Qodirov & Grayson
[2024] FedCFamC1F 345
•24 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Qodirov & Grayson [2024] FedCFamC1F 345
File number: BRC 11210 of 2021 Judgment of: CAREW J Date of judgment: 24 May 2024 Catchwords: FAMILY LAW – CHILDREN – Whether the father poses an unacceptable risk of harm to the children by reason of family violence and/or substance abuse – Whether the mother poses an unacceptable risk of harm to the children by allegedly making and maintaining false allegations of family violence perpetrated on her by the father – Where the father has a significant criminal history including crimes involving violence and a significant drug abuse history – Where the father has breached protection orders against the mother and at least one other intimate partner 28 times – Where the father has no insight into the impact of his exposure of the children to his family violence or his criminal lifestyle – Where the mother may have made false allegations about the father on occasion but the risk posed by the mother is not of such magnitude to warrant the descriptor ‘unacceptable’ – Where both parents pose risks of harm to the children, but the risks posed by the father are far more significant than the risks posed by the mother – Where in the absence of an alternative care provider for the children there is no other option but to leave the children in the mother’s care – Where personal injunctions against the father are included for the mother’s and children’s protection in circumstances where the protection order against the father will expire in a few months – Where the mother will have sole decision-making responsibility for the children – Where the children will live with the mother and spend no time nor have any communication with the father. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 64B, 65D, 65DAA, 65DAC, 102NA
Family Law Amendment Act 2023 (Cth) s 2
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 68
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93–637
Eastley & Eastley (2022) FLC 94–094
Isles and Nelissen (2022) FLC 94–092
Johnson & Page (2007) FLC 93–344
M v M (1988) 166 CLR 69
Mertens & Mertens [2016] FamCAFC 136
N and S and the Separate Representative (1996) FLC 92–655
Sali v SPC Ltd and Another (1993) 116 ALR 625
Number of paragraphs: 125 Date of hearing: 22 – 24 and 26 April 2024 Place: Brisbane The Applicant: Litigant in person Counsel for the Respondent: Ms Chekirova Solicitor for the Respondent: Norris Law Counsel for the Independent Children’s Lawyer: Ms Murphy Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDER
BRC 11210 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR QODIROV
Applicant
AND: MS GRAYSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
24 MAY 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The mother have sole decision-making responsibility for all major long-term issues for the children X born 2016 and Y born 2018 (“the children”).
3.The children live with the mother.
4.The father spend no time with the children nor communicate with them.
5.Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), for the personal protection of the children, the mother be restrained by injunction from bringing the children into contact directly or indirectly with Mr B.
6.Pursuant to s 68B of the Act, for the personal protection of the mother and the children, the father be restrained by injunction from:
(a)Coming into contact or attempting to come into contact (or having another person attempt to contact) or communicating with by any means or attempting to communicate with (or having another person attempt to communicate) either:
(i)The mother; and/or
(ii)The children;
(b)Coming within 200 metres of the mother or the children;
(c)Coming within 200 metres of any residence that the mother or the children reside at;
(d)Coming within 200 metres of the mother’s place of employment; and
(e)Coming within 200 metres of any school or day care that the children attend.
7.Pursuant to s 68B of the Act, for the welfare of the children, the mother and father be restrained from using or publishing (including on any social media platform) Court documents or material obtained for the purposes of these family law proceedings.
8.The independent children’s lawyer is requested to provide a copy of this Order and Reasons for Judgment to the Department of Child Safety, Seniors and Disability Services within 7 days.
9.Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
NOTATION:
A.The mother is at liberty to provide a copy of this Order to the children’s school and any other person concerned with the welfare of the children.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J
These parenting proceedings concern two young children, X, eight years of age and Y, six years of age.
The children have always lived with their mother, Ms Grayson (“the mother”), and have not had any contact with their father, Mr Qodirov (“the father”), since about January 2021 save for a phone call on 12 April 2023 when the father spoke briefly with Y.
The father has a significant criminal history including crimes involving violence and a significant drug abuse history. The father has no insight into the impact of his exposure of the children to his family violence or his criminal lifestyle. The father failed to provide any evidence that he is a reformed man, as claimed. Sadly, it is not in the best interests of the children for them to have a relationship with the father at this time.
Despite some reservations about the mother’s parenting capacity, largely arising from her failure to address in her evidence certain issues of risk, e.g., her alcohol consumption, her failure to seek ongoing support for possible mental illness, and her exposure of the children to family violence, the children will remain with the mother. There is of course no other option available to this Court.
ISSUES
The parties identified the following significant issues as requiring determination:
(1)Has the father perpetrated family violence against the mother and/or exposed the children to family violence?
(2)Does the father pose an unacceptable risk of harm to the children by reason of family violence and/or substance abuse?
(3)Would supervised time between the father and children ameliorate the risk?
(4)If so, would long term supervision be in the children’s best interests?
(5)Does the mother pose an unacceptable risk of harm to the children by allegedly making and maintaining false allegations of family violence perpetrated on her by the father?
(6)What would be the impact on the children and their connection to culture and identity if the Court makes an order for no time with the father?
(7)Should the mother be restrained from bringing the children into contact with her father, brother, or Mr B?
(8)Are the children at high risk in the mother’s care such that any time she spends with them should be supervised?
An additional issue, namely, “what impact would the children spending time with the father have on the mother’s mental health and parenting capacity?”, was not pressed.
PROPOSALS OF EACH PARTY
The father proposes that he have sole parental decision making responsibility for the children and that they live with him and spend limited supervised time with the mother. The precise terms of the order sought by the father are set out in exhibit 1.
The mother proposes that she have sole parental decision making responsibility for the children and that they live with her and spend no time with the father. The precise terms of the order sought by the mother are set out in her amended Response filed 29 May 2022.
The independent children’s lawyer (“ICL”) recommends that the mother have sole parental decision making responsibility for the children and that they live with her and spend no time with the father nor have any communication with him. The precise terms of the order recommended by the ICL are set out in exhibit 12.
BACKGROUND
The mother and father first met while they were still in high school. They commenced a relationship in 2014. During the period 2014 to 2020, their relationship is perhaps best described as ‘on again, off again’, although the mother contends the final separation occurred in or about January 2016 and the father contends separation did not occur until August 2020.
The father was born in 1986 and is 38 years of age. The father contends that he runs his own trade business. As already noted, the father has a significant criminal history including numerous breaches of protection orders for which he has been incarcerated. The father was released on parole in early 2023 only to return to prison in mid-2023 for breaches of his parole conditions. He was then released on bail in late 2023 in relation to further charges.
The mother was born in 1988 and is 35 years of age. The mother’s residential address was not required to be disclosed, but the mother provided her address on a confidential basis to the Court. It seems that the mother may have some form of employment. The mother describes herself as a “convener” in her trial affidavit.
The mother has three other children from previous relationships; namely, C aged 16 years, D aged 11 years, and E aged 10 years. Mr B is the father of D and E. The father of C is unknown. C has been diagnosed with a medical condition and D has been diagnosed with Attention Deficit and Hyperactivity Disorder (“ADHD”). There is a suggestion in the family report that all three children have been diagnosed with ADHD. As at December 2021, the mother was receiving a single parent pension, family tax benefits, and carers allowance.
The current proceedings concern the two children of the relationship between the mother and the father, namely, X born 2016 and Y born 2018.
X was assessed in 2022 as has having a borderline IQ, language difficulties, social and emotional challenges, sensory processing difficulties and difficulties with achieving independence with tasks. For the period mid-2022 to mid-2023, X was in receipt of NDIS funding of $20,946.53. The mother contends that X’s current program under NDIS expires in June 2024.
Y is also in receipt of NDIS funding although it is unclear what diagnosis warrants funding. Y is described by the mother as displaying ADHD symptoms but being too young for a diagnosis. Y is nevertheless receiving NDIS annual funding of $25,058.06 and his current program expires in September 2024.
The children live with the mother and as earlier noted have not spent time with the father since January 2021.
Proceedings were commenced by the father on 24 August 2021 and transferred to this Court on 30 March 2022. This is the third time the father has commenced parenting proceedings. The two previous applications were discontinued by him. The circumstance of discontinuance is disputed. There is also an extensive history of litigation between the parents in relation to family violence in the State Magistrates Court.
In mid-2019, the mother obtained a protection order against the father for the protection of herself and all her children. The protection order will expire in mid-2024.
In late 2020, early 2021, and early 2023, the father was dealt with for multiple breaches of the protection order. The father was sentenced to imprisonment on each occasion.
APPLICABLE LEGAL PRINCIPLES
Although various amendments have recently been made to the Family Law Act 1975 (Cth) (“the Act”), the amendments have no application to the current proceedings because they were heard prior to the amendments coming into effect on 6 May 2024.[1]
[1] Family Law Amendment Act 2023 (Cth) s 2.
When exercising jurisdiction under the Act, s 43 of requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[2]
[2] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[3] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[4] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[5] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[6]
[3] Evidence Act 1995 (Cth) s 140.
[4] M v M (1988) 166 CLR 69 (“M & M”).
[5] Ibid.
[6] M & M (fn 4); N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[7] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[8] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[9] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[10]
[7] Eastley & Eastley (2022) FLC 94–094 at [31] (“Eastley”).
[8] Johnson & Page (2007) FLC 93–344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94–092 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[9] Isles (fn 8) at [7].
[10] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[11] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[12] on each and every factual dispute.
[11] Baghti & Baghti and Ors [2015] FamCAFC 71.
[12] M & M (fn 4) at 76.
Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[13]
HAS THE FATHER PERPETRATED FAMILY VIOLENCE AGAINST THE MOTHER AND/OR EXPOSED THE CHILDREN TO FAMILY VIOLENCE?
[13] Banks & Banks (2015) FLC 93–637.
The first issue raised for my determination relates to allegations that the father has perpetrated family violence against the mother and/or exposed the children to family violence.
Notwithstanding the father’s denial of family violence and his repeated claims that he has been set up by the mother, I am satisfied, even on the father’s own evidence, that he has perpetrated family violence against the mother and/or members of her family and/or exposed the children to family violence. By way of example:
(a)The father admitted to the family report writer during an interview on 10 March 2023, that in early 2018, he attended the mother’s home and assaulted her brother, who was at that time a member of the mother’s household and babysitting the children;
(b)The father conceded during cross-examination that on another occasion, he entered the maternal grandfather’s home without permission and accused him of being a paedophile which led to a confrontation;
(c)In mid-2019, the father uploaded a self-recorded video of himself to social media in which he made threats that could reasonably be interpreted as threats to kill the mother and members of her family including the following statements:
…
High risk of getting killed
They know I will kill them
…
She is allowed to get away with it
…
You won’t stop me man. They can lock me up
…
I blame myself because I have not killed anyone yet
…
I am likely to do anything now to protect my kids
I am that fucked in the head because of this shit
…
Never asked to have kids to a fucking enabler
…
Kill a paedophile day
…
(d)In mid-2022, the father posted on social media the following message that could reasonably be interpreted as a threat to harm the mother (as per the original):
happy birthday [X] today and [Y] […] I love use so much. Miss use more than anything in this world I will never stop fighting for the write to b part of you lifes and for any corrupts mother fucking dog that put your reputation before my childrens wellbeing and have torn me away from my to kids is going to bring u down to a level of hurt as u will soon know what its like to come between a father and his children
(e)On 22 April 2023, during a telephone call, the father exposed the child Y to heated exchanges between himself and the mother and to the conflict generally, during which the father said, amongst other things, the following:
…
That’s what I mean – you’ve let that cocksucker be able to talk to his fucking kids but I can’t talk to mine
…
You know what? Why did you fucking put me there when I am trying to be a dad, man?
…
You wanna come live with dad for a bit? Forever?
…
Want to live with dad?
…
Do you want to live with dad?
…
And you were taken away from me …
…
Well tell them the truth then, that you fucking took them away from me for no fucking reasons. No fucking reason. You get me locked up for no fucking reason
…
I’m not fucked up, you are, I’m not fucked up
…
This is wrong, man, this entire fucking thing is wrong, man, you can’t use the kids like a fucking chess piece, man. You cannot do it. You’re a grown adult.
…
What about the father of your kids that you fucking put in gaol for nothing, for fucking nothing
(f)The father admitted during cross examination that he attended the mother’s home on numerous occasions contrary to the protection order and refused to leave when asked. The father admitted that he knew that by doing so he was breaching the protection order and that on occasion his attendances at the mother’s home involved him creeping around her home and hiding his car from police in an attempt to avoid detection. The father also attempted to give himself a false alibi on one occasion by attending a medical clinic.
The father has engaged in violent, threatening, or other behaviour that has caused the mother and/or a family member to be fearful.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REASON OF FAMILY VIOLENCE AND/OR SUBSTANCE ABUSE?
The father has an extensive criminal history that commenced when he was 16 years old. The father’s 13-page criminal history reveals that he has convictions for serious violence, drug offences, weapons offences, stealing, possession of stolen property, breaches of bail, and a staggering 28 breaches of protections orders against both the mother and at least one other intimate partner.
The possession of firearms is always concerning in such circumstances and in addition to historical weapons offences, the father was found by police on a more recent occasion (mid‑2022) with ammunition in his possession.
The father also has a history of poly-substance use. Illicit substance use has been identified by Queensland Corrective Services as a “primary area of risk” for the father.
The father’s relationship with the children prior to January 2021 was interrupted by his various periods of incarceration, including:
(a)In 2017;
(b)From 2018 to 2019 during which Y was born;
(c)In 2019; and
(d)In 2020.
The father has also been incarcerated since January 2021 as follows:
(a)2021 to 2022;
(b)2022 to 2023; and
(c)In 2023.
As earlier noted, the father has been convicted of breaching the protection order for the protection of the mother and children (and at least one other intimate partner) on 28 occasions. By way of example, in late 2020, the father breached the protection order one day after his release from custody by driving in front of the mother’s home on several occasions. The father was also disqualified from driving at the time. As a result, the father was fitted with an electronic monitoring device and subject to a curfew. On another occasion, in late 2021, the father was advised by his supervising officer that he was only to contact the mother by email in relation to the children, in circumstances where the father had been calling the mother repeatedly in breach of the conditions of the protection order. The father was again warned in early 2021 by his supervising officer not to call the mother. The father ignored the warning and called the mother on her phone on eight occasions on one day in early 2021 and once on the following day, leading to further charges and being remanded in custody pending his later court appearance.
One of the father’s numerous criminal offences involved a motor vehicle offence in mid-2022 while under the influence of illicit substances and while driving without a licence. The father drove his vehicle into another vehicle. The driver of the other vehicle was trapped in her vehicle until ambulance and emergency services arrived on the scene. The father denied being the driver and claimed someone else was driving, even after being shown dashcam footage proving he was the driver. During these proceedings, the father showed no remorse for his actions and maintained he was the innocent party in this accident, claiming “it was an accident where a lady ran into my [vehicle]”.
In a ‘benchmark assessment’ by Queensland Correctional Services dated early 2023 it is noted that there have been “no periods of desistence” in the father’s lengthy history of anti-social behaviour. The following additional risk factors are noted in the assessment:
…
[The father] minimises his conduct, claiming he was not aware of order conditions or that he is trying to be a parent.
[The father’s] behaviour is persistent and displays an ongoing pattern of controlling behaviour through intimidation and physical violence. He minimises and denies his behaviour while victim blaming and making vexatious complaints about [the mother]. He is fixated on Family Court action as he attempts to gain custody.
Domestic-Violence Perpetrator is a criminogenic need. He has been assessed as unsuitable for referral to [a behavioural change service] to address DV behaviours previously, due to entrenched denial of his conduct. He currently does not think his behaviour has been bad, because it has been about him looking after or wanting to see his children. He remains unsuitable to be referred to [the behavioural change service].
…
[The father] presents with entrenched pro-criminal attitudes which is demonstrated by refusals to engage with intervention services to address substance misuse and domestic violence behaviour, in addition to minimising his actions and blaming the victims of the index offences.
…
Risks:
[The father’s] risk factors include engagement with pro-criminal peers and the breakdown of intimate relationships, pro-criminal thinking, and a relapse to illicit substance use […]. Should he commence on his offending pathway there is a high risk of him committing serious domestic violence offences towards any new or former intimate partner. He is also at risk of driving while unlicensed and under the influence as his decision making is impaired by drug use.
At the time of the assessment by Queensland Corrective Services, the father self-reported “daily or almost daily” use of “[drugs]” and “daily or almost daily” use of “[other drugs]”.
While on parole in 2023, the father committed further offences. In early 2023, he drove his vehicle while disqualified and admitted to his parole officer that he continues to drive while unlicenced and disclosed his continued use of illicit substances and Cannabis. During a disciplinary interview conducted by Queensland Correctional Services in mid-2023, the father reported that he “was engaged with Alcohol and Other Drugs Service (AODS) [City F] and had been enrolled in the [medication] program for several weeks”. A collateral check conducted the next day revealed that the father had been deregistered from a drug treatment program two days prior. The father was given a further opportunity to address his reoffending behaviour by seeking appropriate services in the community. A few days later, the father tested positive for illicit drugs.
In mid-2023, the father’s parole, which commenced in early 2023, was suspended indefinitely as a result of the following matters:
(a)In mid-2023, a drug test returned a positive result for the presence of illicit drugs;
(b)The father repeatedly failed to report to his parole officer on at least nine occasions;
(c)The father repeatedly missed scheduled appointments with the AODS which resulted in the father being excluded from the service;
(d)The father failed to attend a ‘show cause’ interview in mid-2023;
(e)In mid-2023, the father advised that he was living at an address without seeking prior approval;
(f)The father advised that he employed men on parole who were known drug users;
(g)The father admitted his involvement in a series of assaults relating to the removal of persons from his property who were looking for drugs;
(h)During the interview in mid-2023, the father appeared to be under the influence of a substance; and
(i)The father was already on bail for another offence, namely a driving offence in early 2023.
The Parole Board determined that the father failed to comply with parole conditions and posed an unacceptable risk of reoffending.
While in prison, the father pleaded guilty to a corrections-related charge in mid-2023.
The father’s parole period expired while he was in prison in late 2023, but the father was remanded in custody on further offences until later that month when he received bail. The father was due to appear in court the following month. It is unclear, what occurred at the father’s further court appearance although the father confirmed during cross-examination that he was due to be sentenced for further criminal offences in mid-2024. There was also a mention scheduled on the same day for another criminal offence which the father claimed to know nothing about. Due to his history of re-offending, Queensland Corrective Services deemed the father unsuitable for further community-based orders.
For the purposes of the current proceedings, the father produced the results of a hair follicle drug test which were negative for the presence of any illicit substances. However, the father admitted in cross-examination that had the test been conducted earlier than 2 April 2024, the test results would have been positive for marijuana. Whether that would have been the only illicit substance detected remains unknown.
During cross-examination, the father admitted to a recent incident involving him “hunting down” people who had broken into his home and assaulting them.
It was only during cross-examination that the father revealed his de facto relationship with a Ms H despite having lived with her since the middle of last year. Ms H has her own recent history of illicit substance addiction. It could not be said that Ms H is a protective factor against the father reoffending or using illicit substances. At least one of Ms H’s six children has an alcohol addiction according to the father.
In the family report dated 18 May 2023, it was recommended that the father attend to the following matters prior to consideration being given to him spending any time with the children:
(a)Attend upon his General Practitioner (“GP”) to obtain a referral for a psychiatric assessment and engage with ongoing support as identified throughout the family report and that the psychiatrist be provided a copy of the family report to assist with the assessment;
(b)Complete a behaviour change program to address the concerns regarding his history of violent behaviour and that the relevant service be provided a copy of the family report to assist with targeted support;
(c)Demonstrate positive and sustained behavioural changes as a result of his completion of the program;
(d)Attend upon a credible substance abuse support service to develop relapse prevention strategies and engage with a long-term community support group (i.e. Narcotics support group) to assist with maintaining his abstinence;
(e)Undertake random hair follicle testing and return consistent negative tests prior to any consideration being given for the father to spend time with the children.
Despite this comprehensive list of recommended actions, there is no evidence the father has attended to any of them.
The father has a very long history of criminality including repeated breaches of protection orders and a very long history of substance abuse. The father has failed to demonstrate any reform and shows no insight into the seriousness of his conduct. The father did not impress as accepting personal responsibility for his history of criminality, family violence, and drug abuse.
I am satisfied that the father poses an unacceptable risk of harm to the children by reason of family violence and substance abuse.
WOULD SUPERVISED TIME BETWEEN THE FATHER AND CHILDREN AMELIORATE THE RISK?
Given the father’s extensive history of criminal behaviour, I am not satisfied that supervision would ameliorate the risks posed by the father. In any event, there is no evidence that any suitable person or contact centre would be prepared to act as a supervisor given the history.
IF SO, WOULD LONG TERM SUPERVISION BE IN THE CHILDREN’S BEST INTERESTS?
In the circumstances, this issue does not arise.
DOES THE MOTHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY ALLEGEDLY MAKING AND MAINTAINING FALSE ALLEGATIONS OF FAMILY VIOLENCE PERPETRATED ON HER BY THE FATHER?
In the recorded phone call on 12 April 2023, the mother made what appeared to be an admission of having made false allegations of family violence against the father in order to cause his incarceration.
In circumstances where the mother has presented to various authorities and this Court as fearing for her life from the father, it is noteworthy that the mother initiated the phone call and that during the phone call the mother made it plain that she wanted to resume her relationship with the father, even going so far as to suggest they have another child together. The father rejected the mother’s proposals.
The part of the conversation in which the mother appears to make an admission of making false allegations against the father is set out below:
…
Father:You are, man. You don’t fucking love some cunt, right, and get ‘em locked up, man. You don’t do that. You don’t take their kids away from them --
Mother: Women do shit like that when they are hurting badly.
Father: Are you fucking serious, man?
Mother: Yeah, they do. Yep.
Father: You know, since my fucking kids were born, right --
Mother: How many men are in there because of women?
Father: Yeah, they are fucking liars, right. Said they wanted to be a dad.
Mother: Because they are hurting badly.
Father: That doesn’t mean you have to be wrongly imprisoned, does it?
Mother:It is not about hating someone and trying to be spiteful, it is about feeling pain internally --
Father: What about the pain --
Mother: -- to make them suffer and feel as hurt as you are.
Father:What about the pain you put me and the kids through? What about that? What about your kids, don’t you care about that?
In her trial affidavit, the mother gave the following explanation for the phone call:
183. … I did telephone [the father] in or around 12 April 2023. I recall overhearing the children talk about [Mr B], the father of my eldest children, earlier that day. That conversation triggered something in my head and I started thinking about [Mr B]. I recall consuming approximately 6 drinks before telephoning [the father]. The things I said to [the father] are of the nature that I expect I would say to [Mr B], not [the father]. I was unable to call [Mr B] as he was incarcerated and for some reason which I do not understand, I telephoned [the father]. I recall feeling lonely that day. There have been times in the past where I would seek comfort from [the father] despite the violence he put me through. I feel sick that I had a conversation with [the father]. I do not usually drink alcohol.
The mother’s explanation for the phone call to the father does not make a great deal of sense. There is no doubt, when listening to the recording, that the mother knew she was talking to the father on 12 April 2023. I cannot rule out that the mother may have been affected by alcohol as claimed by her, but she sounded coherent throughout the 45 minute phone call. The mother’s affidavit does not address the father’s allegation that she admitted she had made false allegations against him to have him imprisoned. When asked, during her oral evidence, about her statement during the phone call that “women do shit like that when they’re hurting”, the mother denied ever making allegations against the father that were not true and the following exchange occurred:
Okay. But what did you mean when you said, “Well, women do shit like that when they’re hurting”?---Well, he – he has always continuously said about suffering by me putting him in jail for the things that he does, and I do want him to suffer for what he has done because that’s – I feel like I suffer. So I don’t have any regret for putting him in jail and making him suffer, is what I meant. I didn’t mean that – I didn’t refer to any false allegations or lying to put him in jail or whatever he says.
Of some relevance to the alleged admission is a document forming part of exhibit 9.1. During a home visit by a counselling support service in mid-2020 the mother made a number of admissions. The relevant record includes the following:
[The mother] said that things were pretty bad on the weekend and that the police were called and put [the father] in jail for 2 nights.
[The mother] admits that it her fault that he went to jail. [The mother] had come home from work early and the house had not been cleaned, so it put her in a bad mood. When [the father] tried to help she got in a worse mood.
When she finished cleaning, [the mother] could not settle down and the more [the father] tried to help her the anger [sic] she got. She threw [an object] at him and got him on the head and when [the father] tried to hold her off she called the police.
[The mother] admits that she has a lot of mental issues related to her ex partner and domestic violence, which she has not received any help for.
She feels that it is flight or fight for her.
[The mother] admits that she has ruined [the father’s] life.
[The father] doesn't want to leave as he loves his children and needs contact with them.
[The mother] and [the father] both admit that it is [the mother] and her issues and that [the father] would never lay a hand on her.
It is not clear from the record who was present during the home visit but as it references both the father and the mother making an admission, it seems likely they were both present which raises questions about the reliability of any admissions. The mother nevertheless conceded during cross-examination that the record was accurate. The content of the record portrays the mother as a perpetrator of family violence by throwing an object at the father and hitting him in the head and the mother admitted to doing so.
Having regard to the complexities surrounding relationships which feature family violence, it is not at all surprising that both parties engaged in family violence and it is also apparent, given the corroborated history of the father’s violent conduct in a range of settings, that the mother has a propensity to minimise the father’s violence.
Ultimately, while the mother may have made false allegations to get the father locked up on occasion, I do not thereby find that the risk posed by the mother is of such magnitude to warrant the descriptor ‘unacceptable’. This is because there are numerous other examples of the father’s conduct that brought him to police attention and ultimately incarceration apart from occasions when the mother may have made a false allegation. This is not a case where the allegations of family violence made by the mother are completely without foundation.
The mother would nevertheless be well advised to engage in specific counselling to address any personality vulnerabilities that may cause her to seek to maintain relationships with violent men, her own propensity to engage in family violence, and her apparent preparedness to minimise her own and the other party’s behaviour.
WHAT WOULD BE THE IMPACT ON THE CHILDREN AND THEIR CONNECTION TO CULTURE AND IDENTITY IF THE COURT MAKES AN ORDER FOR NO TIME WITH THE FATHER?
Both parents claim to be of Aboriginal descent although the father indicated to the family report writer that “they are still learning specific details of their cultural ancestry”. The father did not provide any evidence or make any submission on this issue.
The mother includes one sentence in her trial affidavit on the issue of the children’s Aboriginal culture.
28. The children have ties to their indigenous heritage through school and community events and family.
SHOULD THE MOTHER BE RESTRAINED FROM BRINGING THE CHILDREN INTO CONTACT WITH HER FATHER, BROTHER, OR MR B?
Allegations against the mother’s father and brother
The father remains fixated on allegations that the mother’s father and brother sexually interfered with the child, X. The evidence said to support these very serious allegations is identified by the father as follows:
(a)In records produced from Queensland Ambulance:
(i)“Queensland Ambulance Report Form” dated early 2018 – “incident type description: Sex assault poss dang area” at “incident address: [J Street, Suburb K]” (page 35 of exhibit 9.1);
(ii)An “incident detail report” dated early 2018 under “incident information” it is noted: “priority: 2A” and “problem: sex assault poss dang area” (page 36 of exhibit 9.1);
(iii)What appears to be a running sheet with dates, times, and responses all for that date and for the entry “[2018] [ProQA: Key Questions] 1. The patient was sexually assaulted. 2. It’s not known when this happened. 3. The location of the offender is not known 4. It’s not known if offender is armed 5. There is no SERIOUS bleeding 6. She is completely alert (responding appropriately) 7. The injury is to a POSSIBLY DANGEROUS area” (page 37 of exhibit 9.1);
(iv)On page 68 of exhibit 9.1 the father contends there is an entry in a Queensland Ambulance Report stating “trauma, possibly dang body area. Entry of sexual assault as it means” but no such entry appears on that page of the record;
(b)On page 72 of exhibit 9.1 the father contends the hospital report records that the child has “genital trauma” and that on page 74 the father contends there is a diagram consistent with this description;
(c)On page 89 of exhibit 9.1, the father refers to the “history” that refers to the mother “has nine concerns, reports of child protection reports”;
(d)On page 369 of exhibit 9.1, the father contends that the following entry appears in the Court Brief in relation to changes brought against Mr B:
On the visit of [Mr B] at […] correction Centre, she used one of her children, namely a boy, to smuggle drugs into a prison while putting a [package] on the backside of the child
(e)The father has, historically at least, maintained that the mother’s father and brother are convicted paedophiles.
In relation to [75](a)(i) above, the father submitted “there’s supposed to be no evidence that [the mother’s brother] is a convicted paedophile, but he was living there at that exact date and he was babysitting my daughter at that exact date”. The mere fact that the mother’s brother was living at the mother’s house in early 2018 proves nothing.
The records from Queensland Ambulance Service (“QAS”) relied upon by the father merely provide a record of what information they received. It is apparent that the source of the calls on that evening were from the father. It is noteworthy that the “running sheet” for that date at 22:31:47 records the following:
… The informant [being the father] has called us several times re false allegations but QPS [Queensland Police Service] are speaking with him now, send a QAS crew to make him happy … He won’t stop calling otherwise.
In relation to the entry on page 68 of exhibit 9.1, I note the following record: “QAS – electronic Ambulance Report Form” dated late 2018 under the heading "Presenting History” “Pt [patient] mother also states on separate compliant [sic] that pt has small tear in genital region” and under the heading “Narrative” an entry “Pt mother states she has noticed a has [sic] small tear to genital region recently when changing diaper”. The primary reason for the contact with QAS appears to be in relation to X and an older brother bumping heads, with X subsequently complaining of a headache and later vomiting. On examination, at the hospital, the records reveal the following:
Clinical notes
…
… (QAS have noted that mum says she saw some genital trauma – that will need to be checked when we have a bed for her)
…
Medications
nil regular
Has Bepanthen on perineum for small labial excoriation – being following by GP
…
On Exam
…
Perineum – whitish powder seen over external genitalia – […] small fissure […] – nil bleeding/pus/swelling
…
Mum given some barrier cream used in hospital to trial as Bepanthen may be causing some drying of the perineum: vaseline is another option
…
X was diagnosed with gastroenteritis and discharged. No mandatory report was made to the Department of Child Safety, Seniors and Disability Services (“Child Safety”) which indicates that there were no concerns about possible sexual abuse. It is apparent from the records that there was some chafing of the skin between the child’s anus and vaginal entrance, i.e., the perineum, for which a barrier cream was prescribed.
As to pages 72 and 74 of exhibit 9.1, the reference to “genital trauma” is simply referring to what was in the QAS records about information received from the mother. When reference is made at page 68 of exhibit 9.1, to the comment made by the mother to QAS, it is simply that the child “has a small tear in the genital region”. Page 74 does not confirm genital trauma but rather a “skin integrity check” consistent, in my view, with the observation of chafing to the perineum.
Page 89 of exhibit 9.1 is a record produced from Child Safety providing a child protection history as follows:
There is a child protection history on the mother as a parent since 2013 with 9 child concern reports, an intake enquiry and 1 notification recorded.
The balance of the record confirms that the only investigation and assessment recorded was finalised in 2013 and was unsubstantiated as the mother was assessed to be a parent willing and able to protect the children, although, the record concludes:
The history would suggest that if the mother and [Mr B] [sic] were together there would be a risk that domestic violence would commence.
Page 369 of exhibit 9.1, sets out the details of the charges brought against Mr B in late 2022 in relation to the mother’s alleged involvement in secreting drugs in a “small […] package [in] one of the children’s bottom area” which was retrieved by Mr B during a prison visit. During cross-examination, the mother confirmed that she did visit Mr B and that two of her children were with her. The mother denied secreting drugs on the child or attempting to distract the staff during the visit. There is no evidence the mother was charged with any offence.
However, given the detail contained in the records, I find it difficult to accept the mother’s denial of knowledge of the drugs. Her children were very young at the time, and I consider it improbable that the child would have smuggled drugs into the prison without assistance. This incident has no bearing on the father’s allegations of sexual abuse made against the mother’s brother or father. During his submissions, the father contends that the incident is relevant because the mother’s denial of involvement in the incident demonstrates that “she’s not willing to move forward” unlike himself who “admits he has breached protection orders”. The father submitted that the mother’s denial demonstrates that she is “not willing and able to protect my kids”.
It is important to note that the father was informed by QAS and police in early 2018 that there was no evidence to suggest that X had been sexually abused. The child was examined. Child Safety records indicate that there was insufficient evidence to warrant any investigation of the father’s allegations that X had been sexually abused. No charges have ever been brought against any person for sexually abusing X.
The criminal records of the mother’s father and brother are in evidence.
The mother’s father has no convictions for any behaviour remotely linked to child abuse. His convictions in the 1980’s are for driving offences, obscene language, and assault. His convictions in the 1990’s are for drug related offences and obscene language. The mother’s father’s last conviction was for drug related offences in 2002 for which he was sentenced to prison for a period suspended for a number of years after serving a period.
The mother’s brother has no convictions for any behaviour remotely linked to child abuse. He was dealt with for one unrelated offence in 2017 for which he was required to be of good behaviour for a period with no conviction recorded, and drug offences in 2018 for which he was required to enter into his own recognisance and be of good behaviour for a period and undertake a drug diversion course. No conviction was recorded.
Despite having access to these records, the father found it difficult to concede he was wrong in alleging these two men are convicted paedophiles.
Whether the father was intentionally misinterpreting the evidence relied upon by him or whether he was incapable of understanding it, matters not a great deal in the scheme of things. There is no evidence that the mother’s father or brother sexually abused X. There is no evidence that X has been sexually abused. There is no justification for restraining the mother bringing the children into contact with her father or brother.
Allegations against Mr B
Mr B and the mother were in a relationship and have two children, D aged 11 and E aged ten. It was also a violent relationship and yet in the mother’s trial affidavit set out earlier in these reasons at [66] the mother expresses a desire to renew a relationship with him. The mother has regular telephone contact with Mr B and visits him in prison.
Mr B is 36 years of age and has an 18-page criminal history commencing from when he was 17. Mr B’s convictions include offences involving violence, property offences, driving offences, contraventions of domestic violence orders, breaching bail, breaking and entering, and drug related offences. Mr B has spent most of the last ten years in prison.
It is concerning that the mother maintains regular contact with Mr B and that the records produced from Queensland Corrective Services refer to the mother’s suspected involvement in secreting drugs on one of her children during a prison visit to Mr B in late 2022 which is set out in some detail earlier in these reasons at [83] – [84].
The mother’s apparent willingness to maintain relationships with violent men is no doubt a factor of her long history of exposure to family violence both as a victim and as a perpetrator on occasion. In this context it is relevant to refer to the observations of the family report writer when asked about the mother’s apparent admission of making false allegations against the father during the phone call on 12 April 2023:
… it’s not uncommon for survivors of family violence to want to maintain peace with the alleged perpetrator, and to want to want them to be good parents of their children; however, that sort of behaviour or those sort of comments may in fact be considered, in some circumstances, a bit of a red – a retaliatory response to the violence. So it can actually be a form of violence in itself.
I am satisfied that Mr B poses an unacceptable risk of harm to the children due to his long history of criminal behaviour, substance abuse, and use of a child to gain access to drugs in prison. The mother will be restrained from permitting any direct or indirect contact to occur between Mr B and the children.
ARE THE CHILDREN AT HIGH RISK IN THE MOTHER’S CARE SUCH THAT ANY TIME SHE SPENDS WITH THEM SHOULD BE SUPERVISED?
The risks posed by the mother, that largely became apparent during the trial, concern her exposure of the children to family violence, her alcohol consumption, her failure to address possible mental illness, her apparent desire to maintain relationships with violent men, and her minimisation of violence.
The mother has exposed the children to family violence. The mother admitted to engaging in violent behaviour during the relationship with the father e.g., throwing an object at the father and hitting him in the head. The mother exposed Y to family violence during the phone call she initiated to the father on 12 April 2023. The child was only four years of age yet both parents verbally abused each other in the child’s presence. It was an appalling demonstration of parenting deficiencies in both parents. Neither of them protected their child from exposure to their vile expletive ridden abuse of each other. The child on several occasions pleaded with his parents to be nice to each other. The mother refers to the child being too young for medicine and the child tells the mother she should take her medicine. While there was no exploration of what was meant by this reference to “medicine” it certainly raises alarm bells. The mother makes it clear to the father that she wants to be in a relationship with him, even suggesting they have another baby.
The following exchanges occurred during the 12 April 2023 phone call:
…
[Y]: How do you know everybody’s name?Father:Because I fucking, mate, I was, mate, I helped raise your brothers, mate!
Mother: Don’t swear at him, he’ll think you’re angry.
Father:You don’t remember me, [Y], you are really young, but, mate, I used to look after all of yous.
[Y]: Do you know me?
Father: Yeah! You’re my son! Aww.
[Y]: And do you know our names?
Father: Yeah, [Y].[The mother laughs]
Father:You’re my boy, mate. Me and you are exactly the same. I’ve got photos of me and you. I miss you so much, eh.
[Y]: Yeah.
Mother: Oh you’ll love this, cunt, telling ya.
…
[Y]: Mummy got some medicine yet.
Father: You don’t need medicine, you just need dad, mate.Mother: He is like ‘I’ll be good when I’ve got medicine’ haha. [To [Y]] You’re too young for medicine.
…
Mother: [To [Y]] He’s getting nasty, hey.
Father: See! That’s a lie! Why would you put that in his head? I’m not nasty.
Mother: He’s listening to your nasty shit right now. Like, that to him is nasty.
[Y]: No, he’ll be good to me when he sees me at his house.Mother:[To [Y]] He will be happy when he sees you? Yeah but he’s a fucking arsehole right now.
Father: Let me talk to [Y] without you cutting in, man.
Mother: What? We’re all talking, you’re on speaker phone.Father:This has been the problem, right. This has been the problem the whole fucking time, man.
[Y]: Let’s just be good.
Mother:What? Yeah, we can’t just be good. See? A four year old even knows. Why can’t we just be good? Because we can’t just be good because me and dad’s too fucked up.
Father: I’m not fucked up, you are, I’m not fucked up.
Mother:You’re giving me just as much attitude as I’m giving you, mate. A four year old has more common sense than both of us put together. Yeah, chill for a minute. Hear that? [To [Y]] Say ‘yeah, just chill for a minute, cunt’.
[Y]: I want you to chill and Mum chill cause you are really getting angry.
Father: Yep. Yep. Oi, [Y]?
[Y]: Yeah?
Father: I miss you so much, man. I miss you so much.
[Y]: You too.
Mother: Yeah, not enough to try and fix the relationship with my mother.
[Y]: Be quiet.Father:The only relationship me and you should have, right, is – a parent relationship. Right, and that’s it. That’s it. I’m not going to have this conversation in front of [Y], right?
Mother: Well he’s not simple, cunt, you can talk around him.
…
[Y]: You should have medicine.
Mother: Fucking oath, I know I need medicine!
Father: [inaudible]
Mother: When I get over it, I’ll be sweet like I am with [Mr B].Father:This is wrong, man, this entire fucking thing is wrong, man, you can’t use the kids like a fucking chess piece, man. You cannot do it. You’re a grown adult.
[Y]: [To the mother] tell him to just be a dad.
Mother:[To [Y]] He doesn’t want to just be a dad, mate, he wants me to drop you down to him because he doesn’t like me.
Father: [Y], I want to be your dad, mate.
Mother:Yeah, you want me to drop them down to you because you don’t like me.
…
[Y]: Hey, Mumma, you be nice now.
Mother: I am trying to be nice! I am finding it really difficult, but I am trying.
[Y]: Mmm. Guess what?
Father: What?
[Y]: Mum’s trying to be so nice to you. Mum’s being nice now.
Mother: [inaudible] wants another baby.
Father: Not to me, man.
Mother: Are you serious cunt? You would die and not see a baby be born?
Father: Mate – what – is that supposed to be funny?
Mother: You are cold. You make me sick, cunt.Father:I was there for my daughter’s birthday, man, and you let me see her be born. You got me locked up for my son’s birthday and I didn’t even see him be born.
Mother: Yeah, well you still got one more chance, cunt.
Father: Listen, listen, listen –
[Y]: Mum’s trying to be nice.
Father: Yeah, well, she’s not normally, it’s all fake, man.[The mother laughs in the background]
[Y]: Mum’s saying she wants a new baby, not only me.
Father: Oh well.Mother:[X] is going to have to tell you because then you’ll give her a baby because she wants one so bad.
Mother: [To [Y]] Say ‘I really want a baby sister’.
Another risk issue relates to the mother’s possible untreated mental illness. Surprisingly, given the identification for trial of an issue as to whether the mother poses a “high risk” to the children, the mother failed to present any current evidence from a psychologist or psychiatrist, despite a history of symptoms of chronic post-traumatic stress disorder (“PTSD”) and adjustment disorder.
In exhibit 14, the mother’s then psychiatrist wrote a report to the mother’s referring doctor dated late 2021 which included the following:
…
[The mother] reported a deterioration in her mental state starting in 2015 in the context of the violent relationship with her ex-partner [the father], the father of the two younger children. …
… [The mother] described anxiety attacks and symptoms of post-traumatic stress disorder characterised by flashback nightmares, reliving past trauma experiences, hyperarousal with a startle response, irritability, difficulty concentrating, and disturbed sleep. She reported dissociative symptoms with feelings of detachment. She remains anxious about the safety of her children.
…
Substance use history
She smokes about 10-15 a day
She drinks about four std drinks of beer a night and about four nights a week. …
…
Family history
Both her brothers have a mental illness
Older brother completed [sic] suicide […]
…
Formulation
… [The mother’s] strong family history of mental illness and early developmental adversities make her vulnerable. … She does have some protective factors such as a good relationship with her children, her supportive father and her employment.
…
Recommendations/Management Plan
…
Encourage complete abstinence from alcohol. I suggest a referral to a drug and alcohol counsellor and advise her to attend alcohol anonymous meetingsIt seems inconceivable, in the circumstances, for the mother not to have obtained a recent psychiatric assessment. Further, despite her psychiatrist recommending in late 2021 that the mother abstain from alcohol, join alcoholics anonymous, and obtain drug and alcohol counselling, the mother is silent in her evidence about her consumption of alcohol (apart from on 12 April 2023). It is unclear whether the so-called protective factors referred to by her psychiatrist, i.e., support from her father and her employment, continue to exist. The mother referred to only infrequent contact with her father.
While the history does identify risks posed to the children by the mother, I am unable to find on the evidence before me that any risks posed by the mother are “high risk”. In any event, in the absence of an alternative care provider for the children there is no other option but to leave the children in the mother’s care.
WHAT PARENTING ORDER IS PROPER?
Both parents pose risks of harm to the children, but the risks posed by the father are far more significant than the risks posed by the mother.
Unfortunately, the father demonstrated a complete lack of insight. It is unfathomable that the father could expect to be successful in having the children removed from the mother’s care after his complete failure to address his drug addiction, violence, and criminal behaviour. The father has had numerous opportunities to reform. He has rejected offers of support and help. The father failed to take up any of the recommendations made by the family report writer in her 2023 report yet continues to blame “the system” and the mother for the predicament in which he finds himself. The responsibility for not having a relationship with the children falls squarely on the father’s shoulders. Whether the father ever has a relationship with the children is entirely in his hands. It would require a demonstrated commitment to change over several years.
While I remain concerned about the mother providing optimal care for the children, there is no other option but for the children to remain in her care. It is perplexing that the mother failed to address in her evidence many relevant matters such as her psychiatric assessment and recommendation to undergo drug and alcohol counselling. Further, it was not until I read a hospital ‘child development service’ report dated early 2022 that I became aware of the mother having two foster children in her care aged eight and six. At the end of submissions, in response to a query from the Court, the mother, through her counsel, informed the Court that the foster children had been in her care for about a year and were returned to their biological mother “last year”. How the mother came to have two other children in her care for a year remains unknown. Whether the arrangement was a formal foster care arrangement remains unknown. These circumstances raise yet another issue of potential risk in the mother’s household. It seems that at least for a year the mother had the care of seven children, many with significant care issues.
Ultimately, I can only take comfort from the fact that the children are visible in the community. They attend school and obtain support from several services.
Section 60CG of the Act requires the Court, to the extent that it is possible to do so consistently with the children’s best interests being the paramount consideration, to ensure that any proposed parenting order does not expose a person to an unacceptable risk of family violence and for that purpose the Court may include in the order any safeguards it considers necessary for the safety of those affected by the order.
In circumstances where the protection order against the father for the protection of the mother and the children will expire in a few months, I propose to include personal injunctions against the father for the mother’s and the children’s protection. The mother will also be restrained from bringing the children into contact with Mr B.
Each party had the opportunity to make submissions on the order proposed by the other. I propose to make the order that best meets the interests of the children in the circumstances of this case.
MISCELLANEOUS – DISMISSAL OF ADJOURNMENT APPLICATION
The father withdrew his instructions to his counsel and solicitor on the morning of the trial and they were granted leave to withdraw. The father’s application for an adjournment of the trial was dismissed with reasons to be provided later. My reasons are set out below.
The father sought an adjournment of the trial for the following reasons:
(a)He was not happy with his legal representatives who were appointed by Legal Aid Queensland pursuant to the Commonwealth Family Violence And Cross Examination of Parties Scheme in circumstances where the mandatory provisions of s 102NA of the Act apply;
(b)He was not happy with the content of his affidavit of evidence in chief filed on his behalf by his lawyers on 5 April 2024;
(c)There was “more information that should have been included in his affidavit”;
(d)Without that information it would be “unfair for his children”; and
(e)He wanted to retain alternative legal representation.
The application for an adjournment was opposed by the mother and the ICL.
While it was conceded on behalf of the mother that the father’s affidavit of evidence in chief was “deficient” and “lacks information”, it was submitted that the adjournment application should be dismissed for the following reasons:
(a)The proceedings have been around for “about six years” and require a final resolution;
(b)This is the third parenting application filed by the father, with the previous two being discontinued by him; and
(c)There is a history of significant family violence allegations made by the mother against the father and the mother contends that an adjournment will cause “further trauma to the mother and the children”.
In opposing the adjournment, the ICL noted that the father has had no contact with the children since January 2021. It was submitted that the father confirmed at the compliance hearing on 16 April 2024 that he was seeking a parenting order as set out in his amended Initiating Application filed 31 July 2023. Further, it was submitted that while there may be deficiencies in the father’s evidence in chief, he might seek leave to rely upon earlier affidavits filed by him on 24 August 2021 and 31 July 2023 (which he ultimately did). The ICL supported the final resolution of the proceedings as being in the children’s best interests.
An adjournment of a hearing should only be granted if necessary to do justice as between the parties.[14] Matters that will inform the exercise of that discretion include the following:[15]
(a)The reasons for the adjournment;
(b)Any delay in bringing the application;
(c)Any prejudice to another party that cannot be compensated by an order for costs; and
(d)The effect upon the Court and other litigants before the Court.
[14] Sali v SPC Ltd and Another (1993) 116 ALR 625.
[15] Ibid. See also Mertens & Mertens [2016] FamCAFC 136.
These proceedings were commenced by the father by an Initiating Application filed 24 August 2021. The father previously commenced parenting proceedings by Initiating Application filed in January 2018 and again in May 2019 and on both occasions the father discontinued the proceedings. This matter was listed for trial and trial directions made on 17 November 2023. The father’s affidavit of evidence in chief of himself and of any witness upon which he wished to rely was due to be filed by 25 March 2024 and extended by consent to 4 April 2024.
The father had since at least 5 April 2024 (when his affidavit was filed) to address what he contended were deficiencies in his affidavit of evidence in chief. The father provided no reason for his failure to do so. The father did not identify what further evidence he wished to put before the Court, but to the extent that his affidavit did not address matters he regards as essential to his case, he was granted leave to adduce further evidence in chief and, as suggested by the ICL, he sought leave and was granted leave to rely upon earlier affidavits. While the father may not have had the opportunity to personally read through the proposed tender bundle prepared by the ICL, the bundle comprises material produced pursuant to subpoena to which the parties have had access for some time. The father was afforded additional time to review the material.
This is a matter in which the mother alleged a very long history of significant family violence perpetrated against her and the children by the father, in circumstances where the father also allegedly has a history of illicit drug use. The father has been incarcerated on several occasions for breaching the protection orders made in favour of the mother and the children. The mother and the children have lived at an undisclosed address for several years.
A family report has been prepared in this matter with interviews occurring on 10 March 2023 (mother and children) and 14 March 2023 (father). The family report writer noted that X had been diagnosed with ADHD, severe language difficulties, social-emotional challenges, sensory processing difficulties and difficulties with self-care. The children have experienced a particularly disruptive childhood.
In her report, the family report writer opined that:
103. The parties have been a part of proceedings three times now for the same issues, and have participated, with the children, in two Family Reports with limited positive change in terms of risk to the children occurring between reports. It is not ideal for children to be engaged in Court processes long term, particularly when there are clear vulnerabilities in terms of their development and wellbeing, and the risks are substantial and unlikely to be mitigated in the short term. Given the reported impacts of [the father’s] family violence, which may have included utilising the Court to perpetrate systems abuse, in regards to [the mother’s] mental health and the children’s development and emotional wellbeing, their involvement in further proceedings is likely to cause [the mother] considerable stress and may impact negatively upon her parenting capacity. Supporting [the mother’s] wellbeing is vitally important as she is the children’s primary caregiver, and they are therefore highly reliant upon her to meet their needs, and they are likely to be attuned to her when she is not coping. Further, the children are reported to have settled in their local community and have a sense of stability and normality in regards to their living arrangements. This is vital to sustain for the children, where possible, as their capacity to overcome challenges associated with developmental delays or poor emotional wellbeing will be limited if they experience [the mother] struggling, potentially affecting her capacity to be responsive to their needs.
Section 97(3) of the Act requires the Court to ensure that proceedings are not protracted. Section 67(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides that the overarching purpose of the family law practice is to facilitate the just resolution of disputes “as quickly, inexpensively and efficiently as possible”. The parties are required to conduct the proceedings in a way that is consistent with the overarching purpose (s 68 of the FCFCOA Act).
In my view, there would have been significant prejudice to the mother and to the children for the proceedings to be adjourned. The father had already twice discontinued parenting proceedings in the past and the children have been subjected to interviews for two previous family reports in addition to the most recent one. Wherever the truth lies as to the individual responsibility for the conflict to which the children have undoubtedly been exposed, the fact is that the children would not have been assisted by a further delay in finalising these proceedings.
The prejudice to the mother and children would not be addressed by a costs order. The mother is legally aided.
The father had ample opportunity to prepare his case for trial. The most significant prejudice to the father arose because of the mandatory provisions of s 102NA of the Act, which prohibit him from personally cross-examining the mother. However, in these proceedings, the children are separately represented and matters of significance that impact the children would no doubt be the focus of cross-examination of the mother by the ICL. It may well be that the father would have a different focus and wish to cross-examine the mother on credit issues going to the heart of her allegations against him, however, it must be remembered that the Court is not required to make findings in relation to all disputed facts but rather to make a parenting order that is in the best interests of the children.
To grant the adjournment would not have met the overarching purpose of family law practice.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 24 May 2024
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