Smithers and Gill

FAMILY COURT OF AUSTRALIA

SMITHERS & GILL

[2018] FamCA 28

FAMILY LAW – CHILDREN – PARENTING PLAN – MAGELLAN – Where parties have two children – Where both parties have the capacity to parent their children appropriately – Where mother suffered family violence during the parties cohabitation and post-separation relationship – Where parties are unable to work co-operatively in respect of parenting – Where an equal shared parental responsibility Order would not be in the children’s best interests – Where the mother should have sole parental responsibility for the children in respect of education, religious and cultural upbringing, and health – Where children should remain in the principal care of their mother and spend increasing periods of unsupervised time with the father – Where it is found that the children are not at an unacceptable risk of being sexually abused in the care of the father – Where parties shall change the children’s family name within 14 days of this judgment being delivered.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Donaghey & Donaghey (2011) 45 Fam LR 183
Dylan & Bilson & Anor [2015] FamCA 573
Smoothe & Enmore [2016] FamCA 275

APPLICANT:

Ms Smithers

RESPONDENT:

Mr Gill

INDEPENDENT CHILDREN’S LAWYER:

Linda Adcock

FILE NUMBER:

BRC

8828

2015

DATE DELIVERED:

29 January 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

2, 3, 4, 5 and 8, 9, 10 & 11 May 2017

REPRESENTATION

THE APPLICANT:	In Person
THE RESPONDENT:	In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Adcock

Legal Aid Queensland

Orders

That all previous parenting orders are discharged.

The Parent with whom the Children shall live

That the children, B born … 2012 and C born … 2013, (“the children”) shall live with the mother.

Parental Responsibility for the Children

That the mother shall have sole parental responsibility for the making of decisions about the care, welfare and development of the children in respect of their education (both current and future), their religious and cultural upbringing, and their health, subject to the following obligations:
(i)She shall advise the father in writing of any major decision intended to be made about any of these issues before it is made and of her reasons for the decision intended to be made;
(ii)She shall seek the written response of the father in relation thereto before the decision is made;
(iii)She shall consider, by reference to the best interests of the child, any such written response prior to making any such decision; and
(iv)She shall advise the father in writing as soon as reasonably practicable of her ultimate decision and the reasons for that decision.
That the mother and the father shall each have equal shared parental responsibility for the making of decisions about the care, welfare and development of the children in respect of their names and any changes to their living arrangements that make it significantly more difficult for the children to spend time with their father.

The Time the Children will spend with the Father

That the children shall spend time with the father at all times as may be agreed in writing between the mother and the father from time to time but, failing agreement, then as follows:
(i)from 9:00 am Saturday until 5:00 pm Sunday each alternate weekend commencing on Saturday, 3 February 2018;
(ii)from the commencement of school term in July 2018, from after school on Friday afternoon until 5:00 pm on Sunday each alternate weekend (starting on the first weekend of each term in 2018 and all even numbered years thereafter and starting on the second weekend of each term in 2019 and all odd numbered years thereafter) during each school term, or until 5:00 pm on the Monday, if the Monday is a Public Holiday;
(iii)from the commencement of the 2018 September-October school holidays, for half of each of the gazetted Queensland school holidays being the first half of those holidays (including Christmas Day) in 2018 and all even numbered years thereafter, and being the second half of those holidays in 2019 and all odd numbered years thereafter;
(iv)from 9:00 am until 5:00 pm on any Father’s Day that does not otherwise fall on a weekend that they are spending time with the father pursuant to these Orders.

Time on Special Days the Children shall spend with the other Parent

That if Mother’s Day falls on a weekend that the children are otherwise spending time with the father pursuant to these Orders, their time with the father shall be suspended and they shall return to the mother’s care at 9:00 am on that day.
That should the children not be otherwise spending time with the father pursuant to these Orders on the father’s birthday or either of their birthdays, they shall spend two hours with him after school on such days if a school day or four hours with him on such days if on a weekend.
That should the children be otherwise spending time with the father pursuant to these Orders on the mother’s birthday or either of their birthdays, they shall spend two hours with the mother after school on such days if a school day or four hours with her on such days if on a weekend.
That if the mother and the father are not otherwise able to agree in writing on the equal division of the school holidays between them when paragraph (5)(iii) hereof becomes operative, school holidays shall be taken to commence immediately after school on the last day of school term preceding the holidays and they shall be taken to end immediately before school on the first day of school term following the holidays, but when the children are spending the second half of the school holidays with the father pursuant to these Orders they shall be returned to the mother’s care at 5:00 pm on the day before school resumes after the end of the holidays, and whether the children are spending the first or the second half of the holidays with the father the parents shall agree in writing prior to the commencement of the holidays as to the time and date upon which the children are to transition between them in the middle of the holidays.

Place and Details of Transitions between Parents

That, unless otherwise agreed between the mother and the father in writing in advance, the mother shall deliver the children to the father’s residence at the commencement of the time they spend with him, save that after C starts his schooling the father shall collect the children from school at the commencement of time that commences after school on a Friday, and the mother shall collect the children from the father’s residence at the conclusion of their time with the father, with the mother and the father not to come into contact with each other or to talk to each other at such handovers.

Telephone Communication between the Children and the Parents

That whilst the children are living with the mother pursuant to these Orders they shall also communicate with the father by telephone each Wednesday evening and each alternate Sunday evening (and also on Christmas Day and Easter Sunday if they are with the mother on that day) for up to ten minutes at some time between 6:00 pm and 7:00 pm, with the mother to make the call for the children and to put them on to speak with the father and encourage each of them to speak with him.
That whilst the children are spending time with the father pursuant to these Orders they shall also communicate with the mother by telephone at least once during each weekend visit, and at least each Wednesday and Sunday evening (between 6:00 pm and 7:00 pm) they are with him during school holidays (and also on Christmas Day and Easter Sunday if they are with the father on that day), for up to ten minutes, with the father to make the call for the children and to put them on to speak with the mother and encourage each of them to speak with her.

Change of the Children’s Family Names

That the mother and the father shall, within fourteen (14) days of the date hereof, do all acts and things and sign all documents as are required by the Queensland Registrar of Births, Deaths and Marriages (“the Registrar”) to register a change of each of the children’s family names in the change of name register kept by the Registrar so that each of the children’s family names shall be registered as Smithers-Gill, with any costs pertaining thereto to be shared equally, and each of the children shall be known by that family name from the date hereof.

Injunctions Restraining each of the Parents from doing and saying certain things

That each of the mother and the father is restrained and an injunction hereby issues restraining each of them from discussing with the children or either of them, any matter relating to or arising in these proceedings and from discussing with any other adult person in the presence or within the hearing of the children or either of them, any matter relating to or arising in these proceedings and from permitting any other adult or adults from doing the same.
That during the time the children are, or either of them is with him or her, neither the mother nor the father shall:
(i)Speak disrespectfully of the other parent;
(ii)Denigrate or insult the other parent;
(iii)Question the children or either of them about the personal life of the other parent.
That each of the mother and the father shall not take or be affected by any illegal drug at any time whilst the children are, or either of them is in his or her care.
That the father shall not drink or be affected by alcoholic beverages at any time whilst the children are, or either of them is in his care.
That the mother shall not drink alcoholic beverages to the point where her blood alcohol limit exceeds the legal blood alcohol limit for a person being in charge of a motor vehicle in Queensland at any time whilst the children are, or either of them is in her care.
That each of the father and the mother shall keep the other informed of his and her residential address, contact telephone number and email address (if any) and will notify the other of any change to any of those within 48 hours of any such change.
That each of the mother and the father shall continue to attend upon and consult with their treating psychiatrists as necessary or, at least, in accordance with the recommendations of those psychiatrists.
That the father shall immediately notify the mother in writing of any of the following events:
(i)Police attending at his residence other than by his own invitation, including details of the reasons given by the police for such attendance;
(ii)An application or an Order being made pursuant to the Domestic and Family Violence Protection Act 2012 (Qld) in which he is named as the Respondent including the name of the Aggrieved person who made the application or in whose favour the Order was made;
(iii)Voluntary or involuntary admission by him to any hospital, mental health facility or drug and/or alcohol detoxification and rehabilitation facility and the details relating to that admission;
(iv)Separation from Ms D, whether instigated by him or her and whether that has resulted in the cessation of cohabitation with Ms D or not.
That the mother shall immediately notify the father in writing of any voluntary or involuntary admission by her to any hospital, mental health facility or drug and/or alcohol detoxification and rehabilitation facility and the details relating to that admission.
That each of the mother and the father is restrained from taking the children or either of them to a doctor for medical examination related to suspected sexual abuse, or the police or any officer of the Department of Child Safety to discuss suspected sexual abuse or a psychologist or any person from any organisation that deal with children suspected of having been sexually abused, without first obtaining the written consent of the other parent or without first being requested to do so by a member of the Queensland Police Service or an officer of the Department of Child Safety after having first provided that police officer or departmental officer with a copy of these Orders and Reasons for Judgment and an explanation of the reasons for wanting that officer to speak with the children or either of them.
That notwithstanding paragraph (3) of these Orders, the mother shall keep the father informed of the school that each of the children attends, and she shall ensure that the father’s details as father of each of the children are recorded with that school or schools and that the school is informed that the father is entitled to be provided with any information, documents, reports, or invitations that parents of children attending that school are generally entitled to and the father shall be permitted to attend any such school as parents of children who are enrolled at such school are lawfully permitted to attend.

Family Dispute Resolution Counselling in the event of further Disagreements

That should there be any dispute between the mother and the father as to the proper interpretation of any of these Orders or as to any other aspect of their parenting of the children that they cannot quickly resolve with or without the assistance of a legal practitioner, then they shall as soon as practicable, but at least prior to the filing of any further applications in a Court having jurisdiction under the Family Law Act 1975 (Cth), take part in family dispute resolution counselling with a person who is recognised as a “family dispute resolution practitioner” as that term is defined in the Family Law Act 1975 (Cth).

Discharge of the ICL

That the Independent Children's Lawyer is discharged.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smithers & Gill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8828 of 2015

Ms Smithers

Applicant

And

Mr Gill

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

B is six years old and her little brother, C, is four years old. Their parents, Mr Gill (“the father”) and Ms Smithers (“the mother”), have been in dispute about their parenting for a few years now. It has been a bitter dispute and has taken its toll on both of them and on the children.
The mother’s and the father’s competing applications for parenting orders were heard by me in an eight day trial concluded in May last year. I regret the length of time it has taken to write and deliver this judgment. A substantial portion of it was written within days of completing the trial. At that time, I had determined that I was not going to make orders moving the children from their mother’s care, where they were living and settled at the time, to their father’s care, and I began writing these reasons explaining that decision. However, the demands of hearing and determining so many other matters in this Court interrupted that process and, unfortunately, prevented me from returning to complete the task until now. Long scheduled leave also fell in the months between completing the trial and completing this judgment. I acknowledge the additional anxiety the delay in delivering a final outcome to this family would have caused all involved. However, my determination to leave parenting arrangements essentially as they were at the conclusion of the hearing, save for dispensing now with the requirement for the children’s time with their father to be supervised, mitigates my concern about the time it has taken to deliver this judgment.
Although both parents were legally represented from before the commencement of the Court proceedings until well after the proceedings had been commenced, unfortunately both of them appeared without legal representation at the trial. Fortunately, an Independent Children’s Lawyer (“the ICL”) had been appointed early in the proceedings and she instructed a barrister to appear for her at the trial. Though ultimately not adopting the position advanced by the ICL, the Court was greatly assisted in determining this matter by both the ICL and the barrister she briefed.
Central to the determination of the proper parenting orders to be made in this case is the consideration of allegations made by the mother that the father has sexually abused B. That said, the task of determining the proper orders to be made involves, of course, far more than just determining whether the father sexually abused B or not. The Court is obliged to determine parenting orders that meet the best interests of the children in all of their particular circumstances.

The Initial Positions of the Parents

The trial began with the mother seeking orders that the children continue to live with her as they have been and that they spend time with the father every second weekend at his sister’s home under his sister’s supervision. That is what had been happening, effectively, since December 2015, when the proceedings were first before the Federal Circuit Court and before they were transferred to this Court. The mother’s position was founded on her expressed belief that the father had repeatedly sexually abused their daughter over a long period of time from 2013 to 2015.
The father denied abusing their daughter and, seemingly founded in his belief that it was the only way the children would be able to have a meaningful relationship with both parents, sought orders that the children be moved to live with him and his current partner and only start spending time with the mother for alternate weekends after an initial period during which they should go without seeing their mother at all, followed by some months of spending only supervised time with her.
At the end of the hearing, the ICL submitted that the Court should make orders similar to those sought by the father – moving the children to live with the father, giving him sole parental responsibility and only reintroducing the children to their mother after a short moratorium on any time with her followed by some months of supervised time. The ICL clearly did not consider the children to face an unacceptable risk of being abused in their father’s care and agreed with the father’s view about the prospects of the children being able to maintain meaningful relationships with him if they remained in their mother’s care.
With respect to the ICL and to the father, I am not of the same view as to how the children’s best interests would be met.
Significantly, at the end of the long trial, the mother had changed her position from that contained within her trial documents and as advanced by her during much of the trial. She clearly sensed the mood of the Court and, to her credit, appeared to accept that.
The mother told the Court in her final submissions that the children should continue to live with her but commence having unsupervised alternate weekends with their father. That position, then advanced by her was, I infer, prefaced on acceptance by her that the children do not actually face an unacceptable risk of sexual abuse in the unsupervised care of their father. That was indeed the same position as advanced by the ICL at the end of the trial.

Having heard and considered all of the evidence, I also accept that the children are not at an unacceptable risk of being sexually abused in the care of their father, even if their time with him is unsupervised. Indeed, a set of interim parenting orders was put in place before the Court was adjourned at the end of the trial that immediately increased the children’s time with their father to include overnight stays on alternate weekends and allowing the father’s partner, Ms D, to be the person who supervised that time. The mother openly acknowledged, having seen Ms D give evidence and be cross-examined, that she then considered her to be an appropriate person to supervise the children’s time with their father.
As the competing cases were presented and the trial concluded, critical to the determination of the orders that will now meet the best interests of the children is the question of the mother’s belief and the impact that might have on the children and their relationship with the father notwithstanding the Court’s acceptance (and the mother’s expressed acceptance) that the father does not pose an unacceptable risk of harm to the children.
In my own past judgments[1] and in other judgments of this Court,[2] children have been moved from the principal care of a parent, who has alleged sexual abuse of his or her child, to the principal care of the parent, who was alleged to have perpetrated the abuse, after findings that the alleged abuser did not pose an unacceptable risk of harm to the children, coupled with findings that leaving the children in the principal care of the parent who alleged the abuse would be contrary to the best interests of the children.
[1] Smoothe & Enmore [2016] FamCA 275; Dylan & Bilson & Anor [2015] FamCA 573
[2] Donaghey & Donaghey (2011) 45 Fam LR 183 per Murphy J
Given the competing positions advanced by the parties at the end of the eight day trial in this matter, and the views I have already expressed, it is essentially consideration of the question of whether leaving the children in the principal care of the mother in all of their circumstances would be contrary to their best interests that determines the remaining dispute in this case.
For all of the following reasons, I am ultimately satisfied, notwithstanding the very capable and earnest submissions of the ICL in this case, that the children should remain in the principal care of their mother; that she should have sole parental responsibility for them; and that they should continue to spend alternate weekends and holidays with their father without the need for supervision.

Some relevant background

As is regrettably not uncommon in parenting disputes such as this one required to be determined by this Court, the personalities of both parents displayed some very vulnerable and troubling features. I have no doubt these features have significantly contributed to the highly conflictual relationship that has developed between them. In my judgment, this is partly explained, at least, by the fact that the childhoods of both parents were compromised to relatively significant degrees.
The mother, the eldest of six children, experienced significant conflict with her parents in her early teenage years; was expelled from an exclusive Brisbane school in Grade 8; began abusing drugs around that time; was severely injured in a car accident at age 16; and left home to live independently of her parents soon after. Thus began a long period of illicit and prescription drug abuse, mental health disorder and a constant struggle to maintain health and wellbeing in the face of addiction and relationship difficulties with her partners and her parents.
In 2008 and 2009, whilst employed in an administrative role in Brisbane, the mother engaged in serious fraud against her employer and against the government, obtaining and applying to her personal benefit around $45,000 from those sources. She was later charged with, and convicted of offences relating to that conduct, spending a year in prison. I will return to that.
The father grew up in a household where he was exposed to family violence between his parents that resulted in physical injury to his mother on multiple occasions. Indeed, at around the age of 10 he had to accompany his mother when she went to receive medical treatment, including stitching, for a split lip inflicted upon her by his father. His young adulthood also saw him experiencing mental health disorder accompanied by drug and alcohol abuse. In 2005, he was twice convicted within a short space of time for drink driving offences – the second whilst he was under disqualification for the first. Thus began a significant struggle to maintain his health and wellbeing whilst battling drug and alcohol addiction and depression, taking him in and out of rehabilitation facilities on about thirteen occasions over several years and preventing him from holding down steady and reliable employment in his trade since 2009.
The mother and father met in March 2011 whilst they were both inpatients at E Hospital, where they were seeking treatment and rehabilitation for their mental health disorders and their substance abuse. They immediately commenced a relationship and commenced cohabitation that same month upon discharge. Both of them were counselled by hospital staff against forming a relationship with a fellow patient. The mother was strongly counselled by her own mother (“the maternal grandmother”) against forming a relationship with the father. Her parents disliked him from the very start of the mother’s relationship with him.
The father had been in a number of previous relationships. The mother had been in one previous relationship with a man that her parents did like. It seems the mother very quickly fell heavily in love with the father.
The treatment that each parent received as in-patients at the E Hospital in early 2011 did not help them maintain abstinence from drugs and alcohol. After they moved in together, the mother was soon pregnant. The father remained un-employed, but was in receipt of regular income payments from an insurance company pursuant to an income protection policy he had previously taken out. His depressive illness apparently qualified him to receive the policy benefits.
The father continued to abuse alcohol and drugs whilst still seeking treatment for his mental health problems which included taking prescription drugs and the mother continued to abuse prescription drugs and also began to abuse alcohol. The father was readmitted to E Hospital in late 2011, reporting to the hospital that he was using “20-23 cones [of marijuana] per day”. That appears to be, in my non-expert judgment, a lot of marijuana. The father said he became “involved with another emotional entanglement” whilst in hospital, but after some time discharged himself against medical advice, returning to live with the mother.
Their baby girl, B, was born in 2012. Needless to say, it was not a healthy environment that she was born into.
Unsurprisingly, the parents’ relationship began to rapidly deteriorate. Between its commencement and the middle of 2013, the mother was also admitted to hospital on several occasions, either seeking treatment for her mental health or for overdosing on medication.
The mother asserts that she suffered abuse at the hands of the father. She asserts that he verbally abused her in a cruel and vile way. She asserts that he physically abused her – pushing and shoving her on various occasions and, once, in January 2013, grabbing her around the throat. She asserts that he sexually assaulted her – forcing anal sexual intercourse upon her on several occasions.
The father denies that he verbally abused the mother in the way she described. Her accounts of the language he used were quite specific and detailed. He simply denied the allegation, saying he would not use the language she attributed to him. I do not accept his denial.
The maternal grandmother gave evidence of an occasion when the father verbally abused her. It was just before he followed the mother and maternal grandmother’s car for some considerable time down the road after a post-separation handover of the children between them in February 2015. The father denied the maternal grandmother’s assertion of verbal abuse, as well as other matters the mother and maternal grandmother had asserted related to that incident, such as the allegation that he followed them. Later, however, in his oral evidence, in some sort of remorseful display, he admitted that many of those things had actually happened as asserted by the mother and maternal grandmother, including that he had followed them in his car a long way down the road.
I accept the mothers’ evidence that the father verbally abused her during their relationship. I am satisfied that he did abuse her on many occasions in a verbally violent manner that no human being deserves to endure.
The father also denied that he physically abused the mother. In particular, he denied that he grabbed the mother around the throat as she alleges.
It is common ground that the parties were arguing at the home in which they were living on a morning in January 2013. The mother asserts she was saying she wanted to leave the father and take B with her but that he was telling her he would not let her. She asserts that there was some “mutual” pushing and shoving and that during that altercation the father grabbed her with one hand by the throat. She said that his actions left a red thumb mark on one side of her throat and red finger marks on the other side. It is common ground that the mother called the maternal grandmother and told her about what had happened and that the maternal grandmother called the police. The police attended at the home, spoke to both parents and told them one of them had to leave. The mother asserts that she agreed to leave, knowing the father would not, and that her mother came and picked her up and took her from the home for a while.
The father denied that he had grabbed the mother around the throat. Apart from the mother’s assertion, there is no other evidence that corroborates the mother’s evidence. The maternal grandmother said that when she picked the mother up she did not see marks on her throat. Neither is there anything in the police records of the police involvement that day corroborating the mother’s assertion nor is there any medical evidence corroborating the mother’s account.
For the ICL, it was submitted that on the balance of probabilities the Court should not find that the father did grab the mother around the throat as she asserts. That submission was made with reference to the complete lack of corroboration. However, with respect, I do not consider that a lack of corroboration alone prevents me from making a finding that it happened.
The mother asserted only this one instance of the father grabbing her on the throat. That was the only instance of physical (non-sexual) assault she asserted as distinct from pushing and shoving. The father said it did not happen. One of them is not telling the truth about it.
As to matters of credibility, during the trial, there were quite a number of instances where the father had denied or asserted matters of fact, only then to admit he was wrong and concede the point of fact in dispute when subsequently documents were put to him that proved his initial denial or assertion wrong. I readily formed an impression of the father that he was well prepared to falsely deny things that he thought reflected poorly upon him, admitting them only when documents were produced that contradicted him or when faced with logical propositions pointing towards the likelihood of the alleged fact being true.
However, in this matter of the allegation that he grabbed the mother around the throat in that argument that took place in January 2013, there being no other evidence to prove that, the father maintained his denial. Just because the mother did not tell the maternal grandmother or the police that she had been grabbed around the throat, does not cause me to disbelieve her and accept his denial on this matter. Just because the maternal grandmother nor the police recalled or noted seeing red marks on the mother’s neck does not cause me to disbelieve the mother.
The father admitted to having kicked another man, a stranger, to the chest in 2011 in an anger charged “road rage” incident. He asserted that was done in self-defence, although he had been the first driver to stop and get out of his car and wait for the other man to stop and get out of his car and approach him. I doubted his “self-defence” assertion in respect of that matter and formed the impression that the father was more likely than not the aggressor in that incident.
The father is a man of very muscular build. He has obviously, and on his own admission, spent a lot of time going to gymnasiums lifting weights. I am also satisfied on all the evidence I have seen in this case that he has had serious self-control difficulties. On the balance of probabilities, despite the lack of any evidence corroborating the mother’s evidence that the father grabbed her around the throat, I accept that he did that day as the mother alleged. I accept that he has had difficulties managing his anger and controlling his emotional self-regulation. I am satisfied that he was verbally and physically abusive of the mother during their cohabitation and verbally abusive of her in their post-separation relationship.
Undoubtedly, the most serious allegation the mother makes about the father’s abuse of her though is her allegation that the father forced anal intercourse upon her without her consent on several occasions during their relationship. Here, I observe that s 140 of the Evidence Act 1995 (Cth) provides that whilst I only have to be satisfied on the balance of probabilities that an allegation has been proved, in deciding whether I am so satisfied I am to take into account the nature of the subject matter of the proceedings and the gravity of the matters alleged. This section effectively imposes a need for greater care in expressing satisfaction on the balance of probabilities as to a particular matter of disputed fact such as this.
Again, on this factual issue it is the mother’s word against the father’s word and there is no corroborative evidence such as recorded complaint to a doctor or family member, no evidence of injury and there is no more detailed and particularised account of the events immediately surrounding the alleged sexual assaults, save for nominating the day on which the first one is alleged to have occurred. Furthermore, and significantly, the mother did not challenge the father during cross-examination with the assertion that he had sexually assaulted her. Although I hasten to acknowledge the trauma that having to cross-examine a perpetrator of such assaults is likely to cause a victim of such assaults if they had happened, the failure to put the allegations to the father requiring him to respond to questions about them makes it far more difficult to be satisfied that the assaults did happen as alleged. Accordingly, whilst I have some sense that there is likely to be some truth in the mother’s allegations, in this instance mindful of the gravity of the allegations and the absence of any form of corroborative evidence, I am not prepared to find positively that the father did sexually assault the mother as she alleged, though I also observe that I am not thereby finding that she was actually lying about that.

The End of the Parents’ Relationship and the events of 2013

The mother became pregnant with their second child in or around February 2013. She said during the trial that she did not realise that she was pregnant until she was about five months along in the pregnancy. She had not been menstruating prior to that because of her wider physical health issues, she said, so she only realised she was pregnant when she started to show.
Around the beginning of 2013, the mother also began working at night doing promotional work in F Town. They had moved to F Town in 2012. The promotional work involved her giving away alcohol of particular brands to customers to promote that product. The father was aware she was doing that work. She was working four nights per week, until the early hours of the next morning. She would leave home, she said, shortly after B had gone to sleep and would come home after finishing at 1:30 am. She asserts she was forced by the family’s circumstances to obtain work and this was all she could get. That might be correct, as the father certainly was not going out to work, but the mother nevertheless was willing to leave their baby girl in the sole care of the father at least four nights per week. In such circumstances, she could most certainly not have believed that he could not properly care for their baby in her absence, even if it was at night time when the baby might have been expected to be sleeping.
It is common ground that the mother’s work progressed from promotional work. The father asserts though, and the mother admits, that she told him she had obtained night work at the G Hospital and did not tell him that the nature of her work had changed. The father maintained that he believed the mother when she told him this, as naïve as that may sound.
The mother admits that she had befriended a customer who supplied her with amphetamines or “speed” on occasions when she was working. She admits she may have even had methamphetamines or “ice” on occasions during this time. This was the time when she was pregnant with their second child, though she says she did not realise that.
In July 2013, just days before the mother pleaded guilty in the District Court in Brisbane to the fraud and dishonesty charges arising during her employment in 2008-2009, police raided the home in which she and the father and their baby daughter lived looking for illegal drugs they must have suspected might be found there. Although the father asserted the mother was charged with drug trafficking at around this time, there was no more reliable evidence confirming that in fact she was. I do not find that she was. Instead, I accept her evidence that she was not charged, but rather that she actually subsequently co-operated with police in their investigations into drug trafficking and supply by the customer who she had befriended at her workplace, who had supplied her and apparently other people at the nightclub with amphetamines.
On 25 July 2013, the mother was convicted on her pleas of guilty to the fraud and dishonesty charges. She was sentenced to three years and six months of imprisonment, suspended for four years after twelve months. She was sent to the H Prison to serve her sentence.
The father asserted that he learned the day after the mother was sent to prison that the nature of the mother’s employment at the time that he believed she had been working at the hospital. He asserted that he also learned that she had also been working as a prostitute at a legal brothel and that this caused him to become concerned that he might not be the father of the baby the mother was carrying at the time. He conceded though, in his oral evidence, that the mother had never said anything to him to suggest he might not be the baby’s father. Nevertheless, he did not accept this child was his until DNA testing proved it later on.
The mother denies that she ever worked as a prostitute. There was no evidence adduced that supports a finding that she had. I do not find that she did.
There was evidence that an associate of the customer who had supplied the drugs to the mother called the maternal grandmother asking after the mother. The father asserted that this scared him when he learned of it. He asserted, without referencing any event to support the assertion, that he had been threatened by the man.
The mother said at trial that she believed that the man had been convicted of drug trafficking and that he is serving a prison sentence. She said that ultimately she did not even have to give evidence at his trial.

There was nothing particular about the nature of the evidence that causes me to accept the uncorroborated evidence of the father and to reject the mother’s denials that she was working as a prostitute and that she was charged with drug offences. In any event, apart from the credibility issue surrounding this point, I am not persuaded that much in this case turns on whether she did in fact work as a prostitute or not. Having once worked as a prostitute would not, of itself, disqualify the mother from being the beneficiary of a parenting order that her children live with her.
Upon the mother’s incarceration, their child, B, remained in the father’s care. No other arrangements had been made or were made by the mother and the father before her imprisonment, despite the mother saying during the trial that she held the view that the father could not care for the toddler on his own. She said that she had asked for the maternal grandmother to be able to take the child into her care, but that the father would not agree to that.
In any event, the paternal grandmother, who lived on her own in the north-eastern suburbs of Brisbane, moved up to F Town and lived with the father and the toddler, B, soon after the mother was imprisoned. She lived with the father and her granddaughter for most of the time the mother was imprisoned, travelling back to Brisbane for work on one day each week and to her own home to undertake some home related tasks from time to time.
In September 2013, the paternal grandmother and the father moved from the home the father had shared with the mother before her imprisonment into a smaller apartment that they then shared.
The father’s evidence about his feelings towards the mother around this time was confusing and difficult to understand. His actions though had demonstrated ambivalence towards her and the continuation of their relationship. In evidence he said he believed she had lied to him and that she had led a double life as a prostitute and a drug dealer in the months before her imprisonment and that he could not continue with the relationship. He refused to go and see her in prison. He said that he considered their relationship as having ended the day after she was sent to prison, when he said he learned of this “double life” she had allegedly been leading. Yet, it is clear he did not convey his own feelings about this to the mother.
Significantly though, the father refused to take their child, B, to see her mother in prison, despite the mother’s many requests. At the same time, he began dating other women and had sexual relations with a few of them, whilst still asserting to the mother in telephone conversations with her that he remained emotionally and sexually faithful to her. He was clearly unwilling to actually tell the mother that he considered their relationship to be over. I accept that the mother certainly did not think that it was over, though she was clearly troubled by his unwillingness to bring B to visit her and to visit her himself.
The mother struggled with her emotions and her mental health after being imprisoned and was put on a suicide watch by corrective services authorities for some time after her arrival in prison. She gave birth to baby C in late 2013. The father did not attend C’s birth, though he could have. He said in evidence that he had tried to make application to attend, but I do not accept that he did really try or want to attend. However, it is not disputed that he communicated with hospital staff in the days after C’s birth to ask after him and the mother. The mother was permitted by correctional authorities to keep baby C with her in prison to care for him. There was no effort by the father to take him into his own care.
There was one occasion when the father took B to visit the mother and her new baby when they were housed in a minimum security institution. The father did not explain adequately in his evidence why he did make that visit and no others. The evidence about that left me concluding that he did that principally to try to get the mother to sign a transfer of the registration of an expensive, exotic European motor cycle from her name into his name. She refused to do that then, although she did it later when the father’s sister asked her to do it.
That motorcycle was a serious bone of contention between the mother and the father in these proceedings. The circumstances under which it was acquired and retained were in dispute. It is common ground that it cost about $30,000, that it was purchased by the mother for the father using money she obtained from the sale of a block of land that she owned prior to meeting the father and that it was registered in the mother’s name. The mother asserts that the father insisted that she buy it for him and was forceful, petulant and persistent in his demands. The father asserts the mother insisted on buying it for him as a gift.
Again, I am not persuaded that determining who is telling the truth about that is essential in determining this matter. What I do observe however, is that even if the mother did buy the motorcycle as a gift for the father, his decision to accept her gift and to hang onto the motorcycle in the financial circumstances they found themselves in, particularly when she began working nights such that caused the father serious concern, at least according to him, and where the matter of restitution to be paid by the mother for her fraudulent conduct was known to him, demonstrates he had an inability to prioritise the family’s needs and a significant degree of selfishness on his part.
As I have said, the mother did ultimately sign the transfer papers and the motorcycle’s registration was transferred into the father’s name. In the end, he did sell the motorcycle, but only to raise funds to pay his own legal expenses in connection with the commencement of these Court proceedings.

The Father’s Hospital Admissions during the Mother’s Imprisonment

The father’s decision to end the relationship, and the child, B, were not all that was kept from the mother during her twelve months of imprisonment. The father apparently struggled with his own mental health and abstinence from drugs and alcohol whilst caring for B, even with the help of his mother who was living with him most of the time. He also met and commenced a relationship with the woman who was his partner at the time of the trial last year, Ms D.
On 20 November 2013, the father sought re-admission to E Hospital for alcohol detoxification on a referral from his GP. Hospital records reflect that the psychiatrist, Dr K, would not see him and that payment of the fees was likely to be problematic for the father, too. He chose not to attend there.
On 31 December 2013, the father admitted himself to another private hospital which was located in Sydney. He presented asserting he was suffering from depression, cannabis and alcohol abuse, co-dependency and “sexual addiction” issues, stress as a sole parent and family of origin self-esteem issues.
The paternal grandmother cared for the child, B, whilst he was in that private hospital He was an in-patient until 17 January 2014. The father was discharged from the hospital for “lack of commitment towards the program”, although he did not want to discharge.
On 17 March 2014, the father was admitted to another private hospital in F Town seeking assistance with an increase in his depression. Again, his mother cared for B during this time. At trial, she agreed that she had seen the father drinking a lot of beer during the time she was living with him. However, the father and his partner, Ms D, both assert that their relationship actually started at around this time in March 2014, and the hospital’s notes record the father reporting that he was getting help from not only his mother, but also his “good friend”, Ms D. He also began seeing Dr J, Psychiatrist, in March 2014, and has been seeing him ever since, at least up until the time of the trial last year.
Dr J says in a report that when he first saw the father at that time “his symptoms [of depression] were significant and he required hospitalisation for re-working of his pharmacotherapy and the development of a management plan”.
That private hospital admission ended on or around 30 March 2014, but the father was re-admitted on 10 April 2014, for “ongoing social stresses”, the fresh admission being recorded as a “crisis admission to help regain composure”. He was recorded as having “an anxious demeanour” and being “jittery”. Notes taken that same day record him as reporting that he had been “binge drinking recently”. He was also recorded as being concerned for B in his absence, but the notes record he acknowledged she was being well cared for. She was being cared for by his mother.
He was an in-patient until the end of April, then started having day leave, returning to the hospital in the evenings. On 2 May 2014, the father went out for day leave in the morning, due back at 5:30 pm, but returned at 11:30 pm in an intoxicated state, almost five times the legal limit for driving a car. Staff members kept him there and were able to settle him.
He remained an in-patient until mid-July 2014, but was again allowed day-leave, during some of which he would visit his mother and B.
Accordingly, he was an in-patient in private hospitals for over three months of the second half of the year during which the mother was in prison. The mother was not made aware of that at the time.

The Events after the Mother was released from Prison

On 24 July 2014, the mother was released from prison. She and baby C went to live with her parents. Clearly, she had learned by then that her relationship with the father was finished.
The former couple immediately began to experience difficulties in reaching agreement about the parenting of their two children. The father would not agree to B going to live with, and be cared for by the mother, along with her baby brother. Arrangements for B to spend time with her mother and brother and for C to spend time with his father and sister began being made but were continually problematic.
Matters were exacerbated by the father’s concern that he was not the father of C. The father’s sister, Ms L, who remained friendly with the mother to the point of meeting with her and C regularly in the second half of 2014, brokered and arranged a DNA test that confirmed the father’s paternity in late October, 2014.
The father had, whilst the mother was still in prison, made arrangements for B to attend at a local child care centre on two days per week. She was attending that centre throughout 2014, apparently even during the periods of the father’s extended hospitalisation. His mother obviously facilitated that.
In or around October 2014, the father first allowed B to spend overnight time in the mother’s care.
At around this time, B was referred to the Queensland Government Health Department’s Child Development Service by the staff of the child care centre she was attending. They were concerned about her “tip toe walking and awkward gait, solitary play, sensory seeking behaviours and emotional regulation in times of stress”. As part of that Service’s review of B, a Social Worker from the service did a home visit and interviewed the father sometime in October 2014. The father is recorded as having expressed his willingness to follow up on any issues identified with B’s development. He is also recorded as having identified his own concerns about B’s “speech, clumsiness, frequent complaints of stomach pain and poor saliva control”.
By agreement, B was spending three days a week with her mother and brother through the months of November and December. The mother was not as forthcoming in permitting C to spend time with his sister and his father, in his father’s care. She asserted that the father needed to bond with C appropriately first, in her supervision, and that he was not prepared to do that.
After discussion between the mother and father about concerns with B’s behaviour, an appointment was made for B (on the referral from the maternal grandfather, a GP) with a Paediatrician who saw her on 5 December, 2014. To their credit, both the mother and the father attended with B that day. The Paediatrician had the assistance of a completed questionnaire that the staff of the day care centre B attended had provided the doctor. It recorded their primary area of concern as being B’s “emotional regulation difficulties”. She had been physically aggressive with other children. The father reported to the doctor that staff had informed him of some self-harming behaviour as well.
The mother also reported to the Paediatrician that she was experiencing similar behaviour from B, particularly with little brother, C.
The Paediatrician reported having formed the opinion, communicated to the parents, that B’s behavioural difficulties were likely to be associated with the “significant changes she would have been experiencing with regards to her social environment and home life”. The doctor wrote:
Some of her behaviours could be seen as reactive in nature, as a reponce (sic) to the significant emotional adjustments she was needing to make.
The doctor gave the parents advice about behavioural management strategies, positive reinforcement and consistency in parenting across both home environments. She also suggested they seek the services of a private Child Psychologist under a Mental Health Care plan to further assist them with their management of B and parenting strategies.
There had been no reports of observed sexualised behaviour on the part of B by anyone at this stage.
Around this time, the mother had moved from living with her parents and had found her own accommodation in the area.
The parents were apparently unable to implement the Paediatrician’s recommendations. In early January 2015, the parents had some more disagreements about parenting. The mother asserts the father refused to meet with her or let B see her, alleging that she, the mother, was being abusive. The father asserts that the mother had told him she was going into hospital.
At around this time though, the mother did form a very negative view of the father’s new partner, Ms D, after seeing things she had allegedly posted on social media. The mother concedes she made it clear to the father, in no uncertain terms, that she did not want Ms D around the children. I am satisfied this did not help relations between the parents. Arrangements for the children to spend time with each other, and the other parent, broke down temporarily.
On or around 4 January 2015, the mother went into hospital for a potassium infusion related to some acute recurring renal and stomach problems. On 12 January 2015, the mother admitted herself to a drug dependency unit at a Brisbane private hospital for in-patient detoxification and treatment for opiate (codeine) dependency. She entered a two week, in-patient program. On discharge, on 23 January 2015, she was prescribed medication that she would be required to collect from a pharmacy on a daily basis and was directed to attend a day patient group over a period of another week from 3 February.
In the week after her discharge from the detoxification program, the mother went to an island off the coast of Queensland with other members of her family to attend the wedding of one of her sisters. She had asked the father if B could go with her and be allowed to participate in the wedding ceremony, but for some reason that I did not understand the father did not consider that appropriate and did not agree.
In February 2015, more time was agreed upon between the parents for B to spend with the mother and her brother but, according to the father, the mother was flooded in at her home and it did not take place.
At the first apparent visit after the mother had not seen B since December 2014, on 28 February 2015, at the handover from father to mother (and maternal grandmother) that took place in a restaurant car park, the father and maternal grandmother got into a heated argument about B’s time with her mother. This is the occasion when the father, in apparent anger, tailed the mother and maternal grandmother in cars down the highway for some time. He denied having done that until admitting it in his oral evidence at the trial. The father apparently told the mother after that day that he did not want the maternal grandmother coming to any future handovers.
By this time, both parties had engaged lawyers from whom they were obtaining advice and assistance. Initially, they were also being assisted in trying to negotiate and mediate mutually acceptable parenting arrangements. I am satisfied that the mother strongly harboured the desire to have B back in her full-time care, whilst the father was jealously trying to maintain his care of her. This certainly had an impact on their capacity to appropriately communicate and co-parent and created an atmosphere of suspicion between them.
In any event, the parents agreed to reinstate weekly visits for B to her mother. The father’s efforts to spend time with his son were not as successful, with the parents still disagreeing about how that should progress.
In February 2015, a Child Development Services’ Psychologist, a Physiotherapist, an Occupational Therapist and a Social Worker all saw B. The Psychologist even visited her child care centre as part of the assessment in March 2015. Apart from concerns about B’s emotional regulation at child care, there were no obvious concerns reported in respect to her father’s care for her. The report that was ultimately prepared in September 2015, reported positively of the father’s interactions with these professionals and his apparent willingness to enhance his parenting skills. It also reported positively on his supportive partner who, it said, had developed a positive relationship with B. There was absolutely no suggestion that the father was less than most co-operative with the investigations being conducted by this service and its professionals.
In April 2015, the father and his partner, Ms D, started to live together as a couple, with B in their care. The mother was told about this development. At around this time, the father began to take B to a Play Therapist for further assistance in helping him improve his parenting skills and to help B with what he thought was stress she was experiencing from frequent changeovers in parenting time. B attended upon this therapist on ten total occasions.
The therapist subsequently wrote a report in which she opined that changing households every three or four days was likely to be affecting the child as it required her to spend so much of her time adjusting to the changing environment. She said nothing to suggest that she saw her or heard anything in her time with B that caused her to think that B may have been sexually abused by her father or anyone else.
On 26 April 2015, the father sent a text message to the mother in which he asked her whether she had said that he did not trust himself with B because she was a female and that she had concerns that he would touch B inappropriately. I am satisfied that this is information that the father had been given by his solicitor after discussions with the mother’s solicitor.
The mother responded with a long text message in which she emphatically stated she did not have a concern about him “molesting” B and confirming that the information the father had from his solicitor had been part of a very detailed history she had given her solicitor in the course of preparing an application for parenting orders to file in Court. She repeated that she did not think B is at risk of molestation by him and reassured him that if she thought that B was at risk she would not have her anywhere near him. She went on:
I reported to [the solicitor] that B was displaying behaviour earlier in the year that can be symptomatic of child sexual abuse and I sought psychological advice and they told me that the behaviour was also consistent with emotional distress and considering what she was going through with us it was normal. This behaviour has settled down but it’s one of the reasons we need to sort stuff out so it stops effecting (sic) her.
The mother then proposed mediation again to try to reach an agreement without “going to court”. I am satisfied that she was preparing for court though at the same time, in the event that she could not get the outcome she desired.

Accordingly, having respectfully considered the submissions of counsel for the ICL, and all of the evidence, including, in particular, the evidence of the family report writer, Ms O, I do not consider that the best interests of the children mandate removing them from their mother’s principal care and placing them in their father’s principal care. I will not make parenting Orders in this case that do that.

What Parenting Orders will I make on a Final Basis?

The Court is making a parenting Order in relation to the two children. Pursuant to s 61D(1) of the Act, a parenting Order confers parental responsibility for a child on a person, but only to the extent to which the Order confers on the person duties, powers, responsibilities or authority in relation to the child. Pursuant to s 61D(2), a parenting Order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any) expressly provided for in the Order or necessary to give effect to the Order. Section 61C(1) of the Act expressly confers parental responsibility for a child who is not 18 years of age on each of the parents of the child.
Section 61DA(1) imposes the obligation on the Court, when making a parenting Order, to apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. A parenting Order conferring equal shared parental responsibility for a child on both parents imports, through s 65DAC of the Act, the statutory obligation on both parents, when the exercise of parental responsibility involves making a decision about a major long-term issue in relation to the child, to consult the other parent in relation to the decision to be made about that issue; to make a genuine effort to come to a joint decision about that issue; and to actually make the decision jointly.
However, pursuant to s 61DA(2) of the Act, the presumption set out in s 61DA(1) does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence. I have already observed that I am satisfied that “family violence”, as that term is defined in s 4AB of the Act, occurred between the mother and the father in this case. The incident where the father put his hands around or on the mother’s throat and squeezed, is a sufficient example. Accordingly, the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child does not apply in this case.
As Ms O said, the evidence in this case does not support a confident finding that the mother and the father would be able to work co-operatively together in the making of decisions in the best interests of these two children. I accept Ms O’s opinion on that. I do not consider that the parents could consult each other and rationally and reasonably discuss and then decide important decisions about “major long-term issues”, as that term is defined in the Act, in respect of the children. Mandating that by an equal shared parental responsibility Order would not be in the children’s best interests. I will not make an order for equal shared responsibility, but rather will confer parental responsibility for the children’s education, their religious and cultural upbringing, and their health to the mother, who they will be continuing to principally live with. I will make the exercise by her of that sole parental responsibility conditional upon giving the father notice that a decision about one of those issues is to be made, inviting some written input from him, considering any input he gives and then notifying him in writing of the final decision.
However, I will make any decision about the children’s names and living arrangements such that would make it significantly more difficult for the children to spend time with the father, the subject of equal shared parental responsibility between the parents. The mother should not have the sole responsibility to make those decisions in this case, as her disapproval of the father might lead her to make such decisions for the wrong reasons.
As for the children’s names, the Court was asked to make an Order that the children be permitted to go by a hyphenated family name made up of the family name of the mother and the family name of the father. Both parents did not appear to oppose that course at the end of the trial. Neither did the ICL. I consider that to be an appropriate Order and one that is in the best interests of the children so that they are known by a family name that identifies them with each of their parents as they grow up and, in particular, so that they are known by the same family name as each other. I will order that the parents take steps to cause the children’s family names to be registered as Smithers-Gill and for the children to be known by that family name from here on.
In her final report, prefaced on a finding of no unacceptable risk, Ms O recommended that three to four months of unsupervised day time with the father commence and take place from 9:00 am to 5:00 pm each Saturday before progressing to one overnight stay each week for a month. She recommended it transition again to take place from 9:00 am on Saturday until 5:00 pm on Sunday each alternate weekend for six months, before again extending to take place from after school on Friday until 5:00 pm Sunday each alternate weekend and for half of the gazetted school holidays.
By my interim Orders made at the end of the trial on 11 May 2017, I provided for the children to continue to spend time with their father for two hours each alternate Sunday at R Contact Centre and from 10 am on Saturdays until 4:00 pm on Sundays on the other alternate weekends at the home he shared with his partner, Ms D, with Ms D supervising that time.
I now consider that the children should begin spending time with the father each alternate weekend from 9:00 am Saturday until 5:00 pm Sunday and that there is no longer any requirement that it be supervised by his partner. After all, that interim Order has been in place now for over seven months. Of course, I expect that Ms D will continue to be around in the father’s household as long as she and the father remain in a committed relationship and I consider that to be a good thing, but the father is not required to have her supervise all of his time with the children.
Accepting the thrust of Ms O’s recommendations as being representative of what is in the best interests of the children, I will order that from the commencement of the school term in July this year, the children begin spending time with the father from after school on Friday afternoons until 5:00 pm on Sunday afternoons each alternate weekend and for half of the school holidays that take place from that time on.
I will also order that the children spend time with their father on special days such as Father’s Day, his birthday and their birthdays, but, at the same time, provide for them to spend time with their mother on Mother’s Day, her birthday and their birthdays as well.
The orders will include reference to when the school holidays actually start and finish for the purposes of calculating half the holidays and cast an obligation on the parents to reach agreement in writing as to mid-holiday transitions time and date.
The orders will require transitions to take place at the father’s residence at the start and conclusion of the time the children spend with him but direct that the parents not come into contact with each other or to talk to each other at such transitions unless, of course, otherwise agreed between them in writing in advance. When both children are at school, the Friday afternoon transition is to take place with the father collecting the children from school.
I consider it in the best interests of the children to maintain telephone communication with their father between visits to him and my orders will provide for that to occur. The mother shall be responsible for having the children call and speak to their father and to encourage them to speak to him. I consider the same obligation in respect to the children communicating by telephone with their mother when they are in the father’s care to be appropriate and in their best interests, with the father to be responsible for ensuring that happens. I will include Christmas Day and Easter Sunday in the Orders as days when the parent with whom the children are spending time on those days must ensure the children call and speak with the other parent.
In the draft Orders that were proposed by the ICL, were a number of proposed injunctions restraining the parents from doing and saying certain things. I accept the proposition that it is in the best interests of these two children if their parents are restrained from talking to the children about these proceedings or matters relating to them. I accept that the parents should be restrained in how they speak about the other parent when the children are in their care. I accept that the parents should be restrained from taking or being affected by illegal drugs when the children are in their care and that the father should be restrained from drinking or being affected by any alcoholic beverages whilst the children are in his care. Given his history of alcohol abuse I consider that needs to be a zero alcohol restraint. As for the mother, the restraint on her with respect to alcohol will be limited to the drink-driving blood alcohol limit.
Each parent will be required to keep the other informed of their address, phone number and any email address. Each parent will be required to continue attending upon their treating psychiatrist as necessary.
The father will be required to notify the mother immediately of certain events that might indicate an immediate increase in the risk of emotional harm to the children having regard to his history. Those events include police attending at his residence, a family violence application or order being made against him, admission to a hospital or detoxification facility, and separation from Ms D. Of course, it would be for the mother to deal with any such information in an appropriate manner at the time.
The mother, too, will be required to notify the father if she is admitted to any hospital or detoxification facility and, likewise, it would be for the father to deal with any such information in an appropriate manner at the time.
The parents will also be restrained in how they deal with the children in respect to any further allegations of sexual abuse that may arise in the future, so that any such allegations are dealt with appropriately and professionally and as advised by police and departmental officers.
The mother will also be required to ensure that the school the children attend have the father’s details and can communicate with him, providing him with information that any parent is entitled to have from the school and permitting him to attend at the school as any parent of a child at that school may be permitted.
Finally, the Orders will expressly require the parents to use family dispute resolution counselling to assist them in resolving any further disputes about their co-parenting, including any disagreements as to the interpretation of the Orders, before they bring any further proceedings in Court. It is, in my judgment, in the best interests of the children that the parents can see and read this obligation every time they take a look at the Orders that are made.
Accordingly, I make all the Orders that are set out at the commencement of these written reasons satisfied that they are proper and in the best interests of the children in this matter.

I certify that the preceding one hundred and ninety-nine (199) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 29 January 2018.

Associate:

Date: 29 January 2018

[2018] FamCA 28

29 January 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Remedies