Wenlack and Cimorelli (No. 4) - [2019] FamCA 854

FAMILY COURT OF AUSTRALIA

WENLACK & CIMORELLI (NO. 4)

[2019] FamCA 854

FAMILY LAW – CHILDREN – Interim Parenting – Where the father contends that the children have been subjected to psychological abuse in the care of the mother – Where the father proposes that the children have no contact with the mother – Where the mother seeks that the previous final parenting orders are reinstated –Where there is a likelihood that the children would not share a meaningful relationship with the father if there were a return to the previous parenting arrangement – Where the Independent Children’s Lawyer proposes that the children spend supervised time with the mother – Orders made that the children spend supervised time with the mother.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13
Wenlack & Cimorelli [2019] FamCA 755
Wenlack & Cimorelli (No. 2) [2019] FamCA 790
Wenlack & Cimorelli (No.3) [2019] FamCA 791

APPLICANT:

Mr Wenlack

RESPONDENT:

Ms Cimorelli

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

FILE NUMBER:

SYC

2881

2013

DATE DELIVERED:

20 November 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

1 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Simpson

SOLICITOR FOR THE RESPONDENT:

In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

Orders

Pending further order

The final orders made on 27 August 2015 in relation to the children namely D born … 2008, E born … 2009 and F born … 2012 (“the children”) are suspended.
The children shall live with the father.
The father shall have sole parental responsibility for the children.
The father forthwith shall do all acts and things required to ensure that the children are enrolled to attend T Primary School, Suburb Q.
Order 1 of the orders made on 4 October 2019 be discharged.
Orders 2 and 5 of the orders made on 4 October 2019 are to continue.
Order 6 of the orders made on 4 October 2019 is to continue subject to the following variation:
(a) The words “other than in accordance with these orders” are added to the end of that order.
The order made on 16 October 2019 be discharged.
The mother is to spend supervised time with the children at a Children’s Contact Service as nominated by the Independent Children’s Lawyer for a period of two hours per fortnight and such other additional time as may be accommodated by the contact service.
The parents are each to take all necessary steps to facilitate the mother’s time at the contact service including completing the intake procedures for that service.
The Independent Children’s Lawyer has liberty to provide these orders and Reasons for Judgment to the Children’s Contact Service.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 2881 of 2013

Mr Wenlack

Applicant

And

Ms Cimorelli

Respondent

REASONS FOR JUDGMENT

Introduction

On 16 April 2019 the father commenced parenting proceedings in relation to the three children of his relationship with the mother for a second time.
Throughout the previous proceedings the mother had contended at various times that the father posed a risk of harm to the children. Those previous parenting proceedings were however ultimately resolved by way of orders made in August 2015 (“the 2015 orders”) with the consent of the parties providing for a gradual increase in the father’s time leading to an equal shared care arrangement. It was noted at the time the 2015 orders were made that the mother accepted that the father posed no unacceptable risk to the children on the available evidence.
The children then lived with the parents in the care arrangement provided for under the 2015 orders until around March 2019.
In November 2018 the mother engaged the children with an organisation that provides services for people who have experienced trauma and abuse though she does not identify any trauma or abuse experienced by the children. From about March 2019 in circumstances that will be explained at greater length in this judgment the children spent no time with their father for about four weeks and thereafter spent very limited time with him. A short time later he commenced these proceedings.
For reasons given in an earlier ex tempore judgement[1] a recovery order was made on 4 October 2019 for the children to be returned to the care of their father. Other orders made on that date included a suspension of the mother’s time with the children.
[1]Wenlack & Cimorelli [2019] FamCA 755
At a subsequent court event on 14 October 2019 I was unable to deal with an application in relation to the children’s interim living arrangements as various other applications which the parties regarded as urgent required determination within the time allocated. The respective applications for interim parenting orders were then listed for hearing on 1 November 2019. This judgment is concerned with those competing applications.
The mother seeks a return to the shared care parenting arrangement brought about by the 2015 orders while the father seeks a continuation of the current arrangement whereby the children live with him, that he has sole parental responsibility for them and they spend no time with their mother. The father contends that the mother poses an unacceptable risk of harm to the children arising from psychological abuse of them in her care. He proposes that a further interim arrangement be considered in relation to the children’s time with their mother after an expert who was appointed in May 2019 has provided a report.
The Independent Children’s Lawyer (“ICL”) agrees with the father’s contention that the mother poses an unacceptable risk of harm to the children under any arrangement whereby they live with her. The ICL contends that the risk of harm posed by the mother may be mitigated by the children spending time with her supervised by a professional supervision agency and proposes interim orders to this effect. The mother contends that a return to the previous shared care arrangement would be in the children’s best interests.
The dispute is to be resolved by making interim orders that are proper having regard to the paramount consideration being the best interests of the children.

Background

The parties were married in 2007 and over the course of their six year marriage had three children. The oldest child is a girl now aged 11, the middle child a boy aged almost 10 and the youngest child a girl aged seven.

The first parenting proceedings

Following the breakdown of their marriage in April 2013 the children lived with the mother and spent time with the father as agreed between the parties. The following month the father commenced parenting proceedings.
There has been a long history of notifications made to the Department of Communities and Justice formerly known as Family and Community Services (“the Department”) about concerns for the children’s welfare in the care of the father since he initiated proceedings in 2013. These notifications have included allegations of sexual abuse of the oldest child made by the mother at around a time she withheld the children from the father for about five weeks from mid December 2013 to late January 2014. Neither this notification nor any of the other 20 or more complaints made since that time concerning the father’s conduct have been substantiated by the Department.
When the allegations of sexual abuse against the father were made and the mother was withholding the children from him a report from an expert psychiatrist was obtained on an urgent basis. This report, dated 16 January 2014 (“the first expert report’) is a matter to which I will return. It suffices to say that at this stage the expert was of the opinion generally that the children should continue to reside with the mother who the expert believed was “providing for them well”. The expert also recommended that contact between the children and their father continue and “gradually increase somewhat” but added that he did not have a firm view about the last matter. He also made a specific recommendation that neither parent question the children about the other parent as in the expert’s view “there is a very high likelihood that questioning the children will result in the children becoming very primed and anxious about what answers to give”. At that stage the expert also recommended that there be joint parental responsibility and held the opinion that the mother had the capacity to “relax and accept the father as a safe parent”. He also added of relevance that should there be further concerns about sexual abuse that this would be a worrying development. His own view was that it was highly unlikely that sexual abuse would occur but added that “if [the mother]’s anxiety does not reduce and fearfulness (sic) this could become a major problem for the family.”
In January 2014 the father’s time with the children recommenced.
A further report from the expert dated 4 September 2014 (“the second expert report”) was prepared for the purposes of the final hearing. By that stage the expert had changed his position. The expert then recommended that the children be placed into the primary care of the father and that he exercise sole parental responsibility for the children as the expert considered that the father was the more capable of the parents. The expert also recommended that there be a guardian ad litem appointed to act on behalf of the mother. It was the expert’s opinion in summary that the mother had mistreated the oldest child unwittingly and was incapable of acting in her own best interests and handling her own affairs due to “her dependent personality disorder and her enmeshment with her family”.
In September 2014 the expert had particular concerns about the mother’s need to be open to being educated about understanding the cognitive abilities of children and flaws in questioning young children and felt that if there were further allegations or the mother raised further concerns of abuse that this could undermine the children’s relationship with the father. In this regard the expert expressed the opinion that the mother suffered from “uncontrollable anxiety about the children”. He expressed the hope that if the children are in the care of the father that “gradually in time” there may be increased ability of the children to spend time with the mother and that a substantial contact arrangement could occur.
The final hearing in the first parenting proceedings was to commence in March 2015 but ultimately the trial was set back until August 2015.
After the second expert’s report was released and prior to the final hearing in August 2015 the mother raised no concerns in relation to risks of harm said to be posed by the father or the quality of his care. During this time the parents engaged with a psychologist for family therapy.
In an affidavit filed just prior to the final hearing in the first parenting proceedings the mother deposed “I do not believe that there is any risk of harm or danger to the children while they are in [the father]’s care”.
During the first week of the final hearing in August 2015 the parenting arrangements for the children were resolved by orders made with the consent of the parties without any determination being made by the trial judge. However it was noted in those orders that “the mother accepts that there is no unacceptable risk posed by the father to the children based on the available evidence”.
The 2015 orders provided for the parents to have equal shared parental responsibility for the children and for the father’s time with the children to increase gradually until the commencement of term 3 2017. Thereafter the children were to live with the parents in an equal shared care arrangement. Under that arrangement they were to spend two nights in the father’s care in the first week of a fortnight and five nights with him in the second week of the fortnight. The children were also to spend of all school holidays equally with each parent effective immediately.

The arrangement following the 2015 orders

The children lived in the arrangement provided for under these orders from the time that they were made until March 2019.
In February 2016 the middle child broke his arm when he fell from playground equipment when in the father’s care.
The mother sets out in great detail in her affidavit difficulties that she says the children experienced as a result of the equal shared care arrangement. The general tenor of her evidence is that the father did not take all the necessary steps to facilitate the children participating in various extracurricular activities or provide appropriate academic support from soon after the commencement of this parenting arrangement and that the children were resistant to and unhappy with shared care.
The mother does not however make any specific allegation in her affidavit that the father was in any way abusive towards the children except to depose in a general way that in around the beginning of 2018 the youngest child “had been saying that she was getting hurt at her dad’s” and that for this purpose the school referred this child to its counsellor and the mother “supported [the youngest child] in therapy”. Otherwise, the mother does not depose to any instances of alleged maltreatment or abuse by the father though she somewhat cryptically deposes that in around early March 2019 “the children were participating in a blanket making project with AA Group and had spoken with the staff regarding experiences at their dad’s”.
Although the father was unaware that this had occurred at the time in November 2018 the mother took steps to have the children receive services from AA Group, a privately run agency that provides therapy for trauma related issues and also provides resilience based programs.
Documents produced on subpoena by AA Group indicate that the mother wrote “family violence” in relation to information concerning the “family background and the broader issues affecting the family” in an intake form completed by her on behalf of the children in November 2018. In answer to the question “what are your expectations of the AA Group service?” The mother wrote:
…to help my children - by giving them strategies to cope with what they have been through and tools to rebuild themselves. Help them to understand their feelings (anger/hurt/fear/anxiety/pain/resentment) to provide them with a safe space to express themselves and to listen to them and [illegible] them therapeutically (emphasis added).
According to the father’s affidavit, for a number of months prior to April 2019 he had observed a grave deterioration in the children’s mental health. During this period he observed that all of the children had been agitated when they came into his care and that was particularly the case with the oldest child from about February 2019. The oldest child had also at around that time recently performed very poorly in her NAPLAN examinations which according to advice the father says he received from the school counsellor is believed to result from some emotional issue rather than a cognitive problem. He is of the view that since about this time the middle child was also showing signs of an evolving anxiety disorder and had fears about going to sleep, his security at night and his mother’s welfare, and deposes that on occasions this child became overwhelmed and teary with no apparent trigger.
It appears to be common ground between the parties that the children’s anxiety had been intensifying during the first few months of 2019. It is the mother’s view, as I understand it, that the children were dissatisfied with their current care arrangements and wanted to spend more time with her, while the father was becoming concerned that the children were rejecting him or becoming aligned with the mother for no reason.
On 20 March 2019 when the father was a short distance from the children’s school and due to collect them he received a phone call from a person from the Department informing him that there had been a notification made to the Department that day and requesting that he not collect the children. The father was also informed that the children were distressed. He says that he was “shocked” and “devastated” about this phone call. It appears that the father complied with the request of the Department and did not collect the children.
On 22 March 2019 the father participated in a 150 minute interview with two caseworkers from the Department and the same caseworkers visited him five days later at his home and conducted a further two hour interview without the children present. Records of the Department reveal that the complaint that they were investigating was regarded as a risk of serious harm report that alleged the father had used excessive discipline and that this matter was assessed by the Joint Child Protection Response Program[2] (“JCPRP”) and found to be not substantiated.
[2] The Joint Child Protection Response Program made up of officers from the NSW Police Force, the Department of Communities and Justice and NSW Health investigates allegations of serious child abuse.
The mother deposes to having no knowledge about the nature of the complaints made concerning the father’s conduct on around 20 March and says that she was informed that they had been made by a third party. She also says that the case worker did not disclose to her what had been discussed with the children and it is her evidence that she only subsequently came to be aware of the allegations in question when reading documents produced on subpoena.
The records of the Department tendered in the proceedings in relation to this investigation indicate that it related to the middle child’s complaint that his father threw him into a bathroom two years previously and he hit his arm on the sink which was said to have caused him to fracture his arm, the middle and the oldest children disclosing that the father locks them in their rooms and that he had hit them on the head while brushing their hair and hit the middle child on the head with a shirt and that the button on the shirt caused a bump to form on his head. The oldest child is also said to have reported that the father hit her on the head so hard the previous year “that her eyes went funny”. She also reported that the father had tripped the youngest child on the trampoline which resulted in that child breaking her leg when she was three to four years old.
The father agreed to go along with the suggestions of the caseworkers from the Department at the time that there be a graduated approach to the children spending time with him given their reported levels of distress. He suggested a plan for the children to meet him at a park on 6 April 2019 in the presence of his mother for three hours followed by a period of seven hours on the following day which apparently met with the approval of the caseworkers. The mother arrived at the park with the children as agreed but informed the father that the children did not want to get out of the car and go with him. The father approached the children in the car but had no greater success. He says that as the car drove off the oldest child said to him “I don’t love you, just saying”.

On 9 April 2019 the departmental caseworkers informed the mother that the allegations of physical harm against the father had not been substantiated. A record of the Department in relation to this investigation of the same dated includes the following:
[N]o diagnosed mental health concerns for [the mother]. However during the meetings with the children’s mother (when the children are not present) [the mother] has frequently cried and her breathing has become shallow and rapid. When caseworker spoke to [the mother] about not substantiating physical harm perpetrated by [the father] [the mother] started crying and was struggling to breathe and talk. This resulted in her terminating the telephone conversation as she was unable to carry on with the conversation. There are concerns regarding the anxiety and stress [the mother] is experiencing and the impact this may have on the children.
On 10 April 2019 the father first became aware of the children’s enrolment at programs offered by AA Group.
On the following day, 11 April, there was an incident at the children’s school in the presence of the principal who had agreed to help facilitate the children passing into the care of the father after the unsuccessful attempt for that to occur on the previous weekend. By this stage the children had not spent time with the father for nearly four weeks and had been participating in the “therapy” at AA Group. When it came time for the children to leave the school with their father the oldest child firmly refused and told the father that she hated him. The middle child had what the father describes as “a major breakdown” and was writhing on the floor, screaming and crying while telling the father that he hated him. The youngest child ran to the father and showed no difficulties in being in his care. The father decided given the level of the children’s distress not to force the issue and take the children with him.
From this point the father formed the view that there was an imminent risk of harm for the children. He commenced these proceedings five days later.
Although the Department did not substantiate the allegations of physical abuse against the father and confirmed in a letter dated 23 April 2019 that this was the case, the caseworker did inform the parents in the same letter that “psychological harm was substantiated for all three children”… “based on evidence collected that all three children have been found to be frightened of [the father] and have voiced a resistance to wanting to have contact with him or return to his care”. This letter does not identify who has been substantiated as the person causing that harm though it can be inferred that it is believed by departmental officers to be the father.
After the proceedings commenced the parenting arrangement whereby the children lived with their mother and spent time with their father on a very limited basis continued. There was no success in having the children return to the pattern of care as provided for under the orders. There is a small dispute between the parties about the exact amount of time the father spent with the children from around March 2019. It is common ground however that they lived with the mother and spent time with the father on a few occasions each week at co-curricular and sporting activities in public places for a period of hours at most. The mother was present on all occasions except for the father’s time of a few hours with the youngest child one afternoon per week.
On 29 May 2019 at a court event before a Senior Registrar orders were made with the consent of the parties who were both represented appointing an expert based in Melbourne as the single expert in the proceedings.
On 9 July 2019 the father was informed by officers of the Department that there had been a further four separate notifications made in June 2019 in relation to his conduct notwithstanding that he’d had very limited time with the children for some months and that the mother was generally present.
On 10 July 2019 the father was interviewed by a child protection case worker and JCPRP participated by telephone.
Departmental records indicate that the investigation at this time was concerned with allegations that the father had used a “zapper” or some form of device on the neck of the children to track their movements and electrocute them when they were naughty. The youngest child had apparently retained part of this “device” from the father’s home and it was provided to investigators and found to be the internal casing of a child’s plastic wristwatch. Another report received at this time was that as a form of punishment the middle child was forced to ride a home made go-kart with no brakes down a steep hill, hurting himself and requiring stitches.
There were no concerns for the Department arising from the father’s interview with them and his household was considered by the Department to be safe. Records indicate that the “zapper” had been examined by police who reported that it is not a tracking device and does not have any ability to electrocute. The incident relating to the go-kart appeared to relate to an accident many years earlier when the parties’ marriage was intact.
On 23 August 2019 the father was attacked by unknown men at the driveway of his home, a matter which is under police investigation. In these circumstances he decided to move to stay with his sister and her family in another part of Sydney.
On 17 September 2019 there was a court event before me in which I dealt with various application and in particular an application by the father to change the appointment date with the expert, for orders relating to instructions for the expert and orders to facilitate the appointments. The appointments with the expert were confirmed for 2 October 2019 and various orders were made to facilitate the assessment interviews proceeding. On that date the proceedings were expedited and were to be relisted upon release of the expert’s report.
On 2 October 2019 the father attended upon the expert for the purposes of the assessment interviews and although he had complied with all orders in relation to facilitating the children’s attendance at the interviews the mother did not attend upon the expert or make the children available.
As the ICL had been given liberty to relist the proceedings before me in the event that there were any difficulties in relation to the attendance of the children at appointments with the expert, the ICL sought an urgent relisting of the proceedings. Orders in relation to a court event on 4 October 2019 also included a direction that the mother present the children to Child Dispute Services at 9.30am on 4 October 2019.
The mother did not bring the children to Child Dispute Services on 4 October 2019 and after an initial appearance left the court room and ultimately the court precincts on that day. For reasons which were given in an ex tempore judgment on 4 October 2019[3] I made various orders including a recovery order for the children to be returned to the care of the father and orders that the children live with him, he have sole parental responsibility, that the mother’s time with the children be suspended and that the parents be restrained from removing the children from Australia and associated watch list order.
[3]Wenlack & Cimorelli [2019] FamCA 755.
I was conscious that although the orders were made during the school holiday period further consideration would need to be urgently given to the children’s circumstances including time with their mother and appropriate arrangements for their schooling. The first available date for a court event to consider such matters was ten days later, on 14 October 2019 the day after the school term commenced.
Although there are some differences in the respective accounts of the parties about the execution of the recovery order there is no dispute that later on 4 October 2019 the father attended upon the mother’s home with his sister at the request of police who were given authority to recover the children where there were a large number of other people in attendance. The children were apparently highly resistant to going with police and after a few hours the police left the mother’s premises without them.
It also does not appear to be in dispute that the following day a number of police officers again attended the mother’s home and recovered the children. Initially the parties’ two daughters successfully passed into the father’s care at a park near the mother’s home but the middle child ran back into the mother’s home and was successfully recovered by police later that day.
On 14 October 2019 rather than proceed with any application in relation to the interim parenting arrangements for the children the mother made a further application through counsel who had been retained by that stage to discharge the appointment of the court expert which was dismissed for reasons given at the time[4]. When dealing with the issue of the expert I also dealt with a new date for his appointments which took some time. It was confirmed that he would be coming to Sydney and those appointments were to take place on 13 November. There was also insufficient information on that date in relation to the one particularly urgent issue that required determination, being the interim arrangements for the children’s schooling. This matter was adjourned for determination two days later on 16 October 2019.
[4]Wenlack & Cimorelli (No. 2) [2019] FamCA 790.
The court event on 16 October 2019 was concerned only with the issue of the children’s schooling for the short period prior to the 1 November interim hearing.
On 1 November 2019 I heard the competing applications in relation to interim parenting arrangements.

The law & discussion

The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[5].
[5] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.
In applying the law to the facts, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Pursuant to s 65D(1), subject to certain provisions which are not relevant here a court may make such parenting order as it thinks proper.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
In Deiter & Deiter[6], the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children.
[6] [2011] FamCAFC 82.
Ordinarily it may have been expected that some progress would have been achieved in relation to the proceedings which were initiated in April 2019 so that the period of operation of these interim orders may have been relatively short. However there have been some intervening events that have unfortunately caused some delay. In particular it had been hoped that a report from the expert appointed in the proceedings would have been available by now had the appointments arranged for 2 October 2019 proceeded as planned. In these circumstances given that I have expedited the final hearing the interim orders under consideration may have only lasted a matter of months. At this stage however it is a matter of conjecture when the proceedings will be fixed for a final hearing, even if expedited.
Alternatively, given that there has been no expert opinion obtained to date it may be that when the expert report is to hand there will be a further application for variation of interim orders. The father seeks an order that the interim arrangements be revisited in a further interim hearing following the release of the expert report. I indicated in the course of the interim hearing that I was not prepared to make such an order as a matter of course but would determine the interim application on the available evidence and any future applications would be dealt with in accordance with the relevant Rules and principles at the appropriate time if made. In these circumstances it appears likely that the interim arrangements under consideration may be in place for many months.

The primary considerations: s 60CC(2)

The primary considerations, which are contained in s 60CC(2), are:
a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These proceedings exemplify the tension that may arise when applying the two primary considerations to the circumstances of a case. In applying these considerations I am mindful also of the requirement under Section 60CC(2A) to give greater weight to the need to protect the children from harm than to the benefit to them of having a meaningful relationship with both parents.
I understand it to be contended on behalf of the mother that if the children are to continue to live with the father and spend limited or no time with her they will be deprived of the benefit of having a meaningful relationship with her. The father contends that the mother’s proposal (that the suspension of her time and orders for the children to live with him be discharged resulting in the parenting arrangements under the 2015 orders being revived) will cause the children to be deprived from having a meaningful relationship with him.
The expression “meaningful relationship” which is not defined in the Act has been interpreted in a qualitative rather than a quantitative sense as a relationship which is “important” or “significant”[7].
[7] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
Neither parent contends that the children do not receive a benefit from having a meaningful relationship with both parents.
If the father’s proposal that the children have no contact with their mother continues for a lengthy period of time this will mean that the children will be deprived of the benefit of having a meaningful relationship with her.
The proposal of the ICL for the mother to spend supervised time with the children balances the two primary considerations. It is the position of the ICL that the children do benefit from having a meaningful relationship with their mother but the need to protect the children from harm requires that their time with her be supervised.
In the course of the interim hearing concerns were raised on behalf of the father about management of the children’s time with their mother in a practical sense under the ICL’s proposal that the time be supervised by a private agency. In particular, weight was attached to the conduct of the children when police attempted to execute the recovery order. For this reason in the course of the proceedings the father proposed that in the event the court were minded to order some supervised time between the mother and the children that this occur in the more controlled environment of a contact centre.
When the ICL informed the Court that it would likely be that such a place at a particular contact centre would not be available for up to 12 months, the mother declined the suggestion that the parties undertake an intake assessment at a number of contact centres in the event that such an order were made and a place were to become available at another centre or within a shorter period of time. The mother’s response to this suggestion is consistent with her general position of not engaging with the contention that she poses a risk of harm to the children that may require supervision to mitigate such harm.
The first of the father’s dual and associated contentions are that the children will be deprived of the benefit of having a meaningful relationship with him if they return to live with the mother. He contends that although the mother now proposes an equal shared care arrangement the reality will be that she will place limitations on the relationship and before long there will be a return to the pattern of care in place from late March to October 2019. He also contends that there is a need to protect the children from psychological harm from being abused in the mother’s care.
Any factual matters in dispute that supports these contentions cannot of course be resolved at an interim hearing. However, the court may and in some circumstances must have some regard to matters in dispute at interim hearings.
In SS & AH[8], the Full Court said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[8] [2010] FamCAFC 13.
The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[9], a decision of the Full Court citing Deiter & Deiter[10]).
[9] [2013] FamCAFC 182.
[10] [2011] FamCAFC 82.
In Deiter (supra) the Court was particularly concerned with the situation where the contested facts relate to an assessment of risk. It was said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
It is the father’s contention that the children have been subjected to psychological abuse in the care of the mother in particular from the early months of 2019 and that there is an unacceptable risk the children will continue to be harmed by such abuse in the care of the mother should they return to live with her. Although it is not proposed by any party the father does concede that the only way such a risk could be mitigated is if the children’s time with the mother were to be supervised at a contact centre. The ICL agrees with the father’s contention that there is an unacceptable risk of psychological abuse in the care of the mother but proposes supervision by a private agency.
The father’s concern about psychological abuse arises from the undisputed fact that the children, in particular the oldest and middle children have been overtly rejecting the father since at least February 2019 and appear to have formed a belief which the father says is false that he is dangerous and that they are unsafe in his care. Without proceeding to make any findings I am of the view that if the apparent rejection of the father by the children has no foundation and their belief that he is dangerous and unworthy is false, and the mother were found to have influenced the children in adopting this stance and beliefs she would be responsible for perpetrating psychological abuse.
It is the mother’s case, as I understand it, that she has at all times supported the children’s relationship with their father. She does not offer any explanation for the children’s attitude towards the father other than that the children have always been uneasy with the equal time arrangements and frequent change to routine brought about through the 2015 orders. The mother’s main complaints in her affidavit in this regard relate to an allegation that the father did not always meet the children’s academic and educational needs or ensure that they participated in co-curricular activities and that they voiced repeatedly a desire to live with her.

The mother claims in her affidavit that the children’s resistance to the shared care parenting arrangement was such that they “started taking matters into their own hands”. In particular she refers to an incident in December 2017 when the youngest child then aged five ran away from school, a matter which is disputed by the father. The mother says nothing more in relation to this incident about the father other than express concerns that the youngest child said at the time that she “was getting hurt at her dads”.
The mother makes no other allegations in her affidavit to explain why the children were expressing resistance to spending time with the father up until the investigation by the Department in March 2019 which she also deposes related to matters of which she had no knowledge.
In my view, in weighing the probabilities of the father’s claims and likely impact on the children weight must be attached to a number of incidents which occurred as long ago as 2016, shortly after the 2015 orders were made.
It is not a matter of dispute between the parties that in February 2016 the middle child suffered a fracture to his arm. According to the father’s affidavit this occurred when the child had a bad fall from play equipment at school on 4 February 2016. The father who is a medical practitioner assessed the child at the time and treated what he believed was a soft tissue injury. He also advised the mother about the fall on the same day by text message. A week later as the father felt that the child’s presentation was not consistent with a soft tissue injury and was still experiencing some soreness he took the child for an x-ray which confirmed that he had a fracture to the wrist.
A medical report from the Child Protection Unit (“CPU”) at the BB Hospital under the hand of a forensic paediatrician indicates that on the same day the x-ray was taken, 12 February 2016, the mother presented the child to the Emergency Department. The report indicates that the mother told the staff at the hospital that the father had sent her a text about the need for an x-ray and had arranged for that to be done. She also reported that on the way to the hospital the child told her that “daddy was yelling a lot”, “dad pulled my arm and it hurt” and that the father had locked him in the bathroom. The report indicates that during the CPU assessment the child did not provide a clear explanation about how his arm had been injured.
The mother does not refer to this incident at all in her affidavit or to a notification made to the Department the following month (March 2016) concerning the incident. The father deposes to being questioned about this matter and another notification relating to his discipline at this time. He deposes to being asked about whether he wrenched the arms of the children and that the departmental case was closed shortly afterwards.
The father gives evidence that in April 2017, over a year after the middle child’s injury, this child questioned the father about the circumstances surrounding his fractured arm. He deposes that the middle child spoke to him about the mother telling him that the father had caused his fractured arm by throwing him into a wall. The child appeared to the father to be conflicted about the situation so the father wrote to the mother asking her to explain to the child what had actually occurred. The father asserts that the mother later responded that she had no idea what the father was talking about.
The next matter which in my view is significant when considering the probabilities of the father’s claim about the circumstances in which the children have come to reject him concerns the mother’s involvement of the children with AA Group. The mother deposes only in a fleeting manner in her affidavit to “the children participating in a blanket making project with AA Group” in about early March 2019. At the interim hearing the mother was unable or unwilling to make any concessions through her counsel about the services of AA Group which required me to request that the ICL obtain such information. As also noted in the intake form completed by the mother for the children’s participation in programs at AA Group she referred to having an expectation of helping her children “by giving them strategies to cope with what they have been through and tools to rebuild themselves”.
The mother does not provide any explanation for her reasons for referring the children to this specialised service nor does she identify what the children “have been through” or any trauma or abuse she alleges they suffered. Further, although the mother attempts in her affidavit and through submissions made by counsel on her behalf at the interim hearing to suggest that the father was aware of and consented to the children’s participation at AA Group, she ultimately had to concede that there was no evidence to suggest that this was the case. The father denied being informed of the children’s participation in any programs at AA Group and documents produced on subpoena from AA Group support his position.
I am of the view that by November 2018 when the mother first engaged the children with AA Group she had formed the view that they had been abused or traumatised in the care of the father despite there being no evidence of the basis upon which she formed this view.
I also treat with caution the contention of the mother that the involvement of the Department in late March 2019 came as a shock or surprise to her and the inference that any concerns of the Department arose as a result of notifications made by third parties in which she had no involvement or awareness.
Records from the children’s school produced on subpoena indicate the mother reporting her concerns relating to the father’s care and the children’s resistance to spending time with him as early as 20 February 2019. Further, the mother’s account of the substance of the children’s complaints in March 2019 which she says she ascertained from later reading documents produced on subpoena is also telling. She deposes that the documents reveal as at March 2019 the middle child had a belief that the father had attached a device to his neck which administered an electric shock whereas the records of the Department do not indicate that this matter was raised until June 2019. Police records indicate that the mother had been aware of the children’s allegations that the father was able to “track them” by “things in the air” from as early as around Easter 2019 but complaints of this type did not come to the attention of the authorities until some months later. I am of the view that the mother’s evidence as to this matter and the records indicate that she did have an awareness of allegations made about electronic devices being used by the father on the children for some months prior to June 2019 when these complaints first came to the attention of police and the Department.
Further, the departmental records tendered in the proceedings indicate that on 20 March 2019 the middle child disclosed that the fracture to his wrist that he had suffered approximately two years previously was caused by the father by throwing him into the bathroom.
As noted earlier the circumstances of the broken wrist were investigated by the Department shortly after those events occurred. The report from the forensic paediatrician of the CPU at the BB Hospital dated 6 May 2019 refers to a further investigation by JCPRP in late March 2019. The following is recorded in this regard:
[The middle child] said that his father pulled his arm and pulled him into the bathroom with force. He also said that he hit his wrist against the sink, causing the injury. He described being flung around the bathroom and falling backwards onto his bottom. He said he flung his arm out and his arm hit the sink and it hurt. He indicated the middle area of his forearm in line with the little finger (as the sore area).
The letter indicates that on further interview the child said that the fall from the play equipment did occur and caused the fracture but also said that his father did do the other things (just described) which hurt him.
In the course of the (March – May 2019) investigation the original x-ray taken February 2016 was re-examined and for reasons given in the report it was concluded that “a fall from play equipment would be a plausible explanation for this injury”. It was also concluded that “a pulling injury to the arm would not be expected to cause this fracture” and that it would be unusual to sustain the particular injury in the alternate manner described of flinging out an arm and hitting the sink.
In her affidavit the mother says nothing more than that the documents produced on subpoena indicate that “[the middle child] continues to believe [the father] had broken his arm” and as stated refers to these matters as coming as shock to her.
It seems likely to me on the undisputed facts that the mother was aware of the emergence of the children’s complaints over the months (and years in the case of the fractured wrist) prior to March 2019 about the father’s alleged conduct and their emerging and developing beliefs that he was dangerous and that they were not safe in his care. It also seems likely that the mother was aware that there was no factual foundation for those beliefs. Further, I accept the submission of the ICL that the mother’s failure to test the reality of the children’s beliefs in this regard is highly relevant.
It is apparent in my view that the father’s version of events surrounding the middle child’s fracture of his wrist in February 2016 is consistent with the child’s account on some occasions and provides a satisfactory explanation for that injury. The mother did not however reassure this child or challenge the more unusual explanation that he had started to express from around February 2019 of being deliberately injured by the father. It is also noted that this alternative explanation is consistent with a report made by the mother herself in February 2016 that the child himself then reported to her that the father had injured him by wrenching his arm. This version does not appear to have been reported by the child to any other person at the time and was also investigated by the Department and no further action taken. It is also consistent with the father’s evidence that the middle child reported to him in April 2017 that the mother had told this child that his arm was fractured when the father threw him against a wall.
The mother also did not test the reality of the particularly bizarre allegations said to have been made by the children to her as early as around April 2019 that the father was tracking and administering shocks to them through a device which has also been subsequently found unsurprisingly to have no foundation in reality.
These foregoing matters must be considered in the context of the mother having referred the children at the same time to an agency which was providing services on the basis that the children had been traumatised or abused (implicitly at the hands of the father). I am of the view that when this context is considered real concerns arise about the role of the mother in the children coming to form the view in the first few months of 2019 that the father was dangerous and posed a threat to them.
One final matter to be considered in relation to the father’s contentions about psychological abuse is the opinion of the expert psychiatrist (“the psychiatrist”) obtained for the purposes of the earlier parenting proceedings albeit that this evidence has never been tested.
In this regard it is to be remembered that from as early as December 2013 a few months after the father first initiated family law proceedings the mother raised concerns about the oldest child behaving in a manner which the mother regarded as sexually inappropriate in the context of the child allegedly making complaints about the father’s inappropriate conduct and soreness to her vagina. The psychiatrist who saw and assessed the parents a short time after this allegation was first made then recommended that the children continue to live with their mother. He also expressed the opinion that the mother had the capacity “relax and accept [the father] as a safe parent” but said concerns would arise if the issue of sexual abuse was raised again and opined that “if [the mother]’s anxiety does not reduce and fearfulness (sic) this could become a major problem for the family”.
The psychiatrist’s second report prepared nine months later in September 2014 is considered by the father to be concerningly but remarkably prescient. By the time the psychiatrist had seen the parties in June 2014 for the purposes of the second report the mother had continuing concerns about the welfare of the children in the care of the father.
In expressing his opinion as at September 2014 the psychiatrist said the following:
There have been some further significant developments that are of great concern. [The mother] was extremely anxious about contact starting in late January 2014. It would seem that almost immediately after contact started she was convinced that sexual abuse was occurring. She has been it would seem a frequent interviewer with the general practitioner…she has now moved back and is living with her parents and [maternal aunt]. Although I assess [the mother] as being a capable parent, the one area of concern is her ability to interpret [the oldest child] and all the children’s relationships with the father, and deal with anxiety and uncertainty and be able to appropriately evaluate issues that may arise with the children.
However worryingly, [the mother] appears to have developed uncontrollable anxiety and obsessive worry about the children…Her anxiety appears to be escalating and more and more extreme, and disconnected from reality. Although [I] didn’t conclude that she had a psychotic condition, her anxiety and her self-reinforcing belief system and lack of ability of her family to reality test, have allowed her anxiety to reach dangerous levels. Her questioning and reporting unfortunately have created a cycle of exaggerated fears and anxiety and then self-reinforcing behaviours and answer eliciting from [the oldest child]…
With respect to the mother’s mental health the psychiatrist referred to his previous report where he found there was no indication that she had any signs of mental illness or psychosis. However, he went on to say in his second report:
From a personality perspective previously I was reserved and did note that there was possibly some high anxiety issues and dependency issues. I now have major concerns that the dependency problem is much more serious that I had previously concluded reinforced perhaps by the fact that the mother has now moved to live with her parents and her sister. She sleeps with her sister. She has relied on her sister to be there with her where ever she goes. She wants her sister to be at the school to monitor and protect [the oldest child] from bullies. The interpretation of how the child is being mistreated and bullied at school raises concerns for me. I am now concerned that she does have significant personality disturbance with dependent features that make it difficult for her to be able to separate her own anxiety from what is in the children’s best interest.
The psychiatrist was of the view that the father was a capable caring parent who was very child focused and that it was quite clear that the three children had a close relationship with him and responded well to him.
In formulating his recommendations the psychiatrist referred to his first report where he recommended the mother retain primary residency and the father have substantial contact. He then referred to the mother’s ongoing belief that abuse is occurring and her need to find and prove it as well as her return to living with her family including the aunt who “appears to be caught up in the enmeshment”. The psychiatrist then opined:
In essence some of my fears have come to fruition. I was concerned that handovers would be a problem and that if questioning continued and future allegations would occur, and that in the future sexual abuse allegations would be a very worrying outcome. Unfortunately, this has been the case. I quite clearly stated that I thought that sexual abuse would not occur and was not at risk of occurring. However, I was concerned about [the mother]’s anxiety.
…should the children remain in the care of the mother and her family and the mother’s anxiety continue to drive her relentless interrogation and questioning of the children, and if repeated investigations occur, I believe it is highly likely that eventually statements will be made by one or more of the children and that authorities will be so concerned that the relationship with the father will break down. I believe that this is now a highly likely outcome. This would be a very tragic outcome for the children to lose the relationship with their father.
…the mother’s ability to question and evaluate in a rational way the issues for the children appears to be significantly impaired. In essence I believe the mother has been inappropriately questioning the children, and that her anxiety has led to an evolution of answers. The mother seems intent on gaining an AVO and pursing the sexual and physical abuse allegations and ultimately this will have I believe, a dire outcomes for the children. Surprisingly the multiple interviews have not produced more incriminating statements about the father to authorities, but it is only a matter of time if this continues.
Although as previously indicated the opinion of the psychiatrist was not tested in the first proceedings there does appear to be a consistency between the presentation of the mother in June 2014 and the present. Although there is less evidence to suggest she is persistently involving questioning the children herself, for reasons previously discussed she clearly believes that the children have been abused and traumatised as evidenced by her enrolling them in the AA Group program. The mother has also remained living with her family and there is reason to suggest that the maternal aunt may continue to be “caught up in the enmeshment”. For example, the aunt made application to intervene in these proceedings though at the last court event did not pursue that application after it was indicated that such an application would be opposed by the father.
Despite accepting in the first proceedings that there was no evidence to suggest that the father poses an unacceptable risk of harm to the children further allegations, in particular of physical abuse have been pursued by the mother. In particular, although investigations were carried out at the time the middle child’s arm was fractured, as recently as March 2019 that child held a belief and reported to authorities that the father intentionally injured him a matter which is not supported by any medical evidence. The mother continues to be increasingly anxious about the children and their safety in the care of the father and has not tested the children on the reality of their allegations which appear to have escalated and become more bizarre.
Of particular concern in this regard are the allegations of the father connecting an electronic device to the children’s neck for the purpose of monitoring and harming them about which the mother seems to have been aware for some months. Rather than challenge the validity of such a claim or reassure them the mother appears to have encouraged another person to report this allegation. Although further interviews by authorities have only on occasions produced more incriminating statements about the father the authorities have not confirmed that he has perpetrated any physical harm.
The mother has placed great emphasis in the renewed proceedings on the Department being the “statutory authority” even though the Department has not intervened in the proceedings. I do not however attach much weight to the conclusion of departmental case workers about the issue of psychological harm based on the children’s statements about resistance to seeing the father. Those officers do not have all of the information available to them about the entire history of the proceedings and the psychiatrist’s opinion nor is it likely that they have the expertise to draw such a conclusion. There is a risk that they may have accepted the expressed concerns by the mother and the children at face value.

For all of the foregoing reasons although I do not make any positive findings about matters in dispute I have real concerns about the likelihood that the mother has played a part in bringing about the harmful events, that is the children’s belief that their father is dangerous and that they are unsafe in his care. It may be the case that the mother has brought about this result unwittingly due to her anxiety which is not effectively controlled but this does not reduce the magnitude of my concern. I consider that such circumstances amount to psychological abuse which is likely to have caused the children serious harm as it seems likely to have impacted detrimentally on their relationship with their father and if permitted to continue will have in the words of the psychiatrist “a dire outcome for the children”.
In my view the foregoing matters are relevant to both of the primary considerations. I accept the contentions of the father agreed to by the ICL in relation to the unacceptable level of harm posed by the mother and the likelihood that the children would not share a meaningful relationship with him if there were a return to the previous parenting arrangement as the mother proposes.

The additional consideration: s 60CC(3)

Section 60CC(3) sets out additional considerations, a number of which are not able to be applied at this stage in the proceedings and I will refer to those which are able to be applied and are relevant.
The views expressed by the children at this stage have not been ascertained in any formal way as they have not been assessed by an expert.
I am of the view that little weight if any should be attached to the statements of the children made to various people and in various contexts in recent months given that they appear to be based on false beliefs that the children have formed about their father and the dangers that he poses and the circumstances in which such views have emerged.
It can be assumed that the children have important attachment relationships with each of their parents given the pattern of care and role each parent has played in the children’s lives to date.
A particular issue of significance which was also present in the previous proceedings relates to the children’s relationship with their extended families particularly in the context of them living with their mother in the extended maternal household. The relationship between the mother and maternal family members was considered as “enmeshed” by the psychiatrist in the previous proceedings. He had particular concern in this regard about the maternal aunt who as I have indicated filed an application to intervene in these proceedings which she ultimately did not pursue. The father in his affidavit deposes to the ongoing role of this maternal aunt in the lives of the children. One of the orders made in 2015 restrained the parents enrolling the children at any school at which this aunt is employed other than by agreement between the parties the father contends that since this order was made the mother has sought to have him agree that it not apply. Further, the father deposes that the maternal aunt has been attending meetings at the children’s school in early 2019 with the mother and that on occasions it has been difficult to extract the youngest child from the care of the mother and maternal aunt as the maternal aunt was very regularly present at the children’s activities.
The father also deposes to many occasions from around March 2019 when the mother has refused to allow the two oldest children to spend time with him alone and that the mother and/or members of her family were present at almost every interaction that he had with the children between March and 4 October 2019. The father describes numerous interactions when the children were rude, and made inappropriate and cruel comments to him but were not corrected by the mother or encouraged to interact appropriately with him.
A salient matter in these proceedings to which the mother in particular attaches great weight is the likely effect of any change in the children’s circumstances that will be brought about as a result of the competing applications.
There is no doubt that the orders made on 4 October 2019 when the children were recovered and placed in the care of the father and their time with the mother was suspended brought about a significant change for the children. For the previous seven or so months the children had been living only with their mother in the extended maternal household and were not receiving the benefit of living equally with their father or even spending much time with him. There would clearly have been a benefit to the children in living with their father after many months of having been deprived of his care.
However, given the children’s clear attachment to their mother it is also likely that they would have experienced some distress at spending no time with her and if this were to continue in an open-ended manner it is likely that they will be negatively affected. For this reason it is in my view important for the children to reconnect with their mother and spend time with her though it is also essential that their welfare and psychological wellbeing is safeguarded. It is disappointing in this context that the mother was not prepared to agree to an order that she undertake the necessary intake steps so that contact may occur at a contact centre if orders that supervised time in that setting were considered as those which meet the children’s best interests.
The father deposes that since the children have resided with him since 4 October 2019 they have “had their ups and downs” but generally have progressed reasonably well. The father and children have been living with a paternal aunt and her children and the children have spent plenty of time with the close paternal family including cousins of a similar age. The father deposes to the middle child as being upset at times particularly in the first 48 hours after returning to his care and to offering him assistance by allowing him to contact a Helpline to express his feelings and that both this child and the oldest child did gain some assistance in that manner. The father deposes that since that time the middle child has responded very well to spending time with his cousins and adults of the extended paternal family. He deposes to the youngest child “doing well” and the she “has settled in without any trouble at all”. The father has also sought the assistance from an experienced psychologist who works at a practise that has particular experience in dealing with adolescent children and families involved in high conflict separations.
One of the particular difficulties for the children since being placed in the full time care of the father relates to their schooling. While as was noted in the previous judgment[11] there were some real advantages to the children if they were to return to their previous school, for the reasons given, I formed the view that it was more appropriate and in the children’s best interests for them to be schooled by the father through distance education while being provided with educational material from their previous school during the relatively short adjourned period. As I also foreshadowed in that judgment the issue of the children’s school during the interim period pending final hearing will be resolved by orders in relation to where the children should live.
[11]Wenlack & Cimorelli (No.3) [2019] FamCA 791
It appears that the mother has been suggesting from around November 2018 when she first enrolled the children in AA Group programs that the father is either physically or psychologically abusive or at the very least a parent with serious shortcomings in his parenting capacity and that it is in the children’s interest for these reasons to spend limited time with him. The mother did not however ultimately maintain this contention at the interim hearing as she proposed that the August 2015 orders be reinstated so that the father would once again recommence caring for the children in an equal time arrangement. Specific enquiry was made through the Court by the ICL about whether the mother’s proposal was for the children to live for half of the time with the father in accordance with those orders or whether she actually intended that notwithstanding the orders that the children return to her care and have very limited time with the father. The mother confirmed that her proposal was for the former. In these circumstances it can be taken that she raises no concerns about the father’s capacity to care for the children.
The father’s contentions about the mother’s capacity to provide for the children’s needs and in particular their need to have a meaningful relationship with him and to be free from circumstances in which they form false beliefs about him have been dealt with at length earlier in these reasons.
A significant feature of the mother’s case relates to the children’s European heritage through the maternal side which it would appear has provided them with a deep cultural experience as a result of having shared the traditions of that heritage throughout their lives. Although this is an important matter particularly for these children who have undoubtedly benefited from the rich traditions of their heritage it cannot be a weighty factor in an interim application particularly where matters relating to the need to protect the children from harm loom large.
Although the mother makes oblique references to family violence in her affidavit it was contended on her behalf that this was not a relevant matter in the proceedings.
Another of the additional considerations in my view that is significant in these proceedings is the practical difficulty and to a lesser degree expense of the children spending time with the mother under the proposal of the ICL. Although as is clear from these reasons I am of the view that the children would benefit from spending some time with their mother and that to mitigate the risks of harm she poses to them that time is required to be supervised, I accept the submission of the father in relation to the practical difficulties that are likely to be experienced if the orders are made for that supervision to be provided by a professional supervision service as the ICL proposes. I am very concerned that in various settings including at school, extra-curricular activities, in public places and in particular when police were required to execute the recovery order the children were sufficiently emboldened to be abusive, resistant to being transferred to the care of the father and physically difficult to manage. I am concerned that these difficulties may emerge in the event that the children spend time with their mother under the supervision of a supervisor and when that time comes to an end they are required to return to the care of the father. This would be of particular concern if the mother were to become emotionally dysregulated and anxious and at this stage there is evidence to suggest that her anxiety is not well controlled.
In my view a children’s contact service would provide the appropriate level of supervision and a secure environment for the children’s time with their mother. Although the enquiries made by the ICL indicate that time at a particular contact centre may not be available for about 12 months there is no reason why time at other contact centres cannot be explored. It may be the case that arrangements could be made for time to commence at an earlier stage at another contact centre or that an earlier time period may become available at the preferred centre. For this reason the mother was asked whether she would consent to an order to take steps to facilitate time occurring in the event that such orders were made but unfortunately she declined.

Conclusion

It is extremely unfortunate for these children that circumstances have arisen whereby they are currently receiving the benefit of only one of their parents being involved in their care. Throughout their lives and until about March 2019 they received the benefit of a shared care arrangement in which they were raised by two loving and conscientious parents. However, for reasons which have been explored at length in this judgment from the end of 2013 the mother formed the belief that the father then posed various risks of harm to the children. Although at various stages thereafter the mother has appeared to resile from this position and has managed her anxiety concerning these matters from at least as early as November 2018 and most likely from an earlier stage it would appear that her anxiety has re-emerged. In this context the children have also come to form beliefs about their father and the risks of harm he poses which on the available evidence appear to have no foundation.
Although the mother somewhat inconsistently contends in this application that the previous arrangement whereby she and the father had equal shared care of the children is in their best interests I consider it unlikely that this is her genuine position given her actions over at least the last 12 months. I consider it likely that if the previous arrangement were reinstated it would only be a short matter of time before the children once again began forming and expressing false beliefs about their father and it would be almost inevitable that the relationships between the children and their father will have completely broken down by the time these proceedings are determined to finality.
Although I accept for the reasons given that there are practical difficulties in the proposal of the ICL I am of the view that it is in the children’s best interests to spend some time with the mother.
Taking all of the foregoing into account I propose making the orders sought by the father other than a continued suspension of the mother’s time and propose making an additional order that the children spend time with the mother at a contact centre each alternate week for at least two hours and for such further time that may be accommodated by such service. I also propose making orders that the parties take all steps to facilitate this order including undergoing any intake requirements of such contact centre. I accept that in reality that if the mother does not wish to avail herself of that time with the children there is little utility in attempting to enforce such an order notwithstanding it is undoubtedly in the children’s best interest that they spend time with their mother albeit in the limited confines of a contact centre.
The children will be living with the father and he will be required to make arrangements such as enrolling the children in schools in the local area. In the circumstances of this case the parents currently have no demonstrated capacity to make joint decisions for their children. All previous cooperation between the parents has entirely dissipated. The mother unfortunately utilised her decision making power inappropriately in seeking services such as AA Group. In these circumstances and for all the other foregoing reasons relating to the children’s best interests in my view it is proper on an interim basis for the father to continue to exercise sole parental responsibility for the children. I am easily able to conclude that the presumption of equal shared parental responsibility is rebutted.
The mother also sought that I discharge some of the orders previously made on 4 October 2019 and 14 October 2019 including in particular the restraint on the parties removing the children from Australia and the associated watch list order. The discharge of this order was not addressed by the ICL or the father. As that order was imposed in the unusual circumstances prevailing as at 4 October 2019 when the mother had not complied with orders to present the children to the expert or with an order to present them to Child Dispute Services and the father had concerns about the children’s whereabouts that restraint was imposed as a precautionary measure. In the changed circumstances where the children are living with the father and will spend at most limited supervised time with the mother I am of the view that there is no real flight risk and no necessity for these orders to remain in place.
For the foregoing reasons I make the orders set out at the forefront of this judgment.

I certify that the preceding one hundred and thirty eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 20 November 2019.

Associate:

Date: 20 November 2019