyond the means of this family.
60.The Independent Children's Lawyer openly acknowledged the historical parenting capacity issues relating to the Father, and indeed his partner, but pointed to the evidence suggesting that matters had settled down.
61.Ms Temelkovska pointed out the significant improvement in Y’s school attendance record, since he has been in the Father’s care. Indeed, a significant contrast is apparent. The Mother, who at all times lived in the (omitted) area, could not get him to a school within the (omitted), whereas the Father, who lives 45 minutes away from (omitted), manages to get Z to school, on time, every day.
62.Counsel for the Father, Ms Doosey, concurred with the Independent Children's Lawyer. She urged that the Court would be concerned about the Mother’s seeming inability to prioritise the children over herself and the inadequate protective responses manifested by the history of this matter. Indeed, she submitted that on the Mother’s own account of how she dealt with X’s disclosure, it was, in effect, an attempt to shame, and blame X, even though X was the victim. She further submitted that the Mother’s focus seems to have been on continuing her relationship with C’s father.
63.Ms Doosey pointed to the objective evidence before the Court suggesting that C’s father was very heavily involved in drug trafficking and immersed in a drug culture and yet the Mother continued the relationship with him, even after he came out of jail. Ms Doosey further submitted that, in any event, the Mother’s motivations for the relocation remain doubtful, and that the Court would be concerned, based on the Mother’s track record of relationships, that the motivation for the move might be another romantic relationship.
64.In any event, Ms Doosey submits, there seems no obvious benefit to the children of relocating to such a remote location, thus suggesting the Mother’s capacity for capricious decisions that have nothing to do with what is best for the children.
65.The Court observes that there is much substance to the submissions made by the Independent Children's Lawyer, and on behalf of the Father.
66.It should be noted that there is no question that, as a matter of law, the Mother was entitled to relocate as she did, pursuant to the orders in place. In these Reasons for Judgment, where the term “unilateral relocation” is used, it is not meant to suggest that she acted illegally, but rather that she did not obtain the Father’s consent, irrespective of whether his consent was needed or not. In some respects, the issue is whether, notwithstanding the Mother’s entitlement under law, she acted in the best interests of the children.
67.The Mother has created a situation where it becomes very difficult, if not impossible, for Z to have a meaningful relationship with the Father, and likewise as regards Y and X with the Mother. She is the author of this unfortunate situation. It is naïve to suggest that, on the evidence presently before the Court, either Y or X would move to Central Queensland with the Mother. The risk of ordering Z to live with his father is, of course, the great challenge this presents to maintaining a meaningful relationship with his mother.
68.In any event, the Independent Children's Lawyer, and the Father, both submit that this is a case where there is the need to protect the children from the risk of physical or psychological harm, and thus, pursuant to s.60CC(2A), a meaningful relationship must be subsumed to risk issues. The risk concerns raised focus on the Mother’s inability to prioritise the children’s needs, over her own.
69.There is ample material before the Court for it to form the strong impression that this is, indeed, a real risk for all the children, but particularly for Z, who is entirely dependent on his mother to adequately protect him in a remote environment with which he is unfamiliar and in which he appears to be struggling, at least, from an educational perspective. His mother seems to know no boundaries in terms of involving him in adult matters, and shows no insight about the significance of this issue.
70.For the purposes of s.66CC(2)(b), the Court is prepared to assess the risk as including the risk of psychological harm, but the risk of physical harm cannot be excluded, as is evidenced by what happened to X. The risk to Z is potentially abuse, and neglect, and perhaps even family violence given the objective evidence before the Court about some of the violent relationships the Mother has been in.
71.In other situations, the risk to Z might be able to be managed. For example, if the Mother had not removed herself to such a remote location, the Court might be better satisfied about the availability of services to assist her, and to monitor the Mother’s parenting (to the extent that that is possible, given the risk issues identified in the Mother). The remoteness of the Mother’s location, makes it very difficult indeed to manage what the Court considers to be a real risk for Z.
72.The Court is prepared to accept, at least pending a Child-Inclusive Conference, that both X and Y do not wish to live with their mother, and that Y prefers to remain with his father, whilst X will make her own living arrangements. If Z is placed in the Father’s care, as the Court now contemplates, it will also be possible to ascertain his views at a Child-Inclusive Conference.
73.Z appears to enjoy a good relationship with both his mother, and father. X’s relationship with her mother is clearly broken down. X maintains a relationship with her father, even though not living physically with him. They see each other and communicate regularly. The nature of Y’s relationship with his mother is not fully understood at this time. The impression formed from the evidence is that he chose to move from his mother’s home, to his father’s home, and appears to be settling in well. Ms K, the Father’s partner, presents as being a person who has a good relationship with the children as well.
74.The Father has what appears to be a very good track record of being involved in the children’s lives, and spending time with them, in the five year period before separation and before the Mother’s relocation. The Mother’s relocation has, for all practical purposes, excised the Father from Z’s life.
75.Whilst the Mother raises concerns about whether the Father has properly maintained the children, the objective evidence before the Court suggests that he has met his child support obligations. The Court has significant doubts about the Mother’s assertions that her main motive in relocation was a financial one and, specifically, child support.
76.The Mother has brought about very significant changes in the lives of the children, by relocating herself to central Queensland. Her stated intention not to return could easily be viewed as consistent with the Independent Children’s Lawyer’s hypothesis that she so lacks insight, that she is unable to prioritise her children’s needs, over her own. Taking Z away from his mother will be a very significant change in his life, but one the Court believes is necessitated having regard to the risk assessment process undertaken by it. Ultimately, the benefits of the change are considered by the Court to be greater than the detriment to him in being separated from his mother, and indeed his sister A. The benefits to Z of a return to the (omitted) region have already been articulated in these reasons.
77.There are very significant issues of practical difficulty and expense of a child spending time with and communicating with a parent. This was unavoidable, given the Mother’s choice of where she wanted to live. It is possible that regular school holiday contact will mitigate the otherwise serious impact in terms of the children’s relationship with their mother, and vice versa, not just of the order the Court proposes to make in relation to Z, but more broadly the Mother’s decision to relocate, as she did.
78.Issues of parental capacity have been explored in these Reasons. The Court is reassured in relation to the Father, and his partner, but is not reassured in relation to the Mother. The real reason for her relocation to this particular town in central Queensland remains unknown. If financial reasons were her true motivation, she has not explained why it was necessary to move to this particular township. The Court has lingering concerns about the Mother’s parental capacity into the future.
79.Ultimately, however, it is risk of harm considerations the lead the Court to conclude that, on balance, the order that is in the best interests of these children is that they be reunited, and live in the (omitted) area.
80.The Independent Children’s Lawyer made a proposal for spends time with the Mother that contained the option of the Mother returning to the (omitted), or residing where she presently lives. The former is obviously the Court’s preference, but the Mother has indicated she will not return. There is a slight difference in proposals between the Father, and Independent Children’s Lawyer, about mid-year school holidays, but term 4 of the school year is about to commence in New South Wales and thus that issue does not need to be resolved at the present time. The effect of the order that the Court proposes to make will be that the children spend time with their mother during the first two weeks of the Christmas school holidays.
81.The Independent Children’s Lawyer proposed a number of non-contentious incidental orders.
82.An issue for the Court is how Z is to be returned into his father’s care. Whilst it is hoped that a recovery order might be avoided, the Court does have concerns that the Mother may not cope with this decision, and thus may not cooperate in an amicable return of Z. Nonetheless, she seemed to accept that one possibility would be for her to take Z to Brisbane Airport where he could be met by the Father, and taken home. That is the order the Court will make, but the Mother must understand that the Court will not hesitate on the facts of this case to issue a recovery order if she does not comply.
83.On Z’s return, all the children should attend a Child-Inclusive Conference on a date to be appointed.
84.The matter will be mentioned early in the new year to ascertain how the children’s holiday time with their mother progresses, and to make further directions about the progress of this matter.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Judge Altobellli
Date: 14 October 2016
Schedule 1
Chronology Prepared by the Independent Children’s Lawyer
| Date | Event | Source |
| (omitted) 1979 | The Father is born. | F 30 May 2016 P1 |
| (omitted) 1981 | The Mother is born. | F 30 May 2016 P2 |
| (omitted)1999/ 2000 | Parties commence dating. | M 23 June 2016 P3 |
| (omitted) 2000 | Parties separate after the mother announces her pregnancy. | M 23 June 2016 P3 |
| (omitted) 2001 | The parties commence cohabitation. | F 30 May & 19 Sept 2016 P3 |
| (omitted) 2001 | X born. | F 30 May 2016 P4 |
| (omitted) 2001 | Parties commence co-habitation. | M 23 June 2016 P3 |
| (omitted) 2001 | Parties get engaged. | M 23 June 2016 P3 |
| (omitted) 2002 | Parties move to (omitted). | M 23 June 2016 P4 |
| (omitted) 2002 | Parties marry. | M 23 June 2016 P3 F 30 May & 19 Sept 2016 P3 |
| 2 Aug 2002 | Mother has a voluntary mental health assessment. She reports suicidal thoughts, decreased coping and depressive symptoms. She reports smoking 1 cone of marijuana daily. | S8 SWSLHD |
| (omitted) 2003 | Y born. | F 30 May 2016 P4 |
| April 2004 | Father moves out of the family home at Easter but returns a few weeks later. Mother alleges father is a workaholic and enjoys gambling, prostitutes, alcohol, speed cocaine, ecstasy, ice and daily use of marijuana during this time. | M 23 June 2016 P6 |
| 2006 | X commences Kindergarten at (omitted) Public school. | F 30 May 2016 P59 |
| (omitted) 2006 | Z born. | F4 30 May 2016 |
| (omitted) 2006 | Mother leaves the family home with the help of family neighbours and close friends following a heated argument the night before. Z is five weeks old. Mother relocates the children to (omitted). She moves into the maternal grandparents’ investment property at (omitted). | M 23 June 2016 P8 |
| After 01 June 2006 | On the mother’s version, the mother tries to resolve things with the father, she goes along with her friend Ms M. The conversation gets heated with the father and results in the father fracturing the mother’s wrist. He stabs her with scissors and he pushes her friend Ms M. Newborn son Z is being held at the time. This causes a head injury and results in Z’s hospitalisation at (omitted) Hospital. The father stays living at the family home at (omitted) and defaults on their house payments. He also does not pay the mother child support. | M 23 June 2016 P8 |
| The father denies fracturing the mother’s wrist. He maintains the parties separated in July 2006 and that the mother moved to her parent’s rental property. Father asserts the incident alleged by the mother to have occurred in July, in fact occurred in September 2006. On the father’s version, he is at home with a friend. The mother comes over and creates a scene. The mother screams and smashed things and bites the father. The neighbours call the police. An AVO is applied for by the police against the mother. | F 12 July 2016 P19 Annexure B & 19 Sept 2016 P81 | |
| In further evidence provided by the mother, the mother agrees that she attended the former matrimonial home and that she attended with her friend Ms M. On her version, there are two young men in the back yard near the pool. An argument develops over drugs and prostitutes and it turns physical. The mother reports the incident to (omitted) Police Station and she attends (omitted) Hospital after being stabbed with scissors. Her wrist is fractured and Z sustains a head injury. The mother is unaware that she may have hurt the father in the scuffle. | M 13 July 2016 P19 | |
| After this incident, the father does not proceed with the AVO because he moves to (omitted). He believes the AVO is ultimately withdrawn. | F2 12 July 2016 P20 | |
| 01 Jul 2006 | Mother leaves the father. Parties separate. | F 30 May & 19 Sept 2016 P5 |
| After July 2006 | As Z is approximately 8 weeks old and still breastfeeding, the mother only allows the father to visit the children at the mother’s home in (omitted) for four hours every second Sunday from 10am until 2pm. During times the father spends with the children, there are arguments. | F 19 Sept P8 |
| 06 Jul 2006 | Mother and father enter into a “mutual agreement” in relation to child support. The father maintains he makes payments as required under the agreement. | F 12 July 2016 P22 |
| July 2006 | X commences school at (omitted) Public School | F 30 May 2016 P59 |
| 30 July 2006 | Father attends the mother’s home to spend time with the children. After a two hour visit, the father is about to leave and the mother jumps into the father’s work van and locks the doors. The mother stays in the car by herself. The children stand in the drive way with the father. The mother rummages through the father’s car for approximately five minutes and she pulls items out of the father’s glove box and console. She then unlocks the doors and gets out of the car. The father gets in his car and leaves. As the father pulls out of the driveway, the mother yells, ‘I’ve got you now!’ The mother waves a small bag of white powder. The father stops and winds down the window and the mother says again, ‘I’ve got you now I just found this in your car and I’m taking it to the police station.’ The father says to her, ‘you did not find that in my car.’ The father drives away. | F 19 Sept 2016 P87 |
| 2 Aug 2006 | Mother attends (omitted) Police and takes to the station a plastic bag with amphetamines she states came from the father’s vehicle. Tests later reveal the drug to be 0.38 grams of methyl amphetamines. | S16 Police COPS |
| 16 Sept 2006 | The mother arrives at the father’s house without warning with a friend of hers. The father is not home. A person at the father’s home calls the father and informs him about the mother’s arrival. The father returns and gives some items to the mother. The mother and other persons follow the father in the mother’s car to see who the father is seeing. When the father returns home, the mother attends his house again with the three children and her friend. There is an argument and the mother smashes wedding gifts and other items. There is a struggle. The mother bites the father on his left shoulder and the father bites the mother on her left arm. During the struggle, one of the children, who is being held, is accidentally pushed into the wall and he hits his head. The mother is ejected. Outside she throws rocks at the house and the father’s car. The Police are called and the mother leaves the house before the Police arrive. When they arrive, they see a large amount of broken glass, spilled milk. Two hours later, the mother attends (omitted) Police Station to report the incident. The Police advise her to go to hospital. The mother does. The Police receive information from the Dr at the hospital. They are told that the child has concussion and a CCT scan will be ordered and the mother has a minor laceration to her left finger. Police do not pursue the matter because of conflicting stories. They do however apply for an AVO to prevent the mother from coming to the father’s house. | S16 Police COPS |
| 16 Sept 2006 | Z is transferred from (omitted) to (omitted) Hospital. CT scan taken at 4.16pm. Scan normal. He is triaged at 5.25pm. Nursing assessment data states: Baby alert and looking around, well perfused, flat fontanelle, partl, baby has had 2 feeds and tolerated. Z is admitted. The mother provides her version of a DV incident with the father involving Z. Mother apparently went to a home opposite the father’s to see friends. The father called her across the road to talk. She saw a bong in a cupboard and white powder on the bench. There was an argument and the father flushed the drugs down the toilet. The argument became physical and the mother gave Z to her friend Ms M who was pregnant. The father pushed Ms M against the Wall while Z was in her hands. Z sustained a head injury after hitting the wall. The mother then smashed a vase against a wall in order to get the father away from Z in the struggle. The father fractured the mother’s arm in two places and his stabbed her with scissors on her finger. The father called the Police. | S8 SWSLHD |
| 18 Sept 2006 | Police apply for an AVO to protect the father from the mother. The AVO matter is listed for 12 October 2006. | F 19 Sept 2016 P81 and Annexure I |
| Sept 2006 | Father ceases spending Sunday time with the children because of all the arguments. He is concerned about the effect the argument will have on the children. | F 19 Sept 2016 P8 |
| 4 Oct 2006 | Father’s house is searched after Police obtain a search warrant. His partner is also present. Father tells Police he has cannabis. It is for his own personal use. Police seize 1.0g. The father receives a Cannabis Caution. | S16 Police COPS |
| 2006 | Father advises court and police that he does not require an AVO as he had sold the home and planned to move away. | F 19 Sept 2016 P82 |
| Oct 2006 | Father moves to (omitted) Qld. | F 19 Sept 2016 P21 |
| Oct 2006 | Father commences paying child support through the Child Support Agency and it is taken out of his wage. | F 12 July 2016 P23 & 19 Sept 2016 P 21 |
| 27 Nov 2006 | Police Prosecutor advices the OIC that the father no longer seeks an AVO because he will be moving to Qld and he no longer holds fears for his safety. The AVO application is withdrawn. | S16 Police COPS |
| Dec 2006 | The father loses his job on (omitted) due to cultivation of cannabis. | M 13 July 2016 P20 |
| 24 Dec 2006 | Father returns from (omitted). | F 19 Sept 2016 P91 |
| 2007 | X commences Year 1 at (omitted) Public School | F 30 May 2016 P59 |
| Jan 2007 | Parties reconcile. | F 30 May & 19 Sept 2016 P5 |
| After Jan 2007 | After the mother and father reconcile, the mother says to the father, ‘I didn’t find white powder in your car. I just planned to frame you because I didn’t want you to be happy with anyone else.’ The father is shocked and furious but he continues the relationship because he wants to make it work. | F 19 Sept 2016 P92 |
| 4 April 2007 | Police speak to father about possessing methyl amphetamine. This relates to the drug that was brought to the Police Station by the mother. Father admits that he had purchased 0.5 grams the week before he and the mother had had a domestic argument. He had placed it in his car and forgotten about it. Police issue a Field CAN. Note, father maintains he told the police that the drugs were his and that he had purchased them and forgotten them in the car. He says he told the police this so as to not implicate the mother because at the time he wanted the relationship to work. | S16 Police COPS F 19 Sept 2016 P93 |
| 21 May 2007 | Father is fined $500 for possession of drugs at Nowra Local Court. Note, father maintains he only discovered that he was fined in his absence when he looked at Subpoena documents on 12 September 2016. | S5 Police CR F 19 Sept 2016 P97 |
| Between 2007 and 2008 | Mother’s and father’s relationship is on and off and they make attempts to work through their relationship but they never amalgamate their finances. | M 23 June 2016 P11 |
| 2007 | Mother commences a friendship with a man named Mr F. | M 13 Sept 2016 P34 |
| 2008 | X commences Year 2 at (omitted) Public School. | F 30 May 2016 P59 |
| Aug 2008 | Parties separate on a final basis. Mother relocates the children to from (omitted) to (omitted). | F 30 May 2016 P5 & 19 Sept 2016 P6 & 9 |
| Aug 2008 | The father moves into a caravan located in (omitted). | F 30 May & 19 Sept 2016 P9 |
| After Aug 2008 | Mother maintains the caravan the father lives in is hers and he lives there rent free and refuses to pay the rates. As a result the mother has the sheriff turn up to her house in (omitted) to issue a subpoena and the van is taken from her and her family and it results in the mother becoming bankrupt. | M 23 June 2016 P11 |
| After Aug 2008 | After separation, the mother does not allow the father to see the children. She says to him “You’re not allowed to see the children until there are court orders or you could just take them and not return them”. | F 30 May & 19 Sept 2016 P7 |
| Early Sep 2008 | The father rents a flat in (omitted). | F 30 May & 19 Sept 2016 P9 |
| 21 Sep 2008 | Mother telephones the father and says, “I am coming to drop the kids off and they can stay at your place for a week”. | F 30 May & 19 Sept 2016 P10 |
| 22 Sep 2008 | Mother collects the children from the father at 8.00am after discovering that the paternal grandparents are also at the Father’s home. The mother is enraged. The father lets the children go with the mother so there is no argument in front of the children. | F 30 May 2016 P10 |
| After 22 Sep 2008 | Mother does not want the father to see the children until there are court orders in place. | F 30 May 2016 P11 |
| 17 Oct 2008 | Father commences a relationship with Ms K. | KT 5 Sept 2016 P1 |
| 2009 | Y commences Kindergarten at (omitted) Public School. | F59 30 May 2016 |
| Early Jan 2009 | Mother drives to the father’s home just to fight and verbally abuse him. The mother brings the children with her. This is the first occasion that the father’s partner meets the mother. The father’s partner introduces herself and puts her hand out to shake the mother’s hand. The mother replies, ‘I don’t want to shake your hand why did you steal my husband?’ The father then speaks with the mother and within a matter of moments, the father’s partner sees the mother kick the car door open aggressively. The car door misses the father and hits the father’s partner instead. The father’s partner goes inside the house because she is afraid of the mother. | KT6 5 Sept 2016 P6,7 & 8 |
| 11 Jan 2009 | Divorce becomes final. | M 23 June 2016 P20 |
| 10 Feb 2009 | Consent Orders are made in the Local Court at Nowra. The father maintains he signs these without seeking legal advice. | F 30 May & 19 Sept 2016 P12 Annexure A |
| After 10 Feb 2009 | After order s are made, the father regularly spends time with the children in accordance with the orders. | F 19 Sept P22 |
| July 2009 | Father commences living with Ms K. | F 30 May 2016 P20 & 19 Sept 2016 P23 |
| 2009 | X commences Year 3 at (omitted) Public School. | F 30 May 2016 P59 |
| 2009 | Mother has a relationship with Mr A from (omitted). | M 23 June 2016 P19 |
| 2009 | Mother moves in with Mr A. | F 30 May 2016 P21 & 19 Sept 24 |
| 15 August 2009 | Father is breath tested and the reading is 0.085. | S16 Police COPS |
| 1 Oct 2009 | Father is fined $600 and his licence is suspended for 6 months at Milton Local Court for mid-range PCA. | S5 Police CR |
| 27 Nov 2009 | Y discloses to the mother’s partner Mr A and to the mother that for some time, he has been made to suck an older boy’s penis in the toilets at school. | S2 NSW FaCS |
| 1 Dec 2009 | Mandatory report made to DoCS regarding Y. Ref: 1-M8WR49. | S1 (omitted) PS |
| 5 Dec 2009 | Mother sends the father an email outlining details of Y’s disclosure. | S2 NSW FaCS |
| 9 Dec 2009 | Father sends to FaCS a copy of an email the mother has sent him regarding Y’s disclosure. | S2 NSW FaCS |
| 11 Dec 2009 | Y is interviewed by FaCS CW regarding disclosures he has made. Disclosures substantiated. Y is referred to Links House for counselling. | S2 NSW FaCS |
| End of 2009 | Mother separates from Mr A. | M 23 June 2016 P19 |
| 2 Jan 2010 | The police attend the residence of Mr A and the mother because of a domestic dispute. The mother tells police she does not hold any fears. The mother packs her bag and leaves. | |
| 08 Jan 2010 | Mother separates from Mr A after a domestic dispute where the police are called. | F 30 May 2016 P21 & 19 Sept 2016 P24 |
| Jan 2010 | Father consumes speed orally at a music festival. | F 19 Sept 2016 P100 |
| Jan 2010 | Father’s partner consumes speed orally at a music festival. This causes her to have a drug induced psychotic episode. | |
| Early 2010 | Mother casually dates Mr A and their daughter A is conceived. | M 23 June 2016 P19 |
| 2010 | X commences Year 4 at (omitted) Public School. | F 30 May 2016 P59 |
| Mother receives paperwork from the Family Relationships Centre. Mother has an appointment with a mediation centre and the Local Court Chamber Magistrate. She receives advice and acts upon it. The father does not proceed. | M 23 June 2016 P43 | |
| After 08 Jan 2010 | Mother temporarily moves to (omitted) and stays with friends for two to three weeks. She then stays with her parents in (omitted) | F 30 May 2016 P23 & 19 Sept 2016 P 26 |
| 2010 | Father is charged with malicious damage and an AVO is put in place. This occurs on his friend’s property. | M 23 June 2016 P9 |
| 2010 | Father calls ambulance to assist his partner Ms K who has jumped 1.5 metres from their balcony and hurt her left heel. Ms K is taken to the emergency department. Father reports that Ms K has been uncommunicative. Ms K agrees to go the MH. | S13-S7 ISLHD |
| 02 Feb 2010 | Mother moves to a house in (omitted). | F 30 May 2016 P24 & 19 Sept P26 |
| Feb 2010 | Y commences school at (omitted) Public School. | F 30 May 2016 P59 |
| 19 May 2010 | Mr A, mother’s former partner attends (omitted) Police to report a domestic dispute between him and the mother. He advises that the relationship ended two weeks prior. He reports that the mother attended his home to demand money and as he tried to shut the door, the mother put her foot in the door. | S4 Police COPS |
| 22 June 2010 | Father’s partner Ms K receives a mental health assessment for deterioration of her mental health after heavy amphetamine use in January 2010. Her medication is managed. | S15 ISLHD |
| July 2010 | X commences school at (omitted) Public School. | F 30 May 2016 P59 |
| July 2010 | Y commences school at (omitted) Public School. | F 30 May 2016 P59 |
| 13 August 2010 | Father texts the mother that he will be late collecting the children. The mother decides the children should stay home. The father attends the mother’s home at 6pm to collect the children. There is an argument and the father barges through the door and collects the children. Mother alleges the father is under the influence of either drugs or alcohol. Note that the father admits that he forcefully pushed through a closed door. He denies he was under the influence of drugs or alcohol. | S16 Police COPS F 19 Sept 2016 P106 |
| 1 Nov 2010 | Father’s partner Ms K receives a further mental health assessment. Nil contact with mental health service since 22 June 2010. Significant improvement. File closed. | S15 ISLHD |
| (omitted) 2011 | A is born as a result of the mother’s relationship with Mr A. | F 30 May 2016 P22 |
| 2011 | X commences Year 5 at (omitted) Public School. | F 30 May 2016 P59 |
| 2011 | Y commences at (omitted) Public School and repeats Year 1. | F 30 May 2016 P59 |
| 13 March 2011 | The father’s partner Ms K is breath tested. Tests indicate an alcohol level of 0.084. Her licence is suspended. | S16 Police COPS |
| 31 March 2011 | Father’s partner Ms K is fined $600 and her licence is suspended for 6 months for mid-range PCA. | S5 Police CR |
| Jun 2011 | Mother forms a close relationship with a man called Mr H from (omitted). She casually dates him and he is a huge support in her life. | M 23 June 2016 P30 |
| 1998 -2011 | From the age of 18-30, father uses marijuana regularly. | F 19 Sept 2016 P103 |
| 2011 | Father makes a decision that using marijuana is incompatible with his increased responsibilities and he stops using marijuana. | |
| 2012 | X commences Year 6 at (omitted) Public School. | F 30 May 2016 P59 |
| 2012 | Y commences Year 2 at (omitted) Public School. | F 30 May 2016 P59 |
| 2012 | Z commences Kindergarten at (omitted) Public School. | F 30 May 2016 P59 |
| July 2012 | Father is promoted to (occupation omitted) at (employer omitted), (omitted). | F 30 May 2016 P25 & 19 Sept 2016 P 28 |
| 2012 | Mother has a close friendship with her next door neighbour Mr M and they briefly date. Mr M’s ex-wife assaults the mother in her home and the mother reports this to the police. Mother’s relationship with Mr M ends. | M 13 Sept 2016 P35 |
| Sep 2012 | Mother is introduced to Mr P and she commences a relationship immediately. | M 23 June 2016 P25 |
| 2012 | At the beginning of the mother’s relationship with Mr P, Mr P and his two boys regularly stay at the mother’s home. During these occasions, C (aged 13 at the time) sleeps on the lounge and B (aged 3) sleeps on a mattress on the floor in Y and Z’s bedroom. | M 13 Sept 2016 P13 |
| Sep 2012 | Father is diagnosed with B-Type Lymphoma. | F 30 May 2016 P26 & Sept 2016 P29 |
| Sep 2012 to March 2013 | Father undergoes chemotherapy and radiation. He continues to work and pay for child support but he misses a few weekends with the children because he is too sick from the cancer treatment. | F 30 May 2016 P26 |
| 2012 | Mr P and his son C move into the mother’s home on a full time basis. Mr P’s son B stays Wednesday evenings and each alternate weekend. | M 13 Sept 2016 P4 |
| End of 2012 | It is alleged that C, Mr P’s son, sexually assaults X. X tells her mother within a week of the assault occurring and the mother does not report it. The mother encourages X to keep the sexual assault silent. | Notice of Risk filed by the ICL 12 Sept 2016 |
| 2012 | Mother tries to get to the bottom of whether or not C and X have engaged in sexual activity without success. She tells Mr P via text. When he comes home, he is furious with C. He takes him for a drive. When they return home, X and C are grounded for their behaviour. Mother decides that C has to sleep in the detached single garage. X moves into a room on her own. | M 13 Sept 2016 P13 |
| Dec 2012 | Mother has a short relationship with Mr S from (omitted) who she has been friends with since December 2008. | M 23 June 2016 P18 |
| 24 Dec 2012 | Father and his partner Ms K become engaged. | KT 5 Sept 2016 P1 |
| 2013 | X commences Year 7 at (omitted) High School | F 30 May 2016 P59 |
| 2013 | Y commences Year 3 at (omitted) Public School | F 30 May 2016 P59 |
| 2013 | Z commences Year 1 at (omitted) Public School | F 30 May 2016 P59 |
| Late 2012 early 2013 | Mother manages to get further information from X and C about the sexual activity they engaged in. Both confess to laying on their side, cuddling in a spooned position, C was aroused with his penis behind ‘going up the bum’. X told her mother she felt nothing, not inside her. The mother draws the conclusion that just cuddling and kissing occurred. | M 13 Sept 2016 P13 |
| Feb 2013 | X has problems at school because of her rebellious behaviour. Her behaviour escalates and she has to receive the assistance of the School Counsellor. | F 30 May 2016 P28 & 19 Sept 2016 P31 |
| 13 March 2013 | The mother and Mr A have an altercation over A at the mother’s home. Mr A alleges the mother assaults him. | S4 Police COPS |
| 29 March 2013 | The mother’s partner Mr P is arrested for cultivation of marijuana with an estimated street value of $500,000.00. Mr P is later convicted for a period of approximately six to seven months. | F 30 May 2016 P29 & 19 Sept 2016 P32 |
| 31 March to 02 Aug 2013 | Mr P, the mother’s partner is jailed for possession of cannabis. | M 23 June 2016 P25 |
| 11 April 2013 | Mr A, the mother’s former partner attends (omitted) Police to report being assaulted by the mother on 13 March 2016. He seeks and AVO but the Police decline to apply for one. They assess there are conflicting versions regarding the event. | S4 Police COPS |
| 26 June 2013 | Father is at (omitted) Club. He is asked to leave due to his behaviour by security staff. The father refuses and the Police are called. The father is arrested and given an infringement notice. | S16 Police COPS |
| 02 Aug 2013 | Mr P is released from custody and his parole conditions require him to stay with the mother. He has to serve out a further sentence for the next two years within the community on a Saturday. He returns to full time work and he helps care for the children. | M 23 June 2016 P25 |
| Aug 2013 | Father, his partner and three children go on a snow holiday for one week with the father’s parents. | F 19 Sept 2016 P33 |
| Dec 2013 | Father resigns from his job as (occupation omitted) and returns to (omitted). He continues to work for (employer omitted) as a (occupation omitted). | F 30 May 2016 P32 & 19 Sept 2016 P35 |
| Dec 2013 | Mother brings X to the Father’s home and she says to him “It’s your turn, I can’t handle her anymore”. “It is putting too much strain on my relationship with Mr P”. X then lives with the father. | F 30 May 2016 P33 & 19 Sept 201`6 P36 |
| 18 Dec 2013 | Mr P, mother’s partner is sentenced to a 2 year corrections order at Sydney DC. | S3 Police CR |
| 2014 | X commences Year 8 at (omitted) High School. | F 30 May 2016 P59 19 Sept 2016 P37 |
| 2014 | Y commences Year 4 at (omitted) Public School. | F 30 May 2016 P59 |
| 2014 | Z commences Year 2 at (omitted) Public School. | F 30 May 2016 P59 |
| Feb 2014 | Mother separates from Mr P. | M 23 June 2016 P25 |
| Feb 2014 and 02 Jan 2015 | Mother continues to date Mr P on and off. | M 23 June 2016 P25 |
| April to July 2014 | X gets into trouble at school and at home again. She starts to truant. X decides to move back with her mother because the father has too many rules. | F 30 May 2016 P36 & 19 Sept 2016 P39 |
| July 2014 | Mother is admitted to (omitted) Hospital and has surgery on her lungs. She spends ten days in hospital and then is transferred to (omitted) Hospital at (omitted) after she develops pneumonia. Whilst in hospital all four children are in the maternal grandparents care in (omitted). | M 23 June 2016 P29 |
| July 2014 | X commences school at (omitted) High School. | F 30 May 2016 P59 |
| July 2014 | X returns to live with the mother in (omitted). Shortly afterwards, she is suspended for truanting. She spends the day and night in the city and is found by the police. X rings the father from (omitted) Police Station to collect her because she has no money to get home. The father collects her and drops her back to the mother’s home. | F 30 May 2016 P37 & 19 Sept 2016 P40 |
| After Jul 2014 | After the mother’s surgery, the father does not assist with the children and her father takes the children to sport training. X is also brutal towards the mother; kicking her in the chest/lung. X does things such as take the mother’s mobile phone, steals money and belongings from the home, steals from the local (omitted) shopping centre, truants from school. X shows no respect for authority and plays the father and mother off each other. X is in trouble at school. The mother takes her to see Ms B at (omitted) for healing and herbal medication and for bed wetting behaviour. | M 23 June 2016 P29 |
| After Jul 2014 | After the mother’s lung surgery, she develops Costochondritis Tietve Syndrome. She uses medication such as Mobic for inflammation, Endone for pain relief and Duloxetine for nerve pain daily. | M 23 June 2016 P31 |
| 14 Aug 2014 | X’s mother contacts the Police because X is not at school and the mother wants the Police to help locate her. The mother has seen X’s facebook post stating X intends to go to an under 18 party the following evening. | S4 Police COPS |
| 15 Aug 2014 | X is located at (omitted), Sydney by the Police. She is returned to her mother. | S4 Police COPS |
| 2014 | X and Y are in the care and tell the father the mother sends them out the back and locks the door when she wants to have sex with Mr P. | F 19 Sept 2016 P83 |
| Aug 2014 | X is placed on suspension for 22 days. | F 30 May 2016 P38 & 19 Sept 2016 P 40 |
| Oct 2014 | X calls the father and says to him “Mums kicked me out of the house again. Can you pick me up?” The father collects her and she lives with the father again in (omitted) and he re-enrols her at (omitted) High School. The mother does not allow X to take any of her clothes or possessions. | F 30 May 2016 P39 & 19 Sept 2016 P42 |
| Approx. Oct 2014 | The father stops working for (employer omitted) and starts working for himself as an (occupation omitted). He changes his work hours so that he can be more available for X. As a result, his child support is reduced. Once this occurs, the mother changes her attitude towards the father and their flexible arrangements regarding the children end. | F 30 May 2016 P40 & 19 Sept 2016 P43 |
| Oct 2014 | The father’s income reduces and consequently his child support is reduced. | F 12 July 2016 P23 & 19 Sept 2016 P21 |
| Approx. Oct 2014 | Relationship between the parents changes. The mother only allows the father to have the boys on weekends as set out in the court orders. The father does all the travel to and from (omitted) and (omitted) to collect and return the boys. The mother stops allowing the paternal grandparents to spend time with the children during school holidays. The mother also does not allow time during special occasions such as Christmas and Easter as had occurred previously. | F 30 May 2016 P41-44 & 19 Sept 2016 P46-49 |
| 2015 | Y commences Year 5 at (omitted) Public School | F 30 May 2016 P59 |
| 2015 | Z commences Year 3 at (omitted) Public School | F 30 May 2016 P59 |
| Feb 2015 | X commences Year 9 at (omitted) High School | F 30 May 2016 P59 |
| Early 2015 | Father’s partner Ms K has a conversation with X about sex. X admits she has had sex recently. Ms K questions her if this is the first time. X tells her of another time with C at her mum’s house. She says she had sex, ‘one time with C at Mum’s house when I had a friend sleeping over, he climbed into bed with me and something happened.’ She then tells her, ‘I was half asleep so I didn’t really know, but when I woke up there was a puddle of blood on the bed.’ Ms K asks her if she tried to push him off or say no and she says, ‘I can’t remember, I was half asleep at the time. I told mum about the blood and she just said “oh my baby is a woman now you got your first period” X tells her that Mr P was angry at the time and that he wanted to take her to hospital or the doctors to be checked but that her mother didn’t want to. Mr P and her mother got into an argument about it. Ms K tells X that what happened to her was very wrong. She wants to take X to the police. X refuses. She doesn’t want to get anyone in trouble. X doesn’t want Ms K to tell her father. | KT 19 Sept 2016 P61 KT 19 Sept 2016 P63 |
| 2015 | Ms K informs the father about X’s disclosures. The father is shocked and doesn’t say anything to X for a week or two. At the time the father is working on a (employment omitted) in (omitted) with Mr P. He decides to confront him because he doesn’t want an incident at work. He is also aware that X had pleaded with his partner not to tell anyone. | F 19 Sept 2016 P107 |
| 2015 | Father has conversations with X about the alleged sexual assault. He encourages her to go to the police. X wants to forget about it. She asks her father to not tell anyone. Father does not take any action because he doesn’t want to re-traumatise her. | F 19 Sept 2016 P107 |
| 6 March 2015 | X is assessed by the school counsellor at the request of her mother. She is referred to an external counsellor and a review by a paediatrician and psychologist is recommended. | S14 SEIAHS |
| 14 April 2015 | X and her father have an argument where the Police are called. X alleges her father assaulted her. The police see no visible injuries. X is verbally abusive to her father and the Police. The Police take X to (omitted) Caravan Park where the mother is on holidays. | S16 Police COPS |
| April 2015 | X returns to live with her mother. | F 30 May 2016 P48 & 19 Sept 2016 P51 |
| April 2015 | X commences school at (omitted) High School | F 30 May 2016 P59 |
| May to Aug 2015 | (omitted) High is reluctant to have X return to the school and X attends very little school during this period. | F 30 May 2016 P48 & 19 Sept 2016 P51 |
| Aug 2015 | X runs away from the mother’s home and her parents cannot locate her because she refuses to answer her phone. | F 30 May 2016 P49 & 19 Sept 2016 P52 |
| 4 Sept 2015 | Ms K reports her concerns about X to the Police. | S16 Police COPS |
| Sep 2015 | X calls the father whilst in an ambulance on her way to (omitted) Hospital. X is involved in a bike accident and she has a major laceration on her leg. She spends four days in (omitted) Hospital. Her father stays with her for four days and the mother visits her once for approximately four hours. | F49 30 May 2016 P49 & 19 Sept 2016 P52 |
| Sep 2015 | X is admitted to (omitted) Hospital, then transferred to (omitted) Hospital. Mother is unable to immediately attend because she is occupied with the other children’s sports in (omitted). She talks to X on the phone that evening and she is told to wait until the next day to attend (omitted) Hospital. She sees X the following day and X refuses to come home with her. Mother discusses with nursing staff things the father allegedly said to the nursing staff and X about the mother. Mother agrees that X can go home with her father to temporarily recuperate but if it is to be a long term arrangement, then she proposes that the court orders are varied. The father refuses. | M 23 June 2016 P33 |
| Sep 2015 | X returns to live with the father. He re-enrols her at (omitted) High School and she commences term 4 in year 9. | F 30 May 2016 P50 & 19 Sept 2016 P54 |
| 14 Sept 2015 | Telephone referral for X made to CAMHS by MH triage. | S14 ISLHD |
| 25 Sept 2015 | Psychologist from CAMHS tries to call Ms K about further help for X. She cannot reach her and she therefore contacts the mother. Psychologist Ms C tries to explain purpose of CAMHS service to the mother but it is extremely difficult to interrupt her in discussion. The mother expresses that X is just doing what she wants and she is not depressed or self-harming. Attempts are made to discuss possible parental conflict but the mother declines the information. The mother gives consent for CAMHS to work with Ms K. Ms K calls CAMHS to discuss her concerns for X. She believes that X is going off the rails. She outlines the many problems X is having. She is also upset that the mother was contacted instead of her. Ms K is critical of the mother’s previous efforts to assist X. | S14 ISLHD |
| 22 Oct 2015 | Father and Ms K take X to CAMHS to discuss future options. X outlines a long history of difficulties with her mother’s parenting. Counselling through (omitted) is recommended and a review with a Psychiatrist. | S14 ISLHD |
| 24 Oct 2015 | The father has a family wedding and the children don’t attend because the mother won’t allow them to go. | F51 30 May 2016 P51 |
| 16 Nov 2015 | Father and his partner Ms K take X for an assessment with Psychiatrist Dr P. (omitted) is recommended and referral to counsellor through GP. | |
| 28 Nov 2015 | The father has a second family wedding and the children don’t attend because the mother won’t allow them to go. | F 30 May 2016 P51 |
| 04 Dec 2015 | The father attends the mother’s home to collect the boys. When he attends, the mother is throwing X’s clothes on to the front garden. The mother starts screaming and shouting. Y and Z are standing on the stairs leading to the front porch. The mother charges out of the front door and runs into Y and Z causing them to stumble but they regain their balance. The mother grabs the father and digs her long finger nails into both his arms and draws blood. X, Y and Z are visibly distressed. X grabs the mother’s long hair in an attempt to get her off the father and the three children scream “mum, leave dad alone!” The mother slaps the father across the face and then goes inside and locks her door. The mother’s daughter A is inside the screen door and is crying. The father leaves with the boys. | F 30 May 2016 P52 & 19 Sept 2016 P56 |
| Dec 2015 | The mother agrees that an incident occurred in December. On her version, the mother, X and the father are fuelling each other. X’s clothes are on the lounge room floor. Y and Z carry X’s clothes to the father’s ute. The ute is packed except for one box however the father comes to the mother’s front door and this results in a heated argument. The mother tells the father to get off her property because he is screaming at her. She pushes her front door open and pushes the father off her property. The father slaps her face. The mother pulls the father’s hair and she is unaware that she has scratched the father’s neck because she has long nails. The mother collects A and goes inside and closes the door. All four children are out the front when the incident occurs. The mother does not report the incident to the police. | M 23 June 2016 P40 |
| 12 Dec 2015 | Ms K, the father’s partner reports to the police that X is missing. She tells the police that X had taken a bottle of Vodka and she had found a note left by X the day before which stated, I’m sorry it’s came to this, I’m over the girls at school, I’m done with it all. I hate myself, my past and I have no future. | S16 Police COPS |
| 13 Dec 2015 | Police locate X at her friend’s house. She tells the Police that she had been , ‘kicked out of home’ X is asked about the note she left and she said she didn’t intend to hurt herself, she just didn’t want to go back to her mother’s or grandmother’s. it is agreed that X will be taken to (omitted) DoCS the next day. | S16 Police COPS |
| 14 Dec 2015 | Father’s partner Ms K contacts CAMHS seeking help for X. She is advised to work with the father and X to come up with solutions. | S14 ISLHD |
| Dec 2015 | X is suspended from (omitted) High School. She goes to live with a girlfriend and her mother at (omitted). | F 30 May 2016 P53 & 19 Sept 2016 P57 |
| 2016 | Y commences Year 6 at (omitted) Public School. | F 30 May 2016 P59 |
| 2016 | Z commences Year 4 at (omitted) Public School. | F 30 May 2016 P59 |
| Feb 2016 | X commences Year 10 at (omitted) High School. | F 30 May 2016 P59 |
| 21 Mar 2016 | The father writes to the mother requesting that she allow the boys to play sport. | F 30 May 2016 P55 Annexure B & 19 Sept 2016 P59 and Annexure D |
| Mar 2016 | Father contacts the Family relationship Centre to arrange mediation with the mother. The mother is sent two requests and she fails to reply. | F 30 May 2016 P56 |
| 28 Jan -8 April 2016 | Y is absent for 3 full days and 30 partial days as stated in his Semester 1 school report | F 19 Sept 2016 P74 and Annexure F |
| 04 May 2016 | The father is issued with a section 60 (i) certificate. | F 30 May 2016 P56 Annexure C & 19 Sept 2016 P60 Annexure E |
| 21 May 2016 | Mother sends the father the following text message “Just a message to let you know that this is your last fortnightly access weekend. I’m sure the kids have told you we are moving home already. We will be leaving (omitted) on the (omitted) and we are relocating to (omitted) QLD. Your access with the children in future will be in school holidays.” | F 30 May 2016 P57 & 19 Sept 2016 P61 |
| 22 May 2016 | Paternal Grandfather drives the children to the mother’s home. According to the grandfather, the children are distraught about going to Queensland and leaving the father. | F 30 May 2016 P60 & 19 Sept 2016 P64 |
| May 2016 | The boys tell the father that they don’t want to move to Queensland. | F 30 May 2016 P58 |
| 30 May 2016 | Father files Notice of Risk. Allegations relate to family violence, namely that “On 04 December 2015, the father went to the mother’s home to spend time with them over the weekend. The mother grabbed the father and dug her long finer nails into both of his arms drawing blood. The mother slapped the father across the face. All three children subject to these proceedings (along with the mother’s daughter from a subsequent relationship) witnessed this incident.” |
| 30 May 2016 | Father files initiating application, father seeks final and interim orders that the children X, Y and Z live with him and that they spend time with the mother during school holiday periods. The father also seeks orders made on the 10 February 2009 to be discharged. | F Initiating Application |
| 30 May 2016 | Mother is served with the father’s initiating application. | F 12 July 2016 P2 |
| May 2016 | Father receives a text message from Y which states “Dad can you come and get me.” When the father asks “what’s the matter” Y states in his text “I am coming to live with you.” | F 12 July 2016 P3&4 |
| May 2016 | Father drives to (omitted). When he drives there, Y walks out carrying a backpack and skateboard. He walks over to the father’s car. Y gets in the father’s car. He says to the father “Z wanted to come, but he had his stuff in his bedroom and Mum stopped him from coming.” | F5 12 July 2016 P5,6 &10 |
| Mother asserts that not long after receiving the father’s paperwork, the father arrives at the front of her house and Y rushes outside with a bag she had packed for stop overs on their journey to Queensland. Y doesn’t say goodbye and Z breaks his heart crying. The mother cuddles him and it takes a while to settle him. Z doesn’t want to go with the father. He wants to be with the mother and go to his new home in (omitted). | M 13 July 2016 P6 | |
| May 2016 | Father and Y sit in the car for a lengthy time. Two police officers then arrive at the mother’s house to check on Z and to see if he is being held against his will. The police speak to Z. After speaking to Z, the mother and father, the police tell the father to leave. | M 13 July 2016 P11 |
| 2016 | The mother receives the paperwork without any prior discussion. She ignores the paper work as there are court orders in place and she considers she is not denying access even without any financial contribution. | M 23 June 2016 P43 |
| 3 June 2016 | Mother is personally served by hand with the father’s initiation application | F 19 Sept 2016 P65 |
| 3 June 2016 | Father receives a text message from Y asking the father to come and get him because he wants to come and live with him. Father drives from (omitted) to (omitted) and collects Y. (Note this is same event the father describes as occurring in May 2016 in his 12 July 2016 Affidavit at paragraphs 5,6 &10) | F 19 Sept 2016 P66-72 |
| 3 Jun 2016 | Y leaves the mothers care on this day. | M 13 July 2016 P13 |
| 29 Jan to 6 June 2016 | Records for (omitted) PS show 31 partial absences for Y and Z during this period mostly for being late in the morning. There are 5 full absences for Z and 4 for Y. | S1 (omitted) PS |
| 11 June 2016 | Mother completes enrolment forms for her daughter A and Z to start school at (omitted) Primary School. | S10 (omitted) PS |
| 16 June 2016 | Z commences yr 4 at (omitted) State School, Queensland. | S10 (omitted) PS |
| 23 June 2016 | Mother files a response. She seeks orders that Y and X are returned to her full-time care and that Z remains in her care. She proposes that the father has access to the children for one week during the short school holidays and two weeks in the Christmas school holidays. | M Response |
| 29 Jun 2016 | Mother files Notice of Risk in relation to allegations of child abuse. Mother states “Mr Peck and X Easter 2015. I wasn’t at his address, (omitted) Police acted upon the incident”. In relation to alleged risk of abuse, the mother states “X and Mr Peck apparently have had DVC issues, X was removed from his care and placed in mine.” In relation to allegations of family violence the mother states “More than one DV issue. 2006 reported, 2007 unreported, 2010 reported. 2015 unreported.” | M Notice of Risk |
| 5 July 2016 | Mother meets Mr A on the dating site ‘(omitted)’. | M 13 Sept 2016 P36 |
| 12 July 2016 | Mother meets Mr A in person and thereafter, they commence dating. Mr A has full time care of two sons D aged 15 and E aged 12. He lives in (omitted). | |
| 15 Jul 2016 | The matter is listed. An order is made for a CDC on 18 October 2016 at 9am and an ICL is appointed. Order 1 of orders made 10 Feb 2009 in relation to Y is discharged, and pending further order, an order is made for equal shared parental responsibility for Y. Matter is adjourned to the 12 September 2016 for an Interim Hearing. | |
| Mid July 2016 | Mother allows Z to make a phone call to the father. | KT 5 Sept 2016 P46 |
| 12 Aug 2016 | A’s teacher Ms S makes a file not that she has tried to contact the mother a number of times to discuss A’s progress during term 3. A parent teacher interview was scheduled and nobody attended. A note was sent home in the KIT book and there was no response. She speaks with the mother this day about making another appointment. The mother tells her to come and find her one day after school and the teacher hasn’t been able to locate her. Teacher calls the mother and leaves a message. Mother calls back and a meeting is scheduled for 16 August. | S10 (omitted) PS |
| 16 Aug 2016 | Scheduled interview between A’s teacher and the mother does not go ahead. Interview cancelled by the mother 9pm night before because A is sick. | S10 (omitted) PS |
| 18 Aug 2016 | A’s teacher speaks with the mother and books a parent teacher interview for the following day. | S10 (omitted) PS |
| 19 Aug 2016 | Mother does not attend scheduled parent teacher interview for A. | S10 (omitted) PS |
| 22 Aug 2016 | Mother approaches A’s teacher to conduct a parent teacher interview. Teacher seeks permission from mother to refer A for support. | S10 (omitted) PS |
| 4 Sept 2016 | Mother allows Z to make a phone call to the father on Father’s Day. | KT 5 Sept 2016 P46 |
| 12 Sept 2016 | Matter is listed for interim hearing. ICL files Notice of Abuse in court regarding the alleged sexual assault on X by C. Interim hearing is adjourned to 26 September 2016. Directions made for the mother (and father) to file further evidence by 19 September 2016 regarding this incident. Order for random drug urine testing is made by consent. | M 13 Sept 2016 P15 |
| 12 Sept 2016 | Mother sends a text message to the Mr P’s sister, Mr G about allegations made that C sexually assaulted X. She asks her to pass on the message to Mr P in attempt to have Mr P assist the mother by providing an Affidavit. No response is received from Mr P. | M 13 Sept 2016 P |
| 15 Sept 2016 | Letter prepared by Mr R, (omitted) PS outlining that Y’s attendance at school at the start of the day is excellent compared to first term. | F 19 Sept 2016 P75 and Annexure G |
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Jurisdiction
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Procedural Fairness
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Remedies
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Standing
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