Trentino & Derby (No 2)
[2022] FedCFamC1F 1014
Federal Circuit and Family Court of Australia
(DIVISION 1)
Trentino & Derby (No 2) [2022] FedCFamC1F 1014
File number(s): ADC 1749 of 2016 Judgment of: MEAD J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – PARENTING –– Complex proceedings – 3 tranches – Commenced in May 2016 – Children aged 14, 12 and 10 at trial – Allegations of family violence and sexual abuse over several years – Unsubstantiated – Mother’s beliefs held not to be genuine – Parties relationship toxic – Serious impact on children’s relationships with parents and each other – Need for parents to cease conflict – Children’s views held significant weight. Legislation: Family Law Act 1975 (Cth) ss 4AB(3), 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(4) Cases cited: Mazsorski & Albright (2007) 37 FamLR 518
McCall & Clark (2009) FLC 93
Division: Division 1 First Instance Number of paragraphs: 452 Date of hearing: 5-7 September 2022 Place: Adelaide Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Phillips Green & Associates Counsel for the Respondent: Ms Lee Solicitor for the Respondent: O’Connell Family Law Counsel for the Independent Children's Lawyer: Ms Read Solicitor for the Independent Children's Lawyer: Shorter Legal Pty Ltd ORDERS
ADC 1749 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TRENTINO
Applicant
AND: MS DERBY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MEAD J
DATE OF ORDER:
19 December 2022
THE COURT ORDERS:
1.That all previous parenting orders made in proceedings ADC 1749 of 2016 be and the same are hereby discharged.
2.That the father have the sole parentally responsibility for X born 2008 and Y born 2010.
3.That the said children live with the father.
4.That the father inform the mother by way of email (or SMS in the event of an emergency) of any decisions in the nature of parental responsibility made by him concerning X and Y’s health, education or religious participation within seven (7) days of such decision being made and the details of that decision or, in the case of a medical emergency, forthwith.
5.That the mother have sole parental responsibility for Z born 2012.
6.That the said child live with the mother.
7.That the mother inform the father by way of email (or SMS in the event of an emergency) of any decisions in the nature of parental responsibility made by her concerning Z’s health, education or religious participation within seven (7) days of such decision being made and the details of that decision or, in the case of a medical emergency, forthwith.
8.That X and Y spend time with the mother:
(a)On each alternate Saturday commencing 24 December 2022 from 10:00am until 4:00pm;
(b)On each alternate Sunday commencing 8 January 2023 from 10:00am to 4:00pm;
(c)During all school holiday periods commencing in the April 2023 school holidays on two out of the three Saturday’s that fall between the conclusion of the last day of the previous term and the commencement of the first day of the next term from 9:00am to 5:00pm on each such day;
(d)As and from Christmas Day in 2023, from 3:00pm to 8:00pm;
(e)At such further or other times as may be reasonably requested by X or Y from time to time and as confirmed in email correspondence between the parties.
9.That for the purpose of X and Y spending time with their mother the father or his agent deliver X and Y to McDonald’s at Suburb N at the commencement of such time, with the mother or her agent to collect them therefrom and thereafter return them thereto at the conclusion of the time, with the father or his agent to collect them therefrom.
10.That the mother forthwith arrange for Z to attend upon Ms EE at FF Psychology for the purpose of therapeutic assistance generally but particularly with a view to improving her relationship with her father, and do facilitate Z’s attendance at all appointments reasonably recommended by Ms EE.
11.That the mother shall be responsible for and pay all costs associated with Z’s therapy at FF Psychology and be at liberty to obtain a mental health care plan to assist with those costs.
12.That the mother promptly advise the father in writing of the dates of each appointment made for Z and confirm that Z has attended or otherwise.
13.That Ms EE be at liberty to engage with and communicate with both the mother and the father in relation to the progress of such therapeutic assistance including but not limited to facilitating a meeting or meetings between Z and her father, in her (Ms EE’s) presence under her supervision and at her complete discretion.
14.That Z be at liberty to spend time with the father as she may reasonably request from time to time and as confirmed in email correspondence between the parties.
15.That the father be restrained from communicating with Ms EE or the FF Psychology practice other than to provide the practice with his name and contact details in the first instance and thereafter, only at the invitation of Ms EE or the FF Psychology practice.
16.That the mother be restrained and an injunction is hereby granted restraining her from engaging Z with any therapist, counsellor or allied (mental) health care provider for the purpose of therapy/counselling as a victim of sexual abuse.
17.That the mother be restrained and an injunction is hereby granted restraining her from taking any action with AHPRA or any other regulatory or disciplinary body such that Ms EE could be compromised in her ability to provide therapeutic assistance for Z or for X or Y without advising the father in writing of her intentions so to do at least 21 days prior to taking any such action.
18.In the event that the father is of the view that it would be in the interests of X and Y or either of them to attend upon a mental health professional for therapy he is at liberty to facilitate such attendance upon Ms EE.
19.That the father be responsible for and pay all cost associated with any appointments attended by X and Y or either of them with Ms EE from time to time and any costs associated with his own attendance upon Ms EE and be at liberty to obtain a mental health care plan to assist with such costs.
20.That both parties comply with all and any reasonably requests of Ms EE that she considers would be appropriate and of assistance in her providing beneficial and effective therapy for all or any of their said children.
21.That the Independent Children’s Lawyer forthwith provide a copy of these reasons and the accompanying order to Ms L and to Ms EE at FF Psychology.
22.That both parties facilitate any reasonable request made by the children Z, X and Y or any of them to communicate with the other of them or with their siblings by telephone/Skype/FaceTime or the like and are restrained and injunctions are hereby granted restraining each of them from monitoring or recording any such communications.
23.That both parties keep the other of them informed as soon as reasonably practicable in the event of any of the children suffering from serious ill health or accident whilst in their respective care, and in the event that such illness or accident necessitates the attendance upon a specialist medical practitioner or an admission to hospital, provide details of the treating medical practitioner and the hospital or hospitals to which the child or children has or have been admitted.
24.That both parents be at liberty to obtain copies of all school reports, newsletters and the like from all three children’s schools from time to time at their request and at their expense, and a copy of this order shall be sufficient authority for them so to do without the necessity of the written consent of the other parent.
25.That the parties be at liberty to attend at all events at the schools attended by the children in their respective care to which parents are ordinarily invited, but only to attend the events to which parents are ordinarily invited at the schools attended by the child or children in the care of the other of them at the express invitation of that child or children.
26.That the parties be restrained and injunctions are hereby granted restraining each of them from discussing matters arising from or in relation to these proceedings with or in the presence of X, Y and Z or any of them or allowing any other person to do so and from denigrating the other of them to any of X, Y or Z or in their presence or allowing any other person to do so.
27.That the mother be restrained and an injunction is hereby granted restraining her from making any further reports of disclosures of abuse by of any of her children D and/or F and/or the children X, Y and Z which involve the father to school or medical professionals or allied health professionals or government authorities or mandatory reporters, not limited to but including the Department for Child Protection and South Australia Police, without first informing the father by email of the specific details of the disclosure and allowing him an opportunity to respond to the disclosure/allegations in a timely fashion.
28.That the parties be restrained and injunctions are hereby granted restraining each of them from issuing further parenting applications in the Federal Circuit and Family Court of Australia without first making a genuine attempt to resolve the issues in dispute between them by mediation SAVE AND EXCPT in the case of a genuine physical or psychological emergency involving any of the children X, Y or Z and as supported by the Department for Child Protection and/or South Australia Police.
29.That the father facilitate the attendance of X and Y and the mother facilitate the attendance of Z upon Ms L at her office address at GG Street Suburb HH on Wednesday 21 December 2022 at 10:30am for the purpose of Ms L explaining the terms of this order to the children.
30.That the Independent Children’s Lawyer be at liberty to attend upon such meeting with the children and with Ms L.
31.That following upon such meeting between the children and Ms L having occurred the order for appointment of the Independent Children’s Lawyer made herein be and the same is hereby discharged.
32.That all extant applications be otherwise dismissed.
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 Trentino & Derby has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction
These reasons relate to the parties competing applications for final parenting orders.
The applicant father, Mr Trentino, is aged 42 years. The respondent mother, Ms Derby, is aged 38 years.
The parties commenced cohabitation during 2007 and separated in or about late 2012.
The children the subject of these proceedings are X who is 13 years of age, Y aged 12 years, and Z aged 10 years.
In 2017, as a result of parentage testing initiated by the mother, it was ascertained that X is not Mr Trentino’s biological child. That fact has assumed no importance in this matter.
Ms Derby has two other children, D who will turn 18 years of age and F who is turning 17 years of age.
When D was approximately 9 years old she suffered from a medical condition resulting in some neurological impairment and developmental consequences. Her care requirements caused significant strain on the mother at times after 2013.
At the time of trial X and Y were in the care of the father and had spent very little time with their mother since approximately April 2021. Z was in the care of the mother and had only seen the father on approximately four short occasions since August 2020.
All three children had attended the same school until the end of the 2021 school year. In 2022 both X and Y commenced attending at high school and accordingly the children have thereafter not spent time together at school.
The impact of those events has been felt by all three children as it has resulted in them spending very little time together since August 2020. They have had regular but not optimal telephone communication.
The order in place at the time of trial was that made by a Senior Registrar on 2 July 2021 in the following terms:
IT IS ORDERED UNTIL FURTHER ORDER:
1.That all existing parenting orders be suspended.
2.That [X] born […] 2008 and [Y] born […] 2010 live with the father and [Z] born […] 2012 live with the mother.
3.That the children spend such time with the other parent or children on such terms and on such conditions as may be the subject of agreement in writing between the parents and the Independent Children’s Lawyer.
4.That the mother be restrained and an injunction is hereby granted restraining her from removing the children [X] and [Y] from their school for any purpose whatsoever.
5.That [X] and [Y] have telephone communication with the mother at 5.00pm each Tuesday and Thursday by way of the mother telephoning the children on [Y]’s mobile telephone number with the father to ensure [Y]’s mobile telephone is charged and turned on ready to receive the call at 5.00pm.
6.That the matter be adjourned to a date to be advised for mention before her Honour Justice Mead for the purpose of preparation for trial.
Background
These reasons in the section headed “Background” may be read in conjunction with paragraphs 8 to 144 inclusive of reasons delivered by me in this matter on 17 November 2021. Those reasons related to an application filed by the mother on 27 September 2021 seeking orders for a stay of proceedings and that I recuse myself from the matter, following upon an order made by me on 23 September 2021. Those particular paragraphs detailed the history of the proceedings between the parties, which had commenced by way of an application for parenting orders filed by the father on 13 May 2016.
During the period following the parties’ separation at the end of 2012 and the commencement of the first round of proceedings on 13 May 2016 the parties had privately negotiated parenting arrangements, notwithstanding the rather fractious nature of their relationship. Under those arrangements the children spent significant and substantial time with each parent.
In early 2015 the mother attended upon her general practitioner and asked him to prescribe for her medication to treat a mental health illness. It was the mother’s case that she had never been formally diagnosed with the mental health illness but that the father had made regular abusive comments to her regarding the state of her mental health both during the relationship and post‑separation, and had told her on numerous occasions that she suffered from that condition.
It was the father’s case that during 2015 he had become increasingly worried about the standard of care the mother was providing to the children including issues such as cleanliness, school attendance, mental health issues and the like, in respect of which he had commenced making regular reports to child protection authorities. It was his evidence that to the best of his knowledge none of those reports were taken further by the authorities, and that by 2015 he required a mental health plan to enable him to attend upon a psychologist for help to try and deal with the concerns he had regarding the children’s wellbeing in the care of the mother.
In paragraph 28 of her trial affidavit filed 28 January 2022 the mother deposed to having sought help for drug dependency and what she referred to as “suspected mental health issues” in July 2015, being admitted to JJ Care Centre and being treated as if she “had [a mental illness]” even though she had never undergone “psychometric testing for a diagnosis”.
In that same paragraph she deposed to her drug dependency developing “through my relationship with the father, as he was a heavy drug user and dealer during our relationship and up until at least 2017, to the best of my knowledge.”
The mother initially presented at the KK Hospital emergency department in mid-2015 seeking an inpatient admission. The mother was admitted to the JJ Care Centre, part of the J hospital, in mid-2015 and discharged therefrom some days later.
Commencing at page 43 of the Independent Children's Lawyer’s Agreed Book of Documents (“Book of Documents”)[1] were three pages of progress notes regarding the mother from the MM Hospital dated mid-2015. The notes were described on page 1 as being prepared in the context of an “initial co‑morbidity assessment conducted this afternoon at 14:45 at request of [Dr NN] and the [JJ Care Centre].” Of relevance it was recorded that the mother reported:
[1] Exhibit ICL 1.
·first trying prohibited substances only about a year ago, having tried some with her younger brother;
·that she was not immediately a regular user, using off and on for a period of time;
·beginning to find it helpful to cope with children and household chores;
·beginning to increasingly worry about running out of drugs;
·over the last three months her dealer beginning to increase the amounts, offering more for the same price;
·describing her usage resulting in her being “up for a week, and this was typically the week she would have all five children”;
·beginning to “come down” after some four to five days;
·subsequently telephoning her elder sister to look after the children, “enabling her to sleep for several days and recover”;
·the children expressing concern about her to other family members;
·her mother finding her during “a come down”;
·wanting to cease the drug use but not knowing how to do so;
·beginning to use a prohibited substance whilst suffering anxiety and depression following upon the breakdown of an abusive relationship at the age of 23 years;
·not misusing any substances during her pregnancies;
·having been diagnosed with a mental illness by her general practitioner some two months previously; and
·having a strong family history of “[a mental illness]”, reporting that her mother and all her aunties had been diagnosed with the disorder.
The report stated that the mother was given advice as to how to manage without prohibited substances or a prescribed medication upon her release from the Care Centre the following day and that she requested “a copy of today’s assessment, as keen to provide this to those involved in her treatment to avoid having to repeat her story.”
During the time the mother was in the Care Centre the father assumed the fulltime care of the children.
The parents ultimately resumed sharing the care of the children over a period of months after the mother had been discharged from the Care Centre.
In late 2015 Dr K, a psychiatrist, wrote to the mother’s general practitioner Dr OO, reporting on his assessment and ongoing advice regarding the management of the mother’s mental health issues.[2] He reported that:
[2] Independent Children's Lawyer’s Agreed Book of Documents, p 25 – Report from Dr K to Dr OO dated 5 November 2015.
·the mother’s current stressors included the difficulties relating to the custody of her younger three children with her ex-partner Mr Trentino, in circumstances where she considered that he was still abusive over the phone and tried to be controlling in relation to some aspects of the care of the children;
·she was now seeking mediation through Relationships Australia in relation to that issue;
·she experienced worsening symptoms of her depression over a period of approximately a year during which time she began to increase the amounts of “[prohibited substance]” and drugs that she used;
·she attended at the KK Hospital and sought admission to hospital;
·she was admitted to the JJ Care Centre for seven days;
·the mother experienced her first episode of depression at the age of 23 following the break-up of her first marriage;
·she was prescribed medication at that time and received counselling from domestic violence support services for about two years;
·her depression worsened about six years previous to her seeking assistance in 2015 “after being in an abusive relationship with her recent partner”;
·she reported starting to use a “prohibited substance” and drugs while in the relationship with Mr Trentino and her use gradually escalating in the one to two years prior to attendance on Dr K;
·she reported having been abstinent from the “prohibited substance” and drugs since mid-2015 and to having initially seen a counsellor through drug and alcohol services but having since been discharged from that service;
·there was a family history of mental health illness in Ms Derby’s mother and maternal aunt; and
·Ms Derby reported having been fairly stable with her mood over the last few months with only one brief period of symptoms for some two to three days.
At the bottom of page 2 of the report Dr K said:
My formulation is that [Ms Derby] has a genetic vulnerability towards [a mental illness]…this was further complicated by the use of drugs. She appears to have significantly improved with abstinence from drugs of abuse and the medications being optimised. She has some ongoing stressors in relation to custody issues and is seeking mediation through Relationships SA for this. Her resilience and pride in her role as a mother has been her major strengths.
and under the heading of “Diagnosis” on page 3 of the report he said as follows:
[Ms Derby] has [a mental illness] […]. In addition, she has dependent personality traits. There is a past history of [prohibited substance and drug abuse].
The report ended with his recommendations for ongoing medication and treatment.
A document dated late 2015 and titled “DISCHARGE from CARE CO‑ORDINATION; [Suburb PP] Team, [QQ Health Service]” comprised pages 23 and 24 of the Book of Documents. The communication was addressed to the mother’s general practitioner, Dr OO, and the following relevant matters were reported in the communication:
·the mother initially presented at the KK Hospital emergency department in mid-2015 accompanied by her sisters and mother seeking an inpatient admission;
·she reported wanting to seek help to stabilise her depressive illness and to cease her abuse of a “[prohibited substance]” and drugs;
·she had experienced a couple of months of mood changes, crashing, being irritable and withdrawing in the context of a “[prohibited substance]” and “[prohibited substance]” abuse;
·she was admitted to the JJ Care Centre, part of the J Hospital, in mid-2015, and discharged therefrom some days later;
·she had a diagnosis of drug-induced mood disorder and mental health illness;
·she had gained more control over her mental health systems after her discharge from the JJ Care Centre;
·she had engaged in significant community follow up;
·was problem-solving effectively;
·she was endeavouring to deal with ongoing psychosocial stressors; and
·ongoing psychiatric follow up to be conducted by Dr K at Suburb PP Health Service private practice clinic.
The mother had already consulted with Dr K by the date of this correspondence.
The discharge plan set out seven aspects of ongoing care and assistance that had been put in place for the mother and referred to her successfully negotiating a housing transfer from Suburb RR to a larger Housing SA dwelling at Suburb SS.
First tranche of proceedings
It was the father’s evidence that his concerns about the mother’s parenting capacity for the reasons to which I have already referred continued during the remainder of 2015 and early 2016 such that in early 2016 the father retained X, Y and Z in his care prior to instituting an application for parenting orders on 13 May 2016. The father’s application was returnable for the 27 July 2016.
In the Notice of Risk filed by the father with his application on 13 May 2016 under the heading “Allegations relating to child abuse” the father raised the following issues:
·children do not attend school on a regular basis when in the mother’s care;
·mother does not bathe the children regularly in her care and they are always dirty with unwashed hair and dirty fingers and toe nails when returned from her care. They do not brush their teeth at their mother’s home;
·the mother has had four different partners since separation in 2012 and she allows them to sleep over all the time to the extent that one of the children ran in to jump into bed with the mother one morning and found a man in bed with her who they did not know; and
·the mother has a mental illness and is suspected that she is either not adhering to her medications and/or is using a “[prohibited substance]”.
Under the heading “Allegations relating to other risk” the following matters were raised by the father:
·the mother suffers from a mental illness and was admitted to Suburb LL Campus of JJ Care Centre in mid-2015 for either drug addiction or to manage her medications;
·as above – the maternal grandmother advised the father that the mother was an “prohibited substance” addict and was admitted to J Hospital of JJ Care Centre for this reason. The mother denies this;
·the mother does not care for the children’s general hygiene properly when they are in her care and they have a poor school attendance record when in her care; and
·the children will fall behind at school if the current regime continues and if the mother is a “[prohibited substance]” addict as advised by the maternal grandmother, the children are in danger of further neglect and possible abuse from dealers and/or the mother’s mental issues together with the “[prohibited substance]” addiction.
On 24 May 2016, prior to the first return date of his Initiating Application, the father filed an Application in a Case seeking an ex parte order for delivery up of all three children. In his affidavit in support he deposed at to the children not being available for collection from pre‑entry and school on Friday 20 May 2016.
At the time of the first return date on 27 July 2016 no responding documents had been filed by the mother with respect to either the Initiating Application filed 13 May 2016 or the Application in a Case filed 24 May 2016.
Nevertheless, on that day in circumstances where the mother was represented by a solicitor a consent order was made by Judge Brown providing for:
·X, Y and Z to live with the father;
·the children to spend time with and communicate with their mother:
·from 4.00 pm Friday to 4.00 pm Sunday each alternate weekend;
·in the alternate week from 4.00 pm Friday to 4.00 pm Saturday; and
·by telephone between 7.00 pm and 7.15 pm each alternate day when the children were not in the care of the mother.
In addition to the consent parenting order, Judge Brown also ordered that:
·the mother undergo a psychiatric assessment with respect to her mental health and file a report with the Court (he noted that the mother intended to obtain a report from her treating psychiatrist Dr K);
·the parties be restrained from denigrating the other of them, publishing any information or photographs of the children on social media, or consuming illicit drugs for 48 hours prior to and during the time the children were in their care;
·each party submit to a random drug test;
·the mother file answering documents within twenty-eight days;
·the parties attend a family dispute resolution conference; and
·the matter be adjourned to 20 October 2016.
At that time there were no allegations before the Court from the mother with respect to any issues of family violence or allegations of sexual abuse of the children or any of them by the father, notwithstanding the first return date was in excess of eight weeks after the date of the filing of the Initiating Application and approximately eight weeks from the date on which the mother was served personally with the Initiating Application and supporting documents.
On 16 September 2016, in circumstances where the mother was yet to file documents responding to the father’s Initiating Application, the father filed a further Application in a Case seeking an order that the mother forthwith deliver up to him X, Y and Z. He further sought a Recovery Order in the event that the mother failed to deliver up the children, as well as the appointment of an Independent Children's Lawyer.
The application was made returnable for 30 September 2016.
The application was made in circumstances where the mother had again retained the children in her care, this time allegedly on advice from police and/or Families SA, in circumstances where a child protection investigation was apparently underway.
The mother’s responding documents to the father’s Initiating Application were not filed until 26 September 2016. It was in the responding documents that allegations of sexual violence by the father towards the mother as well as physical violence by the father towards the children and sexual abuse of D and Z were raised.
In the Notice of Risk filed with the mother’s Response and affidavit on 26 September 2016 she raised the following issues under the heading “Allegations relating to child abuse”, namely:
·that Y had disclosed the father had inappropriately touched her vagina;
·the father smacks the children and forcibly holds them down and yells at them; and
·the father continuously denigrates the mother in the presence of the children.
Under the heading “Allegations relating to other risk” the mother stated that the father had inappropriately touched the children and consumes drugs and smacks the children.
On 30 September 2016 Judge Brown ordered the appointment of an Independent Children's Lawyer and invited Families SA (as the Department for Child Protection was then known) to intervene in the proceedings pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”).
The matter was adjourned to 2 November and then to 7 December 2016 for directions, by which time the father had filed a further Application in a Case seeking delivery up of the children.
On 7 December 2016 the matter was further adjourned to 16 December 2016, on which date the following order was made by consent:
THE COURT ORDERS BY CONSENT AND PENDING FURTHER ORDERS THAT:
1.The children, [X], born on […] 2008, [Y] born on […] 2010 and [Z] born […] 2012, be delivered up to the father at [Suburb TT Police Station] on Saturday 17/12/2016 at 4pm.
2. That the children live with the father.
3. That the mother spends time with the children:
a. Fom (sic) 4pm Friday 23/12/2016 to 1pm Sunday 25/12/2016;
b.From 4pm Friday to 4pm Sunday commencing 06/01/2017 and each alternate weekend following;
c.From 4pm Friday to 4pm Saturday commencing Friday 30/12/2016 and each alternate intervening week after that.
4.The children be at liberty to contact the mother via telephone at all reasonable times.
5. All handovers take place inside the [Suburb TT Police Station].
6.The parties and the subject children present at [UU Pathology] and avail themselves to undertake NATA accredited paternity testing by no later than 14 January 2017 with the costs of such testing to be paid in full by the mother.
7.The parties are restrained and injunctions are hereby granted restraining the parties from:
a.Using or consuming alcohol to excess while the children are in their respective care;
b.Using or consuming illicit substances whilst the children are in their respective care;
c.Exposing the children to sex or drug paraphernalia or drug affected environments;
d.Allowing the children to come into contact with any person(s) affected by drugs;
e.Denigrating the other parent or any member of the other parent’s family in the presence of or in the hearing range of the children;
f.Physically disciplining the children; and
g.Changing the school enrolment of children without the written consent of the other parent.
8. The children be re-enrolled at [BB School] forthwith.
9.The parties submit to urine drug screen testing for the presence of illegal substances as per the AS/NZ […] at the request of the other party’s solicitors with no more than two (2) tests to be carried out during the period of the adjournment.
10.The parties forward the result of the drug testing to the requesting party’s solicitor.
11.The parties attend before an independent psychiatrist for the purpose of the preparation of a psychiatric evaluation report with the said reports to be filed and served by 28/02/2017.
12.The parties do all things necessary to obtain a GP Medicare Mental Health Care Plan and referral to [Ms VV], psychologist, for the children to undertake therapeutic counselling and that the parties comply with all directions of [Ms VV] in respect to:
a. Attendance at appointments; and
b. Further referral in respect to counselling.
13.The Independent Children’s Lawyer be at liberty to liaise with [Ms VV] in respect to the children’s progress in the therapeutic counselling process.
14.Following the release of the Family Assessment Report the parties and their legal representatives attend a Family Dispute Resolution Conference at the Legal Services Commission on 19 April 2017 at 9.30 am.
15.The parties complete the [WW Parenting Program] during the period of the adjournment.
In addition to the consent order of 16 December 2016, Judge Brown ordered the preparation of a family report and further adjourned the matter to 1 May 2017.
On 13 December 2016 the mother’s psychiatrist Dr K provided a further report addressed to “whom so ever concerned” but noting in the first paragraph of the report that the review of the mother had been requested by her general practitioner Dr OO for specialist advice relating to her mental state and ongoing management.[3]
[3] Independent Children's Lawyer’s Agreed Book of Documents, p 25 – Report of Dr K.
After discussing with the mother her progress over the previous year he reported the following at the bottom of page 1:
On clarification, it appears that the previously reported periods of [mental health symptoms] relate to the use of [drugs] and considering the absence of any such symptoms in the last eighteen months, I consider that her primary diagnosis is likely to be […] disorder, which is currently in remission (for past eighteen months) with periods of drug-induced [symptoms] in the past. She has been maintaining abstinence from drugs for the past > eighteen months.
On the second page of the report he opined that the mother would benefit from continuing her current medications. He suggested they could be tapered off gradually over the next two to three years provided she was staying well.
He further opined that he did not think she required regular psychiatric follow up at that time and that she would benefit from maintaining regular follow up with her general practitioner and counsellor.
He also prepared a further psychiatric report following upon the order of Judge Brown of 16 December 2016 and dated 23 February 2017.[4] In preparation of that report Dr K referred to fourteen relevant documents that had been filed in the Court to that date.
[4] Independent Children's Lawyer’s Agreed Book of Documents – p 30.
He repeated the earlier psychiatric history to which he had referred in his first letter of report to the mother’s general practitioner, including the difficulties experienced by the mother after D suffering a medical condition in 2013 for which she required extensive medical support as a result of ongoing seizures and behaviour issues, which apparently also continued to require significant supports.
He also set out the various forms of assistance she sought from agencies and medical and allied health professionals subsequent to her discharge from the JJ Care Centre and her medication prescribed upon discharge.
At the end of page 4 and continuing on page 5 of the report he referred to further more detailed discussions with the mother as to her symptoms prior to and around the time of her hospital admission in mid-2015 as well as her symptoms since that time, and noted that the mother’s symptoms appeared to occur mostly in the context of her having drugs.
He referred on page 5 of the report to having discussions with the mother’s general practitioner with whom she had maintained regular follow up after her discharge, and to her continuing to take medication to stabilise her mood as well as an antidepressant following on her hospital discharge.
At the top of page 6 of the report appearing on page 35 of the Independent Children's Lawyer’s Book of Documents, Dr K said as follows:
During the recent two assessment sessions with me, [Ms Derby] described that she had concerns about the safety of her children while they were with her ex-partner. This is in relation to some alleged concerning incident mentioned by one of her daughters to her. She subsequently contacted Families SA and for about six weeks, she and her children were under their protective care. Please note that I am not in any position to verify the veracity of these incidents and as reported by [Ms Derby], Families SA decided to discontinue the supports offered to her. Also, she reported to me that she recently had a DNA test to verify the paternity of her younger three children, and has found out that her 8 year old daughter, [Z] (sic), is not the daughter of her recent partner.
At the bottom of the same page he reported:
I recently ordered a blood test to check the level of her [medication] following our review on 31 January 2017. Based on this blood test which was done on 8 February 2017 via SA Pathology, the [medication] level is less than 50micromoles per litre which is suggestive of non-compliance to [medication]…
Under the heading “Family History” on page 8 of the report he recorded that there is a family history of mental illness in her mother and maternal aunt and on page 11 of the report, under the heading “Opinion and Diagnosis”, he concluded that although he had made a diagnosis of mental illness during Ms Derby’s initial appointment with him, and a differential diagnosis of major depressive disorder, he had formed the view after reviewing the mother in December 2016 and later in January 2017 that her symptoms appeared to be occurring mostly in the context of drug abuse, that they were possibly the effects of intoxication from those drugs and subsequent sleep deprivation, and that this led to him revising the primary diagnosis to be major depressive disorder currently in remission.
He considered that diagnosis was complicated “by symptoms related to the acute effects of drugs, during the two to three years she was abusing these illicit drugs.” Dr K went on to say however that he would keep a differential diagnosis of the first diagnosed mental illness because of her family history of that mental illness, noting that people who have a vulnerability for that mental illness are the ones “who develop such symptoms whilst under the influence of drugs of abuse.”
On page 11 of the report Dr K commented that the medication levels tested on 8 February 2017 indicated the mother had recently been non-compliant with that medication but that he considered the mother’s prognosis was likely to be good in circumstances where her symptoms appeared to have been in remission for at least eighteen months and she had attended upon her general practitioner regularly. He also commented that the mother would need to maintain abstinence from drugs of abuse.
On the following page of the report he recommended that the mother continue to take the two medications, at least for three to four years thereafter, and that a psychiatrist should be sought for advice before there were any attempts to “wean” the mother off her medications.
On 16 March 2017 Judge Brown made a consent order in chambers in the following terms:
BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS:
1.That the parties are hereby restrained and injunctions are hereby granted restraining the parties from:
a.Attending at the place of residence, place of employment or place of study of the other parent; and
b.Contacting the other parent, directly or indirectly save and except for:
i.in case of a medical emergency regarding the children; and
ii.in compliance with paragraphs 3 and 5 of the orders made by the Court on 16 December 2016.
The family report ordered by Judge Brown on 16 December 2016 was prepared by Regulation 7 Family Consultant Ms L and dated 30 March 2017.[5]
[5] Independent Children's Lawyer’s Agreed Book of Documents – p 277.
At the next hearing before Judge Brown on 1 May 2017, in circumstances where the family report had been released and had been available to the parties for approximately one month, a further extensive consent order was made in the following terms:
BY CONSENT IT IS ORDERED UNTIL FURTHER ORDER:
1.That the children [X] born […] 2008, [Y] born […] 2010 and [Z] born […] 2012 do live with the father.
2. That the children spend time with the mother as follows:
a) During school terms:
i)Each alternate weekend from 4pm Friday until 4pm Sunday commencing 19 May 2017;
ii)Each intervening weekend from 4pm Friday to 4pm Saturday.
b)At any other times agreed between the parties in writing NOTING THAT the parties are agreed that the mother’s school holiday time shall be increased to an alternate week arrangement by the long term Christmas holidays in 2017/2018.
c)By telephone each Tuesday and Thursday from 6.30 pm to 7.30 pm NOTING THAT the phone calls will be on speaker phone but the father shall keep a respectful distance from the children during this phone call.
3. That the children spend time with each parent on special occasions as follows:
a)With the mother from 12.00 noon Christmas Day until 12.00 noon Boxing Day 2017 and each alternate year thereafter;
b)With the father from 12.00 noon Christmas Eve until 12.00 noon Christmas Day 2017 and each alternate year thereafter;
c)With the mother from 12.00 noon Christmas Eve until 12.00 noon Christmas Day 2018 and each alternate year thereafter;
d)With the father from 12.00 noon Christmas Day until 12.00 noon Boxing Day 2018 and each alternate year thereafter;
e)With the mother on Mother’s Day from 4pm on the Saturday immediately preceding Mother’s Day to 4pm on Mother’s Day each year;
f)With the father from 4pm on the Saturday immediately preceding Father’s Day to 4pm Father’s Day each year
g)The parent who does not already have the care of the children on each of the children’s birthdays shall spend time from 4pm to 6pm with the children.
4.That all handovers take place at the [Suburb TT Police station] unless otherwise agreed between the parties in writing.
5.That both parties be at liberty to take the children on an interstate holiday during their time with the children PROVIDED:
a)That twenty one (21) days written notice is provided to the other party.
b)That the other party is provided with an itinerary in respect to their holiday.
6.That the parties are restrained and an injunction is granted restraining the other from:
a)Using or consuming alcohol to excess while the children are in their respective care.
b)Using or consuming illicit substances whilst the children are in their respective care.
c)Exposing the children to sex or drug paraphernalia or drug affected environments.
d)Allowing the children to come into contact with any person(s) affected by drugs.
e)Denigrating the other parent or any member of their extended family in the presence of or in the hearing range of the children.
f)From physically disciplining the children or allowing any other person to do so including the game “[…]”.
g)Changing the school enrolment of the children without the written consent of the other party.
h)From including the children in any religious activity, meeting, church activity, religious ceremony, bible studies or door to door evangelism or any other activity or service as arranged by the [XX faith] unless agreed by the parties in writing or determined by this Honourable Court.
i)From discussing all reasons of the children’s involvement or lack thereof in respect to the [XX faith] .
7.That the parties’ solicitors and the Independent Children’s Lawyer be at liberty to release a copy of the Family Assessment Report and the mother’s psychiatric assessments of [Dr K] to the mother’s treating General Practitioner, [Dr OO].
8.That the children do continue to attend upon Child Psychologist, [Ms VV] or any other therapeutic counsellor as recommended by [Ms VV] NOTING that the father is struggling to continue to pay this cost and the mother cannot contribute to these costs.
9.That all parties utilise text messages to communicate in respect to the children’s health and wellbeing and that all communication be polite and respectful.
10.That in the event of an emergency, the other party do text the other forthwith and each party be able to attend any medical hospital the children are receiving treatment from.
11.That all parties do all things necessary to ensure that the children attend the [YY Street] Family Practice for general medical appointments with [Dr ZZ] or any other female (if possible) doctor at the Centre; and
a)The parties shall follow medication and medical advice provided by the children’s GP, [Dr ZZ] or other female (if possible) doctor at the centre.
b)The parties shall inform each other of the contact details of all other medical or allied health professionals or dentists that the children attend.
c)The parties be authorised to speak with and obtain any information from the children’s GP, specialist or other medical allied health professionals in respect to the children.
12.That the mother ensure compliance at all times with any recommended mental health treatment and prescribed medication regime as advised to her by her GP/counsellor/psychiatrist.
13.That the parties attend the Family Dispute Resolution Review Conference on Wednesday, 25 October 2017 at 9.30 am.
14.The matter be transferred to the Family Court of Australia and listed on a date and time to be advised to the parties.
At the time that order was made the children were attending upon Ms VV for counselling in accordance with the terms of paragraph 12 of the consent order of 16 December 2016. At paragraph 170 of Ms L’s report she had recommended that the children continue to access therapeutic intervention with an independent therapist, a recommendation taken up in paragraph 8 of the interim consent order.
The matter was first listed before a Registrar in the Family Court of Australia on 20 June 2017, and referred to the list of matters awaiting trial allocation.
On 19 April 2018, prior to the matter coming before a judge for a trial listing, the Court received a minute of order prepared by the Independent Children's Lawyer, accompanied by an Annexure to the Proposed Consent Parenting Order signed by the solicitor for the father on 18 April 2018. A further Annexure to the Proposed Consent Parenting Order was filed in the Court on 23 April 2018, having been signed by the solicitor for the mother on 19 April 2018. On the same day an Annexure to the Proposed Consent Parenting Order was received by the Court from the Independent Children's Lawyer, that document having been signed by Ms M on 23 April 2018.
In the Annexure to the Proposed Consent Parenting Order filed on behalf of the father, the father’s solicitor had certified that:
·“The party I represent does not consider that a child concerned in the proposed order has been or is at risk of being subjected to or exposed to abuse, neglect or family violence”; and
·allegations of or risk of abuse, neglect or family violence have been made in – and reference was then made to various documents that were contained in an annexure to the form.
Under the heading “Explanation” contained in Part “C” of the document requiring details as to how the proposed orders attempt to deal with the allegations contained in those documents, the following statements were made:
·“The orders indicate that the mother’s time is conditional upon her continuing to seek mental health assistance by her treating psychologist, GP or allied mentla (sic) health worker and that she is to be following their directions”;
·“There is an order that the mother do ensure that the children attend school on a daily week day basis promptly unless in case of medical illness”; and
·“There are orders in place and the mother is restrained from consuming any illicit substances 24 hours prior to the children being in her care and whilst the children are in her care”.
In the Annexure to the Proposed Consent Parenting Order filed on behalf of the mother, the mother’s solicitor had certified that:
·“The party I represent does not consider that a child concerned in the proposed order has been or is at risk of being subjected to or exposed to abuse, neglect or family violence”; and
·allegations of or risk of abuse, neglect or family violence have been made in – and reference was then made to various documents that were contained in an annexure to the form.
Under the heading “Explanation” contained in Part “C” of the document requiring details as to how the proposed orders attempt to deal with the allegations contained in those documents, the following statements were made:
·“Order (sic) are for the mother to continue to follow the direction of her treating mental health professional”;
·“Order for the father to ensure the children attend school promptly unless for medical reasons”; and
·“Order that the father is restrained from consuming illicit substances 24 hours prior to and whilst the children are in his care”.
In the Annexure to the Proposed Consent Parenting Order filed on behalf of the Independent Children's Lawyer, the Independent Children's Lawyer had certified that:
·“I do…consider that a child concerned in the draft order has been or is at risk of being subjected to or exposed to abuse, neglect of family violence”;
·“I do…consider that I, the party I represent or another party to the proceedings has been or is at risk of being subjected to family violence”; and
·allegations of or risk of abuse, neglect or family violence have been made in – and reference was then made to various documents that were contained in an annexure to the form.
Under the heading “Explanation” contained in Part “C” of the document requiring details as to how the proposed orders attempt to deal with the allegations contained in those documents, the following statements were made:
·“The orders provide for the children to attend school punctually”;
·“The orders provide for the mother’s time to be conditional upon her continuing her mental health treatment and compliance with medication”;
·“Both parents are restrained from physically disciplining the children, consuming drugs during or prior to the children coming into their care”; and
·“The children will be protected from adult issues by way of mutual injunctions with the parties not discussing the proceedings or issues in dispute in the presence of the children or with the children”.
At the time the proceedings concluded in 2018 the children were aged 9, 7 and 5 years respectively, and the final order provided, inter alia, for week-about parenting time.
The order of 30 April 2018 was in the following terms:
BY CONSENT IT IS ORDERED THAT:
1. That all previous Orders are hereby discharged.
2.That the parties do have equal shared parental responsibility of the children [X], born […] 2008, [Y] born […] 2010 and [Z] born […] 2012.
3. The Respondent Mother spend time with the children as follows:
(a) During the Term 1 2018 school year:
i)From conclusion of school each Friday (or 4 PM in the event of school holiday or public holiday) until the commencement of school the following Monday (or 4 PM in the event of school holiday or public holiday)
(b) From 16th April 2018 and thereafter as follows:
i)From close of school Monday (or 4 PM in the event of school holiday or public holiday) until commencement of school (or 4 PM in the event of school holiday or public holiday) the following Monday commencing 16th April 2018 and each alternate week thereafter.
ii)Where the Christmas period falls on a week that the children are not living with the father, the children spend time with the father from 4pm Christmas Eve (24th December) to 4pm Christmas Day (25th December), or as agreed between the parties in writing.
iii)Each Mother's Day from 10 AM to 4 PM provided that the children be in the father's care each Father's Day from 10 AM to 4 PM.
iv)At any other time as agreed in writing between the parties.
4.That the children be in the father’s care each year from 4 PM Good Friday until 4 PM Easter Sunday or as agreed in writing between the parties.
5.That the children live with the Father at all other times.
6.The parties do facilitate and allow the children to contact the other party via telephone whilst in their respective care at all reasonable times if requested to do so by the child/children.
7.That all handovers take place at McDonalds [Suburb N] or at any other place agreed to in writing between the parties.
8.That the parties ensure that whilst the children are in their respective care:
8.1.Facilitate that the children/child take any prescribed medication as directed by a medical professional
8.2.Facilitate the attendance of the child/children at any medical appointments, counselling and therapeutic appointments as directed by child/children's medical practitioner or mental health worker.
9.That the parties share equally in the costs of any medical or allied health professional appointments other than normal GP appointments.
10.That each party shall keep each other informed as to the following:
10.1.Their respective mobile telephone numbers and email address details and any changes to this information within seven (7) days.
10.2.The details of any medical or allied health care worker the children may attend upon from time to time.
11.That the parties are restrained, and injunctions are hereby granted restraining the parties from:
11.1.Abusing, denigrating or rebuking each other, respective partners, or any member(s) of their respective families in the presence of the children or permitting any other person (s) to do so:
11.2.Physically disciplining the children or allowing any other person(s) to do so:
11.3.Discussing the evidence/issues/disputes raised throughout the course of these proceedings with or in the presence of the children;
11.4.From consuming illicit drugs 24 hours prior to the children being in their care and whilst the children are in their care;
11.5.From allowing the children to attend any place of worship or participate in religious activities outside of the family home until the children individually attain the age of 13 years.
11.6.From changing the children's school enrolment without an Order of this Honourable Court or by written consent of the other party.
11.7.Changing the children's principle place of residence from the state of South Australia
12.Each of the parties do ensure that the children attend school on each school day punctually unless the child/children suffering from medical illness.
13.That the Mother's time is conditional upon her attending upon her GP and Psychologist and continue to undertake counselling at the recommendations of her Psychologist or mental health care worker and take all medication as prescribed by her GP or mental health care worker in respect to same.
14.That the parties communicate with each other by way of SMS message with all communications to be contained to issues relating to the care, welfare and development of the children only and to be at all times polite and respectful unless in the case of the parties simply providing/forwarding information in respect to the children's health or educational issues by email.
15.That each party advise the other immediate via sms/text message, should there be a medical or other emergency in respect of the children while the children are in their respective care and be able to attend the medical facility at which the children are receiving treatment.
16.That the parties be at liberty at attend all extra-curricular and school activities that parents are normally invited to attend.
17.That the parties do all things and signs all documents necessary to authorise any medical practitioner, dentist, specialist doctor, allied health professional, counsellor or therapist attended by the children to provide the other party with information and advice in regard to the children's state of health, including all details of any diagnosis and prognosis.
18.That the parties do all things and signs all documents necessary to authorise any school the children attend, to provide the other party, at their own expense and arrangement, with:
18.1.Details of all parent teacher interview dates
18.2.Copies of all the children's school reports
18.3.Details of all sporting days, school functions and any other school event parents normally attend
18.4.Any school newsletter
18.5.The children's school photographs
19.In the event that the parents are unable to resolve any major parenting issues in the future that does not relate to a breach of these Orders, the parties shall enrol in and attend a mediation or family dispute resolution services as soon as is practical, or as scheduled by such service.
20. That the appointment of the Independent Children’s Lawyer is discharged.
21.That all extant application are removed from the pending cases lists as finalised.
Second tranche of proceedings
Less than a year after the final order and on 9 April 2019, the mother filed an Initiating Application seeking that all three children live with her and spend time with the father as deemed suitable by the Family Court. On an interim basis she sought:
·a suspension of the order of 30 April 2018 insofar as it provided for the children’s living arrangements;
·an order that the children live with her;
·orders pursuant to s 69ZW of the Act directed to South Australia Police and the Department for Child Protection;
·that the father undergo a random supervised urinalysis test at the request of her solicitor;
·that her solicitor be able to make three such requests during the period of the adjournment; and
·that the father be restrained and an injunction be granted restraining him from contacting directly or indirectly the mother or children or being within 500 metres of the children’s school or other places the children regularly attend.
The mother’s application of 9 April 2019 was filed directly in the Family Court of Australia.
In her affidavit in support of this application she deposed that in early 2019 her older daughter D had disclosed to a mental health social worker Mr O that both she and Z had experienced sexual abuse at the hands of the father some five years previously.
With her application she filed a Notice of Risk alleging:
·sexual abuse having been perpetrated by the father on D and Z;
·the father weighing the children at the commencement and conclusion of his time with them;
·information disclosed to her by the children indicating the father continued to use drugs; and
·information disclosed to and seen by her that indicated the father’s “anger and temper have remained uncontrolled or without intervention to reduce them”.
In early 2019 an Interim Intervention Order was made in the Magistrates Court of South Australia on the application of the police. The mother and her two older children D and F, as well as the three children the subject of these proceedings, were named as the protected persons with the father named as the defendant.
Paragraph 12 of the Intervention Order provided as follows:
The family court parenting order number (P)ADC1749/2016 made on 30 April 2018 is suspended in full pending a review of that order by the Family Court – order suspended until 18/7/2019.
At the first hearing before a Registrar on 30 April 2019 an order was made reappointing the Independent Children's Lawyer, and orders pursuant to s 69ZW of the Act concerning the parties and the three children X, Y and Z were made directed to the Department for Child Protection and South Australia Police.
In the father’s Response filed 16 May 2019 he sought that all previous orders be dismissed, that he have sole parental responsibility for the children, that they live with him, and spend time with the mother as ordered by the Court.
He also proposed that the children be at liberty to contact the mother via telephone at all reasonable times, as well as a series of injunctive orders similar to those contained in paragraph 11 of the final order of 30 April 2018 but with the addition of an injunction restraining the parties from allowing the children to attend any place of worship or participate in religious activities outside of the family home until they individually attained the age of 13 years.
He proposed both parties be at liberty to attend at the children’s school for activities to which parents are usually invited, that the mother be able to obtain at her expense copies of school reports and the like and that each party keep the other informed of mobile and landline telephone numbers, email addresses and a change in residential address within seven days.
The final orders sought were mirrored in the interim orders he sought, save and except that he sought orders that all three children be delivered up to him forthwith, that the parties obtain psychiatric reports and that the Independent Children's Lawyer be at liberty to liaise with Ms VV with respect to the children’s progress.
He did not seek an order for a family report but said that upon release of such a report the parties should attend for dispute resolution at the Legal Services Commission.
In the Notice of Risk filed with the Response he alleged:
·all three children have suffered and continue to suffer psychological abuse at the hands of the mother in the form of coaching, exposure to conflict, and ongoing undue influence by the mother on the children encouraging them to make false disclosures against the father to police in respect to alleged sexual abuse;
·that situation having been ongoing since the proceedings first commenced in 2016; and
·the mother having no insight into the long-term psychological harm her behaviour is likely to cause the children.
On 11 June 2019 an order was made by the Registrar in chambers at the joint request of the parties that they have liberty to inspect and copy material produced pursuant to the s 69ZW orders subject to privilege.
On 20 June 2019 the matter came before me in circumstances where both parties were legally represented and counsel appeared for the Independent Children's Lawyer.
After hearing limited argument I suspended the orders of 30 April 2018 insofar as the times provided therein for the parties to spend time with the children.
For reasons given ex tempore that day I made an order providing for:
·the children to live with their father from after school that day until the commencement of school five days later on 25 June 2019 and from the conclusion of school on 28 June 2019 to the conclusion of school on 5 July 2019;
·the children to live with the mother at all other times;
·injunctions during the period of the adjournment restraining the parties from:
·weighing all or any of the three children until further order or from allowing anyone else to do so other than a medical practitioner;
·from attending at the children’s schools at times that may interfere with the collection or return of the children from and to their schools by the other of them; and
·from facilitating the attendance of any of the three children upon any medical practitioner or mental health practitioner other than in the case of any extreme physical necessity;
·the father to facilitate the attendance of all three children upon Family Consultant Ms L for the purposes of a brief report including interviews with the children only, to enable them to express their views and perceptions as to their parenting arrangements; and
·the Independent Children's Lawyer to immediately provide to Ms L copies of all applications and affidavits filed by each of the parties since 9 April 2019, together with copies of all material produced to the Court since that date by South Australia Police and the Department for Child Protection pursuant to the s 69ZW orders, as well as to provide a sealed copy of the order by way of email to the Principal or Senior Teacher of the BB School.
Ms L had provided the family report during the previous incarnation of the proceedings and by this time the children were aged 10, 8 and 6.
On 3 July 2019 Ms L’s report was released to the parties’ solicitors and the Independent Children's Lawyer.
The matter next came before the Court on 9 July 2019.
On that date, after hearing argument and for reasons given ex tempore that day, I ordered that the final consent orders of 30 April 2018 forthwith resume in full force and effect. In addition, it was noted that the order restraining the parties from weighing all or any of the children or from allowing any one other than a medical practitioner to do so remained in full force and effect until further order.
The parties were restrained until further order from:
…making any report to any government agency, including but not limited to SAPOL and the Department for Child Protection, with respect to each and all of the children named in paragraph 1 hereof without giving not less than 48 hours’ prior written notice of their intention so to do and the nature and detail of the proposed report, other than in the case of an extreme emergency as supported by a medical practitioner.
The mother’s Initiating Application filed on 9 April 2019 was otherwise dismissed and the Amended Response filed by the father on 17 June 2019 was listed for argument as to the “Rice & Asplund” principles on 6 September 2019. Directions were made as to the filing of written submissions.
At the hearing on 6 September 2019 and for reasons delivered ex tempore that day the Court:
·discharged paragraph 8 of the final order of 30 April 2018 which related to the children’s attendance upon medical practitioners or allied health professionals and taking medication. A more detailed order was made with respect to those issues as contained in paragraphs 2 and 3 of the order of 6 September 2019;
·discharged paragraph 10.2 of the original final order of 30 April 2018. That provided that each of the parties keep the other informed as to the details of any medical or allied health care worker the children may attend upon from time to time. Those issues were redefined in paragraph 5 of the order of 6 September 2019; and
·otherwise dismissed the Amended Response of the father, such that the proceedings were again finalised.
The orders made as referred to in paragraphs 89 to 97 of these reasons were made in circumstances where neither party had adduced any evidence, nor was there any material contained in the s 69ZW responses from South Australia Police or the Department for Child Protection, that was suggestive of or supportive of concern that the children were at risk in their father’s care or that their best interests would be met by the proceedings being re-opened. They had all expressed positive attitudes to the existing shared care arrangement to Ms L.[6] The limited changes made to the existing final order of 30 April 2018 were intended to reduce the possibilities of ongoing litigation between the parties.
[6] Family report of Ms L dated 1 July 2019 – pages 8, 10 and 12.
Third tranche of proceedings
On 24 August 2020, less than twelve months after the order of 6 September 2019, the father, through his solicitors All Family Law, filed a further Initiating Application directly into the Family Court of Australia.
In that application he sought on a final basis that all previous orders regarding the children spending time and living with the mother be discharged, that the children live with him and that he have sole parental responsibility for the children.
As of early August 2020 Z had ceased spending any time with him. X and Y had continued to live with each party on a week-about basis.
He proposed that the children spend time with their mother on Tuesdays after school until 7.00 pm and on alternate Saturdays from 10.00 am to 7.00 pm. He proposed that:
·the mother urgently attend upon Dr H for psychological assessment; and
·that the mother be restrained from:
·contacting him directly other than in the case of an emergency involving the children;
·discussing the proceedings or the children’s living arrangements with the children or permitting any other person to do the same; and
·taking the children to any psychologist or medical professional except at the Emergency Department of a hospital in the case of an emergency.
The interim orders sought by him mirrored the final orders save and except that following upon the mother being assessed by Dr H a report be provided.
On 30 August 2020 the father’s solicitor filed a Notice of Ceasing to Act.
On 24 September 2020 T Lawyers filed a Notice of Address for Service on behalf of the mother, as well as her Response to the Initiating Application and an affidavit in support.
In her Response filed 24 September 2020 the mother sought an extensive raft of orders, including that the father’s application be dismissed.
She sought an order that the three children attend upon psychologist Ms R for psychotherapy “to address their trauma and body image issues” and that the father be restrained from yelling, threatening and degrading Ms R or compromising the children’s therapy in any way.
She proposed that the father’s time with Z be increased at the discretion of the therapist and that all recommendations made by the therapist be followed by the father.
She further proposed that:
·until such time as Ms R believed that Z was ready to recommence time with her father pursuant to the orders of 30 April 2018, Z should live with her and spend time with the father as requested by Z;
·X be permitted to make decisions regarding what time she spent with the father in circumstances where she is not his biological child and further, that she be permitted to freely pursue a relationship with her natural father, Mr CC;
·all handovers of Y occur at school in accordance with the orders of 30 April 2018;
·there be certain specific orders in relation to notification of appointments for the children, who may attend at the appointments, and arrangements for collection of the children early from school;
·both parties be restrained from discussing court proceedings with the children;
·the children be permitted to telephone the other parent when outside of their care; and
·the parties be restrained from making cruel and derogatory remarks in relation to each other and the children’s siblings D and F in front of the children.
The interim orders sought by the mother were in the same terms as the final orders.
On 29 September 2020 the father’s application was listed before a Registrar. Notations were made by her at that hearing as to the Initiating Application having been filed in circumstances where one of the children was not spending time with the father as per existing court orders, and where the mother sought to have the application dismissed applying the “Rice & Asplund” principle. Both parties were represented at that hearing.
On 26 October 2020 when the matter first came before me I made orders reappointing the same Independent Children's Lawyer who had represented the children in the earlier proceedings and providing for the Independent Children's Lawyer to attempt to ascertain from Ms VV, during the period of the adjournment, her position as to the children attending upon her for therapy.
The children had continued therapy with Ms VV following upon the order of 30 April 2018. It was common ground that the mother had been unhappy with Ms VV and in 2019 had forwarded a complaint to “AHPRA” regarding her conduct, resulting in Ms VV withdrawing her services at that time for professional reasons.
In answer to questions from the father’s counsel, the mother said that Ms VV ceased therapy with the children when she (the mother) raised complaints in a letter to Ms VV drafted by her lawyer at that time. It was the mother’s evidence that Ms VV had then declined to continue therapy for the children because she thought the mother might complain about her to “AHPRA” which she did but “only later”. She said she did not send a copy of the original email sent to Ms VV to the father nor discuss the issue with the father but had told him of her concerns about Z’s reluctance to attend on Ms VV.
In answer to questions from the Court the mother said that she had various complaints about Ms VV including:
·that she did not cross-reference things with her and took what the father said to her as true;
·that she and the father were supposed to be having alternate visits with Ms VV when taking the children but that the father went more often and Ms VV had told her she did not realise that;
·that Ms VV wanted the parties to undertake co-parenting counselling but she had told Ms VV why she thought that was not helpful, that her concern was that the father liked to confuse aspects of truth with lies and makes up allegations and that she (the mother) did not want to be in a room with him attacking her verbally; and
·she was not happy with how Ms VV dealt with Z not wanting to go into a room with her and telling her that she should ignore Z’s behaviour.
When it was put to her that none of the children had made any disclosures to Ms VV regarding concerning conduct on the part of the father towards them save that none of them particularly liked being weighed by him, she said that she thought that was the case.
On 25 November 2020, after it was ascertained that Ms VV was unable to assist further, the matter was adjourned to 7 December 2020 to enable the Independent Children's Lawyer to confer with the parties’ solicitors as to the identity of a family therapist prepared to work with the family, particularly with respect to the child Z.
In addition, Family Dispute Resolution was ordered to occur at the Legal Services Commission on 22 January 2021.
Both parties were legally represented at the hearing on 29 September 2020 before the Registrar and before me on each of 26 October 2020 and 25 November 2020.
On 1 December 2020, prior to the adjourned hearing on 7 December 2020 and the Family Dispute Resolution on 22 January 2021, the father filed an Application in a Case seeking that Z be delivered up to him by the mother on 7 December 2020, and that failure by the mother to comply with that order should result in a Recovery Order issuing for Z. He also sought that:
·all three children live with him from 12noon on 7 December 2020 until the commencement of school on Wednesday 27 January 2021;
·all orders for the children to live with or spend time with the mother be suspended during the period of the adjournment;
·during the period of the adjournment the children spend time with their mother each Saturday and Tuesday from 10.00 am until 7.00 pm commencing Saturday 12 December 2020, and on Christmas Day from 2.00 pm until 7.00 pm; and
·an order restraining the mother from attending at or within 50 metres of the children’s school for the remainder of the 2020 school year.
The mother filed an Application in a Case on 2 December 2020. She sought orders that:
·Z live with her;
·a report be prepared by Ms R and be provided to the parties and the current agreed therapist;
·Z not spend time with the father until a direction from the agreed child psychologist to allow for such time to recommence; and
·for reunification therapy to be arranged if supported by the child psychologist.
On 2 December 2020 the father also filed a Contravention Application.
On 7 December 2020:
·the father’s Application in a Case filed on 1 December 2020 and that of the mother filed on 2 December 2020 were listed for argument on the papers on 15 January 2021;
·the Contravention Application was adjourned to that same date for mention; and
·with the consent of both parties, an order was made for the children to attend upon Ms B for the purpose of family therapy with the parties to attend upon Ms B as required by her.
The Court further ordered that:
·neither party nor the Independent Children's Lawyer request a report from Ms B without further order of the Court;
·both parties ensure the children in their respective care attend at school on each day of that week for the full school day;
·the Independent Children's Lawyer attend at the children’s school at her earliest convenience to speak to all three children to better acquaint herself with the children and inform them of the role of the Independent Children's Lawyer; and
·the parties be restrained until further order from facilitating or permitting the attendance of X, Y or Z upon any medical practitioner or allied health professional with respect to psychological treatment or therapy.
The solicitors for the father filed a Notice of Ceasing to Act for him on 17 December 2020, and on 14 January 2021 the father filed a Notice of Address for Service on his own behalf.
On 15 January 2021 the matter was further adjourned to 19 January 2021 to enable the Independent Children's Lawyer to make urgent enquiries as to the identity of a possible therapist with experience in family law disputes, court processes and who accepted mental health care plans.
On 19 January 2021 the Court ordered, with the consent of the father, that he pay any costs associated with the attendance of the children or any of them as well as himself upon Ms B, and that he be personally responsible for the costs of two attendances by the mother as may be requested by Ms B. It was noted in that order that Ms B had indicated she no longer undertakes family therapy pursuant to mental health care plans. The order provided that the father and the mother and the children attend upon Ms B for no more than six appointments in total. The Court had been advised on 15 January 2021 that her hourly rate was $275.
The Independent Children's Lawyer was ordered to obtain a report from Ms B upon the completion of those six appointments as to the content and progress of the sessions, together with any recommendations for future progress, and thereafter arrange for further family dispute resolution at the Legal Services Commission.
At the hearings on 15 January 2021 and 19 January 2021 the father appeared on his own behalf, with the mother and the Independent Children's Lawyer continuing to appear through Counsel.
Directions with respect to all outstanding matters were adjourned to 3 May 2021. Nevertheless, the matter came back before the Court on 27 April 2021.
On each of 13 and 17 April 2021 the father had filed further affidavits without the leave of the Court.
On 15 April 2021 the mother had, through her solicitors, filed an Application in a Case seeking a Recovery Order with respect to the children X and Y, together with an affidavit in support of same, as well as a Contravention Application and an affidavit in support.
That Application in a Case was underpinned by the agreed fact that by April 2021 X and Y had ceased to live with her on a week-about basis in accordance with existing final orders.
He denied that he had chased Z; threatened to remove her phone because she spent too much time on the phone to the mother; or commented on the children’s weight other than to tell them it was for the purpose of recording their weight on a health chart.
When it was put to him that the fact that Z diarised those matters indicated how she felt, he said that those feelings had only come about in the last two years when she had been in the sole care of her mother.
I have already referred to the issue about the pet.
I find overall that X and Y have a close and loving relationship with their father but hold significant reservations as to the veracity of their mother and her emotional reliability. Nevertheless, I am satisfied that the relationship between both girls and their mother is ultimately a loving relationship. I find that the depth of that relationship will only improve if the mother is prepared to acknowledge and accept that they likewise have a loving relationship with their father, which is important to the, and that she is supportive of that relationship.
The relationship between Z and her father is far more complex. There is no doubt that she has resided in a household where she has been exposed to an extremely negative attitude towards her father not only from her mother but from her older siblings D and F. She is aware that the allegations of abuse relate primarily to D and to her. I am not satisfied on the evidence that the allegations concerning her have arisen from her own memories, but rather, more likely from the allegations made by D and discussed with and in her presence.
I have referred earlier in these reasons to my concerns as to the reliability and provenance of D’s allegations.
Although X and Y have likewise been exposed to a negative environment as regards their mother, they are older than Z and have a close and loving relationship. They have been able to support each other through times when their father has clearly concentrated more on openly redressing the injustices he considers have been inflicted upon him by the mother in every arena available to him, rather than focussing his attention on shielding the children from the fallout of the dispute between he and their mother.
Nevertheless, having said that, I find that it is not surprising he has become so embittered towards the mother but it is unfortunate that his own intense personality is such that he has become completely consumed with the issue of redress. Even in those circumstances however I find he has created a household in which both X and Y feel supported and loved by him.
There is no doubt that Z and her mother have a close and loving relationship and that she feels safe and protected in her mother’s household. Nevertheless, it is of concern that the mother conceded in cross examination that she continued to believe the allegations of sexual abuse against Z and D to be true as at the time of trial, notwithstanding that she did not prosecute her case on the basis of Z being at risk of sexual abuse in the care of the father.
I find, taking into account the very different view of the father expressed by Z as reported in Ms L’s report of January 2022, compared with the very balanced views and love she expressed for both her parents in the two earlier reports to which I have referred, that the nature of her relationship with her father has at least in part been affected by the influence upon her of her mother and possibly her siblings D and F.
I make that finding in circumstances where by January 2022 Z had spent almost no time with her father and had barely participated in any telephone communication with him since August of 2020.
I am satisfied that for Z and the father’s relationship to be repaired or at the very least softened it will require significant therapy and regular time spending with her sisters.
I find, particularly taking into account Ms L’s unchallenged account of the observation of interaction between all three girls together with their mother and their siblings D and F, that they have a close and loving relationship with D and F and clearly regard them as valuable family members.
s 60CC(3)(c) – The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child;
(ii) to spend time with the child; and
(iii) to communicate with the child.
I have referred at length earlier herein to the children’s various living arrangements with each of their parents from the time of separation in 2012 to the time of trial. There was no evidence before the Court to suggest that either parent failed to take opportunities to spend time with and communicate with the children. It is clear that from August 2020 opportunities for each parent to spend time with and communicate with the child or the children in the care of the other of them became far more problematic. Issues concerning schools to be attended by the children from time do not seem to have been a cause of any major complaint but likewise there was little evidence of parties participating together in those decisions.
s 60CC(3)(ca) – The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
I do not consider this to be an issue of significance in this matter. There was evidence of a dispute regarding child support which was of little significance in the determination of parenting issues and had more to do with the conflict between the parties.
s 60CC(3)(d) – The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother proposed at trial that X and Y remain living with the father and that he have sole parental responsibility for the children. She proposed the children spend time with her and their siblings on the first Saturday of every month from 10:00am to 4:00pm as well as any further times agreed between the parties in writing. She further proposed telephone communication between herself, X, Y and their siblings on Wednesday and Sunday at 6:30pm.
I am satisfied that X and Y would manage such arrangements easily. I find that they would benefit X and Y as it would facilitate regular time spending with Z as well as with their mother. There is no major change proposed by the mother to X and Y’s living arrangements and circumstances. Both children have clearly indicated to Ms L that they are prepared to spend time with their mother, even if the opportunity to spend time with Z seems to be the major factor in their thoughts on that matter.
The father’s proposal is far more radical, in that it would involve Z being removed from her mother’s care and not connecting with her for a period of some three (3) months after moving into his care. There was no evidence before the Court from the father, the mother, Ms L or the children themselves, as communicated to Ms L, that would support a finding that Z could either cope with such a major change or that it would be in her best interest.
For reasons to which I will refer later in my consideration of the capacity of the parents to provide for the needs of the children including their emotional and intellectual needs, I find that such a change of circumstance would have a damaging emotional effect on Z and would not be an order in her best interests.
The father did propose that all three children spend time with their mother each alternate weekend from 10:00am to 5:00pm on Saturday, presumably after the three month cessation of Z’s contact with her mother. That is a greater amount of time spending between X and Y and their mother than proposed by the mother. I find that the proposal with respect to time spending would not have a negative impact on X and Y’s emotional wellbeing, particularly as it would involve time with Z.
The mother’s proposal was essentially in line with the recommendations of Ms L contained in paragraph 163 of her Family Report dated 27 January 2022. Ms L was not shaken in cross examination by the father’s counsel. She told the Court that she had considered the father’s proposal, but her concern was the emotional impact on Z of a change of care arrangements. She expressed concern that a move to the sole care of the father could be “incredibly detrimental” to Z, in circumstances where there was more to the breakdown of her relationship with her father than simply the allegations regarding sexual abuse.
When asked whether she thought Z would manage the move with the support of her father and siblings if there was a three month moratorium on contact with her mother, she replied that all three children had spent primary time with each parent on occasions but the family was still in Court. It was her view that even if there was a three month moratorium on Z’s time with her mother she was unable to reason what would stop Z running back to her on day one, in circumstances where she has strongly aligned with her mother. She expressed the view that if anything, the moratorium would make that alignment stronger.
I find Ms L’s evidence was thoughtful and considered, and the opinions raised in her evaluation of the issues as set out in paragraph 152 to 162 of her report of 27 January 2022 were not shaken in cross examination. Her evidence was of particular assistance where she had been involved with the family through providing reports since 2017.
s 60CC(3)(e) – The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
I do not consider this factor to be relevant in the circumstances of this case.
s 60CC(3)(f) – The capacity of:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
to provide provide for the needs of the child, including emotional and intellectual needs;
One of the most concerning aspects of this matter is the capacity of either of the children’s parents to provide for their needs, particularly their emotional needs. I have no doubt that both of the parties are capable of providing for their physical care on a day to day basis, that they provide suitable housing for the children, and are capable of supporting their education and their intellectual needs.
Neither party deposed at length to the children’s extracurricular activities or social activity outside of their respective homes and, Ms L’s final report of 27 January 2022 did not suggest that those issues were canvased at any length in her discussions with any of the children. In the absence of any evidence to the contrary I find that these matters are being addressed adequately by each of the parents.
In some limited oral evidence prior to cross examination Mr Trentino confirmed that he had heard the evidence of Ms L with respect to the possible impact on Z of his proposals, including how they could be practically managed.
It was his evidence that his mother or sister could accommodate Z and provide help until she felt comfortable to “come home”. When asked his proposal with respect to taking an unwilling child into his care, he said he could be assisted by his mother, his sister and potentially X and Y. He said that his mother is aged in her sixties and in good health, his sister is likewise in good health and she works with children. He said he had spoken with them about their involvement in the matter and that it was his proposal that Z stay with his mother until she was more comfortable, and that then it would be up to her as to whether she stayed with he or his mother.
He said that his mother had a sofa bed at her premises which facilitated X and Y staying over sometimes, and that she otherwise lived alone in a one bedroom flat but had room for a ten (10) year old. He said his mother would have Z stay with her as long as possible. He said his sister could potentially supervise time between the girls.
In cross examination the father agreed he had not previously suggested that Z live with his mother, and agreed he was not calling evidence from his mother or his sister. He said he had spoken with them at length sometime in the last twelve months about assisting him, and that Z had last seen his mother some two years ago on the same day that he had seen Z. He said that he was now aware that Z had been distressed by the interactions that day, but had not been aware of her distress at the time.
When asked how he envisaged his mother getting Z in and out of the car he said that he thought, given the opportunity, Z would be fine because she has no fear of his mother or sister, notwithstanding that she had not seen them since September 2020. He said that he was suggesting his sister Ms AF as a supervisor at the time of trial, having not done so previously, because he considered she would be the most suitable candidate to remove Z from the mother’s care and place her in his mother’s care, having done that before from school.
The father confirmed he had not attended at Z’s class to collect her after mid-2020 because of false allegations of sexual abuse against him and not wanting to exacerbate his mental health. He agreed that he now wanted orders of the Court providing for Z to be taken to his mother’s home or direct to him. He confirmed that in his view, such a course of action would be less detrimental to Z than remaining in the care of her mother.
The content of the father’s evidence with respect to the removal of Z from her mother’s care was disturbing, and indicative of either an inability or refusal to seriously consider how his proposal could be effected without either a significant deleterious impact on Z’s mental health and/or a complete refusal on her part to comply with such a process. His evidence overall had an air of being “made up as he went along”, was not corroborated by evidence from either his mother or his sister, ignored the fact that Z had refused to spend time with him for some two years (including in a supervised situation for the purpose of observed interaction by Ms L) and was indicative of a determination to remove Z from her mother’s care whatever the consequences. It was also at odds with his far more sensible and considered proposals set out in paragraphs 280 to 284 of his first trial affidavit filed on 19 January 2022.
I find that the change in his proposal by the time of trial resulted from extreme levels of frustration and anger towards the mother which unfortunately resulted in an inability on his part to consider and put Z’s best interests ahead of his need for vindication.
It was some comfort that the father’s counsel submitted that the father was fully supportive of therapy for Z, and although he promoted Ms E in that regard, considered that perhaps a fresh start with another therapist may be beneficial. It was also submitted that he agreed to some extent with the position of the Independent Children’s Lawyer regarding the immediate commencement of time spending between all three children.
Mr Trentino denied telling X or Y that the mother is crazy or that he raised with them the issue of being falsely accused of child abuse by the mother. He said rather that the children ask him why he is “stuck in Court” and in answer he tells them he is stuck in Court defending himself and trying to get Z home, but does not elaborate. When asked by the Court whether it was his position that X or Y had no idea of why he was “stuck in Court” he replied that they had a vague idea, relating to the mother telling lies, but then conceded he had told X and Y that it is because of sexual abuse allegations. He denied that he had said that the allegation were anything to do with Z. He said he had those conversations with X and Y probably within the last two years leading up to trial, that he had told X and Y that he had been accused of doing very disgusting things to the girls, and that they thought it related to themselves and Z. He said he had stressed to X and Y that they were false allegations.
I find that the father was less than frank about the level and extent of conversations he has had with X and Y regarding his attitudes to the mother and to the allegations, at least since Z ceased spending time with him in mid-2020.
It was clear from the reports of X and Y to Ms L as reported in her January 2022 report that the general subject matter of the allegations was well known to them, if not the specifics, and that from their perspective the father’s life was consumed by Court proceedings that in one way or another all related to that issue.
The father confirmed that he wanted to have all three children in his care. When asked how that was in their best interests he replied that it was not in their best interests for someone to put false memories in their minds and manipulate the situation.
He conceded that he had a fractured relationship with Z, but said that he had only became aware for the first time during the proceedings and listening to Ms L’s evidence that Z had other complaints regarding her relationship with him over and above the issue of allegations of sexual abuse.
He denied that he treated Z any differently from X and Y and said that although Ms L saw the matter differently, it was because Z had been encouraged to make various complaints about her relationship with him when in fact the only complaint she had previously expressed to Ms E was that he made her eat her vegetables. He said Z’s perception of being treated differently from X and Y had only come about in the last two years when living with her mother with no contact with him.
He denied that he had ever been cruel to any of the family pets or having threatened to Z to sell her pet. When asked why he had taken two years to agree for the pet to be returned to Z he said it was because the pet was happy, and that he was living in hope. When asked how he thought that Z felt about the position he took about the pet he said that he was not withholding the pet. When asked again how he thought she felt he replied that she had two other pets and had only asked for her pet on one occasion some eighteen months previously.
The father’s presentation during cross examination was very intense, both in answer to questions from counsel for the mother and from counsel for the Independent Children’s Lawyer. He was extremely hesitant to concede the depth of his discussions with X and Y as to allegations before the Court in relation to him sexually abusing D, Y and Z. His explanation for his conversations with X and Y about that topic was that they had to know and he had to be honest. He conceded that the discussions had occurred sometime in the eighteen month period prior to trial and that the children were horrified by what he told them, but said they did not ask for specifics. When asked what he considered the purpose of the proceedings in this Court to be he replied that he was attempting to safeguard Z from suffering any further psychological and emotional abuse at the hands of her mother.
He conceded that notwithstanding the report of Ms L having been available since January of 2022, very little contact was arranged by he and the mother for the children together. He said that he considered he had to be careful making such arrangements with the mother because he was told that it was a potential breach of the Intervention Order.
When asked why he had not organised or spoken to a psychologist or child therapist who could assist him with the handover of Z into his care he replied that Ms E had said that if all three children were back in his care she would help them, and that was his hope. When it was put to him he had not spoken to her in some two years he replied that he did speak with her in 2021 but otherwise had not contacted anyone else for assistance. When asked whether he thought that everything would “be okay” with Z’s move into his care he conceded that “some issues may arise”.
Overall the father impressed as having not considered at any depth the practical reality of his proposal that Z move into his care and have no contact with her mother for a period of three months. He exhibited no comprehension of the likely trauma that Z would face in circumstances where on his case Z would have to leave the primary care of her mother and move to live with either he or his mother after effectively having had no contact with either of them for a period of over two years and then have no contact or communication with her mother for a period of some three months. An order to that effect would require Z to cope with that change in circumstance against a backdrop of the relationship between she and her father, for whatever reason, having broken down significantly over that two year period.
I find that at the time of trial, the father was unable to focus clearly on anything other than a need, denied by him in cross examination, to punish the mother for her allegations, notwithstanding she was not pursuing a case at trial of the children being at risk of sexual abuse or any other form of abuse, neglect or family violence in the care of the father.
As I said previously, the orders originally sought by the father at trial, as set out in paragraphs 280 to 284 inclusive of his trial affidavit filed 19 January 2022 were effectively in the same terms as the orders sought by the mother at trial, but providing more time for X and Y with the mother than that proposed by her at trial.
That trial affidavit was sworn by the father prior to the publication of the Family Report on 27 January 2022 but after the discussions between Mr Trentino and Ms L had taken place by way of video conference on 9 December 2021. Ms L noted in paragraph 50 of her January 2022 report that Mr Trentino sought final orders in the terms of those that he sought at trial. The final orders proposal evidenced in his first trial affidavit of 19 January 2022 acknowledged the strength of his relationship with X and Y, their need to have a relationship with their mother, their ability to manage such a relationship, the difficulties in his relationship with Z and the need to attempt to ameliorate the difficulties and improve their relationship. By the time he filed his updated trial affidavit on 12 August 2022 he had abandoned that balanced proposal, as evidenced in paragraphs 53 to 55 of that document.
I am satisfied that the explanation for the change in the fathers position is that deposed by him in paragraphs 22 to 25 inclusive of his affidavit in reply filed in 25 August 2022, namely:
22. I say that since 2016, [Ms Derby] has time and time again made vile and unfounded allegations (that I sexually abused her and sexually abused the children) to SAPOL and DCP. [Ms Derby] has also had organisations such as […] allege, in correspondence, that I have [seriously assaulted] her daughter [D] and […] (I refer the Court to document number 40 in the Joint Book of Documents).
23. I have had no choice but to defend myself against these allegations and have attempted to hold [Ms Derby] accountable for her lies and ongoing abuse of me through the legal system.
24. I have not used the legal process as a tool of abuse as [Ms Derby] states but say that she has attempted to do so by continually resurrecting false claims that I have abused her sexually and that I have abused the children.
25. It is not my intention to live in the legal system and I want the evidence tested and a decision made in this matter by the Court, so we can all get on with our lives.
I find it a matter of significant concern that the reason the father sought orders from the Court at trial in the terms to which I have referred was his barely disguised fury at and contempt for the mother arising from being the subject of misconduct allegations of sexual abuse against him over a period of some six years.
I find that his need to punish the mother for the impact of those allegations on his mental health and wellbeing over that period overtook his capacity to put the emotional needs to the children ahead of his own emotional needs.
As I have said earlier however, notwithstanding his involvement of X and Y in his views and actions towards their mother and in these proceedings, both girls love him dearly, genuinely wish to remain in his care and are still able to contemplate a relationship with their mother, albeit limited at this time.
There was evidence before the Court both from Dr H and the father’s psychologist Mr S as to the state of the father’s mental health and the pressure he has been facing. I find that the father was well aware at the time of trial that his proposals with respect to Z’s parenting arrangements were not only unrealistic but not in her best interests. I find there was no evidence before the Court to support his contention that it would be in her best interests to remove her from the care of her mother so that she could effectively “learn the truth” in his care with the support of he and her sisters.
Both X and Y expressed to Ms L, as recorded in her January 2022 report, that they were reluctant to raise any issues relating to the allegations with Z. I find from their recorded comments that they are both well aware that Z’s perception of her parents differs greatly from their own.
I find that it will be important for the father to continue with his psychological counselling with Mr S and further, that Mr S should be provided with a copy of this judgment to assist in that process. It is important for all three girls that he acquire a deeper insight into the importance of prioritising their emotional wellbeing.
Having made those findings with respect to my concern as to the capacity of the father to provide for the emotional needs of all three children, I am likewise extremely concerned about the capacity of the mother to provide for their emotional needs.
I have referred at length to my concerns as to the mother’s lack of genuine belief in the allegations that she has referred to various people and agencies including the Department for Child Protection, the police, Z’s school and Ms L over a significant period of time, and the purpose to which she intended such information to be put. Such actions on her part have significantly contributed to a fracturing of family relationships between all three children and one or other of their parents in circumstances where, at least until July 2019, all three girls were able to speak with Ms L in a balanced and thoughtful way about positive and negative aspects of and feelings for each of their parents, and satisfaction with the week about living arrangements.
The impact of the allegations has resulted in the children’s very close relationship being disrupted resulting in them no longer living in the same household after mid-2019. In addition, because of the high level of conflict between the parties primarily in relation to the allegations of abuse, the children have not been able to spend regular time together or communicate regularly and over the same period the children’s ages have necessitated changes in the school attended by X and Y such that they no longer have an opportunity to see Z at school.
The mother gave evidence that she simply wanted all of the Court proceedings to cease, that she was aware that the children no longer wanted to be involved in Court proceedings, but that nevertheless she still firmly held to the belief that the allegations relating at least to D, Y and Z were all true.
Notwithstanding that professed belief, which I have earlier said I do not accept as genuine, the mother did not seek orders from the Court for all three children to live with her, nor orders that may provide any level of protection for X and Y in the father’s household from alleged abuse, neglect or family violence.
The actions of the mother have not been indicative of a parent who is attuned to the emotional needs of her children. Rather I find they have been suggestive of her having attempted to manipulate them, in particular Z since early 2019, in the promotion of and continuation of a highly toxic relationship with their father.
As I have said previously in these reasons, the motive for the mother’s actions was unclear at trial. I accept however the evidence of the father that the allegations were first raised in the months after he instituted proceedings in this Court seeking parenting orders, following upon his long held concerns as to the state of the mother’s mental health, her use of illicit drugs, and the impact of those two factors on her capacity to provide appropriate care for the children, including their access to an appropriate level of education.
Notwithstanding these concerns I find that both parents love all three children and have the capacity to provide for their emotional needs, providing they have the will to do so and continue to seek professional assistance.
I find the most important issue that needs to be addressed by the parties as a matter of urgency is the need for all three girls to spend regular and emotionally safe time together. Although old enough to have their wishes, views and perceptions regarding their parenting arrangements respectfully weighted by the Court, I find that they are not yet of an age where their safety can be assured if they are simply left to spend unsupervised time together.
The father is understandably reluctant for the children to spend time with Z and their mother in the mother’s household unsupervised, where he is concerned that the mother and or D may seek to influence X and Y views and allegiances.
Notwithstanding the concerns I hold as to the mother’s capacity to refrain from so doing, and the lack of evidence before the Court as to the likelihood or capacity for D to attempt to pursue the same course, I find that X and Y have a safe and secure relationship with their father that has persisted throughout the life of these proceedings. The maturity they have exhibited during their discussions with Ms L, particularity as recorded in her report of 27 January 2022, indicate that they will be careful to engage in such discussions with either Z or their mother. I find that they both simply want to enjoy a loving relationship with Z and to enjoy uncomplicated time in the company of their mother and their siblings D and F, as observed by Ms L.
The factors referred to in s 60CC3(g), (h), (i), (j), (k) have been addressed earlier in these reasons to the extent that they are relevant.
s 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I find that all three children have suffered a level of disruption and trauma since at least 2016 as a result of a toxic relationship and dispute between their parents. This disregulated and psychologically unhealthy relationship has fuelled ongoing and seemingly, from the point of view of the children, endless litigation. That litigation has taken place not only in this Court but in other arenas, where the father has instituted civil proceedings against the mother and where the mother has promoted intervention orders against the father.
All three children have made their views abundantly clear to Ms L as reported by her in her January 2022 report, namely that they do not want to continue to be the subject of litigation, nor for it to consume their parents lives. The father conceded in cross examination that children should be able to look back on their childhood with pleasure but that his children are unlikely to be able to do so.
Notwithstanding the events of the last six years, I find it is a testament to the children themselves that they have been able to, in the case of X and Y, maintain a close and loving relationship with their father and a preparedness to spend time with their mother in the future and, in the case of Z, that she has maintained a close and loving relationship with her mother.
It is to be hoped that with some therapeutic assistance, significant time spending with her sisters, and an acknowledgment by her father that he needs to listen to her and acknowledge the significant fractures in their relationship, that her, as well as X and Y’s remaining childhood years can be something on which they can eventually look back with pleasure. That will not be the case if litigation continues.
I find that if the Court were to make orders as proposed by the father with respect to Z’s parenting arrangements they would be against her best interests, unenforceable in practical terms, damaging to her mental health and a vehicle for further futile litigation. The orders originally proposed by the father in his first trial Affidavit and the orders proposed by the mother at trial are similar in nature and align with the recommendation of Ms L and the proposals of the Independent Children’s Lawyer. The proposals of the Independent Children’s Lawyer are set out in paragraph 147 of these reasons.
I find that any orders that promote consultation between the parties may provide a vehicle for further litigation. Parents are able to communicate at whatever level they chose and by whatever means they choose unless they are restrained from doing so. I consider that orders that provide each of the parties with the ability to make decisions regarding the child or children in their care without the necessity for prior consultation will be least likely to lead to the institution of further proceedings. Significant decisions can and should be advised to the other parent.
An order was proposed by the Independent Children’s Lawyer regulating arrangements for any communication with or contact between X and her biological father. X is now 14 years old. I am satisfied that she is well able to determine that issue herself, that she is able to communicate her views and wishes about that to both parents, and that the orders proposed by the Independent Children’s Lawyer regarding communication between the parties about that issue may lead to the institution of further proceedings.
I find that it would be in the interests of Z to attend upon Ms EE at FF Psychology, as reasonably directed by Ms EE in an attempt to resolve her relationship difficulties with her father. I find that it is in Z’s best interests to restrain the mother from permitting Z to attend upon any other mental health practitioner other than in circumstances where she and the father agree to another practitioner in writing. I consider such an order to be in Z’s best interests in circumstances where it is important that Z’s therapy is not conducted on the premise that she has been sexually abused by her father.
The mother has previously taken actions which resulted in the children losing their access to Ms E, a therapist that all three children told Ms L they liked and who, as a result of a complaint by the mother to AHPRA, felt unable to continue providing therapy. The mother also took the children to a psychologist Ms R “to address their trauma and body issues”[28] without the consent of the father.
[28] Mother’s response to father’s Initiating Application filed 24 September 2020.
I consider that it is important that Ms EE have access to these reasons prior to commencing any therapy with Z, and intend to order that the Independent Children’s Lawyer provide a copy of these reasons to Ms EE at FF Psychology forthwith upon receipt of same.
I am not satisfied on the evidence that it is necessary for X and Y and the father to engage with Ms EE to address their relationship difficulties as proposed by the Independent Children’s Lawyer. I have found that relationship to be a secure relationship, albeit that the children are clearly tired of their father being involved in Court proceedings. It is hoped they will be finalised in this Court with these reasons and accompanying order and if not already, in other arenas as a matter or priority.
That is not to say that the father should not be at liberty to facilitate the children’s attendance for therapy and I consider that if he does so it would be in their best interests to attend upon Ms EE to ensure consistency of therapy to all three children.
I find that all three children have a close and loving relationship with each other which does not require any specific therapeutic input but does require regular time being spent together. In assisting Z, Ms EE may form the view that it would be beneficial to meet with X and Y and perhaps spend time with all three children together to assist them to reconcile their difference perceptions of their parent’s actions.
I am mindful of expense associated with therapy, and do not intend to order that the father comply with any request of Ms EE to arrange for X and Y to attend upon her and possibly with Z, but I would be hopeful that he would carefully consider such a request and use his best endeavours to comply.
I find that X and Y are open to a relationship with their mother, and although I am respectful of the recommendation of Ms L contained in paragraph 163 of her report of 27 January 2022, I am concerned that an order requiring them to engage in therapy with their mother may well be counterproductive, taking into account their ages and their wish to simply get on with their lives. I am satisfied on the evidence that if they spend regular time with Z in the household of their mother that relationship will be maintained at some level. The responsibility for that outcome rests to a significant degree with the mother’s conduct in the future.
I accept that Z’s best interests would be met by Ms EE communicating to the parties any reunification steps she would recommend between Z and her father. I find however a limitation should be placed on the ability of either of the parties to reinstitute proceedings in this matter without first having attended for external mediation if they are unable to accept those recommendations. I find, taking all the matters to which I have referred into account, that it is in the best interest of X, Y and Z to each have a meaning relationship with each of their parents.
I am hopeful that the orders that I intend to make support the development of the existing but less than ideal relationship between X and Y and their mother and promote the development of a meaningful relationship between Z and her father. The success of that endeavour however remains firmly in the hands of Mr Trentino and Ms Derby, and their level of resolve and determination to manage their acrimony and provide a secure and stable emotional environment for their children in the future.
I accept the recommendation of Ms L that it would be in the best interests of all three children that the orders of the Court be discussed with them by a professional person external from the parties. I find that taking into account Ms L’s knowledge of the family and the children’s familiarity with her, that she would be best placed to undertake that role. I accept that it would be to the children’s benefit that if possible the Independent Children’s Lawyer also attend upon that appointment. The Court Children Service have advised my chambers of Ms L’s willingness and availability to undertake this important role and I thank her in advance for her assistance.
For those reasons I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding four hundred and fifty-two (452) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 19 December 2022
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