RICHES and LEHANE
[2023] FCWA 90
•3 MAY 2023
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: RICHES and LEHANE [2023] FCWA 90
CORAM: COHEN J
HEARD: 27, 28 FEBRUARY 2023 AND 1, 2, 3, 7, 8 AND 23 MARCH 2023
DELIVERED : 3 MAY 2023
FILE NO/S: 3469 of 2016
BETWEEN: ILENE RICHES
Applicant
AND
OLIVIA LEHANE
Respondent
Catchwords:
PARENTING – Reunification with parent – proceedings between mother and paternal aunt – where long history of significant trauma and family violence – where mother highly vulnerable to manipulation and exploitation – where child protection and police have been involved with the family – where paternal aunt instituted proceedings to take steps to protect child from risk of harm with mother – where child has been living with paternal aunt since proceedings commenced – where mother has not spent unsupervised time with the child since proceedings commenced – where paternal aunt seeks to limit mother's time with child to daytime contact only – where mother seeks either gradual or intensive reunification with child – where mother has since remarried, has found stability, but naivety presents risk of harm to the child – where paternal aunt has veneer of supporting relationship with mother but takes steps to undermine the relationship – balancing of risk of physical harm alleged by paternal aunt against risk of psychological and emotional harm – where court satisfied gradual reunification appropriate
Legislation:
Convention on the Rights of the Child (1989)
Criminal Code (Cth)
Criminal Code (WA)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms M. Hearty |
| Respondent | : | Mrs R. Oakeley |
| Independent Children's Lawyer | : | Mr C. Scott |
Solicitors:
| Applicant | : | Hearty & Tam Family Lawyers |
| Respondent | : | Western Legal |
| Independent Children's Lawyer | : | Baily Family Law |
Case(s) referred to in decision(s):
B and B [Suspension of access] (1988) FLC 91-957
B and B [Suspension of access] (1988) FLC 91-978
Bielen & Kozma (2022) FLC 94-123
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Bones v Riddle [2021] FCWA 60
Briginshaw v Briginshaw (1938) 60 CLR 336
DL & W (2012) FLC 93-496
Fox v Percy (2003) 214 CLR 118
Goode and Goode (2006) FLC 93-286
H and K [2001] FamCA 687
Johnson and Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
M and M (1988) FLC 91-958
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
Mellick and Mellick [2014] FamCAFC 236
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Mulvany & Lane (2009) FLC 93-404
Potts & Bims and Ors [2007] FamCA 394
Riches and Lehane [2023] FCWA 17
Sedgley and Sedgley (1995) FLC 92-623
Slater v Light (2013) 48 FamLR 573
Souter & Meagher & Anor [2007] FamCA 18
Starr & Duggan [2009] FamCAFC 115
Stott & Holgar and Anor [2017] FamCAFC 152
Taylor and Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238
Vismay & Shaw [2014] FamCAFC 124
Worrall and Bartley [2023] FCWA 2
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Riches and Lehane has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).
This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2012 (WA).
The presiding Judge specifically directed both given and family names be allocated pseudonyms for each of the significant persons involved in these Reasons for judgment. This was to preserve both the indicators of the various relationships between the significant persons, and maintain the specifically chosen tone adopted by the Court in these Reasons.
Introduction
1 These proceedings are about the care arrangements for [Emily Riches] born [in] 2014 ("[Emily]").
2 The applicant, [Ilene Riches], is Emily's paternal aunt. The respondent, [Olivia Lehane] is Emily's mother. Very sadly, Emily's father, [Andrew Riches], died in a motor vehicle accident [in] February 2016.
3 As will be apparent from these Reasons, the important adults in Emily's life have experienced varying degrees of trauma. Their personal stories demonstrate not only the pervasive and harmful impact of trauma, but more importantly, that people are far more than the worst things that have happened to them and, under the right conditions and with the right support, the ways in which people's resilience can shine.
4 I refer to the parties by their first names throughout these Reasons to avoid any confusion which might arise by referring to them simply as the applicant and the respondent. I mean no disrespect in doing so.
5 It became apparent throughout the trial that the parties have a wide circle of mutual friends and/or family. When the parties and their witnesses gave their evidence, they would talk about other individuals with a degree of familiarity the court and counsel did not have. To aid the court, counsel for Olivia prepared a dramatis personae, which was of significant assistance. I have attached the document as "Annexure A" to these Reasons for ease of reading.[1] However, the following individuals have particular relevance:
[1] The dramatis personae has been omitted from the anonymised version of this decision.
[Sam Ruddock] born [in] 2011 (age 11)
Olivia's son.
[Connor Laughton]
Sam's biological father.
[Liam Geary]
Connor Laughton's father and Sam's paternal grandfather.
[Barbara Ruddock][2]
Connor Laughton's mother and Sam's paternal grandmother.
[Tracy Mabaya]
Barbara Ruddock's partner.
[Denise Kauffman]
Olivia's grandmother who resides in [Country A].
[Gus Greyson]
Ilene's flatmate of 12 years.
[Emily Riches] (Snr) ("[Mrs Riches]")
Ilene and Andrew's mother and Emily's paternal grandmother.
[Tom Lehane]
Olivia's husband and father to Olivia's daughter, [Hannah].
[Kylie and Ben Lehane]
Ben's adult children from a prior relationship.
[Louise Abbott]
Olivia's best friend.
[Zayn Abbott]
Louise's brother-in-law and a close friend of Ben. The paternal grandmother's "cousin is [Zayn Abbott's] aunty".[3]
[2] Throughout the evidence, [Ms Barbara Ruddock's] first name is spelled [in various ways]; I accept the variations refer to the same person.
[3] Transcript of Mrs Riches' Evidence (1 March 2023) 252 line 29 ("Transcript, Mrs Riches").
6 Throughout these reasons, I will also refer to each of the people in the above table by their first names except for Mrs Emily Riches (Snr).
7 As will be explained further in these Reasons, at the time of trial, Emily had been living exclusively with Ilene since on or around 13 March 2018. Regrettably, Emily ceased spending time with Olivia on or around 27 September 2022,[4] and notwithstanding input from the Single Expert Witness ("SEW") and support from the Independent Children's Lawyer ("ICL"), agreement could not be reached about the re-establishment of that time prior to trial.
[4] Olivia's Second Trial Affidavit (filed 21 February 2023) [251] ("Olivia's Second Trial Affidavit").
8On 29 December 2022, Olivia filed a form 2 application seeking various orders, including a resumption of time with Emily and to vacate the trial ("the Vacate Application"). Her application came before me on 24 January 2023, whereby I gave ex tempore reasons dismissing the application and Ilene's response ("the January Reasons").[5] At that time, I expressed concern about the lack of contact between Emily and Olivia and the reasons for the same, which I ultimately concluded would only become apparent at the trial, where the parties and Tom were cross-examined and the issues of concern properly ventilated.[6]
[5] Riches and Lehane [2023] FCWA 17 ("January Reasons").
[6] Ibid [12]–[14].
9The trial commenced on 27 February 2023 and was listed for four days. The evidence concluded on 8 March 2023, whereby I made various interim orders for Emily to recommence spending time with Olivia , as I did not consider it to be in Olivia's best interests to defer putting in place spend time arrangements until judgment could be delivered. These Reasons also provide the basis for the orders made by me on 8 March 2023 ("the 8 March 2023 Orders"), which are set out as follows:
Discharge of Previous Spend Time Orders
1. All previous orders in respect to the time the child, [Emily Riches] born [in] 2014 ("the child") spends with the Respondent, [Olivia Lehane], be and are hereby discharged.
SPEND TIME ORDERS
Supervised Time and Conditions
2. Until further order of the Court, the child spend time with the Respondent, [Olivia Lehane], such time spent to be supervised by either [Supervision Agency A] or [Supervision Agency B] ("the Service Provider").
3. Subject to the availability of the Service Provider, wait lists and the family being assessed as suitable for the provision of its services by the Service Provider, the said child spend time with Respondent each week for a period of two (2) hours per week, for a period of 4 weeks.
4. Each party shall forthwith:
(a) telephone the Service Provider as soon as practicable to arrange an appointment for an intake interview;
(b) attend the intake interview at the arranged time;
(c) attend any appointments arranged by the Service Provider;
(d) comply with the Rules of the Service Provider;
(e) comply with all reasonable requests or directions of the staff of the Service Provider; and
(f) provide a copy of this order to the Service Provider.
5. Until further order of the Court, the costs of the:
(a) intake interview be borne by the Applicant, [Ilene Riches], and Respondent;
(b) supervision be borne by the Applicant; and
(c) production of a report be borne by Legal Aid WA, subject to Legal Aid funding being extended, otherwise by the Applicant if funding is not granted.
6. Once payment is received, the Service Provider be requested to provide a written report to each party and the Independent Children's Lawyer after the four (4) supervised visits have occurred.
7. If the Service Provider at any time declines or is unable to provide the services in accordance with these orders, or the Coordinator of the Service Provider recommends in writing to the parties and the Independent Children's Lawyer a variation to these orders, each party and the Independent Children's Lawyer have liberty to re-list on short notice.
8. Until further order of the Court, the venues for time between the child and the Respondent, which is supervised pursuant to paragraph 2 above, shall be nominated by the Respondent and/or the Service Provider.
9. Until further order of the Court, after the third supervised visit has taken place pursuant to paragraph 2, the Respondent be at liberty to have her husband, [Mr Tom Lehane] ("[Mr Lehane]") and their daughter, [Hannah] attend visits and be present during all periods of time spent between the child and the Respondent thereafter.
Unsupervised Spend Time
10. Until further order of the Court and upon completion of the four (4) weeks of professionally supervised time undertaken pursuant to paragraph 2 of these orders, the requirement for supervision be dispensed with and the child spend time with the Respondent as follows:
(a) from 10:00am to 2.00pm each Sunday until 7 May 2023; and
(b) from 10:00am until 5.00pm on Mother's Day, and each Sunday thereafter.
Handover
11. Until further order of the Court and upon the commencement of unsupervised time:
(a)handovers shall take place at [Local Playground A]; and
(b)[Mr Lehane] be at liberty to accompany the Respondent on the basis that he:
(i) remains in the car; and
(ii) does not communicate or attempt to communicate with the Applicant by any means whatsoever.
Specific Conditions
12. Until further order of the Court, during the periods of time that the child spends with the Respondent pursuant to these orders, the Respondent is:
(a) to be principally responsible for supervising the child;
(b) not to leave the child in the care of any other person, save for [Mr Lehane] and/or [Ms Louise Abbott]; and
(c) to forthwith notify the Applicant if there is any police involvement with [Mr Lehane], including but not limited to police call outs or in the event that [Mr Lehane] is charged with any criminal offences.
Injunctions
13. On a without admission as to need basis and until further order of the Court, the Applicant and Respondent are restrained by injunction and an injunction is hereby granted restraining each of them from initiating or having discussions with the child about any issues arising from the trial in these proceedings, including but not limited to, the parties' respective positions about the child's care arrangements.
14. On a without admission as to need basis and until further order of the Court, the Applicant be restrained by injunction and an injunction is hereby granted restraining her from facilitating the child's attendance upon clinical psychologist, [Psychologist A].
Circle of Security Program
15. Within 7 days of the date of these orders, the Respondent forthwith enrol in the Circle of Security Program, and thereafter, do all acts and things necessary to complete said program, and upon completion, provide the Applicant with a copy of her completion certificate.
Conferral
16. By no later than close of Registry on 22 March 2023, the Independent Children's Lawyer and the parties' solicitors are to confer for the purpose of identifying the names of three (3) suitably qualified clinical psychologists who the child can attend upon for therapeutic counselling.
17. The Independent Children's Lawyer have leave to provide a copy of:
(a) both of the Single Expert Witness' reports; and
(b) the supervision reports provided by [Supervision Agency C] and [Supervision Agency D],
to any clinical psychologist providing therapy to the child and/or the parties.
Next Court Date
18. The proceedings be otherwise adjourned to 23 March 2023 at 12:00noon for closing submissions.
10 The court heard closing submissions on 23 March 2023, at which time counsel for each of the parties handed up amended minutes of final orders sought, and counsel for the ICL filed his minute of proposed final orders. By consent, I also took into evidence two letters written by Olivia's solicitor to the ICL. One of which provided an overview of the first supervised visit between Emily and her mother which was positive (Exhibit R19),[7] the second of which dealt with Olivia's enrolment in a modified version of the Circle of Security program (Exhibit R20).[8] The proceedings were otherwise adjourned pending delivery of my judgement.
[7] Exhibit R19 "Letter from Western Legal to Baily Family Law dated 20 March 2023 dealing with the first supervised visit between [Emily] and the Respondent" ("Exhibit R19").
[8] The program coordinator recommended the modified program having regard to Olivia's trauma history: Exhibit R20 "Letter from Western Legal to Baily Family Law dated 22 March 2023 dealing with the Respondent's participation in Circle of Security" ("Exhibit R20").
11 On 14 April 2023, the court received a letter from the ICL enclosing a copy of a supervision report prepared by [Supervision Agency A] of the same date ("[Supervision Agency A] Report"). In response, I directed a letter be sent to the ICL enquiring whether all parties agreed to the supervision report being accepted into evidence by consent. If agreement could not be reached, the ICL was directed to file the appropriate application. The court requested a reply by no later than 4.00pm on Friday, 21 April 2023.
Background
12 Statements of fact in what follows represent my findings unless indicated to the contrary.
13 Ilene was born on [in] 1974 and is currently 48 years old.[9]
[9] Ilene's Case Information Affidavit (filed 4 October 2018) [1] ("Ilene's CIA").
14 Andrew was born [in] 1977.[10] He would have been 45 years old this year.
[10] Ilene's Primary Trial Affidavit (filed 1 June 2021) [2] ("Ilene's Primary Trial Affidavit").
15 Olivia was born in Country A [in] 1991 and is currently 32 years old.[11]
[11] Olivia's Form 1A Response (filed 8 March 2019) coversheet ("Form 1A"); Single Expert Witness Report, Social Worker A (filed 3 April 2020) [31] ("SEW Primary Report").
16 Olivia's family immigrated to Australia on or around 1 July 2015 when Olivia was 14 years old.[12] Educationally, the transition to Australia was challenging for Olivia as English was not her first language[13] and there is some reference in the documents to her requiring an aide at school.[14] Olivia continues to struggle with both reading and writing,[15] and the ICL raised concerns about her cognitive capacity during the trial. This issue is further dealt with in greater detail later in these Reasons.
[12] Olivia's Primary Trial Affidavit (filed 3 August 2021) [4] ("Olivia's Primary Trial Affidavit").
[13] Olivia spoke [language A] at home in [Town C in Country A]: ibid [16].
[14] SEW Primary Report [62].
[15] Olivia's Primary Trial Affidavit [16].
17 Olivia was sexually abused by her father at the age of 16, which she disclosed to a teacher.[16] Her father was subsequently charged with sexual offences against her, which resulted in Olivia being removed from her family home and placed in general foster care by the Department for Child Protection (now known as the Department of Communities) ("the Department").[17]
[16] Ibid [6]–[9].
[17] Ibid [10].
18 Regrettably, and which is sadly all too common, Olivia's time in the foster care system was not a positive experience for her.[18] Olivia had a sheltered upbringing with her parents, which was in stark contrast to life as a young person in the Department's care. Understandably, this would have been a very frightening and overwhelming time for Olivia.
[18] The Department of Communities ("DoC") reports Olivia was subject to bullying and abuse in out of home care: Exhibit ICL1 "Agreed Tender Bundle" 76 "DoC Interaction Report" ("Tender Bundle").
19 Unbelievably, it would seem Olivia's father's passport was not surrendered when he was charged. Just prior to a court event, which was scheduled [in] June 2008, Olivia's entire family returned to Country A without her.[19] Whilst I can appreciate her father's motivation, Olivia's mother's conduct was, in my view, unconscionable. First, I struggle to understand how a parent, having been advised of Olivia's disclosures, elected to prioritise an adult's welfare over that of her teenage daughter, which resulted in Olivia being placed in the foster care system. Second, it is incomprehensible to me that a parent could abandon their child in a foreign country without any regard for their financial, physical, or psychological wellbeing.
[19] Olivia's Primary Trial Affidavit [11]–[12].
20 Whilst I do not assume to understand the full impact of Olivia's parents' shameful conduct and decision-making on her, she has carried the immense burden of shame, rejection, and abandonment with her throughout her adulthood, which has informed her decision making and behaviour in respect to personal and intimate relationships. No child should experience what Olivia went through.
21 Olivia met Connor Laughton ("Connor") when she was 16 years old, and they quickly formed a relationship.[20] They moved to [State A] together when Olivia was 18 years old, and she fell pregnant with her son Sam, who was born [in] 2011.[21]
[20] Ibid [17].
[21] Ibid [18]–[19].
22 Olivia and Connor separated when Sam was approximately two months old due to her concerns about his illicit drug use and infidelity. Connor moved to [State B Capital City], where he had family, and Olivia remained in State A for a short period, after which she also relocated to State B Capital City to live with Connor's sister.[22]
[22] Ibid [20]–[21].
23 Olivia and Sam subsequently returned to Perth in early 2012 to escape Connor's threatening conduct towards her. Olivia and Sam moved in with Connor's father, Liam, and his family.[23] Olivia met Andrew through Liam.[24]
[23] Ibid [23].
[24] Transcript of Olivia's Evidence (1 March 2023) 308 lines 19–48 ("Transcript, Olivia").
24 At some point in or around late January or early February 2012, Connor came to Perth.[25] Upon learning of Olivia's relationship with Andrew, Connor became aggressive and threatening towards her.[26] Without Olivia's consent, Connor absconded with Sam to State B Capital City,[27] which I accept would have been highly distressing for both Olivia and Sam, whose infancy was characterised by family violence and instability.
[25] Olivia's Primary Trial Affidavit [25].
[26] Ibid [25]–[26].
[27] Ibid [27].
25 Olivia was unsuccessful in negotiating with Connor and his family to have Sam returned to her care. With Andrew's assistance, which included threats of violence, Sam was eventually returned to Olivia in or around July 2012.[28] Given Sam's young age, the sudden and frequent changes in his care arrangements were highly disruptive and placed him at risk of emotional, psychological, and developmental harm.
[28] Ibid [29]–[32].
26 Olivia, Andrew and Sam moved to [Regional Town A] for Andrew's employment.[29] Whilst living in Regional Town A, Olivia discovered she was pregnant with Emily and that Andrew was using illicit substances.[30] Documents provided by the Department suggest that when using drugs or intoxicated, Andrew was violent towards Olivia, to which Sam was exposed.[31]
[29] Ibid [34].
[30] Ibid [35].
[31] Tender Bundle 1–29. DoC reports note "extreme (alleged) violence perpetrated by [Mr Andrew Riches] (including being choked, hit, strangled and held against her will in a toilet)": Tender Bundle 76 "DoC Interaction Report". Other DoC records report Andrew punching Olivia in the stomach and lying on her whilst she was pregnant: Tender Bundle 13 "DoC Initial Inquiry Approved Outcome Report".
27 Departmental files record a caseworker speaking to Olivia and Andrew about an assault that took place on or around 1 March 2014.[32] Andrew had seemingly been drinking at the pub and he and Olivia asserted his drink may have been spiked as he did not remember the incident.[33] Given other Departmental records reference Olivia being petrified of Andrew,[34] I consider it likely that Olivia minimised or attempted to excuse Andrew's assault of her out of fear.
[32] Ibid 1–4 "DoC Interaction Report".
[33] Ibid 16 ""Email from [Ms Q] (Child Protection Worker) to herself dated 4 April 2014".
[34] Ibid 7 "DoC Intake Case Plan Approved Outcome Report".
28 As Olivia was pregnant and living in an isolated community, and because Andrew had a recorded history of domestic violence with other partners,[35] the Department undertook a child safety investigation, which included an unannounced home visit, whereby Departmental officers had an opportunity to speak with Olivia and Andrew and inspect their home. The Department also spoke with Sam's day-care who reported no concerns for Sam. He was described as a "happy and healthy bright child".[36] The following is a summary taken from an email sent by Departmental staff on 3 April 2014 following the home visit:[37]
•the family home presented as clean, ordered, well-appointed and child-friendly;
•preparations were being made for the baby's impending birth;
•Olivia advised the Department that she sorts out the bills and controls the budget;
•Olivia said that the only criticism Andrew had of her financial management was her spending too much money on toys for Sam, which was evidenced as Sam had plenty;
•both Olivia and Andrew said they were aware of the domestic violence cycle;
•Olivia was unwilling or unable to provide contact details for the support people she identified as part of her safety plan. She told the Department that because she and Andrew were new in town and had come to Regional Town A for a fresh start, they did not want to lose the respect of people within the community by the Department asking awkward questions;
•tension existed between Andrew and Olivia over her "ex-mother-in-law" Barbara. Andrew told the Department he did not trust her as she had done nothing to protect Sam and Olivia when "her son, high on drugs had acted "crazy" and yelled and screamed abuse at [them]".[38]
[35] Ibid 21–22 "Email from [Ms R] (Senior Child Protection Worker) to [Ms Q] (Child Protection Worker) dated 17 March 2014)".
[36] Ibid 25 "Safety and Wellbeing Assessment Approved Outcome Report".
[37] Ibid 15–17 "Email from [Ms Q] (Child Protection Worker) to herself dated 4 April 2014".
[38] Ibid 16.
29 Ultimately, the Department concluded Andrew's behaviour was unacceptable but situational, and the matter was not taken further.[39]
[39] Ibid 25 "Safety and Wellbeing Assessment Approved Outcome Report".
30 Emily was born [in] 2014.[40]
[40] Olivia's Primary Trial Affidavit [37].
31 In 2015, Andrew had a car accident while driving with Emily, who was unrestrained in the car. Emily was not injured. At the time of the accident, Andrew did not have a valid driver's license, as he had lost it for drink driving.[41]
[41] Ibid [40].
32 Andrew was killed in a car accident [in] February 2016.[42]
[42] Exhibit R13 "Death Certificate of [Andrew Riches]" ("Exhibit R13").
33 Olivia and Emily met Ilene for the first time just prior to Andrew's funeral,[43] as Ilene and Andrew were estranged.[44] Andrew was also estranged from his father, who Olivia and Emily met for the first time around that time.[45]
[43] The parties' recollection is inconsistent. See Ilene's Primary Trial Affidavit [8] "the first time I saw [Olivia], [Emily] or [Sam] was at [Andrew's] funeral"; Olivia's Primary Trial Affidavit [49] "a few days before [Andrew's] funeral, [Ilene] picked me up with [Emily] and [Sam]"; Olivia's Second Trial Affidavit [30]. Nothing turns on this point.
[44] Ilene's Primary Trial Affidavit [6]; Olivia's Primary Trial Affidavit [48].
[45] Olivia's Second Trial Affidavit [29].
34 Andrew and Olivia's accommodation was facilitated through Andrew's employment. Shortly after Andrew's death, Olivia was notified that she and the children could no longer live there,[46] and in effect, they became homeless by the end of 2016.[47]
[46] Ilene's Primary Affidavit [12]; Olivia's Primary Trial Affidavit [54]; Mrs Riches' Primary Affidavit (filed 8 June 2021) [8] ("Mrs Riches' Primary Affidavit").
[47] Olivia's Second Trial Affidavit [33].
35 Olivia initially sought assistance from Andrew's family, which was not forthcoming.[48]
[48] Olivia believes Andrew's family blamed her for his accident: Olivia's Primary Trial Affidavit [56]. The paternal family say Olivia was caught in a compromising position with a friend of Andrew's at his funeral, which Olivia denies: Transcript of Ilene's Evidence (27 February 2023) 75–76 ("Transcript, Ilene"); Mrs Riches' Primary Affidavit [7]; Transcript, Mrs Riches 254 lines 1–16. Whilst the subject matter of the competing allegations is irrelevant to my decision, it highlights the degree of distrust and dysfunction within Emily's family system.
36 On 26 March 2016, some two months after her brother's death and having just met Olivia and Emily, Ilene took it upon herself to send several offensive text messages to Louise about Olivia.[49] All the text messages should be read together as they evidence several matters of importance, including Ilene's strong opinion that Olivia's children were not safe in her care as she was an unfit mother. They also evidence Ilene, even at such an early stage in their relationship, obtaining "reports" about Olivia, her character and her parenting. The following is an example of one of Ilene's text messages:
Hi [Louise] do you have any idea the type of person [Olivia] is? Do you know that she hated [Andrew] and that they had been fighting the day he died? Do you know that she climbed into bed with another guy the day after the funeral? Do you know she lied about her father touching her up so that she didn't have to live at home under their strict rules and could root whoever she wanted and do what she wanted. Do you think this is a good person to bring up children?[50]
(As per original)
[49] Exhibit R4 "Text Messages between the Applicant and [Louise Abbott] between 26 March and 5 April 2016" ("Exhibit R4").
[50] Ibid.
37 It is unclear what "reports" Ilene had allegedly been provided about Olivia, although she references day-care and teachers.[51] As she had been estranged from her brother, Ilene would have been unaware of the Department's prior involvement with the family and its assessment, which included obtaining information from Sam's day-care and the unannounced home visit, both of which reflected positively on Olivia's parenting capacity.
[51] Ibid 4 image 2.
38 What is also relevant to note about the text messages are Louise's replies, which were compassionate and consistently supportive of Olivia.
39 At some point in 2016, Ilene also decided to take it upon herself to "clear" Olivia's father's name, having formed the view that Olivia had lied about the sexual abuse.[52] Ilene, without Olivia's consent or knowledge, made contact and spoke with various members of Olivia's family and friends.[53]
[52] See Olivia's Second Trial Affidavit [15]–[16]. At the trial, Ilene's evidence was after viewing the subpoenaed documents in these proceedings, she accepted Olivia's allegations against her father as being truthful and felt remorseful about her earlier conduct: see Transcript, Ilene 74–80.
[53] Olivia's Second Trial Affidavit [17]–[23].
40 On 15 June 2016, some four months after Andrew's death, the paternal grandparents commenced Family Court proceedings.[54] Those proceedings appear to have been dismissed for want of prosecution.[55]
[54] See Mrs Riches' Primary Affidavit [10]; Ilene's Primary Trial Affidavit [18], [21].
[55] See Orders, Magistrate in Chambers (29 September 2017).
41 Ultimately, Olivia received assistance from Barbara, who offered Olivia and the children "support". At first blush, this "support" appeared altruistic, but at the trial, it became apparent that Barbara:
•had told the Riches family of her intention to remove Sam and Emily from Olivia's care;
•was instrumental in convincing Olivia, who was extremely vulnerable and grieving Andrew's death, to allow Sam to go to State B Capital City with Connor for a visit,[56] in circumstances where Sam, at that time, did not know who Connor was;
[56] Olivia believed Sam would be returned to her care when she had recovered from the grief of Andrew's death: Olivia's Primary Trial Affidavit [68]–[71]. Until August 2022, Olivia had no physical contact with Sam: Olivia's Second Trial Affidavit [255]–[274].
•hid Olivia's Country B passport from her, which resulted in Centrelink cancelling all Olivia's Centrelink payments, including for Emily;[57]
[57] Transcript, Olivia 409, 505.
•convinced Olivia to give her care of Emily, so that Barbara could obtain parenting payments for Emily on the basis she would use that money to assist Olivia in paying her rent and bills;[58]
[58] Olivia's Primary Trial Affidavit [74]–[75].
•convinced Olivia to leave her rental property so that Barbara's daughter and partner could move in. Barbara then facilitated Olivia's name being removed from the lease without Olivia's signature;[59]
[59] Ibid [78]–[80].
•decided to return Olivia's passport to her for reasons which remain unclear. Barbara then assisted Olivia to have her Centrelink benefits reinstated;[60]
•offered to do Olivia's grocery shopping and assist with the payment of bills, as Olivia did not drive. To facilitate this, Barbara requested, and Olivia provided Barbara with her bankcard, which Barbara used for herself, including to pay for Connor's return trip from State B Capital City to collect Sam;[61]
•caused Olivia to become homeless with Emily in early 2017, as she had no money to pay her rent and bills, and again offered to care for Emily until Olivia could find suitable accommodation;[62]
•as a result of Barbara's meddling with her accommodation and stealing Olivia's money, Olivia now believes she has a mark against her name with real estate agents, which may impact her ability to obtain a rental in her sole name;[63] and
•intended to gain access to Andrew's superannuation, which thankfully, is held on trust for Emily by the Public Trustee.[64]
[60] Ibid [82].
[61] Ibid [84]–[88].
[62] Ibid [85], [89]–[90].
[63] Transcript, Olivia 400.
[64] Transcript, Olivia 370; Transcript, Mrs Riches 259.
42 I reject any criticism put forward by Ilene and her mother in respect to Olivia and her relationship with Barbara, which was entirely harmful to Olivia and her children. Olivia's personal history left her vulnerable to being preyed on by a deceitful woman, and Barbara manipulated Olivia through her desire to have a mother in her life and some semblance of a family. For the second time in these Reasons, I find myself using the word shameful to describe someone's conduct.
43 Whilst much can be said about Olivia's decision to put her trust in Barbara and Connor, having regard to her circumstances, she made the only child-focussed decisions available to her at that time. In the absence of genuine family support or a healthy friendship network, of which Olivia had neither, she recognised she could not physically or psychologically provide for her children, and she made alternate arrangements for their care with people she mistakenly thought she could trust, which came at a tremendous cost to herself.
44 Until late 2017, Emily lived intermittently with Olivia (due to Olivia's inability to obtain stable accommodation) and otherwise Olivia left Emily with Barbara.[65] I am not convinced Olivia was able to consistently prioritise Emily's needs over her own natural desire to have her daughter in her care, the consequence of which was significant disruption and instability for Emily. I am also not satisfied Olivia was making safe and appropriate decisions for herself, and by extension Emily at this time, as she continued to encounter less than desirable people who were likely to take advantage of her.[66]
[65] See Olivia's Second Trial Affidavit [34] – [40], [42]–[43]; Transcript, Olivia 424.
[66] By way of example, Mr E, who was described at the trial as a paedophile: see e.g. Transcript, Ilene 96‑97.
45 It is apparent, although the frequency and specific motivation for the communications is not entirely clear, that Barbara and Ilene (or Mrs Riches) were in communication with each other from time to time. Piecing together the evidence before the court, I am left to conclude Barbara and Ilene were happy to exchange information about Olivia when it suited, but neither trusted the other.
46 In late 2017, Olivia commenced a relationship with a friend of Andrew's named [Mr A], who was living in [Regional Town B].[67] Around this period, a gentleman by the name of [Mr B], who was also a friend of Andrew's, contacted Olivia to tell her that Ilene had offered to give him a puppy if Olivia allowed Ilene to see Emily.[68] On 10 September 2017, Mr B contacted Ilene on Facebook:
[Mr B]:You will want to talk to me as i can help you and i know you want what I can tell you[69]
(As per original)
[67] Olivia's Second Trial Affidavit [44]–[45]. [The parties consistently referred to this man by his nickname].
[68] Transcript, Ilene 135 – 136.
[69] Exhibit A1 "Message exchange between the Applicant and [Mr B] in September and October 2017" ("Exhibit A1").
47 Ilene and Mr B appear to have exchanged messages and talked on the phone between 10 September and 20 October 2017.[70] It appears from the messages and Ilene's evidence that Mr B was somehow engaged to assist Ilene in facilitating a meeting with Olivia. Somewhat unsurprisingly, the trial did not bring any real clarity to Mr B's motivations, save that in reading the text exchange between himself and Ilene, I am satisfied that his intentions in engaging with Olivia were less than honourable. Ultimately, I am not sure what I am to make of Mr B's involvement with the parties, except that I find it bizarre and disconcerting that a person would use a child as leverage for a puppy.
[70] Ibid.
48 With Mr A's encouragement, Ilene and Olivia met at a park where Ilene was able to convince Olivia that Barbara had been stealing money from her.[71] Olivia asserts that Ilene had copies of her bank statements.[72] Ilene's evidence is that Olivia showed Ilene a copy of her banking records online on her phone.[73] Whilst I consider that I am unable to resolve the conflict in this evidence, I am troubled that Ilene came to know that Barbara was stealing from Olivia, and am unable to reconcile how she would come to know this information with such certainty if she had not seen Olivia's banking records prior to their meeting.
[71] Transcript, Ilene 138–139.
[72] Olivia's Primary Trial Affidavit [105].
[73] Transcript, Ilene 138.
49 What is clear is that immediately after meeting Ilene in the park, Olivia and Mr A attended at Barbara's home, collected Emily, and returned with her to Regional Town B.[74] From this point, Ilene provided Olivia with ad-hoc financial assistance, as she was waiting for her Centrelink payments to recommence.[75] Emily also commenced spending time with Ilene on alternate weekends.[76]
[74] Transcript, Olivia 425; Olivia's Second Trial Affidavit [46].
[75] Ilene's Primary Trial Affidavit [37]–[38], [41]; Olivia's Primary Trial Affidavit [119].
[76] Ilene's Primary Trial Affidavit [44]; Olivia's Primary Trial Affidavit [120].
50 In 2018, Emily commenced kindergarten in Regional Town B.[77]
[77] Olivia's Second Trial Affidavit [50].
51 In late February 2018, Olivia and Mr A separated.[78] Ilene offered for Olivia and Emily to live with her while Olivia looked for alternate accommodation.[79]
[78] Ilene's Primary Trial Affidavit [45]; Olivia's Primary Trial Affidavit [128].
[79] Ilene's Primary Trial Affidavit [45]; Olivia's Primary Trial Affidavit [126]–[130].
52 On 13 March 2018, an altercation occurred between Olivia and Ilene, which Emily witnessed.[80] Ilene requested Olivia leave her home and implied to Olivia that she would contact the Department of Communities and police if Olivia attempted to take Emily with her.[81] Ilene and her friend [Ms C], who is employed by the Department, drew up a "Minute of Consent Orders" ("the Minute"),[82] which Olivia and Ilene signed. The Minute was in the following terms:
[80] Olivia's Primary Trial Affidavit [135]–[138].
[81] Transcript, Olivia 517.
[82] Olivia's Second Trial Affidavit [68]–[74]; Transcript of Ms C's Evidence (1 March 2023) 242–244 ("Transcript, Ms C"); Ms C's Primary Affidavit (filed 8 June 2021) [9] ("Ms C's Primary Affidavit").
1.The child [Emily Riches] born [in] 2014 is to live with [Ilene Riches] born [in] 1974 who is the Aunt of the child.
2.The mother [Olivia Lehane] born [in] 1991 and the Aunt have equal shared parental responsibility for the long-term care, welfare and development of the child.
3.The Aunt is to have responsibility for the day to day medical, schooling, welfare and development of the child.
4.The Aunt is to notify the mother of any medical emergency, illness or injury the child suffers that requires hospitalisation whilst in the care of the Aunt.
5.The child will have a minimum of one day per week contact visit with the Mother.
6.The mother is to have reasonable contact with the child as agreed between the parties.
7.The Aunt shall provide a telephone to enable the child to communicate with the mother and ensure the child is available to receive the call.
8.The Aunt is to make the child available to have contact with the Mother on special days as birthdays, Christmas, Easter and Mothers Day.
9.This agreement is for a period of 3 months, with the start of the agreement to commence on the date the Court grants formal approval to this agreement.[83]
(As per original)
[83] Exhibit R3 "Minute of Consent Orders signed by the parties and dated 23 March 2018" ("March 2018 Minute").
53 Olivia once again became homeless and was transient.[84] Given Olivia's circumstances, her housing options were limited, and she found herself living with people who were ultimately undesirable and unsafe.[85]
[84] Olivia's Second Trial Affidavit [75].
[85] Again, by way of example, Mr E: Ilene's Primary Trial Affidavit [62].
54 Ilene asserts that she was attempting to assist Olivia at this time;[86] I reject this evidence. Whilst Ilene gave the veneer of wanting to support and assist Olivia, I consider her actions duplicitous. Ilene's own evidence is that she did not come to accept the substance of Olivia's allegations against her father until she had an opportunity to view the subpoenaed material in these proceedings, which was post October 2018.[87] This is contrary to what Ilene reported to the Department during the pre-birth assessment for Hannah in January 2020.[88]
[86] Ilene's Primary Trial Affidavit [58]
[87] Transcript, Ilene 74–77.
[88] Tender Bundle 116 "Initial Inquiry Approved Outcome Report".
55 In my view, the evidence supports a finding that Ilene's true attitude towards Olivia is as set out in her text message exchange with Louise,[89] and Ilene – like Barbara – did not believe that Olivia's children should remain in her care. I am left to conclude that her real intention was to engage with Olivia for the purpose of gaining access to and retaining Emily because she did not consider Emily safe in Olivia's care. I am also satisfied that, despite her assertions to the contrary, Ilene does not like Olivia and has disdain for her.
[89] Exhibit R4.
56 Despite the terms of the Minute, Emily's time and communication with her mother was ultimately dictated by Ilene.[90] Whilst I consider Ilene's intentions deceitful, and Olivia's circumstances tragically sad, I have no doubt that Olivia's life continued to be chaotic, and she remained highly vulnerable to manipulation and being taken advantage of by others, including Ilene. However, whatever can be said about Ilene, she provided Emily with physical safety and much needed stability during a time when her mother was struggling and unable to meet her needs.
[90] For example, after the first overnight pursuant to the Minute, the parties agreed to not allow any further overnights as Mr E was in in the house and Ilene organised for Olivia's housemates to supervise her: Ilene's Primary Trial Affidavit [63]; after this, Ilene introduced another arrangement where Mrs Riches would supervise Olivia's time with Emily at a neutral public venue: Ilene's Primary Trial Affidavit [67]; Olivia spent no overnight time with Emily in 2018 after the first visit: Olivia's Second Trial Affidavit [81]–[82].
57 Also, in or around early March 2018, Olivia's younger brother [Jerome] was killed in a motorcycle accident.[91] He and Olivia were close,[92] although her mother seemingly forbid contact between the two.[93] Olivia was devastated by his death, which I accept was likely to have impacted her mood and psychological functioning at that time.
[91] Olivia's Second Trial Affidavit [61]–[62].
[92] Ibid.
[93] SEW Primary Report [57].
58 On or around 29 March 2018, Olivia attended [Mental Health Clinic A] seemingly following a "referral" by Ilene, with a "vague" description of emotional problems and a query around her being "psychotic".[94] Mental Health Clinic A provided the Department with the following information:[95]
[94] Tender Bundle 130 "DoC file note signed by [Ms S] (Acting Senior Child Protection Worker) entry dated 30 December 2019".
[95] Ibid 130–131.
•Olivia's initial presentation was more consistent with unstable mood and trauma;
•Olivia described feelings of guilt over the death of Andrew;
•she experienced feelings of shame and loss following being abandoned by her family;
•she has thoughts of suicide, but they are passive, as she wants to be present for her children. She had frequent thoughts of cutting;
•she denied psychosis and there was no evidence of the same at interview;
•she self-reported a history of unstable mood;
•she smokes THC daily to relax but denied all other drug use;
•there was no evidence of any major mental illness. She presents with "cluster B personality traits including emotional and affective lability with an external locus of emotional control, anger dyscontrol, rejection or criticism sensitivity, stress vulnerability, impulsivity, intense personal relationships, self-harm behaviours (only once aged 16) and substance misuse" (emphasis added);
•the clinic recommended psychological counselling as primary treatment; and
•she was assessed as not needing medication and was discharged from the clinic.
59 In or around mid-to-late August 2018, and after Ilene appropriately raised concern about [Mr D], Olivia moved in with [Charles Price] and his partner [Ms F].[96] Charles Price was the subject of much cross-examination during the trial, and I otherwise address issues pertaining to him when I consider the primary considerations.
[96] See Transcript, Olivia 430–431; Olivia's Second Trial Affidavit [164].
60 On 29 September 2018, Ilene facilitated Emily spending around three and a half hours with Olivia in [Town A].[97] After dropping Emily off, Ilene observed Olivia and Emily in the company of Charles Price, which was in breach of an oral agreement reached between Ilene and Olivia.[98] Notwithstanding her concern, Ilene did nothing to intervene,[99] and Charles Price subsequently accompanied Olivia and Emily to the movies.
[97] Transcript, Ilene 67; Ilene's CIA [28(4)].
[98] See Ilene's Primary Trial Affidavit [75].
[99] Transcript, Ilene 91.
61 Whilst not minimising Olivia's decision-making, Ilene was well aware at this stage that Olivia was vulnerable to being manipulated by others, as it was one of the concerns proffered by her in respect to her decision to retain Emily in March 2018,[100] and despite this knowledge and her belief that Charles Price was a paedophile,[101] she allowed Emily to remain in his presence. This leaves me to draw two conclusions, either:
•Ilene is not as protective as she holds herself out to be; or
•her decision was strategic to support her eventual case in the Family Court, which was commenced shortly thereafter.
[100] Ilene reported to DoC on 1 October 2018 that "relinquished the care of [Emily] in March 2018 due to homelessness and concerns that [Olivia] was being sexually exploited by others": Tender Bundle 33 "DoC Interaction Report".
[101] See Ilene's Primary Trial Affidavit [75]; Tender Bundle 43 "DoC Intake Case Plan Approved Outcome Report"; Transcript, Ilene 149; Transcript, Mrs Riches 265.
62 Neither paints Ilene in a positive light, but the latter raises concern that Ilene was prepared to compromise Emily's safety to advance her own position, namely, Emily remaining in her care on a permanent basis.[102]
[102] At the commencement of these proceedings, Ilene sought orders for Emily to live with her, for sole parental responsibility, and for Olivia to only spend supervised time with Emily as nominated by Ilene: Form 1 Initiating Application (4 October 2018) item 2 ("Form 1").
63 Between 30 September and 1 October 2018, Emily was taken to [Hospital A] where she underwent a genital examination in which no physical evidence was noted that was suggestive of any recent sexual harm.[103]
[103] Transcript, Ilene 65–67. During closing submissions, counsel for Olivia inferred from evidence given by Mrs Riches that Emily may not have been subject of a physical examination at Hospital A, however DoC recorded "[a] call was received to the duty officer from [omitted] from [Hospital A] who stated that an examination was conducted on [Emily] and no physical evidence was present suggesting any recent sexual harm": Tender Bundle 35 "DoC Interaction Report".
64 In their oral evidence, both Ilene and Mrs Riches said that it was Mrs Riches who accompanied Emily to Hospital A at Ilene's request. This evidence is inconsistent with documents contained in Exhibit ICL1 "Agreed Tender Bundle" ("Tender Bundle") at pages 34 and 35, which record the following:
•"[Ilene] has taken [Emily] for a medical examination at [Hospital A] with no conclusive evidence she has been exposed to sexual harm within 72 hours";
•"[Ilene] stated that she has taken [Emily] to the hospital as directed and that they are trying to ensure that [Emily] no longer has unsupervised contact with her mother".
65 Whilst nothing turns on this issue, having regard to the totality of the evidence, I consider it more likely than not that it was Mrs Riches who accompanied Emily to hospital. I do not consider Ilene was being dishonest with the Department, and suspect it is a recording error or misunderstanding on the part of the Department.
66 On 1 October 2018 at 10.20am, [Ms G] a Department project worker, sent an email to [Mr H], another Department employee, following a telephone call from an undisclosed person seeking advice.[104] The undisclosed person contacted Ms G due to a redacted concern and on the basis that Ms G was employed by the Department. The salient information from the email is as follows:
[104] Tender Bundle 30–31 "Email from [Ms G] (Project Officer) to [Mr G] (Team Leader, unknown division) dated 1 October 2018". DoC has redacted the names and concerns from the relevant document in line with the information sharing scheme in place between the court and the Department.
Currently [Emily] lives with her paternal Aunt [Ilene] and has since February 2018.
Concerns: immediate reason for contact is [redacted] believes "something" has happened on the weekend when [Emily] was staying with her mother as [Emily] wet herself, woke up screaming in the night and said she has a "secret that she is not allowed to tell [Ilene]." [Redacted] apparently believe this secret may be that [Olivia] is planning to take [Emily] away with her and [redacted] and not return [Emily] to [Ilene].
[Redacted] is concerned about the safety and welfare of [Emily] as [redacted] says [Olivia]:
-has drug issues
-mental health issues (possibly Schizophrenia judging from some of the things [redacted] described) [redacted] apparently has some documentation around this, [redacted]
-moves regularly and has had a number of partners
-is now in a relationship with a man by the name of [redacted] who has not got care of his child
-[Olivia] and [redacted] are possibly living with [redacted] ex‑partner [redacted] who apparently has had her two children removed from her care (one of whom is [redacted] child) and has mental health issues.
-[Emily] has rarely been in [Olivia's] care since the death of her father [Andrew] as [Olivia] has limited parenting skills ([Andrew] apparently did a lot of the parenting), is unable to give [Emily] a stable home and leaves [Emily] with friends and family.
-Not followed up [Emily's] health issues missing [Emily's] scheduled [medical procedure A] that is still needing to happen;
[Redacted] Not long after [Andrew's] death [Olivia] left [Emily] and her other child –(son by a different father) with the grandmother of [Olivia's] other child. This grandmother eventually arranged for the little boy to go to his father in [State B] and then arranged for [Emily] to live with [redacted] so later arranged for [Emily] to live with her paternal aunt [Ilene] (lives in [Town B]).[105]
(As per original)
[105] Ibid.
67 Based on evidence provided by Mrs Riches, which I refer to later in these Reasons, I reasonably infer she was the person who contacted Ms G.
68 There are several aspects of this email which are important. First, there is no reference to Emily alleging that Charles Price kissed or tickled her, or of any potentially concerning behaviour in respect to Emily's interaction with Charles Price. Second, the caller believes that Emily's reference to a "secret" relates to a concern that Olivia may take Emily from Ilene, as opposed to something sexually sinister. Third, whilst there is a worry that Olivia may be in a relationship with a man who had his child removed from his care and is living in the home of his ex-partner who also had her children removed from her care, the reason for the children's removal is not detailed.
69 That same day and presumably following the advice of Ms G, Ilene contacted the Department.[106] The Department record Ilene stating that Emily disclosed to her "after a visit with her mother and her mother's friend [redacted][107] that when Emily was sitting on his lap that he kissed her, cuddled her and tickled her and that she has a secret to tell but if she did that her she [sic] would die."[108] Ilene further advised the Department Emily had experienced night terrors and had wet herself, which she considered out of character.[109]
[106] Whilst the name of the caller is redacted on page 2 of the interaction report, page 4 of the same document identifies Ilene as the caller: ibid 35 "DoC Interaction Report".
[107] Given the other evidence before me, I consider it safe to infer this was Charles Price.
[108] It is unclear whether DoC understood the alleged threat of dying as relating to Emily or Ilene.
[109] Tender Bundle 33 "DoC Interaction Report".
70 According to the Department's records, Ilene said that Olivia had "relinquished" care of Emily to Ilene due to homelessness and concerns that Olivia was being sexually exploited by others.[110] It is evident from the Department's records the child protection worker speaking with Ilene formed the view Olivia was in a relationship with Charles Price.[111] Ilene appears not to have advised the Department that she had seen Olivia, Emily and Charles Price together but elected not to intervene.
[110] Ibid 35.
[111] DoC reports them as a "couple", and that "[Olivia] and [redacted] are now in a relationship": ibid.
71 Following the above conversation with Ilene, which post-dated Emily's interaction with Charles Price, the Department undertook an investigation into Charles Price, which revealed his history with the Department, having been the subject of a previous safety and wellbeing assessment in which he was identified as a person who had caused sexual harm to a child.[112]
[112] Tender Bundle 68 "DoC Safety and Wellbeing Assessment Approved Outcome Report".
72 On 4 October 2018, Ilene commenced these proceedings, and deposed in her case information affidavit that the current dispute was in relation to the series of events with Charles Price.[113]
[113] Ilene's CIA pt E.
73 An urgent ex-parte hearing took place on 5 October 2018, whereby orders were made for Emily to live with Ilene and an injunction was put in place restraining Oliva from removing Emily from Ilene's care. In her case information affidavit, Ilene provided information about Olivia's mental health that was not true. By way of example, Ilene referenced Olivia having been discharged from Mental Health Clinic A for non-compliance with medication and Olivia having multiple personality disorder.[114]
[114] Ibid [25], [28(1)]. The accurate statement of Olivia's mental health concerns around this time are described above at [58] and Tender Bundle 116 "DoC Initial Inquiry Approved Outcome Report".
74 On 16 October 2018, Ilene called the Department to advise that after her initial disclosure, Emily had demonstrated concerning behaviours such as saying, "this is how you play the tickle game" whilst rubbing her vagina on the outside of her clothing.[115]
[115] Tender Bundle 68 "DoC Safety and Wellbeing Assessment Approved Outcome Report". See also Transcript, Ilene 65, 86, 87.
75 On 18 October 2018, Emily participated in an interview with the Child Interview and Assessment Team in which she made no disclosures of concern.[116] Despite this, the Department formed the view Olivia may not have the capacity to keep Emily safe as she continued to expose Emily to people who may compromise Emily's safety and wellbeing.[117] Ilene told the Departmental worker that she did not believe "anything significant" had happened but "feels grooming behaviours may have commenced."[118]
[116] Ibid 56 "DoC Child Assessment Interview ", 68 "DoC Safety and Wellbeing Assessment Approved Outcome Report".
[117] Ibid 68 "DoC Safety and Wellbeing Assessment Approved Outcome Report".
[118] Ibid.
76 The Department recorded a staff member at Hospital A overhearing Emily saying to her grandmother during a phone call, "yucky old man, don't blame me for it."[119] The document further states:
She has made comments and suggested that [redacted] is a "yucky" man. These behaviours could be consistent with sexual harm, however there is insufficient evidence to confirm this.[120]
(As per original)
[119] Ibid.
[120] Ibid. I consider it safe to infer the redacted name is "[Charles Price] ".
77 There is a fundamental flaw with the Department's assumption that the "yucky old man" Emily was referring to was in fact Charles Price. If the Department's record of both the interview and the phone call from Hospital A is correct, Emily did not recognise any of the names put to her by the interviewer (which presumably included Charles Price)[121] nor did she mention Charles Price by name during the phone conversation. Whilst Emily may have been referencing Charles Price as the "yucky old man", she may equally have been referring to the person her grandmother was speaking with on the phone at the time or some other older male, we simply do not know.
[121] Ibid 57, 59, 60 "DoC Child Assessment Interview".
78 Sexual harm was ultimately not substantiated by the Department, and Ilene was given a referral for Emily to attend a protective behaviours program.[122]
[122] Ibid 69 "DoC Safety and Wellbeing Assessment Approved Outcome Report".
79 On 3 December 2018, orders were made for Olivia and Emily to spend supervised time together at Supervision Agency C. Due to waitlists, Oliva and Ilene's assessment interviews could not take place until 1 March 2019 and 12 April 2019 respectively. Emily attended her orientation session at the centre on 28 April 2019.[123]
[123] Olivia's Second Trial Affidavit annexure [OL1] "[Supervision Agency C] Observation Report of Supervised Visits dated September 2019" ("Supervision Agency C Report")
80 On or about 12 December 2018, Olivia commenced her relationship with Tom.[124]
[124] Transcript, Olivia 348 line 33.
81 On 1 March 2019, Tom and two friends were charged with aggravated burglary and assault occasioning bodily harm.[125] One of the co-accused was Zayn Abbott.[126]
[125] Tender Bundle 285–287 "WAPOL Statement of Material Facts for Offending on 1 March 2019". The court does not have a copy of the sentencing transcript. It is therefore unknown whether the Statements of Material Facts produced by WA Police reflect the facts upon which Tom was sentenced. For present purposes, I have proceeded on the basis of the Statement of Material Facts as produced because it is unlikely that the facts upon which he was ultimately sentenced were more serious.
[126] See Transcript of Tom's Evidence (7 March 2023) 542–547 ("Transcript, Tom").
82 The parties attended a case assessment conference on 15 January 2019. The Family Consultant's memorandum records the following:[127]
[127] Exhibit R9 "Family Consultant's Memorandum dated 15 January 2019" ("CAC Memorandum").
•Charles Price had used methamphetamine in front of Emily, a statement based solely on information provided by Ilene;[128]
•Charles Price was convicted of sexually abusing a child in 2001/2002;[129]
•Tom was on parole for offences Olivia was unable to detail;[130] and
•the Family Consultant concluded that Emily was "at serious risk of harm and neglect in the care of the mother and she demonstrates little insight into this or the child's need for a consistent reliable attachment figure, stability, security, and safety" and further that "the mother appears extremely dependent on others making her vulnerable to manipulation and abuse."[131]
[128] Ibid 3.
[129] Ibid.
[130] Ibid.
[131] Ibid 5.
83 On 6 March 2019, the ICL was extraordinarily required to file a form 2 application to enable Emily to have medical procedure A, as Olivia would not agree to the same.[132] Olivia's refusal to provide her consent appears tied to Ilene's refusal to allow Olivia to be present in hospital with Emily.[133]
[132] Exhibit A5 "Affidavit of Independent Children's Lawyer filed 6 March 2019" [14] ("Exhibit A5").
[133] See Transcript, Olivia 411.
84 The first supervised visit at Supervision Agency C was scheduled for 12 May 2019 (which was Mother's Day) and was cancelled by Ilene as she had pre-organised plans.[134] As supervised time through Supervision Agency C is for a maximum period of 2 hours, the fact that Ilene could not accommodate a visit on Mother's Day is, in my view, telling of her attitude towards Emily's relationship with her mother.
[134] Supervision Agency C Report 2.
85 On 5 August 2019, Ilene contacted the Supervision Agency C case coordinator to advise that Emily had a dream whereby she had asked to leave a visit early and her mother refused. Ilene advised the service that she believed Emily had dreamt she was unable to leave the visit with her mother because, during an actual visit, Emily had asked to leave.[135] Upon follow up with the support worker conducting the visits, the feedback provided was Olivia behaved entirely appropriately when Emily asked whether it was time to leave, and more saliently, Emily often requested to extend visits with her mother without prompting.[136] I do not consider Emily's enquiry being indicative of a desire to leave but an attempt to simply ascertain how much time was left.
[135] Ibid 5.
[136] Ibid.
86 Despite the positive supervision report, Ilene advised Supervision Agency C that "she was not supportive of [Olivia] "ever" having low vigilant [sic] visits or unsupervised time with [Emily]".[137] Ilene's concerns were seemingly founded on the company Olivia keeps, her concerns about Tom, drug use, and saliently, for present purposes, her belief that Emily did not want to see her mother and had lost any connection with her,[138] the latter of which I observe to be in direct contradiction to the observations of Supervision Agency C staff.
[137] Ibid 4.
[138] Ibid.
87 On 9 September 2019, the court made orders appointing [Social Worker A] as SEW. Social Worker A filed her first report on 3 April 2020. Despite Social Worker A's recommendations[139] and the positive report from Supervision Agency C, Emily and Olivia spent no time together for a period of approximately 12 months (until September 2020).
[139] See SEW Primary Report [167]–[170].
88 As part of her assessment, Social Worker A requested the ICL pass on her concerns about Olivia and Tom's unborn child to the Department, who in response, undertook a pre-birth risk assessment. On 6 January 2020, the Department contacted Ilene as part of that assessment process. Ilene was recorded as stating the following, amongst other things:
•a clinician at Mental Health Clinic A told Ilene that Olivia had refused to take her medication;
•Olivia had undertaken drug testing in the Family Court and "tested positive to cannabis numerous times and [Ilene] assumed she was "using something else also";[140]
•Ilene could poke holes in the Supervision Agency C report;
•Olivia either always fed Emily out of date food or never fed her properly when she was in her care; and
•Olivia had no family support and accused [redacted] of sexually abusing her when she was a child so that she could live with a lady called [redacted] who let her do whatever she wants.[141]
[140] If Olivia were using other illicit substances and urinalysis testing was regular, it is unlikely the testing would not have detected other illicit substances. Further, I am not satisfied Olivia is sophisticated enough to manipulate urinalysis testing.
[141] Tender Bundle 116–117 "DoC Initial Inquiry Approved Outcome Report".
89 On 12 April 2020, Olivia and Tom's daughter Hannah was born.[142]
[142] Olivia's Primary Trial Affidavit [251].
90 The parties attended a dispute resolution conference at Legal Aid WA on 15 September 2020, whereby an agreement was reached for:
•Emily to spend supervised time with her mother through Supervision Agency D;
•the parties to attend a further dispute resolution conference in or around May 2021; and
•only provided for time between Emily and Olivia until the further dispute resolution conference.[143]
[143] See Orders, Registrar in Chambers (22 September 2020).
91 The Supervision Agency D report dated 12 February 2021 was again positive in respect to Oliva and Emily's time together.[144] They were observed to have a loving and affectionate relationship,[145] which I consider speaks to the strength of their bond noting the period of time they did not see one another. However, the report raised concern about Ilene actively undermining Emily and Olivia's relationship. I note the following:
•Emily would often tell Olivia that she loves being with and around Ilene. On some visits, Emily would tell Olivia that she wanted to leave early because she had some fun plans with Ilene scheduled for later in the day. Emily was observed to say, "I might leave early" and "[w]e might go out, to a special place, I can't tell you";[146] and
•on a visit on 12 December 2020, Emily told Olivia that she drew a picture of herself, Ilene and Olivia at Ilene's place. Emily said that Ilene cut Olivia out of the drawing and hung the picture of Emily and Ilene on the fridge.[147]
[144] Olivia's Second Trial Affidavit annexure 2 "[Supervision Agency D] Combined Visits Report dated 12 February 2021" ("Supervision Agency D Report").
[145] Ibid 8.
[146] Ibid 7.
[147] Ibid 8.
92 On 22 March 2021, the criminal charges against Tom were dropped due to issues arising with the complainant.[148]
[148] See Transcript, [matter name omitted] District Court of Western Australia (22 March 2021).
93 The parties attended the further dispute resolution conference on 2 May 2021. Despite the positive reports from Supervision Agency C, Supervision Agency D, and Social Worker A, and notwithstanding the ICL's support, agreement could not be reached about progressing Emily's ongoing time with her mother.
94 Emily continued to spend time with her mother, supervised by Mrs Riches.[149] The parties were unable to agree about the venue for supervised visits. Ilene proposed Oliva's home,[150] which Olivia was not amenable to because of her concerns about Ilene's harassment of her. Due to the stalemate, most visits took place at a shopping centre, which significantly impacted what Emily and Olivia could do together. Emily has repeatedly described the visits with her mother as "boring",[151] which I can well accept.
[149] See Transcript, Olivia 519.
[150] Olivia did not feel comfortable with Mrs Riches supervising in her home: ibid 519 – 520.
[151] Ibid 519; Single Expert Witness Report, Social Worker A (filed 23 January 2023) 15 ("SEW Second Report")
95 In or around October 2021, Ilene decreased the frequency of visits from weekly to fortnightly, due to the onerous nature of supervision on Mrs Riches.
96 On 2 October 2021, Olivia and Emily had an argument arising from Emily's desire to cut short a visit with her mother because of a birthday party she had been invited to attend at [Attraction A], which she naturally wanted to go to. Ilene had asked Olivia to vary the date and / or time of the visit but provided no reason or explanation for her request. Given the parties poor relationship, and in the absence of knowing about the birthday party, Olivia declined Ilene's request. Even after Olivia's refusal, Ilene never advised Olivia about the birthday party. Instead, she left it to Emily to negotiate the same with Olivia and capitalised on the unsurprising fall-out, as Emily was naturally angry with her mother.
97 On or around 1 February 2022, Olivia circulated a letter of support from her counsellor confirming her attendance at therapy between 16 December 2020 to February 2022.[152] Extraordinarily, Ilene contacted Olivia's therapist upon receipt of the therapist's letter.[153]
[152] See Olivia's Second Trial Affidavit annexure [OL5] "Letter of support from [Mr T] of [Health Service A], undated".
[153] Ibid [167]–[169].
98 Supervised visits continued until 27 September 2022,[154] after which, visits were ceased by Ilene on the recommendation of Emily's psychologist, [Psychologist A].[155]
[154] Venues include the shopping centre, local pool and library.
[155] Olivia's Second Trial Affidavit [251].
99 On 14 October 2022, the ICL was required to file a form 2 application to enable Social Worker A to undertake a review report, as Olivia refused to consent to the same. The application was ultimately resolved by consent orders made in chambers on 4 November 2022.
100 The proceedings were allocated a 4-day trial to commence not before 27 February 2023.
101 On 29 December 2022, Olivia's solicitor filed a form 2 application, which has been addressed above and was ultimately dismissed.
102 Social Worker A's updating report was filed on 23 January 2023 and distributed by the court the following day.
103 A status hearing took place before me on 24 January 2023. Having regard to the recommendations set out in the report, the parties were directed to confer about a resumption of time between Emily and Olivia, which was unsuccessful. The proceedings were otherwise adjourned to the trial.
104 On 23 March 2023, closing submissions were heard. My decision was reserved, and the proceedings were adjourned pending judgement delivery.
Hearing on 27 April 2023
105 On 21 April 2023, the court received a letter from the ICL, which is set out as follows:
We refer to the above matter and confirm that our Ms Samantha Baily is the Independent Children's Lawyer.
The Applicant Aunt is [Ms Ilene Riches] and is represented by Hearty and Tam. The Respondent Mother is [Ms Olivia Lehane] and is represented by Western Legal.
We note that this matter is awaiting final judgment, however we provide the following update as a matter of professional courtesy.
We confirm that the Mother and [Emily] have had three supervised visits to date. The parties advised that the fourth supervised visit, scheduled for 9 April 2023, did not proceed.
We note that the Mother was due to commence spending unsupervised time with [Emily] on 16 April 2023. Western Legal contacted our offices on 18 April 2023 and advised that [Emily] did not attend the visit. Hearty and Tam confirmed that [Emily] refused to attend.
Should you have any questions in relation to the above, please do not hesitate to contact our office.
106 As the parties' cases had closed and the matter adjourned pending delivery of judgment, the proceedings were relisted by me to ascertain specifically what the parties wanted me to do with the ICL's letter and the content contained therein noting it was not accompanied with an application to re-open her case.
107 Ultimately, the parties agreed that the ICL have leave by consent to re-open her case for the purpose of admitting her letter to the court into evidence. None of the parties sought to otherwise re-open their cases for the purpose of adducing further evidence, and it was agreed, the proceedings otherwise be adjourned pending delivery of my judgment, which was imminent.
Relief sought by the parties
108 In her amended minute of final orders sought handed up on 23 March 2023, Ilene sought orders as follows:
Noting Interim Orders pronounced on 8 March 2023 for the child [Emily Riches] born [in] 2014 to spend time with the Respondent Mother the Applicant seeks the following Orders on a final basis:
1.Orders in terms of paragraphs 1 to 4, 15, 16, 17, 19, 20, 21, 22, 24, 25 to 28 of the Minute of Orders sought by the Independent Children's lawyer as contained in the Papers for the Judicial Officer filed by the ICL on 14 February 2023.
2.Orders in terms of paragraphs 6 and 7 of the Respondent's Final orders sought.
3.That the Applicant provide to the Respondent in a timely manner:
a)copies of all medical reports generated for the child.
b)copies of all school reports generated for the child.
4.That the child [Emily Riches] born [in] 2014 spend time with the Respodent as follows:
a)From Mother's Day 2023 and each Sunday thereafter from 10.00am to 5.00pm;
b)During mid term school holidays, each Wednesday from 10.00am to 5.00pm
c)During the Christmas/Summer school holidays each Wednesday from 10.00am to 5.00pm;
d)From 10.00am to 5.00pm on Mother's Day each year;
e)From 4.00pm to 7.00pm on the child's birthday each year.
f)From 12 noon to 5.00pm on Christmas Day each year
5.That the Applicant be at liberty to suspend the child's time with the Respondent on not more than 6 occasions per calendar year for the purpose of the child being on holidays or being invited to an event in which the child would wish to attend.
6.That the Applicant be at liberty to remove the child from the state of Western Australia and the Commonwealth of Australia for the purpose of holidays.
7.That the requirement for the Respondent's consent and signature for a passport for child and renewal of passport be dispensed with.
8.That the Applicant be at liberty to enrol the child in vacation swimming classes during the school holidays and the Respondent Mother shall ensure the child attend to any classes should the child be in her care.
9.That the Respondent forthwith notify the Applicant if there is any police involvement with [Mr Lehane] including but not limited to police call outs or in the event that [Mr Lehane] is charged with any criminal offences.
10.That all applications before the Court be dismissed.
11.That the Independent Children's lawyer be discharged.
12.That all subpoenaed material be returned to source.
109 In her amended minute of final orders sought, handed up on 23 March 2023, Oliva sought orders as follows:
NOTATION:
•The Respondent Mother, [Olivia Lehane] ("the Mother") seeks orders which will provide the foundation for the child of the proceedings, [Emily Riches], born [in] 2014 ("[Emily]"), to return to the mother's primary or full time care, with such transition to occur supported by such therapeutic services and intervention as the honourable court deems fit.
•The Mother recognises that this will necessarily be a transitional process and will require all parties to be committed to the ultimate goal of the reunification of the mother and her daughter.
•It is possible that [Emily] may refuse to see her mother without therapeutic support.
•In the alternative, if the Honourable Court finds that the Applicant is unlikely to be able to encourage and facilitate [Emily's] return to her mother, then more immediate change of care arrangements are proposed, utilising appropriate therapeutic intervention such as [Family Therapy Program A] offered by [Psychologist B].
ORDERS SOUGHT
1.All interim orders be discharged.
Child Therapy
2.The parties forthwith organise for [Emily] to obtain a Mental Health Care Plan from her general medical practitioner with a review to a referral to a therapist ("[Emily's] Therapist") who will provide non-reportable family therapy for [Emily].
3.The Applicant Paternal Aunt confer with the Independent Children's Lawyer and the Mother in relation to the appointment of [Emily's] therapist.
4.Gap fees payable for [Emily's] therapist be paid by the Applicant Maternal Aunt.
5.In the alternative, in the event the Honourable Court deems it appropriate for [Emily] to continue to attend upon [Psychologist A] of [Psychology Clinic A], the Family Consultant appointed per paragraph 11 below and the ICL and the solicitor for the mother be permitted to provide [Psychologist A] or such other clinical psychologist as appointed to provide confidential therapy to [Emily] copies of:
a.The Single Expert Witness Reports
b.The Reasons for Decision published by the Honourable Court at the conclusion of these proceedings.
Mother's Ongoing Therapy
6.Subject to the consent of [Supervision Agency C], the mother continue to attend [Supervision Agency C] for her own counselling and therapeutic support on an ongoing basis.
7.The mother do all acts and sign all documents necessary to enroll in the Circle of Security Programme provided by [Supervision Agency B].
Parental Responsibility
8.Until [Emily] resides primarily in the Respondent Mother's home. The applicant will be at liberty to make medical decisions in relation to [Emily] including not to treatment she may receive from doctors and allied health professionals.
9.To give effect to Paragraph 8 above, before the Paternal Aunt makes any decision relating to a issue she will:
a.Notify the Mother, via email of the decision she intends to make, and the reasons for that decision;
b.Seek the Mother's comment on the proposed decision;
c.Take into account any comment the Mother makes provided such comment is received by email within 7 days; and
d.If, after conferral in these terms, the parties are unable to agree on the decision under consideration, the Paternal Aunt be permitted to make the final decision with respect to that issue, and immediately inform the Mother of her decision via email.
10.Upon the completion of the transitional orders below, such that [Emily] is returned to living with her mother, the Respondent Mother will have sole parental responsibility for [Emily].
Child Inclusive Conference
11.Pursuant to section 95 of the Family Court Act 1997 (WA), the Family Consultancy Service be requested to conduct a Child Inclusive Conference for the purpose of explaining the orders made by the Court and to encourage [Emily] to spend time with the mother in accordance with these orders.
12.If, in the opinion of the family consultant, [Emily] requires further support and assistance before commencing time with her mother, paragraphs 13 to 16 inclusive shall operate immediately following the Child Inclusive Conference.
Professional Services to assist the reintroduction process
13.Subject to the wait list of the [Counselling Service A], the parties and the said child engage with [Counselling Service A] to assist in reintroduction of the child to the Second Respondent.
14.Each party shall:
a.Telephone [Counselling Service A] as soon as practicable to arrange an intake interview;
b.Attend the intake interview at the arranged time;
c.Attend any appointment arranged by [Counselling Service A];
d.Comply with the Rules of [Counselling Service A];
[452] See by way of example: See M v M (HCA); B and B (HCA); Sedgley and Sedgley (1995) FLC 92-623.
459 Similarly, my orders may need to be reviewed if Olivia is unable to make meaningful gains from parenting support, which is designed to give her the tools to re-establish her relationship with Emily.
Balance of the additional considerations.
460 The Act requires me to consider a variety of other matters set out in s 66C(3). The provisions are lengthy, and as noted earlier, I am not required to address each specific consideration. It follows from what I have said above, however, that I believe consideration of those matters involves a balancing of risk, namely, Ilene's failure to facilitate Emily spending time and communicating with her mother against Olivia's vulnerabilities, prior lifestyle choices and her untested ability to parent Emily noting Emily's strong attachment to Ilene.
Any other fact or circumstance the court thinks is relevant.
461 A suite of questions was put to both Olivia and Tom in cross‑examination about what was likely to happen should they separate. Whilst on the one hand, I can appreciate the genesis of the enquiry noting the speed with which Olivia and Tom commenced their relationship and moved in together, and their respective histories, the questions ignored two important factors.
462 First, they have been in a committed and stable relationship for just over four years.
463 Second, there is no evidence of police or Departmental involvement with respect to their relationship or Hannah, save the Department's pre-birth assessment undertaken at the instigation of Social Worker A, which went no further than an assessment. Importantly, in respect to Hannah, she attends both day-care and playgroup, which provides a sufficient degree of community monitoring, seemingly without concern.
464 Predicting the future of human relationships is notoriously difficult. All I can say is at the time of the trial before me there was no evidence to suggest Olivia and Tom's relationship was in danger. In fact, my impression was to the contrary, and despite their respective trauma histories, they had found in each other a companion who was prepared to love and support them foibles and all.
465 I was particularly impressed that Olivia felt confident enough in her relationship with Tom to raise her concerns about Mr O, that the two of them could discuss those concerns openly, and that Tom respected Olivia's viewpoint enough to act in accordance with her wishes, which in my view, were entirely reasonable.
466 Whether their relationship will stand the test of time is unknown, but for present purposes, Tom is a stabilising person for Olivia and is a protective factor for Emily, in that he is unlikely to allow Olivia to fall victim to manipulation or be taken advantage of.
What parenting order is proper?
467 Ilene seeks an order that she have sole parental responsibility for Emily. Olivia's approach is slightly more nuanced, in that she is seeking an order for equal shared parental responsibility until such time as Emily has transitioned into her fulltime care, whereby sole parental responsibility shift to her.
468 I consider the evidence supports one of the parties having sole parental responsibility for Emily. The most significant factor in arriving at this decision is the parties' significant mistrust of each other, which is best evidenced by the fact that neither woman is prepared to provide the other with their home address out of fear. Accordingly, it is both impractical and unrealistic to assume that they could constructively communicate in relation to Emily's long-term welfare.
469 I observe Ilene and Olivia have previously had the opportunity to constructively communicate and put Emily's needs ahead of their own perspectives when Emily required medical procedure A; it reflects poorly on both women that the ICL was required to bring an application to facilitate said surgery happening.
470 For the benefit of the parties, Olivia should never have delayed providing her consent for [a medical procedure] which was recommended by a competent medical professional. However, Ilene should have supported Olivia's request to attend hospital, as Emily's mother, to be present for Emily. I can only image what Emily may have thought about her mother's non-attendance at that time. As Emily was already questioning her mother's love for her, this may have subtly reinforced that misconception.
471 In the circumstances and until Emily transitions into Olivia's fulltime care, I consider that Ilene should have sole parental responsibility with a consultation requirement. Whilst Ilene will be able to make the final decision in respect to major long-term decisions impact on Emily, she will be required to obtain and consider Olivia's views. In making this order, Ilene is on notice that she will be required to keep Olivia regularly informed in relation to decisions she proposes to make for Emily, and the consultation requirement must not be approached superficially.
472 Once Emily lives with her mother on a fulltime basis, parental responsibility will transfer to Olivia. As Emily's mother, and in the absence of a compelling reason to the contrary, she should be entitled to make those decisions for her daughter that she considers appropriate and in Emily's best interests.
Conclusion
473 This has been a very difficult and finely balanced decision.
474 Ilene stepped in and provided Emily with much needed care, support, and stability at a time when Olivia's circumstances were uncertain and chaotic. Much can be said about the circumstances surrounding how Emily came to be in Ilene's care and Ilene's genuine motivations. However, it is beyond doubt that Olivia was struggling at that time to care for both herself and Emily, and the period between March 2018 and her moving in with Tom was one of significant instability for her. During this period, Olivia found herself in situations which may have compromised her safety and Emily's; it is through sheer good fortune that nothing untoward happened to either of them.
475 Whilst Ilene and her mother may have concern about Barbara's conduct towards and treatment of Olivia, Ilene has also taken advantage of Olivia's naivety, albeit not for financial gain. Both Sam and Emily's paternal families actively took steps to remove Olivia's children from her and limit her involvement in their lives.
476 To advance this end, and whilst I accept Ilene may not have hired a private investigator to gather information about Olivia,[453] she and/or Mrs Riches actively undertook their own recognisance and information gathering, which I accept was invasive and caused Olivia to feel harassed and fearful.
[453] Ilene sent a message to Louise telling her as such: Exhibit R4. At the trial, Ilene claimed she had not hired a private investigator and her comment was "bullshit": Transcript, Ilene 74 lines 9–21.
477 I do not accept any of the paternal family's contact with Olivia's family in Country A was done out of empathy for Olivia or with her best interests in mind. Notwithstanding Ilene's apparent epiphany about Olivia's father, which I do not accept was genuine, she and/or Mrs Riches were also in contact with members of Sam's family (including in the lead up to the trial) and Olivia's therapist. Further, Ilene contacted an old high-school friend of Tom and his children in an attempt to gain information about Olivia and Tom to advance her case in these proceedings.
478 During her evidence, and noting Social Worker A is currently employed by the Department and has previously worked as a case worker, I queried whether, if Emily was a child placed in the Department's care, either in a family placement or general foster care, reunification would have taken place between Olivia and Emily, and she replied "yes".
479 Pursuant to art 9 of the United Nations' Convention on the Rights of the Child (1989), to which Australia is a signatory, and using child friendly language, children should not be separated from their parents unless it is for their own good. Children whose parents have separated have the right to stay in contact with both parents unless this might harm the child. Emily has a right to be cared for by her parents unless it would be unsafe for her to do so. As Emily's father is deceased, the relationship with her mother takes on even greater significance.
480 Risk is dynamic and circumstance specific. Risks that are relevant at one point in time may be more or less significant at another time. What once presented as a risk may be less relevant given the age of the child in question, particularly where adequate safety can be built around children within their family system, drawing on other family members, friends and the community around them. Conversely, there are some risks that cannot be ameliorated.
481 In my view, the risk issues which gave rise to Emily remaining in Ilene's care in 2018 are no longer the most significant risk issues for Emily. I consider Olivia has worked hard to gain stability in her life, and she has much to offer Emily with Tom's support. Emily is not a toddler anymore, she is highly verbal, intelligent, attends school and adequate community monitoring can be built around the family to support Emily in her mother's care.
482 Whilst Ilene has more financial security than Olivia, which enables her to afford Emily opportunity, this should not be a persuasive factor against Olivia's application. There would be no reason preventing Ilene from continuing to support Emily's engagement in certain activities if she so wished.
483 Ultimately, I have to decide where I see the balance of risk lying. In my view, the balance of risk currently lies with Emily remaining in Ilene's care indefinitely. Regrettably, I have no faith Ilene can genuinely respect Olivia's role in Emily's life and foster Emily having real opportunities to build and strengthen that relationship. I have similar sentiments in respect to Ilene's attitude about Emily's relationship with her siblings, who should be important and special people to her.
484 The short, medium, and long-term impact on Emily of being denied an opportunity to have her mother and siblings in her life in a genuine and non-tokenistic manner cannot, in my opinion, be under-stated. I do not accept those relationships can develop and be nurtured through weekly visits of no more than seven hours.
485 Whilst Emily may be distressed by my decision, I consider it to be in Emily's best interests that she be reunified with Olivia over a two-year period. This will provide Emily with an opportunity to slowly build a relationship with her mother and address the current negative attitude she has towards Hannah. Over the next two years, time can incrementally increase so Hannah, and the important adults in her life, have an opportunity to adjust to the changed arrangements.
486 I have made the difficult decision that Emily will fully transition into Olivia's care half-way through the 2024/2025 summer school holiday period. I accept it will be difficult for Emily to leave her friends and school community at the conclusion of Year 5 and to start at a new school in Year 6. However, it is important Emily have an opportunity to make friends within the school community who will be transitioning to high school with her. Further, this will give Olivia an opportunity to participate more fully in Emily's school before she makes the important transition to high school. I have every confidence that Ilene will ensure that Emily has ongoing opportunities to maintain old friendships when Emily spends time with her.
487 Given Olivia's history with others taking advantage of her financially, the evidence given about her prior enquiries made to the Public Trustee about funds being held by them on behalf of Emily (bold for emphasis) and her comments to the Supervision Agency A supervisor about the same, I propose to exercise the broad discretion available to me pursuant to pts 5[454] and 11 of the Act to protect Emily's future needs, as I consider such action necessary to serve Emily's best interests. Accordingly, I intend to make an in personam order which restricts Olivia's access to those funds.
[454] In particular, s 66C(3)(f)(i) and (m).
488 On 2 March 2023, the ICL was in email communication with [Ms P], Senior Trust Manager with the Public Trustee, which details the process of how funds can be distributed for the benefit of a minor.[455] On this basis, I consider the Public Trustee aware of the proceedings and consider the order I intend to make consistent with its ordinary policies and procedures. Regardless, I intend to make an order directing the ICL to serve a copy of my orders on the Public Trustee and they shall have liberty to apply should they have any concern with the form of my order.
[455] Exhibit ICL2 "Communication between the ICL and the Public Trustee dated 2 March 2023, together with a Trust Deed dated 11 September 2018".
489 It is imperative neither Ilene or Olivia tell Emily that the court has decided she is going to live with Olivia, as I accept she would likely find this information confronting and distressing at this time. Emily should be given information in a staged way, as recommended by her psychologist. In the short to medium term, my orders are designed to re-establish and grow her relationship with Olivia. The transition of care will take place during a summer school holiday period, which will allow Emily an opportunity to make that transition without the added stress of schooling.
490 Olivia has issues trusting Ilene, which is understandable, given her experience. However, Olivia needs to demonstrate she can prioritise Emily's needs over her feelings. Emily loves Ilene and Mrs Riches; they are very special and important people to her, and they should always have a significant and meaningful role in her life. To this end, Olivia will need to find a way to have a cordial relationship with Ilene for Emily's benefit.
491 Like all children, Emily will be looking to the adults in her life to see how she should respond to the world around her and cope with change. Her family have an opportunity to role model resilience to her, which is an important life skill to learn. What is important is the message given to Emily is consistent across both households and supportive of her.
492 I was extremely troubled to learn that Emily is again allegedly refusing to spend time with her mother. I have formed the view that it would be in Emily's best interests to have a gradual transition to her mother's care. However, the speed with which this happens ultimately rests with Ilene. If Ilene is unable to exercise parental authority over Emily, such that Emily attends visits with her mother in compliance with my orders, consideration will need to be given as to whether an immediate change in Emily's care arrangements is necessary.
493 If issues arise in Olivia's life that are de-stabilising, a review of my orders may also be necessary. It is for this reason I propose to put in place a finalisation order in 12 months.
494 For clarity, I do not intend to make orders about birthdays. The parties do not live close to one another, Olivia currently does not drive, Emily attends school and I do not consider it to be in Emily's best interests for the parties to be put in the position of multiple handovers on the same day, particularly where trust is low. Experience has taught me that most children do not mind two birthday celebrations, so the parties can organise to celebrate Emily's birthday when she would otherwise be in their care pursuant to the orders.
495 Due to Olivia's literacy issues and because of the low level of trust between the parties, the orders that I intend to make are prescriptive.
Proposed orders
496 For these reasons, I propose to make the following orders:
Previous Orders Discharged
1.All previous orders and injunctions in respect to the child, [EMILY RICHES] born [in] 2014 ("the child") be and are hereby discharged.
Lives with
2.Until 5.00pm on 17 January 2025, the child live with the Applicant.
3.From 5.00pm on 17 January 2025, the child live with the Respondent.
Parental Responsibility
4.While the child lives with the Applicant pursuant to paragraph 2 of these orders, she have sole parental responsibility for the child subject to the following conditions:
a)save in the case of an emergency, she shall provide the Respondent with not less than 14 days written notice of any major long-term decision she intends to make in respect of the child;
b)the Respondent shall have 7 days, from the time notice was given, to provide the Applicant with her views in respect to the issue and/or decision that is proposed to be made; and
c)thereafter, the Applicant is to consider the Respondent's position, and provide her with written notice of the outcome of the decision within 7 days of said decision being made by her, with said notice to also include any relevant information arising from the decision.
5.When the child commences living with the Respondent pursuant to paragraph 3 of these orders, she shall have sole parental responsibility for the child.
Spend time with – while child lives with the Applicant
6.While the child lives with the Applicant pursuant to paragraph 2 of these orders, the child shall spend time with the Respondent as follows:
a)from 10.00am to 2.00pm each Sunday until 7 May 2023;
b)from 10.00am until 5.00pm on Mother's Day, and each Sunday thereafter until Sunday, 25 June 2023;
c)from 3.00pm on Saturday until 5.00pm on Sunday each week, commencing on Saturday, 1 July 2023;
d)from 5.00pm on Friday until 5.00pm on Sunday each fortnight, commencing on Friday, 29 September 2023;
e)from 5.00pm on Friday, 22 December until 2.00pm on Christmas Day (2023);
f)from 5.00pm on Friday, 5 January 2024 until 5.00pm on Monday, 8 January 2024;
g)from 5.00pm on Friday, 19 January 2024 until 5.00pm on Monday, 22 January 2024;
h)from 5.00pm on Friday, 2 February 2024 until 5.00pm on Sunday, 4 February 2024, and each fortnight thereafter during Semester 1 of the school term, with said time to be extended to 5.00pm on Monday where Monday is a non-school day;
i)from 5.00pm on 29 March 2024 until 5.00pm on Wednesday, 3 April 2024 (extended for April school holidays);
j)from 5.00pm on Friday, 12 April 2024 until 5.00pm on Sunday, 14 April 2024, and each fortnight thereafter during Semester 2 of the school term, with said time to be extended to 5.00pm on Monday where Monday is a non-school day;
k)from 5.00pm on Friday, July 2024 until 5.00pm on Thursday, 11 July 2024 (extended for July school holidays);
l)from 5.00pm on Friday, 19 July 2024 until 5.00pm on Sunday, 21 July 2024, and each fortnight thereafter during Semester 3 of the school term, with said time to be extended to 5.00pm on Monday where Monday is a non-school day;
m)from 5.00pm on Friday, 27 September 2024 until 5.00pm on Friday, 4 October 2024 (extended for September school holidays);
n)from 5.00pm on Friday, 20 December 2024 until 2.00pm on Christmas Day;
o)from 5.00pm on 3 January 2025 until 5.00pm on 10 January 2025; and
p)from 5.00pm on 17 January 2025, the child is to live with the Respondent.
Spend time with – when child lives with the Respondent
7.After the child commences living with the Respondent pursuant to paragraph 3 of these orders, the child spend time with the Applicant as follows:
a)during the school term, every second weekend, from 5.00pm on Friday to 5.00pm on Sunday, extended to 5.00pm on Monday where Monday is a public holiday, with said time to commence on Friday, 31 January 2025;
b)during the term school holidays, the Applicant's ordinary fortnightly weekend time be extended to 5.00pm on Friday;
c)for a period of 3 weeks during the summer school holidays, to be exercised during the:
i)first half of the summer school holidays in 2025 and each alternate year thereafter; and
ii)in the second half of the summer school holidays in 2026 and each alternate year thereafter, with the child to be returned to the Respondent's care by 5.00pm on the Friday just prior to the academic school year commencing;
d)during the summer school holidays, the ordinary school term time shall be suspended and shall resume the second Friday after the school year recommences;
e)in the event the child is in the Applicant's care on Mother's Day, the child shall be returned to the Respondent's care at 9.00am on Mother's Day;
f)in the event the child is in the Applicant's care on Christmas Eve, said time shall be suspended from 5.00pm on Christmas Eve and 2.00pm on Christmas Day to enable the child to have Christmas morning with the Respondent and her sibling; and
g)if the child is in the Respondent's care on Christmas Day, said time be suspended between 2.00pm on Christmas Day until 5.00pm on Boxing Day, to enable the child to have spend time with the Applicant and the paternal family.
Handover
8.Unless otherwise agreed between the parties and confirmed by each of them in writing:
a)handovers shall take place at [Local Playground A]; and
b)the Respondent's husband, [Tom Lehane] ("[Mr Lehane] ") be at liberty to accompany the Respondent on the basis that he:
i)remains in the car; and
ii)does not communicate or attempt to communicate with the Applicant by any means whatsoever.
Variation to care arrangements
9.The parties shall be at liberty to vary these orders provided the variations are set out in writing and confirmed by each of them.
Communication and Contact Details
10.The parties shall communicate only about matters pertaining to the health, wellbeing, education of the child and to give effect to these orders, with all communication to be by email or text message only.
11.All communications exchanged between the parties are to be civil in nature and be responded to within 48 hours, save in the case of emergency, whereby a response should be provided forthwith.
12.The parties are to keep each other informed of their email address and a mobile number upon which they can be reached, and they are to forthwith notify the other of any changes to that information.
Specific Conditions
13. The Respondent is:
(a) to be principally responsible for supervising and caring for the child;
(b) not to leave the child in the care of any other person, save for [Mr Lehane] and/or [Ms Louise Abbott]; and
(c)forthwith notify the Applicant if there is any police involvement with [Mr Lehane], including but not limited to police call outs or in the event that [Mr Lehane] is charged with any criminal offences.
14.With the consent of [Mr Lehane], he shall not consume alcohol to excess while the child is in the care of the Respondent pursuant to these orders.
15.While the child lives with the Applicant pursuant to paragraph 2 of these orders, in the event the child becomes distressed in the Respondent's care and she is unable to soothe her, the Respondent is to forthwith contact the Applicant by Facetime or such other electronic communication to enable the child to speak with the Applicant, and if the child remains arrange for the child to be forthwith returned to the Applicant's care.
Facetime communication
16.The child shall have Facetime (or such other electronic communication as agreed between the parties), with the party whose care she is not in, each Wednesday, for a period of between 15 and 20 minutes, with said calls to commence at 6.00pm, on the following conditions:
a)the calls are not to be recorded by either party;
b)the child is to be given privacy during the calls;
c)the parties are not to interfere in the calls; and
d)the call is to be initiated by the party whose care the child is in.
17.In the event the child will be unavailable for a Facetime call on a Wednesday, for whatever reason, the party whose call the child is in shall forthwith let the other party know, and the call shall take place on the Thursday instead.
18.In addition to the time set out in paragraph 16, [Emily] shall have Facetime contact with the party whose care she is not in on her birthday, the parties' respective birthdays and [Hannah's] birthday pursuant to the times and conditions set out in paragraph 16, which will require the party whose care [Emily] is in to initiate the call.
Injunctions
19. Without admission as to need, the Respondent is restrained by injunction and an injunction is granted restraining her from:
a)using illicit substances (including cannabis), while the child is in her care;
b)allowing the child to be exposed to illicit substance use;
c)allowing the child to have any contact with anyone who is substance affected.
20.The Applicant be restrained and an injunction is hereby granted restraining her from harassing the Respondent and from interfering with her manner of living or attempting to do so, including but not limited to, contacting or attempting to contact the Respondent's friends, family, counsellors or medical practitioners.
21.Without admission as to need basis, the Applicant and Respondent are restrained by injunction and an injunction is hereby granted restraining each of them from:
a)initiating or having discussions with the child about any issues arising from the court proceedings, these orders or the parties' respective positions about the child's care arrangements pursuant to these orders;
b)changing the principal place of residence of the child from the Perth Metropolitan Region as defined in the Third Schedule to the Planning & Development Act 2005 (WA). (see attached map);
c)question the child about the other party or the other party's family members;
d)denigrating the other party [or the other party's family] to or in the presence or hearing of the child; and
e)discussing the Court proceedings with or in the presence or hearing of the child or disclosing to the child any of the Court documentation,
or allowing any third party to do so.
Medical and Allied Health Information
22.Each party shall provide the other party with notice of any significant medical and allied health issues concerning the child including details of any treating practitioner and if requested to do so by the other party, shall authorise any treating practitioner to discuss the child's medical issues with that party.
23.In the event the child is hospitalised for whatever reason, each party shall be at liberty to visit the child in hospital on the following conditions:
a)the party with whom the child is living pursuant to these orders, shall be the person principally staying with the child for the duration of her stay in hospital;
b)the party with whom the child is not living with shall be at liberty to visit the child on a daily basis for a period of up to one hour during normal hospital visiting hours;
c)when the party with whom the child is not living with is spending time with the child pursuant to the preceding paragraph, the other party is to leave the child's hospital room for the duration of the visit; and
d)the parties shall comply with all reasonable directions given by any medical or allied health professional at the hospital, including in respect to the timing and duration of visits.
Educational and Extra-Curricular Activity Information
24.Notwithstanding the Applicant having sole parental responsibility for the child pursuant to paragraph 4 of these orders, at the commencement of the 2024 academic school year, the Respondent be at liberty to enrol the child in a primary school close to her residence, for the commencement of the 2025 academic school year, whereby the child will be in Year 6.
25.Each party be permitted to attend any school events or activities that parents, or carers would ordinarily be expected and invited to attend including but not limited to school assemblies, parent / teacher evenings and school carnivals.
26.Each party be permitted to contact the school that the child attends to provide them with copies of any school reports, reports on behavioural issues, school circulars or notices concerning functions, parent / teacher nights and other school activities to which parents or carers would ordinarily be expected and invited to attend.
27.In the event the parties attend school events or extra-curricular activities at the same time, they are not to approach one another or attempt to communicate with each other by whatever means, unless by prior written agreement.
28.The parties are to forthwith keep each other informed of all extra-curricular activities that the child is enrolled in from time to time or events the child has been invited to attend, and the party who is the enrolling person is to ensure the other party is provided with all relevant information in respect to those activities, including in respect to the time of and venue for activities, and promptly notify the other party should those details change.
29.The parties are to ensure the child's attendance at all weekend activities the child has been enrolled to participate in, or such other events, such as birthday parties.
Counselling for the child
30.The parties do all acts and things necessary to facilitate the child's attendance upon a clinical psychologist recommended by the Independent Children's Lawyer.
31.The Applicant and Respondent are to comply with any reasonable directions made by the child's therapist, including but not limited to:
a)appointment dates and times;
b)for the provision of information;
c)for them to attend sessions, including with the child and/or each other;
d)where the child's therapist requests the parties make changes to their own behaviour and parenting;
e)to assist the child in understanding and dealing with these orders, including what information should be provided to the child about the orders and the implications of the same, and the timing of that information provision to the child.
32.Whilst the child lives with the Applicant pursuant to these orders, the Applicant shall meet the costs associated with the child's attendance at therapy.
33.When the child commences living with the Respondent pursuant to these orders, the Respondent shall meet the costs associated with the child's attendance at therapy.
34.In the event the child's therapist requests one of both parties attend a session with the therapist, the parties shall be responsible for the costs associated with their own attendance, and the cost of joint sessions shall be shared equally between them.
35.The parties are to do all acts and things necessary to obtain a GP Mental Health Care Plan for the child and ensure the child's Mental Health Care Plan is renewed in a timely manner.
Public Trustee
36.The Respondent be restrained by injunction and an injunction be granted restraining her from accessing or attempting to access any monies held by the Office of the Public Trustee on behalf of the child, save:
a)to assist with the specific costs associated with the child's attendance at therapy, medical expenses, her education or for her participation in extra-curricular activities, with any such disbursement request to be accompanied by a statutory declaration annexing invoices or estimates of costs, capped at amount of $10,000 per year; or
b)as otherwise approved by the Office of the Public Trustee.
37.The Independent Children's Lawyer shall forthwith serve a copy of these orders on the proper officer from the Public Trustee, who shall have liberty to request a relisting in respect to the preceding paragraph.
Procedural
38.The Independent Children's Lawyer have leave to provide a copy of these orders and my Reasons for Decision to any therapist engaged to work with the child.
39.The parties and/or their solicitors have leave to provide a copy of these orders to the child's school and any medical or allied health professional consulting with the child.
40.The parties have leave to provide a copy of my Reasons for Decision to any person engaged to provide therapeutic support to the parties.
Finalisation Order
41.In the event a written request to relist the remaining substantive proceedings is not received from either party or the Independent Children's Lawyer by close of Registry on 3 May 2024, then the file be referred to Justice Cohen for final orders to be made without further notice to the parties as follows:
a)in terms of paragraphs 2 to 5; 6(k) to (q) and 7 to 40 of the orders made today;
b)subject to the institution of an appeal by any party or the Independent Children's Lawyer, the Independent Children's Lawyer be discharged;
c)all subpoenaed documents be returned or destroyed in accordance with the request from the named person; and
d)all extant applications and responses be and are hereby dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
MF
Secretary
3 MAY 2023
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