Spalding & Barbaro (No 5)
[2023] FedCFamC1F 723
•25 August 2023
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Spalding & Barbaro (No 5) [2023] FedCFamC1F 723
File number(s): BRC 6176 of 2021 Judgment of: HOGAN J Date of judgment: 25 August 2023 Catchwords: FAMILY LAW – PARENTING – Where final orders were made in May 2018 for an equal time parenting regime – where the parental conflict has not abated – Where it is now in the children’s best interests for them to live with one parent and have no time or communication with the other Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Banks & Banks (2015) 93-637
Cox & Pedrana (2013) FLC 93-537
Fleming & Fleming [2009] FamCA 552
Spalding & Barbaro [2018] FamCA 362
Division: First Instance Number of paragraphs: 268 Date of hearing: 28, 29 & 30 November 2022; 1, 2, 5, 6, 7, 8 and 9 December 2022; 27 January 2023 Place: Brisbane Counsel for the Applicant: Mr Bunning Solicitor for the Applicant: Simonidis Steel Lawyers Counsel for the Respondent: Mr Dodd Solicitor for the Respondent: Mills Oakley Lawyers Counsel for the Independent Children's Lawyer: Mr Pollock Solicitor for the Independent Children's Lawyer: Barbara Fox Solicitor ORDERS
BRC 6176 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SPALDING
Applicant
AND: MS BARBARO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
25 AUGUST 2023
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and, save as they also relate to the issue of child support, previous parenting orders are discharged.
2.The children, D, born 2008, E, born 2009, B and C, both born 2012, live with mother.
3.The mother have sole parental responsibility for the children in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)).
4.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is hereby restrained and an injunction shall issue restraining him from communicating or attempting to communicate with the mother and/or the children and approaching:
(a)the mother or the children; and
(b)the residence of the mother or the children; and
(c)the place of employment of the mother; and
(d)the place of education of the children; and
(e)the place of any medical treatment of the children.
5.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is hereby restrained and an injunction issue restraining him from having the mother or the children followed by a private investigator.
6.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is hereby restrained and an injunction issue restraining him from communicating with the children’s educators or medical or allied health providers.
7.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is hereby restrained and an injunction issue restraining him from removing the children from the Commonwealth of Australia.
8.The mother shall not denigrate, or permit any other person to denigrate, the father in the presence or hearing of the children.
9.The Independent Children’s Lawyer make all arrangements necessary to have Ms AC meet with the children as soon as reasonably practicable in order to explain this Order to them.
10.In order to facilitate the children meeting with Ms AC in accordance with the above Order, the mother ensure that the children attend upon Ms AC at the time and place advised in writing by the Independent Children’s Lawyer.
11.The Independent Children’s Lawyer has leave to provide a copy of the Final Orders made 25 August 2023 and the Reasons for Judgment published in support of the same to Ms AC.
12.Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) the mother is permitted to travel overseas with the children without the father’s consent.
13.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the children, D, born 2008, E, born 2009, B and C, both born 2012, be permitted to have a passport or an Australian travel document (as defined by s 6 of the Australian Passports Act 2005 (Cth)) and be permitted to travel internationally.
14.The mother be permitted to unilaterally do all such acts and sign all such documents as may be required to apply for or renew a passport (or Australian travel document) for the child or any other documents deemed necessary for the purpose of overseas travel.
15.The mother is permitted (in so far as this Order will permit her to do so) to unilaterally complete, sign and lodge any application for the issue and/or renewal of visas or any other requirement of the authorities of the destination country/(ies) for the children’s travel outside the Commonwealth of Australia, without the father’s consent.
16.The mother has leave to provide a copy of the Order made 25 August 2023 and the Reasons for Judgment published in support of the same to the school at which the children attend, to any therapist upon whom she and/or the children attend for the purpose of therapy and to the Department of Child Safety, Seniors and Disability Services, the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
17.The father has leave to provide a copy of the Order made 25 August 2023 and the Reasons for Judgment published in support of the same to any therapist upon whom he attends for the purpose of therapy and to the Department of Child Safety, Seniors and Disability Services, the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
18.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
19.The Independent Children’s Lawyer is discharged upon compliance with Order 9 unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
20.All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
IT IS FURTHER ORDERED THAT:
21.By way of costs assessment order or otherwise as ancillary to the Order made on 18 March 2022, the father pay the mother the sum of $91,450.18 within thirty (30) days of today.
UPON THE FATHER SAYING IN EVIDENCE THAT HE WOULD TAKE OUT A NEW HEALTH INSURANCE POLICY FOR THE CHILDREN IT IS ORDERED THAT:
22.The father shall, if it is possible for him to do so, forthwith obtain a new private health insurance policy at the top rate of cover for the children only, and within fourteen (14) days of the date of this Order, the father shall:
(a)provide to the mother a physical card which provides her access to the children’s private health insurance policy; and
(b)sign all documents and do all things necessary with AG Insurance to authorise the mother to have access to, and make claims against the children’s private health insurance policy,
and should the physical card or authority expire, the father shall provide to the mother a renewed physical card and shall provide a renewed authority to AG Insurance to enable the mother to have access to and make claims against the children’s private health insurance policy at all times.
AND IT IS FURTHER ORDERED THAT
23.In the event that any party seeks an order that another party pay the costs of and incidental to the proceedings commenced by Initiating Application filed 31 May 2021 and Further Further Amended and sealed on 10 October 2022:
(a)any such party shall, within twenty-eight (28) days of today, file and serve
(i)any Application in a Proceeding setting out the relief sought; and
(ii)any affidavit necessary to support such application; and
(iii)written submissions in support of such application for costs; and
(b)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve:
(i)any affidavit necessary for the determination of any such application for costs; and
(ii)any written submissions in answer to the submissions filed and served by the party seeking an order for costs; and
(c)the party seeking an order for costs shall, within seven (7) days of being served with the submissions relied on by the party against whom an order for costs is sought, file and serve any further written submissions, strictly in reply, to the submissions served by the party against whom an order for costs is sought,
and any such application for costs shall be considered in Chambers.
AND IT IS FURTHER ORDERED THAT
24.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 and these particulars are included in these Orders.
IT IS NOTED THAT:
A.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
B.The design of the seal affixed to this order issued by the Federal Circuit and Family Court of Australia (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spalding & Barbaro has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J
The evidence in this proceeding provides a stark example of the damage that can be done by the conflict between parents and the consequences for children of parental unwillingness or inability to prioritise their children’s needs above all else. For these children, the point has come where it is suggested that the only way which appears likely to prevent them from continuing to be exposed to such conflict – and from continuing to have to deal with the consequences of such exposure – is to remove a parent’s ability to spend time and communicate with them. That things have reached this stage, particularly where three of the parents’ four children continue to live in an equal-time, week-about parenting regime, is truly a tragedy.
However, a portent of this possibility is found in the Reasons for Judgment delivered by Carew J on 23 May 2018 when her Honour made final parenting orders (the May 2018 order) following a five day trial; it was reiterated in the comments made by McClelland DCJ on 30 September 2021 in the Reasons for Judgment delivered in support of the interim orders made that day.
All of the parents’ children – 15 year old D[1], 14 year old E[2] and 11 year old B and C[3] – have had the experience of their parents’ form of co-parenting; all have been required to manage the transitions between their parents’ homes. All have been subjected, in one way or another, to the impacts of their parents being in litigation – on an on/off basis since the father first commenced proceedings seeking parenting orders in August 2013 – about the parenting regime which each parent contends is best for them.
[1] Born in 2008.
[2] Born in 2009.
[3] Both born in 2012.
As will become apparent from that which follows, none of the children have been afforded the respite associated with being parented by two parents able to move past their own personal slights and views to prioritise their children’s needs above all else; instead, they have been embroiled in an ongoing tug-of-war which has been manifested across different aspects of their lives: the parental dispute has raged across the educational system and the medical system; it has infiltrated decisions about the treatment to be provided to D when he was suffering with very significant mental health issues; it risks overwhelming E as he struggles to find his place in the family. Whilst the girls appear – either by virtue of their age or their temperaments – to be relatively unscathed at this time, the risk that they, too, may fall victim to the consequences of the parental inability to co-parent in a way that is not attended by significant conflict should not be underestimated.
Despite neither parent nor the Independent Children's Lawyer then advancing it, I commented, before the father was made available to be cross-examined, that the material I had then read raised at least a prospect that I should consider whether the children’s best interests would best be met by orders which saw them live with one parent and spend no time, or limited time, with the other parent.
Having heard evidence over an 10 days and having received and had regard to voluminous documentary exhibits (the content of some of which has been set out in significant detail, together with relevant findings about the same, in the Schedule attached to these Reasons) and thorough written[4] and oral submissions, I have, after much reflection and for the reasons which follow, concluded that:
(a)any continuation of a shared parenting regime between these parents, however constituted, is overwhelmingly likely to result in a continuation of the conflict to which the children have been exposed – as noted by various clinicians during their engagement with the parents and the children, as set out in detail in the Schedule – and there will, for the children, simply be “more of the same”; and
(b)despite it seeming to be extreme, given their past parenting regime, the only remaining solution which is in the children’s best interests is to remove the requirement that they interact with both of their parents.
[4]Written submissions filed on behalf of the father on 24 January 2023; Written submissions filed on behalf of the mother on 16 January 2023; Written submissions filed by the Independent Children’s Lawyer on 13 January 2023.
In arriving at these overarching conclusions, I have also reflected extensively about whether orders which saw the children live primarily with one parent and spend time with the other parent on, for example:
(a)alternate weekends and half of the school holidays; or
(b)one weekend per month and limited holiday time,
would achieve an appropriate balance between affording them the opportunity to continue to maintain their relationships with both of their parents and protecting them from the risk of psychological harm. Unfortunately, I have concluded, as already noted, that the only orders that are now in these children’s best interests are orders which will see them live with one of their parents and spend no time with the other – because this is the only way they will not be required to continue to endure the consequences of the absence of a co-operative, post‑separation parenting relationship between their parents.
Given such overarching conclusions, the question really becomes one of determining which of these parents is best able to meet the children’s needs and support them as they move toward adulthood.
Before turning to this task, however, I consider it useful to record aspects of the findings expressed by Carew J in the May 2018 Reasons.
Some aspects of the Reasons for Judgment delivered by Carew J on 23 May 2018 (the May 2018 Reasons)
Based on the evidence before the Court of events which predated the April 2018 trial, her Honour’s conclusions included that:
(a)she considered “each parent to be at fault for the conflict in largely equal degrees” and that the “conduct in which each has engaged has been nothing short of appalling”;[5] and
(b)if there had been a realistic option of removing the children from the care of both parents she would have seriously considered it – not because either parent was unable to provide an adequate level of physical care for the children, but because of “the level of enmity and distrust directed by the parents at each other and their seeming inability to put their hatred of each other aside for the benefit of their children”;[6] and
(c)she was “very pessimistic” about the future outcomes for the children and considered that “it is unlikely that any order of this Court will end the conflict between these parents or completely protect the children from exposure to ongoing conflict”;[7] and
(d)she thought that living with one parent predominantly and spending only weekend time with the other parent was unlikely to protect the children as the ‘losing’ parent was likely to undermine the arrangement and the parent with the predominant care was likely to have a greater influence on the children, perhaps in a negative way;[8] and
(e)whilst it may have appeared counterintuitive, the order she determined to be proper “in the unique circumstances of this case” was for the children to live with each of their parents in an equal-time parenting regime and for the parents to have equal shared parental responsibility for the major long-term issues relating to the children, other than in relation to the issue of health and education (for which she accorded the father sole parental responsibility after consulting with the mother) because she concluded that “anything short of ‘equality’ of time” was more likely to expose the children to conflict.[9]
[5] Spalding & Barbaro [2018] FamCA 362 at [1].
[6] Spalding & Barbaro [2018] FamCA 362 at [2] and [3].
[7] Spalding & Barbaro [2018] FamCA 362 at [4].
[8] Spalding & Barbaro [2018] FamCA 362 at [151].
[9] Spalding & Barbaro [2018] FamCA 362 at [5] and [6].
The May 2018 Reasons also included her Honour’s statement that she could only “hope that the parents take heed of my reasons for judgment, and the pleas of their children for peace, and change their ways before it is too late.”[10]
[10] Spalding & Barbaro [2018] FamCA 362 at [6].
The resolution of the question posed in paragraph 8 necessarily involves some consideration of whether either or both of the parents have taken Carew J’s findings on board and adjusted their behaviours.
Some general comments about these Reasons, including the Schedule to the same
So that there is no misunderstanding about how the information recounted chronologically in the Schedule (summarised from aspects of the evidence before the Court) which accompanies and forms part of these Reasons has been used in the determination of the parenting orders now in the children’s best interests, I record that:
(a)I accept that the information recounted therein was provided by whomever is said to have provided it; and
(b)where indicated in the Schedule, I accept the opinions proffered by those who have proffered them; and
(c)the Schedule does not contain a summary of all of the evidence – whilst it outlines matters I consider to be particularly relevant to the determination of those parenting orders now in the children’s best interests, the absence of any particular evidence from the chronological recitation of events should not be taken to indicate that the same has not also been the subject of consideration in the discharge of the obligation to make parenting orders which are now in the children’s best interests and proper; and
(d)because of my assessment of the father’s veracity, perceptions and capacity to recount events inaccurately, I do not necessarily accept the accuracy or truthfulness of the information conveyed by the father as recounted by the recipients of the same: that is, whilst I accept that the father said what he is recorded as having said, I do not necessarily accept that what was said (and therefore reported) was a truthful or an accurate representation of what had, in fact, happened – although it may, on occasion, have accurately represented the father’s perception of what was reported to have happened; and
(e)I have deliberately taken the time to set out, in significant detail, many of the various clinical observations made of D at varying times because the father’s case involved the contention that I should prefer the opinion of privately-engaged Dr NN that D does not have Autism Spectrum Disorder (ASD) to the opinions of the clinicians from Queensland Health (namely, Dr AO and Dr AP) that D has ASD; and
(f)unless otherwise indicated, I have accepted the account of events recorded in the various source documents referenced therein in preference to any contrary account provided by the parents.
Further, I have deliberately set out the various communications by the father to various recipients in full so that those reading this Judgment are able to appreciate fully the context and tone of his communications and to appreciate the bases for my conclusions about the nature of his communications and his likely future inability to refrain from continuing to communicate with the mother or inform service providers about her in a manner other than that demonstrated by such communications.
Broad overview of some past parenting arrangements and orders which pre-dated the trial
These parents, who cohabitated between 2007 and 2011, separated before their daughters were born – that is, more than a decade ago.
The first final parenting order, made on 3 December 2013, provided, in essence, for: the parents to have equal shared parental responsibility for the major long-term issues relating to the children; the boys to live in a week-about parenting regime; the girls to live with the mother and to spend time with the father by way of a gradually increasing time regime.
Between February 2016 and March 2016, the father withheld D and E from the mother; she withheld the girls from him. Further proceedings were commenced. In July 2016, Carew J made interim parenting orders in terms which included that the boys return to living with their parents in an equal-time week-about parenting regime, whilst the girls continue to live with the mother and spend time with the father on each alternate weekend and each alternate Thursday night when the boys were in his care.
The second final parenting order – the May 2018 order – was made in terms which included that: the children live in an equal-time week-about parenting regime; the father have sole parental responsibility for the health and educational issues relating to all of the children (with an associated requirement that he give the mother notice in writing of any decision he proposed to make about these issues at least seven days before making that decision and that he advise her of any appointments made by him for the children to attend on any specialist medical or allied health professionals); and the parents have equal shared parental responsibility for all other major long-term issues.
On 13 May 2021, the father commenced the current proceedings. He did so in circumstances where – as summarised in some detail in the entries included in the Schedule – D had suffered very serious and significant deterioration in his mental health and functioning.
On 22 June 2021, the parents entered into interim consent orders in terms which: suspended the operation of the May 2018 order insofar as it applied to D; dealt with D obtaining treatment and participating in a program conducted within OO Hospital (where he had previously been an in-patient); restrained the father from using his sole parental responsibility to change D’s medical and educational treatment.
On 20 August 2021, McClelland DCJ heard the parents’ competing applications for interim parenting orders. On 30 September 2021, his Honour made interim parenting orders, for the reasons expressed, in terms which included that: D live with the mother and spend time with the father as agreed; the mother have sole parental responsibility for decisions about D’s health and education. His Honour did not vary the May 2018 order as it prescribed the other children’s parenting regime.
Whilst E, C and B have remained living in the equal-time week-about parenting regime imposed by the May 2018 order, the father accepted that D has lived predominantly with the mother since about September 2020 and exclusively with her since February 2021; D has not spent time with the father at his home since February 2021, when he ran away and returned to the mother’s home; other than on occasions when the father visited him in hospital and, later, when they both attended at a number of the girls’ extra-curricular events independently of each other, D has not spent time with the father since about May 2021.
Reference to the entries in the Schedule establishes that, for a relatively significant period of time, D has consistently asserted that he wants to live with the mother and not have any time or contact with the father. When interviewed by Ms AC[11] in October 2021, he said that he wanted to live with the mother and did not want to spend time with the father; E said he wanted to live with the father and spend time with the mother and the girls said that they wanted to live with the mother and spend time with the father.
The proposals
[11] Who authored a report dated 10 February 2022.
The father
By a Further Amended Application filed 1 June 2022, the father sought that orders be made for D to live with his parents in accordance with his wishes and for E, B and C to live with him and spend each alternate weekend with the mother; he proposed that orders be made to accord sole parental responsibility for D’s major long-term issues to the parent with whom he was living or with whom he had expressed a wish to live and that he (the father) be accorded sole parental responsibility for the major long-term issues for E, B and C.
However, by Further Further Amended Initiating Application sealed 10 October 2022, the father sought to be accorded sole parental responsibility for the major long-term issues for all of the children (absent any requirement that he advise the mother about the issue to be decided or seek her input or take whatever input she may provide into account in making whatever decision about such issue he ultimately made), that all of the children live with him and that they spend time with their mother as outlined in that application.
A pervasive theme of the father’s case was that the mother’s behaviour since the trial before Carew J was simply “more of the same” – that is, she had continued to behave after the trial as she had behaved since, on his case, at least 2016 and as Carew J found her to have acted. It was also clear the father considered that the mother’s parenting has been almost entirely responsible for the mental health issues with which D has had to contend since 2018: given this, he asserted, in essence, that if the other children remain living with the mother, they too will suffer the same fate and, consequently, all of the children are at risk in her care.
The proposal for D’s transition
When cross-examined about the orders he sought, the father said, amongst other things that he was not seeking an order that D immediately live with him because D was not ready for that and he and D needed to rebuild their relationship. Instead, he proposed that D live with him after he received “proper” treatment, given his view that the treatment D had received to date was simply not working and something had to be done to save him. Whilst seeking orders that D be placed under his care, it seemed that what he really intended was that D be made the subject of his decision making.
It was clear from the father’s evidence that, even if orders were made as he sought them to be made, D may remain living with his mother for an indefinite period of time – namely, until the treating team the father proposed to engage determined that he was ready to transition to an in‑stay facility for treatment. The father’s position appeared to be that, whilst he remained living with the mother, D would engage with psychiatrists (selected and engaged by the father) in a transitional process until he could be transferred to an in-stay facility for treatment; when the as yet unidentified clinicians decided, he would be transferred to a facility like the AR Facility (if the facility had availability or, if this was not the case, he would be placed under the care of a team of clinicians engaged by the father in an environment that was suitable for him) for an indeterminate period of time. Eventually, at some indeterminate time (dependent upon clinical assessment) after this, D would transition to the father’s primary care.
Despite clearly denying the suggestion that the mother had been supportive of D over the 18 months prior to the hearing and clearly asserting that she should have no future involvement in the management of D’s health, the implementation of the father’s plan to remove D from her care would require her to facilitate D engaging with unidentified clinicians selected and engaged by the father and supporting him in that engagement until the clinicians decide he is ready to be moved from her home to either an in-stay facility or some environment (other than the father’s home) where he will be cared for by a treating team chosen and engaged by the father.
Despite his plan for the mother to be required to be actively involved in implementing his proposal for D’s transition from her care to his, the father’s position was that she should not initially be involved in any process by which the girls received psychological support after moving to live with him – because her involvement would “harm them as it has done”.
The moratorium
The father also advanced that, after they moved to live with him, the children’s best interests would be met by the imposition of an eight week moratorium over their time with the mother, during which time she would be restrained by injunction from attending at any of their extra‑curricular activities or any events in which they participated: that is, at some point during the process envisaged to apply to D, there would be an eight week moratorium over his time with his mother (following the expiration of which it was said he would spend time with her as the parents agreed in writing) and that the eight week moratorium over the other children’s time with the mother would commence upon them moving to live with the father.
The father also proposed that, after the expiration of the eight week moratorium, E, C and B would spend time with the mother as follows:
(a)for three months: every second Sunday for up to three hours, with such time to be supervised at AM Contact Centre, subject to that Centre’s capacity and to occur at such time as the Centre determines; and, thereafter
(b)E would spend time with the mother on each alternate weekend: from 5.00 pm Saturday until before school Monday (or 3.00 pm if it was not a school day); and
(c)C and B would spend time with the mother on each alternate weekend: from after school (or 3.00 pm if they were not at school that day or it was not a school day) Friday until before school Monday (or 3.00 pm if it was not a school day).
The father’s proposal also included that the alternate weekend time arrangements continue through the school holidays – with the consequence that the children’s opportunity to spend more consecutive nights with the mother than could occur over the weekends would be limited to the first or second week of the December school holidays in each year; he also proposed that E, B and C spend time with each of their parents on celebratory days in the manner set out in the application.
During his cross-examination, the father essentially confirmed his proposal was as outlined above. However, he also said that he would be “listening to the professionals” about whether his proposal about the periods of supervised time or the moratorium would need to be revised – and that the periods of the same could potentially be for an indefinite amount of time.[12]
[12] Transcript 29 November 2022, p.38
In addition, he anticipated that he would not agree for D to spend any time with the mother for some time, subject to how his recovery progressed – his evidence included that D needed extensive treatment and therapy and that the reintroduction of co-parenting or D having a relationship with the mother would happen when he was able to maintain a healthy boundary with her (and everyone else) and to understand what healthy relationships are – and after D had received treatment to, in essence, restore him from the effects of her care which, in the father’s view, had historically seen him deteriorate significantly.
The father’s evidence was, in essence, that if, during the children’s supervised time with the mother it was observed, after two or three weeks, that “perhaps” there was coaching or “some sort of emotional harm” and it was suggested that, perhaps, their time with her should cease, he would listen to the professionals whom he intended to engage.
Given what I find to be the father’s established history (apparent from reference to the Schedule) of disengaging from clinicians who do not adopt his rationale and ignoring clinical recommendations with which he does not agree, I think it is highly likely that any professionals from whom he would accept advice would be limited to those who joined with him in his assessment of the existence of coaching or emotional harm – in the same way that, for example, Dr GG, his psychiatrist, has been prepared, in my view, to support his reported view of events.
I was left with the very strong impression that, if orders were made as the father sought, it is quite possible that, as a consequence of the father taking on board whatever “the professionals” thought, there could be an indefinite moratorium over the children’s time with their mother; or, failing that, an indefinite period of supervision; or changes back and forth between these two possibilities.
An assessment of the likelihood of such an outcome is, I consider, also assisted by having regard to the father’s past proposals about the imposition of a moratorium over the children’s time with the mother if they were to live primarily with him:
(a)in the application, filed on 13 May 2021, the father had sought the imposition of a 12 month moratorium over the children’s time with the mother and that he be permitted to take them to the United States of America so that D could receive treatment there; and
(b)by the Amended Application, filed 26 July 2021, the father abandoned his proposal to take the children to the United States of America but persisted in seeking orders that all children live with him, there be a 12 month moratorium over their time with the mother and that, thereafter, their time with her be supervised at a nominated contact centre; and
(c)at the interim hearing before McClelland DCJ on 20 August 2021, the father’s position was that interim orders should be made for the children to live with him and, until further order, there be an indefinite moratorium over the children spending time with, and communicating with, the mother unless otherwise agreed by the parents in writing.
Given the father’s acceptance, during his cross-examination, that he and the mother had not agreed about pretty much anything in the past, I think there is much in the suggestion that it is highly unlikely that these parents would reach any agreement about what time D would spend with the mother in the future if he moved to live with the father.
I reject the father’s disagreement with the suggestion that there is no chance of an agreement being reached between him and the mother about the reintroduction of the children’s time and communication with her if they live with him: after all, he has clearly and consistently asserted in these proceedings, and to many of those who have been involved in D’s treatment, that the mother’s parenting is primarily (if not solely) responsible for D’s mental health and other functioning issues and that the only way D will improve is if he is completely removed from her care – regard need only be had to his own correspondence, as set out in the Schedule, to clinicians and educators, in which he has unambiguously and repeatedly expressed such views.
The mother
In the Further Further Amended Response filed 17 October 2022, the mother proposed that: D, B and C live with her and E live with the father; she be accorded sole parental responsibility for the major long-term issues for D, B and C (with the proviso that, insofar as B and C are concerned, she consult with the father about the decision to be made); the father be accorded sole parental responsibility for the major long-term issues relating to E (with the proviso that he be required to consult with her before making decisions about the same); D spend time with the father in accordance with his wishes; the girls spend time with the father each alternate weekend from after school Friday until before school Monday (with their time with the father to coincide with E’s weekend time with him); E spend time with her each alternate weekend from after school Friday until before school Monday (with his time with her to coincide with the girls’ weekend time with her). The mother’s initial proposal also included that the alternate weekend time arrangements continue through the school holidays; she also sought orders which would provide for E, B and C to spend particularised time with the father on and surrounding Christmas and on other celebratory days.
Despite the contents of the October 2022 Response, the Outline of Case (Final Hearing) document filed on the mother’s behalf on 21 November 2022 asserted that she was “giving consideration to changing her position arising from substantial issues emerging from the Father’s evidence which are new to the Mother and issues in the subpoenaed documents also”.[13]
[13] Mother’s Outline of Case (Final Hearing) filed 21 November 2022 at 1(i)(b)(i) on p. 21/34.
Whilst, during the second day of her cross-examination, the mother confirmed that she was then still seeking an order that E live with the father and spend every second weekend with her, her position subsequently changed. Following the close of the evidence, Mr Dodd, who appeared for her, placed on the record[14] that the mother’s position was then that:
(a)she be accorded sole parental responsibility for all of the children; and
(b)all of the children live with her and spend no time with, and have no communication with, the father; and
(c)the father be restrained from communicating with or approaching her and approaching her place of employment; and
(d)the father be restrained from communicating with or approaching the children, their places of education and the places at which they receive any medical treatment.[15]
[14] Transcript 9 December 2022, p.827, lines 36-43.
[15] Written submissions filed by the mother on 16 January 2023.
The mother’s revised position was reflected in the proposed Minute of Order which accompanied the written submissions filed on her behalf. [16]
[16] Written submissions filed by the mother on 16 January 2023.
The Independent Children’s Lawyer
By Case Outline filed 21 November 2022, the Independent Children’s Lawyer initially proposed that the mother be accorded sole parental responsibility for the major long-term issues for D, B and C and that the father be accorded the same for E. In relation to living and spending‑time arrangements, the Independent Children’s Lawyer proposed, at that time, that:
(a)D live with the mother and spend time and communicate with the father at all times as expressed by D; and
(b)E live with the father and spend time with the mother each alternate weekend from after school (or 3.00 pm) Friday to before school Monday, with his time with the mother to coincide with the time B and C were in her care; and
(c)B and C live with the mother and spend time with the father each alternate weekend from after school (or 3.00 pm) Friday to before school Monday, with their time with the father to coincide with the time E was in his care; and
(d)E, B and C spend time with their parents as particularised on and surrounding Christmas and Father’s/Mother’s Day; and
(e)E, B and C spend half of the June/July and September/October school holidays with each parent.
However, at the conclusion of the evidence, the Independent Children’s Lawyer placed on record that her position was then that orders should be made to accord the mother sole parental responsibility for the major long-term issues relating to the children, for all of the children to live with the mother and for them to spend no time and have no communication with the father.[17]
[17] Transcript 9 December 2022, p.828, lines 3-5.
Unlike the position advanced on behalf of the mother, however, the Independent Children’s Lawyer proposed, as was reflected in the Minute of Orders attached to the written submissions filed on her behalf,[18] included that orders be made to enable the father to obtain copies of the children’s school progress reports and school photographs at his own expense. [19]
Some general comments about the evidence given by, and the credit of, some of the witnesses
[18] Sealed 13 January 2023.
[19] Written submissions filed by the Independent Children’s Lawyer on 13 January 2023.
The father
I consider that the father’s evidence was tainted by what appeared to be his inability to do much other than try to sheet home responsibility for D’s behaviours to the mother; his views about her coloured his evidence completely.
I consider the father struggled to be truthful on a number of occasions – for example:
(a)he struggled to accept that D had demonstrated dysregulated behaviour in his care – despite notes of his reports to various clinicians and agencies establishing this as a fact; and
(b)he denied that D had expressed any suicidal comments or ideations whilst in his care – despite the notes of his report to TT Mental Health Service in mid-2020 including that he had said that D had a “history of attempting suicide […]. Father intervened.”; his evidence, when cross-examined about this, included that D had gone to get a lethal object once; he (the father) had come home and asked him what he was doing and D had said “nothing” and that he was messing around, but E said that D was talking about killing himself; and
(c)he initially denied telling a staff member in late 2020 information which resulted in the notes recording that “Father alleged mother is prostituting herself” – before saying that he had only said this once, when D was hospitalised (which had not happened until the following month) and that his comments had to be taken in the context of him responding to questions he said had been asked of him during a discussion about D’s sexualised behaviour and lewd things he was doing: he said, in essence, that he had only provided the information recorded in the relevant notes (set out in the Schedule) in response to questions asked of him – his evidence included that he advised the clinician that a parent at the school had brought to his attention that the mother was “escorting” and he had relayed what he had because he was concerned about how the boys had been behaving; and
(d)despite sending the mother an email on 21 January 2021 which said “You are to care for [D] until I obtain an order directing you otherwise.”, the father denied that this was suggestive of him relinquishing D’s care to the mother; and
(e)despite asserting that Dr PP had told him that D’s appointments should be booked in the weeks when he was living with him, there is nothing in the clinician’s notes to suggest this was the case; and
(f)the father said that Dr NN had told him that the mother had Munchhausen-by-proxy and that he had authored an unreleased report which contained the assertion that the mother had Munchhausen-by-proxy – but Dr NN’s evidence (which I prefer to that given by the father) was that he could not recall ever suggesting to the father that the mother had Munchhausen-by-proxy and it would be wrong to record that he had told him this, that all of his interactions with the mother had always been typical and that it was wrong to suggest that he had authored an unreleased report which contained the assertion that the mother had Munchhausen-by-proxy.
Dr GG
I accept the submissions made by Counsel for the Independent Children's Lawyer and on behalf of the mother as to the manner in which I should treat the evidence given by Dr GG: that is, I accept that Dr GG has, in effect, become an advocate for the father.
I also accept the thrust of the submissions made by Counsel for the Independent Children's Lawyer to the effect that, in making the comments about the mother that he has to the Department and to other medical and associated professionals involved with the family over time, Dr GG has demonstrated that he has become entwined in the father’s view of the mother and her parenting and that he has, in essence, lost his objectivity.
Any residual doubt about such conclusions is erased when reference is had to the terms of Dr GG’s correspondence to entities such as the Department and clinicians such as Dr PP who were, at the time, involved in D’s care (as noted in the Schedule) and to the fact that, despite having only met her once for about five minutes in 2007 – and having never interviewed her or assessed her himself, as he set out in his 1 March 2018 report – he was prepared to give evidence which included the assertions that:
(a)“ it is difficult, if not impossible for me to conclude that [Ms Barbaro] is mentally healthy, or emotionally stable... [20]; and
(b)“….I formed the conclusion that [Ms Barbaro] had done much to obstruct [Mr Spalding’s] relationship with the children and cost him additional unnecessary expenses...”[21]; and
(c)“... I find it very difficult to conclude [Ms Barbaro] is a stable, healthy character...”[22]; and
(d)“... [Ms Barbaro] has repeatedly told the girls they are not wanted...”.[23]
[20] Affidavit of Dr GG 17 October 2022 at Annexure DGG-04, page 28.
[21] Affidavit of Dr GG 17 October 2022 at Annexure DGG-04, page 22.
[22] Affidavit of Dr GG 17 October 2022 at Annexure DGG-04, page 27.
[23] Affidavit of Dr GG 17 October 2022 at Annexure DGG-04, page 28.
Whilst Dr GG’s notification to the Department in late 2019 included the assertion that “The reporter believes from the observations and information provided during the Family Law Court proceedings that [Ms Barbaro] has a personality disorder herself”, he accepted, when cross‑examined, that this asserted belief was based on the father’s descriptions of the mother’s behaviour and his (the father’s) reported observations; he also accepted – although it would not necessarily have been intrinsically apparent to the Department – that he had expressed the opinion that he did without undertaking any assessment of the mother at all.
I was not persuaded by Dr GG’s attempt to justify his actions on the basis of his assertion that he had not relied only on information provided by the father but had relied on a reference to “personality pathology” in a report prepared by a Dr AA (to whom he had referred the parents in the early days of their relationship), especially where Dr AA was not a witness in these proceedings and the reference to “personality pathology” seems to me, without more, to provide little proper basis for the opinions he has expressed to the Department (and other clinicians) about the mother on various occasions.
It is beyond doubt that Dr GG formed a clear and unequivocal view about the mother based entirely on the father’s recitation to him of his perceptions of her behaviours. That he has been prepared to express his views about the mother (derived in such circumstances) and to deliberately denigrate her and her functioning to other professionals who have been, at times, involved in treating D and to the Department is, in my view, a clear demonstration of the extent to which any objectivity he once may have had in relation to his engagement with the father has been lost.
Such conclusions are further buttressed by the following aspects of Dr GG’s evidence, elicited under cross-examination:
(a)when he assessed E at his rooms in March 2020, he did so despite not being a child psychiatrist and without any formal referral and despite knowing that E was then under the care of Dr II, a consultant paediatrician; and
(b)whilst he said that he had seen E in March 2020 on the basis of it being a “crisis” attendance, he also said he had seen him on a couple or few occasions after that (although he disputed the father’s contention that he had seen E on six to eight occasions and said he maybe saw him on three or four occasions); and
(c)he had not kept any notes of any of his sessions with E, had not billed the father for any of them and conducted at least one of them at the father’s home; and
(d)he accepted that he had been prepared to assert, in correspondence dated 27 May 2021 to the mother’s solicitor (in which he expressed his support for the father’s plan to travel with the children to the United States of America so D could access treatment in a specialist inpatient facility), that “Given the paralysis and ineffectiveness of the [OO Hospital] admission, the abject failure of private psychiatrists, psychologists and the outpatient intervention of the CHYMS organisation, I support this intervention” – based only on information provided to him by the father about the matters referred to in that sentence.
In addition to his loss of objectivity, I was left with lingering doubts about Dr GG’s veracity: whilst he said, when he was cross-examined about his discussion with E about a spiral board game and, in essence, E putting people on various spirals depending on how he related to them at the time, that he “didn’t do family” (but had restricted his conversation to E’s friends and teachers because, in essence, discussions about them were emotionally safe for E), the correspondence he sent to Dr PP in March 2020 clearly informed that he had “given [E] some coping strategies using his spiral board game with animals which symbolised various people, his teacher, friend and his parents.” The information in the correspondence to Dr PP also differs from Dr GG’s evidence that he had not spoken directly to E about this mother – who he said was on the middle spiral for E (that is, on the spiral used for people who are safe and trusted).
My concerns about Dr GG’s veracity also cast doubt on his evidence that the reason he did not keep any notes of any of E’s sessions with him included that E was very concerned about information getting back to the mother because he feared the backlash from her if he said anything negative or derogatory about her.
The fact that Dr GG has been so ready to take up the father’s point of view and criticisms of the mother’s parenting and, in essence, to add his imprimatur to them when parroting those opinions to other professionals and the Department means that it is highly unlikely that, if he continues to attend on Dr GG, the father will ever be challenged about the foundation of his asserted beliefs about the mother (expressed in the various communications to which reference is made in the Schedule) or assisted to consider whether, in fact, they have a rational basis. There is little to suggest that his ongoing engagement with Dr GG is likely to assist the father to change how he approaches his future interactions with the mother, his views of her as a parent and person or his future communications about her to educators or clinicians engaged with the family.
The mother and maternal grandmother
Save for the mother’s denial that she made comments she was noted to have made when she remarked, amongst other things, that she wished she could have “the old” D back (as documented in an entry in the Schedule), I found her evidence to be largely consistent with the contents of records maintained by the medical practitioners, medical facilities and clinicians and entities such as the Department, the Queensland Police Service and the Queensland Ambulance Service. Unless indicated otherwise, I accept her evidence and where she and the father have given contradictory evidence, I prefer her evidence to that given by him.
I accept the evidence given by the maternal grandmother, including to the effect that she does not believe that the father has sexually abused D.
The various clinicians involved at varying times in D’s treatment
Unless otherwise expressed, I accept the evidence given by those clinicians who were witnesses in the proceedings and, to the extent that the evidence given by any of them contradicts the evidence given by the father, I prefer their evidence.
APPLICABLE PRINCIPLES
In these proceedings, being proceedings for a parenting order[24] in relation to the children, I may, subject to s 61DA[25] and s 65DAB[26] and Division 6 of Part VII of the Family Law Act 1975 (Cth) (”the Act”), make such parenting order as I think proper.[27] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[28] In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration[29].
[24] Family Law Act 1975 (Cth) s 64B.
[25] Presumption of equal shared parental responsibility.
[26] Parenting plans.
[27] Family Law Act 1975 (Cth) s 65D.
[28] Family Law Act 1975 (Cth) s 60B.
[29] Family Law Act 1975 (Cth) s 60CA and s 65AA.
The matters to which regard must be had in determining those parenting orders which are in the children’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[30] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in these children’s best interests and I have considered all of the relevant considerations in arriving at my conclusion about those orders which are in their best interests.
[30]See Banks & Banks (2015) 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
Given the integral role of the pervasiveness of the parental conflict in the determination of those parenting orders which are now in the children’s best interests, I intend to express my assessment of matters relevant to the parents – their conduct and attitudes – before discussing the primary considerations. In doing so, I have not overlooked or in any way ignored the primary nature of the primary considerations. Rather, I have simply determined that, in this case, it is only by appreciating the conduct and attitudes of the parents – particularly in the time that has passed since the May 2018 orders were made – that matters relevant to the assessment of the primary considerations and the balance of the additional considerations and the weight to be accorded to the same can best be determined.
The father: his involvement in the children’s lives; his capacity to meet the children’s emotional, intellectual and other needs; his attitude to the children and to the responsibilities of parenthood; his attitude to the mother and the children’s relationships with her[31]
[31] Family Law Act 1975 (Cth) ss 60CC(3)(c), (ca), (f), (i) and (m).
I am not persuaded that the father has heeded the comments made by Carew J in the May 2018 Reasons or that, after the May 2018 orders were made, he has sought to diminish the conflict between the parents or that his attitude toward, and views of, the mother have changed in any way. Rather, having regard to his comments and communications to various clinicians, educators and Departmental officers about the mother (as summarised and set out in the Schedule), it is clear that, despite the passage of time, he continues to “loathe and detest her” – as Carew J found he did in 2018.[32]
[32] Spalding & Barbaro [2018] FamCA 362 at [66].
I consider that the father’s antipathy and vitriol toward the mother is unabated; he has continued to demonstrate an unwillingness and/or inability to refrain from making derogatory and inappropriate comments about her to those entrusted with providing for D’s medical needs and, more generally, the children’s educational needs; he has, in my view, continued to hold and promulgate the view that she is almost entirely responsible for the mental health issues which beset D after the May 2018 orders were made; he clearly continues to regard her as entirely deficient as both a parent and as a person and he has repeatedly expressed his opinion that D’s behaviours would only improve if she was removed from his life.
The evidence, including as summarised in the Schedule annexed to these Reasons, clearly establishes that, even after Carew J delivered her Reasons in May 2018, the father has continued to express a plethora of negative and derogatory comments about the mother to the various schools at which the children have attended and to many of the various medical practitioners and allied health staff from whom D has received care.
The father’s evidence included the assertion that he believed it was important for the children’s long-term development that they have a healthy attachment and relationship with the mother. However, the content of his communications to clinicians, educators and child safety officers about her, as set out in detail in the Schedule, demonstrates to me that he considers her intentional conduct has damaged the children (especially D but, increasingly over time, also E), that he is contemptuous of her and incapable (for whatever reason) of refraining from speaking about her in a derogatory and demeaning manner – regard need only be had to his various communications set out in the Schedule, including that to the school on the day after the May 2018 orders were made, which included that “It really is a big blow to have equal custody given what’s transpired and how bad the children especially [D] was damaged from intentional conduct”.
Any hope that the father’s demonstrated inability to filter the information he provided to third parties about his view of the mother and her limitations, as both a person and a parent, diminished as time passed after the May 2018 orders were made is extinguished by looking to his subsequent communications (set out in the Schedule) with various people such as Dr PP, the schools, the Department and staff at OO Hospital following D’s admission there in late 2020.
The father thought that, amongst other delinquencies, the mother: sought various diagnoses for D so that she could financially benefit from the same; deliberately encouraged D’s mental health disorder symptomology and was, in essence, responsible for the development of that condition and his dysregulated behaviours generally; deliberately kept D in the “sick role” and neglected him; is an “unreasonable cunt” and a liar; has coached the children to make the various critical comments about him that they have made over time to various people (as set out in the Schedule) including the Department, educators, clinicians and Ms AC, the author of the Family Report; deliberately failed to administer the correct doses of medication to D; behaved such that, every time she was involved, the children “get mentally worse” and chaos resumes; and the maternal grandmother had exposed the children (and especially D) to very dysfunctional and manipulative behaviour over the years; persecuted D and made him feel worthless for so long that he consequently developed social anxiety disorders; damaged D because of the way she parented him (and, consequently, will damage the other children if they are left to spend any time of significance with her); disrupted the children’s stability and/or emotional wellbeing by insisting on seeking to be involved in decisions about their medical and educational issues; parented in such a way as to cause E to be an anxious and “broken child”[33]; prioritised hiding “the truth” about her parenting of the children over the well-being of the children; is the parent who has always prevented D from having what he needed to be and live happily[34]; was such a bad parent that, in November 2019, he said he would prefer the children go to foster care rather than be with her.
[33] Exhibits 29 & 39.
[34] Exhibit 39.
Given that the above represents only some of his critical views of the mother and her parenting, I am not remotely persuaded that the father would genuinely and positively support the children’s relationships with her if they lived primarily with him and spent time with her as he ostensibly proposed. Similarly, I consider that any parental order which required any of the children’s time with the mother to depend on parental agreement would be futile.
I consider that the real relevance of so many of the father’s comments about the mother is what they establish about him, his approach to parenting the children and to co-parenting with the mother; as but an example, his comments to nursing staff asserting that the mother was an escort (as set out in the Schedule) so soon after D was admitted to hospital in late 2020 demonstrate that he was simply unable to prioritise D’s needs over his desire to denigrate the mother to staff and, I suspect, to attempt to have them join in his view that she was the cause of D’s issues: his need to express his views about the mother, her asserted exploitation of him for financial reasons, the aftermath of the breakdown of their relationship and the like simply dominated a time when the focus ought to have been on nothing but D’s needs and wellbeing.
I am satisfied that, despite the terms of the May 2018 order requiring the father to notify the mother in writing of any proposed decision relating to the children’s health and education at least seven days prior to making that decision, provide her with any relevant information, invite her to respond in writing within seven days, consider any written response from her and inform her of the decision he had made within seven days and the reasons for it,[35] the father failed, for example, to tell the mother about various decisions he made about E’s medication.
[35] Clause 3.
I am satisfied that, despite the terms of the May 2018 order requiring the father to advise the mother of any appointments he made for the children to attend any specialist medical or allied health professionals and providing that she was at liberty to attend the same (with the practitioners retaining the ultimate discretion as to which parent, if either, attended appointments)[36], the father:
(a)failed to advise the mother of appointments for E to see Dr II (a paediatrician) on a number of occasions after about February 2019 and failed to advise her about the recommendations made by the clinician at various times; and
(b)failed to advise the mother of E’s attendance on Dr GG (despite, for example, telling Dr PP in June 2019, that E had been doing CBT therapy “around coping” with that practitioner) and I accept the mother only learned that E had been seen by Dr GG when she read of this in the father’s October 2022 affidavit.
[36] Clause 4.
It is, I think, not without some irony to note that, whilst the father complained about the mother’s failure to address D’s issues properly, he appears to have been less than diligent in actioning the recommendation made by Dr II in October 2019 – and thereafter – that E have access to long-term psychological support.
I consider that the father has, on occasion, previously been critical of attempts by clinicians to include the mother in D’s treatment or to keep her informed about what was happening in that respect: see, for example, the content of his email to Ms AS at J School in September 2019. I also consider that the father previously decided to disengage D from specific clinicians because he considered that they were biased toward the mother. There is nothing in the evidence to suggest that the father’s future approach is likely to differ from his past actions.
There is much in the submission that some of the father’s decisions about D’s health, treatment and those interventions necessary to support him in the period when he was the parent with sole parental responsibility for the health and educational issues relating to D meant that D was left, on occasion, without consistent and appropriate psychiatric and psychological treatment and allied health support. I also think there is much in the submission that this arose because, in essence, the father was primarily focused on making derogatory and denigrating comments about the mother’s parenting to various treating clinicians and on his concern that they were biased against him and in favour of the mother. I also cannot discount that, rather than taking advice from, and following recommendations made by, D’s treating clinicians, the father approached his decision-making through the prism of his own experiences with a mental health disorder and prioritised these over the expert advice provided by clinicians. I also think it highly likely that the father’s dogged focus on the mother’s parenting being the cause of D’s dysregulated behaviours completely blinded him to even the possibility that there might be another explanation. Nothing in the evidence persuades that it is likely that the father’s focus will shift.
I accept that the father did not inform either the mother or the Independent Children's Lawyer about the fact of a police raid on his home in 2022, following the interception by Australian Border Force (ABF) in 2022 of a parcel addressed to the father’s address – whilst the parcel purported to contain legal goods, it in fact contained contraband and the records established that similar consignments had previously been delivered to the father’s address. I accept that the fact that the father was charged with a number of offences following the police executing a search warrant at his home only came to light as a consequence of a subpoena issued during the proceedings. As noted in the Schedule, I accept that, when the father’s criminal charges were dealt with in 2022, he was fined and no conviction was recorded.
There is much in the submission that the father’s evidence that he had applied for, in essence, a permit permitting him to import some of the substances which resulted in the charges outlined above did not establish that such permit or exemption had in fact been granted. In another case, the issue of the possession of the substances might have been of a determinative nature. However, without diminishing the illegality of the father’s conduct, it seems to me that, in this case, so many of the other issues the subject of findings in the Schedule and discussion here are of greater importance.
I accept that, the father did not pay anything by way of child support to the mother between 4 July 2019 and 6 September 2021 and that, during this time, the parents were engaged in a “barrage” of appeals and applications by which the father sought credit for non-agency payments and other such matters. When the parties appeared before McClelland DCJ on 20 August 2021, the father’s child support debt was $99,808.53. At the hearing he agreed to pay this and payment was made on about 6 September 2021.
I accept that, despite her request that he do so, the father then did not pay anything by way of child support to the mother until 9 October 2022. I accept that the father paid $42,988.19 on 9 October 2022 to discharge the child support debt which had by then accrued.[37]
[37] Mother’s affidavit filed 17 October 2022, paragraph 504.
Whilst trite to observe, the father’s failure to pay the assessed child support on a periodic basis would clearly have negatively affected the children, for whose financial support it is intended. In addition, the impact on the children of the father’s decision not to pay the assessed child support amounts as they were due is, it seems to me, likely to have been greater for at least some of this period because, following the parents’ attempts in mid-2022 to agree about changing the extra-curricular centre at which the girls attended, the mother lost her employment there. I accept that this occurred because, following the mother’s request that he agree to the girls attending a different centre, for the reasons she expressed to him, the father subsequently advised the owner of the centre at which the mother was employed that she had complained about it. I do not accept that, when he acted as he did, the father thought the mother had already ceased her employment at the centre.
Despite the father’s evidence including that he does not try to undermine the children’s relationship with the mother or make them feel guilty about loving her or wanting to spend time with her and that he reinforces to them that they must respect both parents, his conduct on occasion seems to me to have been the very antithesis of such sentiments – in so far as E is concerned and by way of example only, regard need only be had to the content of the following text communication he sent to E on 23 November 2021:
[…]
you know why mum. is this way, she does not went any device that shows the truth in her home, it’s always been th same, you Kids have all said it for many years now, so don’t make it about you as it is not, it is about mum mate, younahbe done nothing wrong and are a good boy and child [E]
Don’t take it personally, it is NOTHING ABOUT YOU, AND YOUR NOT BAD at all
just move mum to your outside spiral and use your boundary therapy to keep strong and no this is how she behaves and you know that…….
The reference to the “outside spiral” in this text is to a concept which Dr GG had previously explained to E – namely, that people could be moved from an “inner spiral” to an “outer spiral” depending on his relationship with them, including whether he considered them dangerous and harmful to him. Given this, the father’s clear instruction to E was, in my view, that he should regard his mother as being distant from him and that there was an associated need for him to impose and maintain boundaries between them.
Any thought that the father may have, with the benefit for further reflection afforded by the passing of time, reached the stage where he regretted communicating with E about his mother in the manner outlined above was disabused by the father’s evidence, when cross-examined, that he did not regret saying what he had said.
That the father’s absence of support for the children’s relationships with the mother and his undermining of the same is not confined to E is, I think, established by the comments made by each of the girls at various times to educators and the Department, as set out in the Schedule – by way of example only, I accept that, in 2019, C told a staff member at AT School that she did not want to go to the father’s house because she could not speak to her mother whilst she was there; I also accept that, in 2021, B told a school guidance officer that the father lied about the mother’s consumption of alcohol. In addition, when interviewed by Ms AC in October 2021, C told her that the father often said negative things about the mother and these made her quite sad.
The father denied acting as C told Ms AC he had; his view was that the children had been coached by the mother to make all of the negative or critical comments about him or his parenting they made to Ms AC or to anyone else. He did not accept that, when B told Departmental officers in mid-2021 that she wanted to live full-time with her mother, this was her true wish; his position was that any expression by any child of a wish to live with the mother was the consequence of her coaching them and he could not accept, on any level, that the girls wanted to live primarily with the mother.
Whilst the father said, during his cross-examination, that it was not solely the mother’s fault or a direct consequence solely of her parenting that D had gone from being what he described as being a “healthy incredibly capable amazing young boy to not being able to shower and wipe his backside”, the content of so many of his communications (set out in the Schedule) belie this. I consider that his communications demonstrate unequivocally that he regards the mother as being overwhelmingly responsible for D’s dysregulated behaviours, whether the same occurred when D was in her care or with him; what appears to me to be his fixated views about this and other aspects of the mother’s parenting seem to me to have rendered him incapable of considering whether there may have been another explanation for D’s behaviours and also of accepting the validity of D’s subsequent autism diagnosis.
Despite:
(a)comments by various clinicians (such as, for example, Dr PP) about the impact of parental conflict on the children; and
(b)the results of various assessments done by the Department, which have consistently emphasised that the children have suffered emotional harm as a result of exposure to ongoing parental conflict and, extrapolating from the comments made specifically about D at the time, that their situations will not improve until the parental conflict ceases; and
(c)Carew J unambiguously emphasising, in the May 2018 Reasons, the need for both parents to change their behaviours toward each other so as to minimise the conflict to which their children were exposed; and
(d)these sentiments expressed by Carew J having largely been echoed in the Reasons delivered by McClelland DCJ on 30 September 2021,
there is nothing in the evidence to suggest that the father is likely to change his approach or his behaviours in the future.
The mother: her involvement in the children’s lives; her capacity to meet the children’s emotional, intellectual and other needs; her attitude to the children and to the responsibilities of parenthood; her attitude to the father and the children’s relationships with him[38]
[38] Family Law Act 1975 (Cth) ss 60CC(3)(c), (ca), (f), (i) and (m).
I am persuaded, on balance, that the mother has in fact heeded the comments made by Carew J in the May 2018 Reasons and has sought to diminish the conflict between the parents. She has, I consider, been significantly better at refraining from expressing whatever view she currently holds about the father to third parties than the father has been in refraining from expressing his views about her to others.
Whilst she told child safety officers who spoke to her in mid-2018[39] a number of negative matters about the father, she also told them that the conflict between them (the parents) needed to stop; she said she had been trying not to “step on his toes” and that she had been doing her best to keep their communication about the children; she also told them that, even if the father’s verbal abuse of her continued, she did not intend to apply for another Protection Order as this had previously caused way too many issues. I accept that the Departmental assessment of the mother as at mid-2018 included that she presented as a mother who was committed to making the right decisions in relation to the behaviours to which the children would be exposed in the future.[40]
[39] Exhibit 8, p.312.
[40] Exhibit 8, p.328.
I also accept that, when Departmental officers spoke with both parents in early 2020, the mother commented (about D) that “We’ve got a child that needs our help. Stop focusing on your agenda. We need to work together to help him.”
That the mother has, on a few or so isolated occasions, made comments to treating professionals that were critical of the father’s approach to the management of D’s mental health issues, does not persuade me that, at present, she has continued to be as overly critical of the father as Carew J found her to have previously been. Having regard to the contents of her communications with educators and clinicians and the records of her interactions with the same and with Departmental officers (including as set out in the Schedule), I am persuaded that, unlike the father, the mother has generally and consistently demonstrated the capacity to refrain from expressing criticisms of the father’s parenting of the children. I am also persuaded that, in her communications with the father – largely contrasted by the content and tone of his communications with her – the mother has largely limited the exchanges to discussion about the court orders and her intention to follow the same.[41]
[41] Exhibits 29 & 39.
I consider that the vast majority of the mother’s criticisms of the father’s conduct were associated with her concerns about his approach to ensuring that D received appropriate and timely treatment; she did not assert that the father’s parenting per se caused D’s dysregulation or (despite D’s allegations) that he had deliberately acted in an abusive manner toward D – her position really was that, when D’s issues arose, the father failed to address them, either with sufficient urgency or at all or was positively obstructive. Given the contents of those records relating to the father’s interactions with, for example, Dr AU and the WW Mental Health Service, and the consequences for D of the decisions the father made to cease his engagement with them at various times, the mother’s criticisms are certainly not without foundation.
I am not persuaded that the mother has embarked on a course of coaching or attempting to coach any of the children to make comments critical of the father’s parenting; I think it more likely than not that when, for example, the girls made the various comments they have each made at various times to various people about their father’s behaviours (as set out in the Schedule), they were expressing their own experiences of his parenting.
I am not persuaded that the mother told or coached D to make the derogatory comments he has made about Ms AV (the father’s partner) – when regard is had to the various reports in the Schedule of his comments to various clinicians involved with his care over time, he has a clearly recorded history of making offensive, derogatory, racist and otherwise challenging comments on many occasions about many groups of people.
I am not persuaded that the mother has coached any of the children to make the comments they have made at various times and to various people (as set out in the Schedule) and to Ms AC about Ms AV and/or her children. I think it highly likely, given the tenor of the comments made, for example to Ms AC, that they reflect the children’s perspectives of being required to share their home with others.
Whilst the father clearly thought that the mother deliberately encouraged the development of D’s mental health disorder – as opposed to initially failing to manage the emergence of the symptomology as well as she might have done with the benefit of education and support about how most effectively to do so – I am not remotely persuaded that this is the case. Whilst, as she accepted, she may on occasion not have managed various situations as well as she might have done, I consider, having regard to the descriptions of D’s conduct toward her (as set out in the Schedule), that she generally managed very difficult situations in a composed and competent manner – particularly after she started to have the benefit of expert opinion and advice, which I also accept she accepted and actively sought out, about how best to approach D’s dysregulation.
After interim parenting orders were made on 30 September 2021 in terms which, amongst other things, accorded the mother sole parental responsibility for the major long-term issues relating to D’s health and education, the mother has, I consider, been proactive in ensuring that, to the best of the availability of clinicians, D has had consistent access to an experienced and comprehensive team of treating professionals; she has supported him through the various ebbs and flows charted in the entries in the Schedule; she has, I consider, been actively and consistently involved in learning how best to support D.
Whilst the mother, over time, sought that D be assessed for ASD, I am not remotely persuaded that her motivation in doing so was financial as opposed to endeavouring to see if there was something in addition to ADHD and his other disorder that could explain his behaviours.
| Mid-2022 | D’s appointment with Ms EN (psychologist from EK Health Service) I accept that the mother was present in the home during the session with D and that the therapist provided D with, amongst other things, psychoeducation on the function of behaviour: that is, attention (to make people laugh by saying inappropriate things) and escape (to reduce the anxiety by engaging in the behaviour). | Exhibit 8, p.162-163 |
| Mid-2022 | AE School Student Notes Listing I accept that the school noted that D had shared “some concerning information regarding his childhood” during a particular session and that no other students were present at the time. | Exhibit 2 (part 2), p.118 |
| Mid-2022 | I accept that the mother’s evidence included she contacted CYMHS for Dr AP to provide D with psychiatric care in the public sector until the court proceedings and wait-list issues were overcome: she was concerned about his mental health deteriorating further without proper psychiatric care. | Mother’s affidavit filed 17 October 2022, paragraph 148 |
| Mid-2022 | CJ Mental Health Service – Dr AU I accept that the mother signed a new patient intake form for D to attend on Dr AU. | Exhibit 8, p.88-92 |
| Mid-2022 | CJ Mental Health Service (Dr AU/ Ms ES): initial assessment of D I accept that the notes record that D’s presenting concern was around showering for a long time; he was angry that his mental health disorder was still around and he had had sensory difficulties due to ASD; his history included verbalising wanting to kill his father and his brother if it was not illegal and burning down places if the power came to him. I accept the clinician noted that, according to the mother, the program had done a risk assessment and had concluded that, despite D verbalising such things, there was no risk of harm to others. I accept the clinician recorded (under the ‘personal/social history’ heading) that D had said that his brother is “retarded” – the father had beaten D up and E told the police he did not see it and D felt betrayed. I accept that after D told the clinician that the father had sexually assaulted him and his siblings, the mother told her that she hadn’t witnessed this, that this was the first time she had heard about the siblings too and that she said she wanted to stay out of it as she hadn’t witnessed it. I accept D said that he did not want to see his father and believed him to be manipulative. He wore sunglasses throughout the session and hit the mother’s leg. I accept that the clinician recorded a preliminary diagnosis of: a mental health disorder; existing diagnosis ASD and probably complex trauma. | Exhibit 8, p.93-97 |
| Mid-2022 | Assessment of D – Ms ET (assessor) I accept that the notes record, amongst other things, that D scored as being in the clinically significant range for: total anxiety; separation anxiety; social phobia; his mental health disorder and generalised anxiety disorder; panic attack. | Exhibit 8, p.58-62 |
| Mid-2022 | D’s appointment with Ms EN (psychologist from EK Health Service) I accept, as set out in the notes, that when the therapist met with D and the mother in her office, he appeared less agitated; the mother recounted that he had been making progress, which included: working with family members to repair the holes in the walls of his room, sleeping in his room again and achieving a school attendances of more than 85%. | Exhibit 8, p.166 |
| Mid-2022 | EK Health Service notes I accept, as set out in the notes, that Ms EN contacted other “stakeholders” (namely: Ms EU; Mr EV; Mr EM; Mr AW and Dr CO) seeking to gather information that she required for D’s behaviour support plan; I accept she noted that it would be very helpful to that process if they (or anyone else who provided direct support to D) could complete the provided assessment; I also accept she queried if there were any allied health reports and said that she would need Ds doctor (either GP or psychiatrist) to complete a ‘clarification of medication’ form. I accept that Ms EN also noted that it would be very beneficial if they could organise a stakeholder meeting to discuss everyone's perspectives in relation to D's behaviour support needs. | Exhibit 8, p.164-165 |
| Mid-2022 | D’s appointment with Mr EM (Occupational Therapist) I accept that the therapist recorded that when he saw him at home with the mother present, D was irritable and agitated at the start of the session; he was quite demanding and pushy and directed the therapist to run this way, run that way etc,; he also continued to discuss his distaste with his appearance. The therapist noted that changes that were noteworthy were that D had been riding his bike on the same circuit every day (which he suggested may be improving his mental fortitude); as D did not like people behind him, the therapist had to run in front of him – when they returned to the home, D started to smile and laugh again. | Exhibit 2 (part 2), p.183-184 |
| Mid-2022 11:39 | TT Mental Health Service – Progress Notes I accept that Mr AW emailed a person at Queensland Health to advise that D (who was not named) had been unable to see a private psychiatrist due to the father contacting that practitioner and advising of family court proceedings; he said that the mother had contacted him to plead for Dr AP to be able to see D until another private psychiatrist could become involved (someone was booked but D would not see that person until later next year); he said he had had to advise the mother that this couldn’t happen because D had been discharged and that, as the family court and the father particularly, most private psychiatrists would not see D. | Exhibit 1, p.808 |
| Mid-2022 13:24 | TT Mental Health Service – Triage Screen I accept that the notes record that D had been referred via a program contact as the mother was seeking psychiatry input for him. I accept that it was noted that there were no current acute issues and D was doing really well; the mother wanted a medication review due to D reporting that he would like this, to some degree due to him not having had a medication review for around 6 months. I accept that the notes record that D's private psychiatrist had discharged him due to ongoing court proceedings that they felt unable to manage and that he was on the waiting list now to see Dr CO, with an appointment booked for early 2023. I accept that the clinician recorded that they had attempted to put the mother’s concerns at ease – whilst CYMHS input was not indicated at this moment, if there was any acute need in the future to see D, this would be facilitated. | Exhibit 1, p.809 |
| Mid-2022 | I accept that the mother’s evidence included that when CYMHS contacted her, she was told that, as D was currently ‘stable’, they were not willing to re-admit him because CYMHS was designed to treat acute cases. | Mother’s affidavit filed 17 October 2022, paragraph 149 |
| Mid-2022 | D’s appointment with Mr EM (Occupational Therapist) I accept that D’s appointment with Mr EM was cancelled because the therapist was stuck in traffic. | Exhibit 2 (part 2), p.184 |
| Mid-2022 | D’s appointment with Ms EN (psychologist from EK Health Service) I accept that when the therapist met with D and mother in the office, the mother told her that she was feeling tired of the way she was being spoken to by D (he had been calling her a “cunt” and ignoring her and then giving her a mouthful), that she felt cranky and as if she couldn’t get support; she also said D had been doing better for the last couple of weeks although there had been major conflict within the family around D wanting to get in touch with someone he had met at the OO Hospital to apologise to that person. I accept that the therapist advised the mother to be brief, informative, friendly and firm with D. | Exhibit 8, p.168-169 |
| Unknown date | CJ Mental Health Service (Dr AU/ Ms ES): Session notes I accept that the clinicians noted that whilst D reported improvement in some mental health disorder symptoms (i.e. he had been able to cope despite renovations going on at home), he continued to have difficulties with others. I accept that during the session the clinician further explored the alleged sexual assault that D had claimed the father perpetuated on him and his siblings – D reported that: the father had been helping him and E shower; he felt uncomfortable when the father touched his genitals in the shower and said “No” but the father insisted that he (D) was unable to wash his genitals properly and continued; as D was fearful of the father becoming physically violent, he endured it; he denied understanding what was happening at the time but upon hindsight believed it was sexual assault; he said he had seen the same thing happen to E at the time. I accept that D also said that: he had woken up with a sore pelvis on a few occasions when he slept over at his father's place and believed that he had been drugged and sexually assaulted in his sleep (he denied his genitals hurting); his last contact with his father had been in 2021 when he was in the hospital; he had discussed the sexual assault only briefly in the past with doctors and other helping professionals at the hospital because it was too hard to talk about it. I accept that the therapist noted that D had been reluctant to answer questions about the described sexual assault and had become more agitated when talking about it – despite this, she thought that he had overall engaged better with her in this session than in the previous session. I accept the therapist noted that her plan was to consider mandatory reporting of suspected/alleged sexual assault and to discuss this with D. | Exhibit 8, p.98 |
| Late 2022 | I accept that the father’s evidence included that E disclosed to him that he had been “attacked” and “strangled” by D. | Father’s affidavit filed 17 October 2022 para 718 |
| Late 2022 | I accept that the mother’s evidence included that Ms EN organised a stakeholder meeting with D’s private treating practitioners to ensure continuity of his care. | Mother’s affidavit filed 17 October 2022, paragraph 152(a)(ii) |
| Late 2022 10:26 | TT Mental Health Service – Case Review I accept that the records included that the mother was seeking a medical review for D as he was seeking to better understand/rationalise his current medications – he was Awaiting transfer to new Psychiatrist (Dr CO) and had private supports in place: no current acute risk concerns were identified. | Exhibit 1, p.818 |
| Late 2022 | AE School Student Notes Listing I accept that D reported to the school that he thought he was able to stay until 1pm moving forward. | Exhibit 2 (part 2), p.118 |
| Late 2022 16:50 | TT Mental Health Service – Progress Notes I accept that when Dr AP was asked, he advised that he was happy to close D’s case – whilst he acknowledged that the family had had difficulty engaging a psychiatrist in the community due to the father discouraging this, D was now on a waiting list to see a suitable psychiatrist and there was no identified need for CYMHS involvement at the time. | Exhibit 1, p.819 |
| Late 2022 | D’s appointment with Mr EM (Occupational Therapist) I accept that D’s appointment with Mr EM was cancelled due to a crisis for the therapist; he noted he would call D for a quick chat and text the mother about what her lawyers said was the purpose of him being involved. | Exhibit 2 (part 2), p.184 |
| Late 2022 | The mother emails CJ Mental Health Service (Dr AU/Ms ES) I accept that in the email she sent to the centre the mother outlined, amongst other things, that the maternal grandmother was taking D to the appointment that day as she had to deal with legal matters; she said she tried to shield D as much as possible from these as it made him very anxious. I accept that she advised that his mental health disorder had been really good over the previous month and she had seen enormous improvements – he had coped with things that up until recently would not have been possible and would have caused enormous distress. She said that they had been renovating the home to fix all the damage from when D was really sick and that he had managed to cope with triggers. She said the whole house had been upside-down and he had not become upset or dysregulated once. I accept that she concluded by saying that she thought that, at the moment, D was in a good place with his mental health disorder – although she would like him to be able to do other tasks: she wondered whether some of these things were now just ingrained habits rather than his mental health disorder. | Exhibit 8, p.100 |
| Late 2022 | I accept that the mother’s evidence included that D recommenced his extracurricular activity and enjoyed his lesson. | Mother’s affidavit filed 17 October 2022, paragraph 239 |
| I accept that the mother’s evidence included that J School contacted the parents again about the deterioration in E’s academic performance and reiterated the recommendation that he attend the learning support program: she said he started attending shortly after this. | Mother’s affidavit filed 17 October 2022, paragraphs 380, 381 and Annexure MB-11 | |
| Late 2022 | AE School Student Notes Listing I accept, as set out in the notes, that D became distressed after an event and he wanted to go home; when the clinician spoke with him he said he believed this was not a mental health disorder trigger and was different but could not identify how it was different; I accept the mother agreed to collect him and to bring some items to help from home – whilst he did this, he also said that he was unable to continue his day due to the lengthy time of 10/10 distress. | Exhibit 2 (part 2), p.118-119 |
| Late 2022 | I accept that the mother’s evidence included that, when she was in the car with the girls, B said “I know dad takes drugs, I walked into his bathroom and he shut the door on me, and there is always white powder on the counter top in his bathroom, it’s why he can’t remember anything”. | Mother’s affidavit filed 17 October 2022, paragraph 476 |
| Late 2022 | D’s appointment with Mr EM (Occupational Therapist) I accept that when the therapist saw D at his home, the maternal grandmother was present in the house. I accept that D agreed to allow the therapist to look at his bike but became very stressed when the therapist got grease and oil, at which point the therapist stopped tinkering and changed the activity. I accept that the therapist noted that D continued to use offensive language and language as a means of creating distance between himself and the therapist and young person. Further, whilst D was eager to bake a cake, he used behavioural aids for the activity. | Exhibit 2 (part 2), p.184-185 |
| Late 2022 | AE School Student Notes Listing I accept, as set out in the notes, that D reported sensory sensitivity to the clothing he was wearing, which he said was causing him distress and asked to be sent home. I accept that when the school psychologist called the mother, she advised that D had had a difficult morning due to the clothing situation and had yelled and screamed at her – she said she had been unable to wash clothes the day before and so D didn’t have pants that he felt comfortable wearing; whilst she offered to buy a new pair of pants and bring them to the school, D refused this option because he said they would have to be washed before he could wear them. I accept that it was agreed that the mother would collect D and he would return to school the next day. | Exhibit 2 (part 2), p.119 |
| Late 2022 | The mother emails D’s treating team I accept the mother sent an email in the following terms to the therapists engaged with D: Dear Team [D], I would like to advise that in accordance with Court Orders, should [D’s] father contact you requesting information about [D’s] progress or treatment, you are at liberty to communicate with his father to provide him this information. I have also attached a copy of the current court orders. | Exhibit 8, p.74 |
| Late 2022 | D’s appointment with Mr EM (Occupational Therapist) I accept that Mr EM conducted a joint session with D at which his support worker was present; all went well until D fell off his skate-board after which he said he was ‘done’ and went inside. | Exhibit 2 (part 2), p.185 |
| Late 2022 | D’s appointment with Ms EN (psychologist from EK Health Service) I accept that when Ms EN met with D and the mother in her offices, they advised that D had been attending school until 1:30pm, although he had been going out of the sensory room; he demonstrated aggressive language (swearing and calling names). I accept that the mother spoke about E being out and about and having a lot of friends. | Exhibit 8, p.170-171 |
| Late 2022 | I accept that the mother’s evidence included that when E had a friend over for a sleep over, he had the phone his father had provided him; after E’s friend told D to turn on his Air Drop, D sent E a photo of a chicken and a man with a hairy chest; E then sent D pornographic videos. After D immediately showed her what E had sent him, the mother immediately asked E about this: he admitted sending the videos and apologised and she confiscated his phone. | Mother’s affidavit filed 9 November 2022, paragraph 234 |
| Late 2022 | I accept that the mother’s evidence included that D began attending AE School for half days (and that, as at late 2022, he was engaging in lessons in the classroom every day and was close to full day attendance). | Mother’s affidavit filed 9 November 2022, paragraph 332 |
| Late 2022 | D’s appointment with Mr EM (Occupational Therapist) I accept that when the therapist saw D at home, the mother or maternal grandmother were present interchangeably. The therapist noted that D continued to be avoidant when he tried to do surreptitious exposure work with him, although he had gone out to the deck sporadically for about 5 minutes in total; he continued to express “ridiculous and politically incorrect ideas loudly” and continued to do inappropriate actions every time he and the therapist were in the front yard. Despite the issues, D (and the mother) were both eager for weekly therapy to continue. | Exhibit 2 (part 2), p.186 |
| Late 2022 | Ms EN (psychologist from EK Health Service) I accept that, according to the records, the therapist had spent 8 hours writing the plan and reviewing reports; reading and reviewing all the collateral reports; completing all relevant assessments; consulting with all allied health and stakeholders; implementing data collection procedures and data set-up; analysing data and formulation and completing a behavioural support plan for D. | Exhibit 8, p.172 |
| Late 2022 | The mother emails Ms EN (psychologist from EK Health Service) I accept that the mother emails Ms EN in the following terms: Dear [Ms EN], I raised recently in one of [D's] sessions my concerns regarding [D's] ongoing refusal to re-connect with his father. At the time you stated to me that I should not push the issue with [D], as it obviously upset him. I do continue to remind [D] that his father would like contact with him, and I have put [D's] father’s phone number in his phone so that he able to contact him at any time. When you feel the time is right, and it won't be detrimental to [D's] progress can you please revisit this issue. [Ms Barbaro] | Exhibit 8, p.173-174 |
| Late 2022 | “To whom it may concern” correspondence (Progress report) 1. required full-time care when in the home and assistance with most daily life and living tasks when in the home and community – the level of support he required significantly outweighed the typical care required by a 14 year old person; and 2. had shown limited capacity to develop nuanced interpersonal skills that translated across different social, community and vocational settings – he struggled to communicate his thoughts, feelings and emotions which lead to significant dysregulation that presented as frustration, anger, verbally abusive language, physical violence and risk of harm to self and others: he always required support (either from his mother or a support person) to process information given to him (including spoken and written information) across most settings in his life; and 3. required increased support (through 1 :1 mentoring) to supplement specialist intervention and to implement strategies in real world scenarios in the home and community in order to achieve a primary goal of helping him to develop the foundation skills to leave the home environment without the close support and supervision of his mother and grandmother; and 4. had re-engaged with education via AE School and had set a goal of attending each day (for at least the morning sessions) with the aim of building towards full school days by the end of the year – to date, the transition had been successful with the assistance of significant support from the school. | Exhibit 2 (part 2), p.169-174 |
| Late 2022 | Ms EN (psychologist from EK Health Service) I accept that, according to the records, the therapist had spent a number of hours writing a Plan review report, contacting the ‘stakeholders” and organising that they meet to discuss D. | Exhibit 8, p.175-176 |
| Late 2022 | D’s appointment with Mr EM (Occupational Therapist) I accept, as set out in the notes, that when the therapist attended on D, the maternal grandmother was present in the home – he reported that D (who continued to use behavioural aids) initially avoided eye contact and was of a seemingly lower mood. I accept that D told the therapist that he had been at longer every day for the last fortnight and that he “finally” asked to walk to the shops – however, he also asked the therapist to provide “defence” in case his father was at the shops; when the therapist validated his efforts in walking to and from the shops, D downplayed this by saying he did this “all the time” with his support worker (even though it may in fact only have been during the three most recent sessions). I accept that when they returned to the home, D was agitated; when the therapist noted he appeared to be out of sorts, D tried to regulate his explosive/inappropriate behaviour and yelling as well as his agitated mood a little better – although he continued to shower the therapist with insults and make offensive remarks throughout the session (which the therapist laughed off – “as usual”). I note that the therapist recorded that he would slowly start to challenge D in terms of the language he used with him and his manners generally. | Exhibit 2 (part 2), p.186-187 |
| Late 2022 | Ms EN (psychologist from EK Health Service) I accept that, according to the records, the therapist had spent a number of hours reviewing and completing a specified plan and review report, emailing the stakeholder’s about the upcoming meeting, sending them draft reports and seeking feedback about the intervention section including more advice about how to manage D’s symptoms. I accept she advised that "[D] can border on engaging in abusive behaviours towards his mother, and I believe he has the capacity to understand what he is doing and modify his behaviour (when he is well enough). I think it's important that he has some support to understand when he crosses the line. Let me know if you feel that he will grasp this ", with the intention of them all discussing this further when they met. | Exhibit 8, p.177-178; 151 |
| Late 2022 | Email from clinician (Mr EV) to the balance of D’s treating team I accept that in advising of his inability to attend the meeting planned for the day, Mr EV provided a DRAFT progress report and requested feedback and recommendations to ensure it aligned with goals and recommendations for D’s upcoming plan review. | Exhibit 42 |
| Late 2022 | Ms EN emails the balance of D’s treating team I accept that, amongst other things, Ms EN advised that she had updated the reports with feedback from the mother and noted that she remained very interested if anyone had input, or additions, particularly to the behaviour support plan part of the documentation. | Exhibit 43 |
| Late 2022 | Ms EN (psychologist from EK Health Service) 1. D had has shown a great deal of resilience and was committed to wellness; and 2. D’s behaviours had been reported to be triggered by matters which included: his personal space being invaded; changes to his routine without prior warning and not being told what the changes would be; being anxious; not being able to have people’s immediate attention or assistance; being disciplined or reprimanded for his behaviour; and 3. whenever others moved towards challenging his behaviours or encouraging positive behavioural change, D would talk about inflammatory subjects; and 4. D had a strong desire to know what was happening around him, keep to a structured routine, be punctual and know what was happening next – by saying inappropriate or inflammatory things, he received attention, whether because people laughed or because he was the subject of negative attention; and 5. D used use extreme aggressive behaviours to gain the support and attention of his mother to assist him to co-regulate when he was feeling distressed and unable to express himself and he engaged in outbursts to express his frustration, to access reassurance or confirmation of information – these behaviours were likely maintained by social attention and tangible reinforcement (e.g. access to preferred item or action); and 6. D engaged more in mental health disorder behaviours when he was highly anxious: it was hypothesised that when he was improving, he wanted the ongoing support and undivided attention of his mother and so may ask her to do things for him that he was able to do himself; and 7. the results of assessments showed that D struggled to: a. understand and regulate his emotions and to express them using conventional means, instead opting to engage in maladaptive behaviours of concern to express his feelings; and b. reflect on his actions or accept when he had done the wrong thing – which often resulted in him re-engaging with maladaptive behaviours of concern; and c. manage problem-solving, social interactions and new activities; and d. build and maintain relationships due to communication breakdowns and non-familiar people not understanding him – he often desired interacting with others but may not know how to engage friends or may be overwhelmed by the idea of new experiences; and e. understand social expectations or rules about acceptable and unacceptable behaviours; and f. to examine a problem, organise thought, create solutions and utilise appropriate coping skills and experienced difficulty understanding abstract concepts, following more complex instructions or discussions and understanding information without visual and concrete cues (and required support and intervention with more complex tasks and other tasks requiring learning and adaptation). I accept that the ‘positives’ of the interventions were noted to include that: D had been receiving fortnightly behavioural intervention since mid-2022; his incidents of physical aggression and property damage had significantly decreased; after a graduated approach to school attendance was implemented, he was now attending a full school day (whereas, prior to the interventions, he was either not attending at all or for only half-days). 1. an increase in behaviours of concern – which would result in risks of psychological and physical harm to him, his family and staff, noting also that the mother (who had a high level of caring responsibility) was at risk of and was experiencing carer’s burnout; and 2. that D will not live up to his potential and may pose an increasing risk to others when engaged with family, new support workers or the wider community in the future as he needed additional behavioural intervention support to teach him the skills to express himself in a socially appropriate and acceptable manner. | Exhibit 8, p.108-p.117 |
| Late 2022 | D’s appointment with Mr EM (Occupational Therapist) I accept, as set out in the notes, that when the therapist attended on D, the mother and the maternal grandmother were present in the home. | Exhibit 2 (part 2), p.187 |
| AE School Student Notes Listing I accept, as set out in the notes, that D reported being too hot and that he needed a shower; he was distressed and felt uncomfortable due to sensory issues. I accept that when the school psychologist reinforced the importance of him sitting with his distress for period of time for it to become less distressing, he acknowledged that this was a challenge for him today. I accept that when the psychologist contacted the mother, she said that D had commented over the last few weeks that it was warm in the sensory room but hadn’t wanted anyone to go out of their way to manage this. | Exhibit 2 (part 2), p.119-120 |
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