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 Newett & Newett  (No 2) [2022] FedCFamC1F 439 (8 July 2022)

Last Updated: 11 August 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

 Newett & Newett  (No 2) [2022] FedCFamC1F 439

File number(s):	BRC 2179 of 2018
Judgment of:	BAUMANN J
Date of judgment:	8 July 2022
Catchwords:	FAMILY LAW – PARENTING – Contested residence – Where the Court finds the mother is an emotional and psychological risk to the children – Where the Court finds the mother would be unable to facilitate and support the children having any relationship with their father – Allegations of family violence – Where the Court adopts some of the findings made by the Magistrates Court of Queensland and District Court of Queensland pursuant to s 69ZX(3) of the Act – Allegations of sexual abuse – Consideration of M v M (1988) 166 CLR 69 – Where it is not open on the evidence to find the father has or is likely to sexually abuse the children – Where the presumption for equal shared parental responsibility is rebutted – Orders made for the children to live with the father and for the father to have sole parental responsibility – Where any time between the children and the mother must be professionally supervised – Where the mother’s evidence is that she would not take up any order that required the children’s time with her to be supervised – Order for supervised time made. FAMILY LAW – PRACTICE & PROCEDURE – Vexatious litigant order – Application for a vexatious litigant order pursuant to s 102QE of the Family Law Act 1975 (Cth) – Where the mother has frequently filed applications in this Court and other courts – Application dismissed.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB(1), 4AB(2), 60B, 60CC, 61DA, 69ZX(3). 102QB, 102QE
Cases cited:	Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 Bloomberg & Rod [2010] FamCAFC 112 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Duarte & Morse [2022] FedCFamC1A 66 Jones & Dunkel [1959] HCA 8; (1959) 101 CLR 298 M v M (1988) 166 CLR 69 Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375  Newett & Newett  [2019] FCCA 619  Newett & Newett  [2020] FamCAFC 76  Newett & Newett  [2021] FamCA 82  Newett & Newett  (No. 8) [2020] FamCA 1056  Newett & Newett  & Anor [2020] FamCA 470  Newett & Newett  and Anor (No. 2) [2020] FamCA 745  Newett & Newett  and Anor (No. 3) [2020] FamCA 822  Newett & Newett  and Anor (No. 4) [2020] FamCA 856  Newett & Newett  and Anor (No. 5) [2020] FamCA 1023  Newett & Newett  [2021] FamCA 82  Newett & Newett  (No. 3) [2021] FamCA 187  Newett & Newett  (No. 4) [2021] FamCA 318  Newett & Newett  (No. 5) [2021] FamCA 383  Newett & Newett  (No. 6) [2022] FedCFamC1A 70 Rice & Asplund [1978] FamCAFC 128; (1979) FLC 90-725 Rod & Bloomberg [2008] FamCA 487 Sandex & Bondir (No. 2) [2017] FamCAFC 130 Shell & Armel [2022] FedCFamC1A 83 Stott & Holgar and Anor [2017] FamCAFC 152 TF & JF & Children's Representative [2005] FamCA 394; (2005) FLC 93-227
Division:	Division 1 First Instance
Number of paragraphs:	217
Date of last submission/s:	15 November 2021
Date of hearing:	20, 21, 22 & 29 September 2021
Place:	Brisbane
Counsel for the Applicant:	Mr McGregor
Solicitor for the Applicant:	Hofstee Lawyers
The First Respondent:	Litigant in person
The Second Respondent:	Litigant in person
Counsel for the Independent Children’s Lawyer:	Ms Oakley
Independent Children’s Lawyer:	Norman & Kingston

ORDERS

		BRC 2179 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR  NEWETT  Applicant
AND:	MS  NEWETT  First Respondent MS ADLAM Second Respondent
	INDEPENDENT CHILDREN'S LAWYER

THE COURT ORDERS:

1. That all previous parenting Orders and any parenting plans be discharged.
2. That except as otherwise stated, the father have sole parental responsibility for the major long term issues of the children, X born 2011 Y born 2013 and Z born 2014 (“the children”).

Living arrangements

3. That the children live with the father.
4. That the children spend time with the mother:

(a) on a supervised basis for a period of two (2) hours at the BB Contact Centre at AH Town (“the Centre”) on the first Saturday of every Queensland gazetted school holiday period; and

(b) on a supervised basis for a period of two (2) hours at the Centre on the fifth Saturday of every Queensland gazetted school term.

5. That within thirty (30) days of the date of this Order, each parent shall enrol with the Centre at their own cost and do all acts and things and pay all monies required to undertake any enrolment process.
6. That the parents shall be equally responsible for the costs of the Centre.
7. That in the event that:

(a) the mother and the father comply with Order 5, then the time between the children and the mother prescribed at Order 4 shall commence subject to the availability of the Centre;

(b) the mother does not comply with Order 7(a), then Order 4 for time between the children and the mother shall be discharged; and

(c) intake/enrolment processes are completed and the mother fails to attend the contact centre to spend time with the children on two consecutive occasions, then Order 4 shall be discharged.

8. That the mother shall be at liberty to send cards, gifts and letters to the children and the father shall forthwith provide the cards, gifts and letters to the children unless he considers the content of them to be inappropriate.
9. That the children shall spend time and communicate with the maternal grandparents at such times and in such manner as agreed between the maternal grandparents and the father only.
10. That notwithstanding Order 9, the maternal grandparents shall be at liberty to spend time with the children at the same time the children are spending time with the mother.
11. That except as set out in Orders 4 and 8, pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), the mother and anyone on her behalf is restrained and an injunction hereby issues restraining the mother and any such person from:

(a) contacting or approaching or attempting to approach the children in any way;

(b) attending at or contacting the children’s educational facilities, sporting or extra-curricular activity providers, counsellors or medical practitioners in any capacity whatsoever; and

(c) disseminating any information about the father to any parents of the children who attend the children’s educational facilities, sporting or extra-curricular activity providers, counsellors or medical practitioners.

12. That except as set out in Orders 9 and 10, pursuant to s 68B of the Act, the maternal grandmother and anyone on her behalf is restrained and an injunction hereby issues restraining the maternal grandmother and any such person from:

(a) contacting or approaching or attempting to approach the children in any way;

(b) attending at or contacting the children’s educational facilities, sporting or extra-curricular activity providers, counsellors or medical practitioners in any capacity whatsoever;

(c) disseminating any information about the father to any parents of the children who attend the children’s educational facilities, sporting or extra-curricular activity providers, counsellors or medical practitioners; and

(d) causing the children to attend upon any medical practitioner, medical specialist, psychologist, psychiatrist, social worker or any other mental health professional.

13. That pursuant to s 11(1)(b)] of the Australian Passports Act 2005 (Cth), the father is authorised to obtain an Australian travel document for each of the children without requiring the mother’s consent or signature.

Exchange of information

14. That the mother and father shall keep each other informed at all times of their current email address.
15. That the father shall, not less than once each six (6) months, provide to the mother by email a report as to the health, educational progress and general social activities of the children.
16. That during the time the children are with either of the parties, that party shall:

(a) respect the privacy of the other parties and not question the children about the personal life of the other parties;

(b) speak of the other parties respectfully; and

(c) not denigrate or insult the other parties in the presence or hearing of the children and shall use their best endeavours to ensure that others do not denigrate or insult the other parties in the presence or hearing of the children.

17. That the father’s application seeking an order under s 102QE of the Act be dismissed.
18. That the Independent Children’s Lawyer be discharged.

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  Newett & Newett  has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

INTRODUCTION

1. Since the Applicant father Mr  Newett  (now aged 47 years) and the Respondent mother Ms  Newett  (now aged 45 years) separated in January 2018, they have been engaged in continuing litigation in the Courts in respect of both financial and parenting issues.
2. Although some succinct contextual history is provided later in these Reasons, the financial proceedings have to a large degree been finalised after the most recent appeal by the wife against final property adjustment Orders was dismissed by the Full Court on 17 May 2022 (see  Newett & Newett  (No. 6) [2022] FedCFamC1A 70).
3. However for the three daughters of the parties, X (11 years), Y (nine years) and Z (soon to turn eight years), the last over four years since separation has been very difficult and sadly, for the reasons explained, since December 2020 the children have spent no physical time with their mother.
4. These Reasons seek to explore and explain how the orders the Court has decided to make are likely to be in their best interests on the evidence – but as will be acknowledged at many stages of these Reasons, the orders could never be described as optimal.
5. Although the parenting dispute is focused on the competing proposals of the parents, this case also involved the children’s maternal grandmother Ms Adlam as the Second Respondent.

PRINCIPLES

6. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act 1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
7. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
8. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

STRUCTURE OF REASONS

9. To provide some context, I incorporate now some parts of earlier chronologies included in previous Reasons for Judgment. Statements of fact hereafter should be construed as findings of fact.
10. I do not suggest that every event between these parents finds reference in the history that follows. It is not necessary for a judge to mention every fact or submission raised in a case in reasons for judgment. As Meagher JA observed in the frequently cited case of Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, reasons for a decision need not “make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance”.
11. What is of course required, is that the Court’s pathway to the ultimate decision is discernible. Furthermore, in this case, the mother has for most of the litigation been unrepresented. She is a highly intelligent and articulate woman and a passionate advocate – not only orally, but through the significant number of lengthy written submissions.
12. She had commenced a law degree, and at times her submissions reveal impressive capacity for research, however she has not always been capable of distinguishing between a principle of law and its relevance or application to the facts and jurisprudence that apply in this matter.
13. Considering the volume of material, the structure of these Reasons seeks to proportionally deal with the matters the Court is required to consider, without the necessity of moving into areas likely to divert the reasoning process from the core responsibility to make orders in the best interests of the three girls.
14. I have no confidence at all that such an approach will find favour with the mother, however I record that although I do not refer to every submission made after the evidence concluded, I have read and considered:

(a) the oral submissions of the Independent Children’s Lawyer (“ICL”) delivered by Ms Oakley of Counsel on 29 September 2021;

(b) the mother’s written submissions (87 pages) filed 15 October 2021;

(c) written submissions (16 pages) of the maternal grandmother filed 15 October 2021;

(d) the father’s written submissions (21 pages) filed 29 October 2021 prepared by Mr McGregor of Counsel who represented the father during the final hearing;

(e) the mother’s written submissions in reply (77 pages) filed 12 November 2021; and

(f) the maternal grandmother’s written submissions in reply (31 pages) filed 12 November 2021.

15. On 15 November 2021, the mother filed a further document titled “Addendum to First Respondent’s Written Submissions” and “List of Authorities and Evidence Disclosure of Immaterial/Typographical Errors”. Under a heading called “Secondary Sources Relied Upon”, the mother seeks to include a range of articles and the like – few if any of which were properly adduced as evidence in the trial before me. The difficulties confronted by seeking to rely on such material, even if properly adduced, was recently discussed by the Full Court in Shell & Armel [2022] FedCFamC1A 83 (see particularly at [30]–[42] and the authorities there referred to).
16. Furthermore, the apparent attempt by the mother to rely upon evidence that had not been properly before the Court for the hearing (even though many of the affidavits had been relied upon for earlier interim or interlocutory events) demonstrates the mother’s failure to grasp how the directions for the hearing were to be applied – directions which the transcript reveals the mother elected not to comply with as ordered. It is not lost on the Court that the mother’s attempts to suggest that the Court has an obligation to read all the material in the document filed 15 November 2021, is based on the mother’s view of how the judicial function is to be exercised. She fails to understand how the integrity of the trial process (and the need for procedural fairness to all parties), is best achieved by litigants (even those unrepresented) complying with directions.

CHRONOLOGY

17. The parties commenced cohabitation in mid-2005 and finally separated in January 2018, when the father left the former matrimonial home.
18. The mother asserts, and the father denies, that she was the subject of physical domestic violence at the hands and actions of the father, including an alleged attempted strangulation in late 2017. Furthermore, the mother asserts and the father strenuously denies, the father was controlling, verbally abusive and financially controlling. There seems little doubt that at the time of separation the parties were under financial stress. Subsequently the mortgagee of the former family home had threatened to take possession of the property for arrears of payments. The mother consistently makes claims the father “stole her business”, whatever those words are meant to mean, which he denies.
19. Shortly after separation the father commenced proceedings in the Federal Circuit Court of Australia, seeking parenting orders and property orders. In respect of parenting orders, he proposed the children live with the mother. On 18 April 2018 a Judge of the Federal Circuit Court of Australia ordered essentially that:

(a) the parents have equal shared parental responsibility;

(b) the children live with the mother; and

(c) the children spend time with the father alternate weekends (Friday to Monday) and after school Monday to before school Wednesday in the off week – mathematically a split of time of nine nights/five nights.

20. In November 2018, the matter was listed for a three day final hearing commencing 17 June 2019. At the time of the listing, a family report AND the report of Dr A had been filed, but no agitation for a variation in the interim parenting arrangements was apparently raised, until the father on 7 February 2019 filed an Application in a Case seeking an immediate change of residence and that the children spend supervised time with the mother.
21. The Orders of 6 March 2019 by Judge Spelleken immediately changing residence were confronting for the mother. The Reasons for the Orders were published (see  Newett & Newett  [2019] FCCA 619). It is clear that the Federal Circuit Court of Australia Judge was concerned about a combination of the assessment by Dr A, the evidence of the father and his witnesses, and considering the trial was to take place in three months’ time (see paragraph 10), her Honour decided to change residence to the father and reduce the children’s time with the mother to supervised time.
22. It is possible that the effect of these Orders upon the mother contributed to her admission in mid-2019 to the mental health ward at City T Hospital where she was discharged three days later. The reporting Psychiatrist Dr S indicated the mother had suffered an “acute stress reaction” with probable PTSD “due to the past traumatic domestic events” as the mother had documented.
23. The mother had, as an unrepresented litigant, filed an appeal against the Federal Circuit Court of Australia Orders of 6 March 2019, however it was listed on 17 June 2019 but was not dealt with, for the simple and understandable reason that the three day trial was to commence the same day. There was no utility in the appeal and its dismissal meant the grounds of appeal were not considered.
24. On 17 June 2019 the trial that was listed to commence for three days (in respect of both parenting and property), was adjourned for the reasons explained by the trial Judge in Reasons delivered 12 August 2019. The effect of the adjournment was that the interim parenting orders made 6 March 2019 continued until 12 August 2019 at least.
25. In late 2019, with matters still unresolved, the mother was admitted to the mental health ward again. The admission notes suggest she was admitted because “friends’ concerns regarding erratic mental state and paranoia in community”. As the mother’s mental health is a major focus of these proceedings, this issue is dealt with more fully later in these Reasons. When she was discharged three days later the assessment was made that her current presentation “is more in line with acute stress disorder, on a background of ADHD and significant psychosocial stressors” however on discharge she had “stable mental state” and there was no finding “of any major mood disorder, any psychotic processes, any significant substance use, or any imminent risk of harm to self or others”.
26. Importantly, she was encouraged to seek psychiatry follow-up which she agreed to do – and did so, consulting her ongoing treating Psychiatrist Dr V on 19 September 2019 and is continuing to do so.
27. I accept the mother was likely to have been exposed to more stress in the continuing adversarial proceedings when, for Reasons delivered on 12 August 2019, the Federal Circuit Court of Australia trial Judge made no changes to the interim Orders of 6 March 2019, other than to remove the mother’s powers to exercise equal shared parental responsibility (granting the father sole parental responsibility); changed the children’s school and ordered the family home be sold. The mother again, by this time, was unrepresented, yet was able to file and argue successfully an appeal against those Orders after earlier obtaining a stay (with representation) of the Order for the sale of the family home on 30 September 2019.
28. The original Federal Circuit Court of Australia trial Judge recused himself and transferred the proceedings to this Court by Orders made on 13 January 2020.
29. On 6 April 2020, the Full Court (Tree J) allowed the mother’s appeal; set aside the Orders of 12 August 2019 and remitted the interim applications for re-hearing (see  Newett & Newett  [2020] FamCAFC 76).
30. In June 2020 I conducted an interim hearing and found that, at that time, it was in the children’s best interests that they have unsupervised day time visits with the mother leading up to the scheduled final hearing in September 2020 [see  Newett & Newett  & Anor [2020] FamCA 470].
31. In August 2020 Family Consultant and Social Worker Ms HH prepared an updated family report, having conducted interviews with the parents and the children and an electronic interview with the maternal grandmother on 29 July 2020.
32. On 18 August 2020, the mother’s first lawyer appointed under the s 102NA “Cross-Examination Scheme” filed a Notice of Ceasing to Act, and a new lawyer was appointed the same date. With the final hearing just a month away, on 19 August 2020 I adjourned the final hearing to November 2020 to allow the mother’s new lawyers to get across their file and adequately prepare for trial. Also at this time I set the matter down for a further interim hearing on 3 September 2020.
33. Between the period of interim Judgment delivered in June 2020 and August 2020, the mother had filed seven various Applications (including amended Applications).
34. On 3 September 2020 a further interim hearing was conducted by me where Orders were made dismissing many of the orders sought by the mother in her various applications (see  Newett & Newett  and Anor (No. 3) [2020] FamCA 822), and judgment was reserved in relation to the mother’s application to discharge the ICL for bias. Because the current interim Orders at the time dated 17 June 2020 only made provision for time the children would spend with their mother up until the final hearing in September 2020, the matter was also listed for an interim hearing on 2 October 2020 in relation to further interim parenting arrangements.
35. For the Reasons delivered 11 September 2020, the mother’s application to discharge the ICL was dismissed (see  Newett & Newett  and Anor (No. 2) [2020] FamCA 745).
36. After a further interim hearing on 2 October 2020, Orders were made increasing the children’s day time visits with the mother by two hours each alternate weekend such that the children would spend each alternate Saturday and Sunday with the mother from 9.00am to 5.00pm (see  Newett & Newett  and Anor (No. 4) [2020] FamCA 856).
37. On 26 October 2020 trial directions were made for the final hearing scheduled to commence 30 November 2020.
38. At the commencement of the final hearing on 30 November 2020, upon application by the ICL at the time, Mr AQ, the ICL was granted leave to withdraw from the proceedings (see  Newett & Newett  and Anor (No. 5) [2020] FamCA 1023), the primary reason stemming from the mother’s decision to commence in October/November 2020 private criminal prosecutions against not only the father and various witnesses, but relevantly the ICL Mr AQ. Being satisfied that it was imperative an ICL be engaged in the parenting proceedings, the Court adjourned the parenting proceedings for final hearing on dates to be fixed. The final hearing of the property proceedings was adjourned over to the following day, 1 December 2020.
39. The mother was again by this trial unrepresented – with the third firm of lawyers appointed under the “Cross-Examination Scheme” withdrawing on 20 November 2020. In circumstances where the mother was not able to get legal aid under the “Cross-Examination Scheme”, and where it was critical an ICL be appointed, I had little option but to adjourn the parenting proceedings (see  Newett & Newett  and Anor (No. 5) [2020] FamCA 1023).
40. On 1 December 2020, the Court proceeded to hear the trial of property issues in the absence of the mother, who had elected not to participate in the final hearing of property matters. Judgment in relation to property matters was then delivered on 8 April 2021 (see  Newett & Newett  (No. 3) [2021] FamCA 187) and again as to the form of order on 20 May 2021 (see  Newett & Newett  (No. 4) [2021] FamCA 318) and as earlier noted, the wife’s appeal against final property adjustment orders has been dismissed.
41. No variations to the interim parenting Orders which were then in force were made on 30 November 2020, and on Saturday, 5 December 2020 the father made the children available to spend unsupervised time with the mother and the mother returned them in accordance with the Orders that afternoon. However, after the children came into the mother’s care on the following day, the mother elected to take them interstate and not return them to the father. To understand what happened next, the ex tempore Reasons for Judgment delivered 9 December 2020 (see  Newett & Newett  (No. 8) [2020] FamCA 1056) in respect of the Recovery Order made that day reveal the history to 9 December 2020.
42. On 15 December 2020, New South Wales Police facilitated the return of the children to the father (who travelled to New South Wales to recover the children), and since that time the mother has, for reasons which I refer to later in this Judgment, elected not to cross the New South Wales/Queensland border to spend physical time with the children. I further acknowledge that travel restrictions imposed or applied due to the Covid-19 pandemic created issues as well.
43. Between 9 December 2020 and 19 March 2021 (when the parenting proceedings were listed for final hearing for five days commencing 20 September 2021), the Court was moved to consider a number of applications filed by the mother, including two separate applications that I recuse myself. My reasons for refusing such applications are set out in  Newett & Newett  [2021] FamCA 82 delivered 25 February 2021 and  Newett & Newett  (No. 5) [2021] FamCA 383 delivered 9 June 2021. A contempt application heard by Howard J was dismissed on 3 September 2021 and on 6 September 2021, I refused the mother’s application to adjourn the final hearing.
44. As a result of Orders made by me on 19 March 2021, a further updated family report by Ms HH was prepared. The interviews for the report were conducted electronically on 9 August 2021, with the report dated 25 August 2021 marked Exhibit 13. The earlier family report of Ms HH dated 7 August 2020 was marked Exhibit 12. Ms HH was the subject of cross-examination before me.
45. At a trial compliance hearing held 16 September 2021, I noted that the father had complied with my trial directions by filing his one affidavit of evidence in chief on 30 August 2021, being the due date. The mother had not complied and I specifically asked the mother on 16 September 2021 when the Court might expect her material to be filed. Her reply was to the effect “you will get it when you get it”.
46. It may have been open to the father to seek an adjournment but he made it clear he wished the matter, with its long protracted history, to be heard.
47. Whilst I can accept that the mother, as an unrepresented person preparing for a trial, might have been overcome to some degree, she was however aware for over six months about the date for trial and her obligation to file her evidence in chief. It may have been somewhat generous, in these circumstances, to allow the mother to file and rely upon her trial affidavits late however I am satisfied the Court, without many obstacles raised by the other parties, can be seen to have allowed the mother to run her case – save for objections related to the mother’s attempt to rely on over 1000 pages of documents sent by the mother to the Court on the Sunday before the trial began. I ruled that the mother could not rely on that material and it has not been read by the Court as a result. However, on the second day of the hearing, the mother sought specifically to rely on a further affidavit and, without objection, she was permitted to do so.
48. Importantly, the mother sought to rely on an affidavit from her treating Psychiatrist Dr V filed on the first morning of trial. I allowed her to do so for reasons given orally.
49. I should also record that the maternal grandmother did also file her affidavit of evidence in chief late, but complied with the filing of a case outline (62 pages) by the due date of 13 September 2021. The mother also filed a case outline (81 pages) at 5.02pm on Saturday, 18 September 2021. Her case outline provided a very comprehensive chronology, but I ruled on the first day that I would allow her to rely upon her affidavit of evidence in chief (and in reply) filed Sunday, 19 September 2021, and an affidavit of Dr V filed by leave on 20 September 2021.
50. In short, I dismissed attempts by the mother to seek to rely on other affidavits, Applications, Responses, case summaries, outlines, written submissions, subpoenae and other “documents”, including asserted “media exhibits”.
51. The trial proceeded with the mother and the maternal grandmother appearing by electronic means from New South Wales. The father and the ICL were present in Court.
52. The evidence concluded at 5.01pm on 22 September 2021 and the Court adjourned until 29 September 2021 to take oral submissions from the ICL – which it did. At that time the ICL presented a minute of order contended as being in the best interests of the children (which was marked Exhibit 14).
53. For completeness, on 27 September 2021 the mother filed an Application supported by an affidavit seeking to re-open the evidence. The evidence the mother sought to adduce was inter alia:

(a) the evidence in her affidavit filed 27 September 2021; and

(b) the mother’s affidavits filed 22 February 2019, 8 April 2021, 29 May 2020, 29 March 2021, 23 September 2020 and 30 September 2020.

54. Furthermore, the mother sought an order in these terms:
    5. That the Affidavits of [Mr  Newett ] being relied upon for the Final Hearing have all items struck out that refer to the illegally obtained Recordings and/or Witness of the Children’s private phone calls with the Mother during 2021.
       1. In the event they are included, that the Mother be permitted to adduce all Children’s entire recordings to the Court as evidence for Trial (over 60hrs of evidence); and be provided time to produce an Affidavit of all Children’s statements of harm from those phone calls, and to adduce for the Court their direct statements of a conclusive wish to return to live with me.

6. ...

7. That findings of fact be made in relation to the Father, including but not limited to his deliberate continual deceit, his lack of parental capacity in all aspects of parenting, and his detrimental conduct throughout proceedings towards the Mother, Children and Maternal Family.

55. I dismissed the Application and said I would give reasons in this Judgment for doing so. The Reasons why I dismissed the Application were that:

(a) the mother’s attempt to rely on further earlier affidavits and recordings available to her fails to acknowledge that had she properly complied with the directions for trial, earlier relevant allegations of fact could have been included in her evidence in chief and the father, as was procedurally fair, given a chance to either reply or at least test that evidence;

(b) the mother, in circumstances where the evidence in the case had closed, should not be entitled to try and adduce further evidence that was available to her, to, I infer, try and meet some concerns during the hearing;

(c) as will become apparent, with the children well aware of the highly conflictual nature of the parents’ relationship, great caution must be used in what weight could be applied to statements recorded by a parent where, as I will find, a core aim was to gather evidence;

(d) the mother’s evidence about statements made by the children (see paragraph 15) all preceded the commencement of the hearing before me;

(e) the relevance for the mother’s aunt, Ms BC, who apparently gave a note to Queensland Police on 28 September 2021 “about the matters of 1 December 2020” is unclear. The mother could have called her as a witness. The attempt after the hearing to apparently raise issues about conduct on 17 June 2019 (allegedly relating to persons trying to get the mother “sectioned”) is of no assistance. I had at trial psychiatric evidence available upon which, I make findings; and

(f) paragraphs 25 to 33 of the affidavit filed 28 September 2021 suggests, in effect, evidence is available of some sort of conspiracy to “concoct” a story about some “public disturbance” to “unlawfully use the Public Health Act to have Police and Ambulance take me to hospital”. This was hardly a new issue.

56. Sadly the evidence demonstrated, as the reasons following explore, the capacity for the mother to become highly suspicious and/or convinced she has been the subject of an unfair legal system.
57. The vagueness of any new evidence, seen within the context of all the evidence received and tested at the final hearing, coupled with the further costs and delays likely to have been experienced had the application been successful, persuaded me that the Application should be dismissed.
58. The mother was unable to cross-examine the father because of the effect of s 102NA of the Act, although as the mother and the maternal grandmother appeared by Microsoft Teams from the same home, I have little doubt that some of the questions in cross-examination by the maternal grandmother of the father emanated from the mother. The ICL cross-examined the father and I believe put to the father the major aspects of the mother’s case relating to the risks, the mother says, the father presents in his care of the children.

COMPETING PROPOSALS

Father

59. The father’s position, articulated in his case outline filed on 13 September 2021, was for the children to live with him and for him to have sole parental responsibility. He proposed that the children spend supervised time with the mother at P Contact Centre Suburb BD, for a period of two hours on two occasions in the first week of each gazetted school holiday period, with the costs of supervision to be shared between the mother and father.
60. The father asserts supervised time should be conditional upon the mother providing the father and the contact centre 14 days’ written notice confirming her attendance and making her required payment. The maternal grandmother would be at liberty to spend supervised time with the children at the same time as the mother under the same conditions. It is the father’s position that whilst the mother be at liberty to send appropriate cards, gifts and handwritten letters to the children, the mother and maternal grandmother be otherwise restrained from contacting or attempting to contact the children in any way. The father seeks to restrain the mother and maternal grandmother from attending or contacting the children’s educational facilities; extracurricular activity providers; counsellors or medical practitioners.
61. A fairly usual suite of orders regarding authorities and non-denigration were proposed, including an order removing the children’s name from the Airport Watchlist. Perhaps telling of the arduous history between the parties, an order prohibiting the mother from instituting any further proceedings relating to the children against the father without first obtaining leave of the court was also sought.
62. The mother’s proposal, articulated in her case outline filed 18 September 2021, was for the children to live with her and for her to have sole parental responsibility. Attached as Appendix One to these Reasons are the orders articulated by the mother from her case outline. The mother proposes that the children spend no physical time with the father until the father provides the mother a medical report showing:

(a) evidence of “detailed pathological and neuropsychiatric assessment, treatment and management” of the father’s alleged brain injury;

(b) “detailed psychiatric assessment and follow up psychiatrist attendance by the father for a minimum of 6 visits over 3 months”;

(c) “psychotherapist attendance by the father for a minimum of 24 appointments for not less than 24 months”; and

(d) “a detailed psychotherapist report” at the conclusion of every 12 months which demonstrates “behavioural change of the Father, ability to take responsibility for actions and behaviours towards the Mother and Children, and a complete change in thought patterns of the Father in relation to the Mother.”

63. At such time as the father produces satisfactory evidence to the mother, she proposes the children spend supervised time with the father at a contact centre once every school holiday period, for not more than two hours. The mother proposes that the father be at liberty to send cards and gifts to the children and that she be at liberty to check and determine the appropriateness of any cards or gifts before providing them to the children.
64. The mother proposes a number of restraints be imposed upon the father which broadly prohibit the father from:

(a) contacting or attempting to contract the mother and children;

(b) attending or contacting the children’s school;

(c) being within 500 metres of the mother’s residence; and

(d) surveilling the mother and extended maternal family.

65. The mother seeks specific orders for the children to spend time with the maternal grandparents and extended maternal family during school holidays and on Christmas and Boxing Day. During the time the children are with the maternal grandparents and maternal family, the mother says the children are to have no contact with the father and paternal family.
66. In the event the Court does not order that the mother have sole parental responsibility or that the children live with her, the mother seeks alternate orders whereby the children live with the maternal grandmother until they are “of age to make their own decision with whom they wish to live” and that the maternal grandmother have sole parental responsibility in respect of the children’s day to day care. The mother proposes that she would spend supervised time with the children in the presence of the maternal grandmother, at all times as agreed between herself and the maternal grandmother.
67. If the mother’s alternate orders are accepted by the Court, the mother seeks a number of restraints be imposed upon the father which broadly prohibit the father from:

(a) contacting or approaching (or attempting to contract or approach) the children;

(b) being within 20 kilometres of the maternal grandmother’s residence; and

(c) surveilling the maternal grandmother and extended maternal family.

Maternal grandmother

68. The maternal grandmother’s proposal is set out in her case outline and for completeness, seeks similar orders to those proposed by the mother, and in particular that the children live with the mother and “in the event the Court does not give sole parental responsibility of the children to the mother, that the children live with the maternal grandmother”.
69. Clearly the maternal grandmother fully supports the mother’s proposals, and I saw the orders sought by her very much as a “fall back” position. Confusingly, even if the children lived with the maternal grandmother, paragraphs 10 to 12 of the proposed orders sought that the mother have “full education guardianship of the children”, and that they attend a school chosen by the mother at the full cost of the father. Reflective of the maternal grandmother’s support for her daughter, she even sought an order (at paragraph 29) that the father return to the mother the mother’s car.

ICL

70. The minute proposed by the ICL is Appendix Two to these Reasons, and essentially proposes that:

(a) the children live with the father who shall have sole parental responsibility;

(b) the children spend two hours of supervised time on the first Saturday of each Queensland gazetted school holiday period at a contact centre at AH Town;

(c) the order for the children to spend time with the mother will be discharged if the mother fails to pay her share of the costs of supervision and fails to attend the contact centre to spend time with the children on more than two occasions each calendar year;

(d) the children shall spend time with the maternal grandparents as agreed between them and the father “only”; and

(e) various restraints and specific issues orders are sought.

71. It becomes the case since the interim orders to change residence were made, that the parties are entirely polarised in their positions. No remotely “middle ground” exists.
72. The Court is therefore required to make a decision as to whether the children live with the father, or live with the mother or, on the maternal grandmother’s case, if not the mother then her. In circumstances where both parents assert their position is compelling, because of the risks the other parent will expose the children to in their care, before dealing narratively with the relevant s 60CC(2) and (3) considerations, it is necessary to make findings about the risks alleged; the ability of either parent to support and facilitate the children having a relationship with the other parent and the evidence of the only independent expert to have engaged the parents, the maternal grandmother and the children – namely the Court Child Expert (as now described) Ms HH.

DOMESTIC VIOLENCE

73. The mother has consistently claimed she has been the victim of domestic violence (described in a number of ways), during the relationship and since separation, perpetrated by the father. The mother correctly refer to the definition of family violence set out at s 4AB(1) and the examples of such behaviour identified in s 4AB(2) as follows:

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

74. The mother has made it clear she regards the father as not only lying about past events, but further has the capacity when speaking to authorities and when giving evidence, to appear “believable” in his denials.
75. I do not make any specific general credit findings against either party and was not asked to do so by the ICL or the father (although I was by the mother). The mother, as noted, has consistently submitted the father is not a witness of credit.
76. Whilst the Court accepts incidents of physical and psychological family violence usually occur in private, where corroboration is not readily available – absent proximate medical evidence at the time – invariably there can be a conflict of evidence between the parties as to what happened in the privacy of their home.
77. In this case, prior to separation the mother alleges that the father attempted to kill her by strangulation in late 2017. This incident, in particular and others, has already been extensively examined by two judicial officers, namely:

(a) in a domestic violence hearing conducted before a Magistrate on 2 and 3 December 2019, evidence was taken and, on 5 December 2019, findings were pronounced to support the decision of the Magistrate that a Protection Order be made in favour of the father for a period of five years. The mother’s cross application for a protection order was dismissed. A transcript of the hearing is Annexure “MN16” to the father’s trial affidavit. The Magistrate examined extensively the “strangulation” event and ultimately formed the view the mother “is prone to exaggeration and paranoia” who “has demonstrated very clearly that she has no self-control and is unable to regulate her emotions. The Magistrate said the mother was not at all apologetic for her behaviour and could only really be described as belligerent; she does not describe feelings of fear, but she is definitely very angry and upset; she blames [Mr  Newett ] for these feelings, but it is not his fault”. It is clear from the Reasons for Judgment that the Magistrate did not accept the version of the event in late 2019 given by the mother, having been fully tested (noting for that hearing the mother was represented by a barrister). I do record that to a limited extent cross-examination about this incident was conducted before me. Whilst I am satisfied some physical interaction occurred, I do not accept it was at the level asserted by the mother. Furthermore however, I think it is likely, at the time, as the mother deposed, the father expressed regret for his involvement in the incident and likely indicated it would not happen again. I am not satisfied any similar incident did happen thereafter, including as I will examine, the incident on 1 December 2020. Further findings made by the Magistrate include (and I adopt):

(i) that the contents of the email of 17 July 2019 from the mother to the father’s solicitor “accusing them of being part of a child trafficking ring which may contain elements of a paedophile ring” are “certainly insulting, and used in a way to cause upset”; and

(ii) although the mother expressed remorse for “the abusive messages left for [the father] the day after judgment of Judge Cassidy”, “her motive for the apology could not be regarded as genuine. It was contrived by self interest”.

(b) the mother chose to appeal the decision of the Magistrate, as she was entitled to do. However her appeal was entirely unsuccessful. The hearing before a District Court Judge on 22 June 2020 resulted in a judgment delivered on 17 September 2020 (see Annexure “MN19” to the father’s trial affidavit although that annexure failed to include pages 550 and 551, which have been sourced from the affidavit of the father filed 30 August 2021). The appeal was by way of a rehearing on the evidence given in the proceedings before the Magistrate. At paragraphs 60 to 67, the learned District Court Judge summarised the submissions of the appellant mother. There is a ring of similarity in the complaints raised in that hearing to what have at times been raised before this Court. Relevant findings include:

74. ...
    • The appellant has committed numerous acts constituting domestic violence against the respondent...the appellant sent abusive and intimidating messages to the respondent, published abusive and malicious Facebook posts, and sent numerous messages denigrating the respondent to others. The email and text communications between the appellant and the respondent clearly show a pattern of the appellant harassing and denigrating the respondent.
    75. At the appeal hearing, the appellant continued to have little if any insight into the fact her behaviour has been unacceptable. She made clear her intention was to pursue the respondent further through the courts. I am satisfied a protection order was and is clearly necessary and desirable to protect the respondent from further domestic violence.
    76. With respect to the appellant’s application for a protection order against the respondent, the appellant has failed to show the Magistrate erred by concluding she could not be satisfied that the respondent had committed any act of domestic violence on 19 November 2017, or any act of domestic violence other than some verbal abuse during the incident of 29 January 2018...The evidence supported her conclusion that the respondent’s behaviour on that one occasion was out of character. In my view, although the respondent’s verbal outburst on 29 January 2018 may well have constituted emotional or psychological abuse under section 8(l)(b) of the Act, there was no credible or reliable evidence that, prior to or since that date, the respondent behaved in any way which could satisfy a court that it was necessary or desirable to make a protection order against him. The uncontested evidence was that the respondent had made no contact, directly or indirectly, with the appellant except in compliance with Family Court orders.
    77. ...there was no credible or reliable evidence before the court of financial abuse by the respondent. For example, the appellant’s belief that she was entitled to money from the respondent’s aunt’s will is without foundation. The respondent was not the beneficiary to the will. The appellant’s claim that “the will is fake and it needs testing” is spurious. There was no evidence to corroborate the appellant’s claims that the respondent had stalked her, stolen her money or hacked into her bank accounts. There was no evidence to corroborate her other complaints of domestic violence, for example, that the respondent had stolen items from her house, tampered with items on her property, put magnets on her fridge to spell the word “burn”, or conspired with police to have her admitted to the [City T Hospital] MHU.

78. Murphy J explained in Rod & Bloomberg [2008] FamCA 487 when considering s 69ZX(3)(b) of the Act (a decision not disturbed on appeal – see Bloomberg & Rod [2010] FamCAFC 112), at [43]–[44]:
    43. That a court should adopt findings by other judges about matters contentious before those other judges and, in one form or another, contentious in fresh proceedings before the court, is, as I said during the course of discussion of the topic at the hearing, somewhat “counterintuitive”- at least to me.
    44. Nevertheless, it seems to be plain that the section permits me to do so. Moreover, the section can, in my view, be seen to have particular utility in a case such as the present where historical issues are mirrored in current issues before the court and where those issues are directly “relevant” to the best interests of children – the specific focus of Division 12A of the Act.
79. I adopt the findings of the Magistrate and the District Court Judge, set out earlier and place reliance on them because, in my view, those findings would be open generally on the evidence before me, which I am required to assess. I do not adopt specifically the view of the Magistrate about the mother’s alleged paranoia – preferring, as I had medical evidence – to make my own findings as the following paragraphs 91 to 105 of these Reasons examine.
80. Before moving to the incident on 1 December 2020, I also record that:

(a) the mother had previously described her view of the father’s behaviour (as she saw it) as “uncharacteristic”. As I discuss below, her view in that regard seems to have caused her to connect the “uncharacteristic” behaviour of the father with a brain lesion suffered by the father in childhood;

(b) the mother pleaded guilty to at least two breaches of the Protection Order against her; and

(c) after the decision of the Magistrate, the mother unrelentingly continued to pursue proceedings against the father seeking a Domestic Violence Order, and sought to challenge the decision of the District Court Judge, all unsuccessfully (see paragraphs 203 to 206 of the father’s trial affidavit).

81. In respect of the incident on 1 December 2020 in the car park opposite the Commonwealth Law Courts building, I had evidence from the mother, the maternal grandmother, the father and in respect of a telephone call, the father’s partner Ms AN. I regarded Ms AN as a credible witness. No adequate explanation was offered as to why the mother’s two aunts, who accompanied the maternal grandmother back to the car park, did not give evidence at the parenting hearing. This is even more surprising when the mother, in her application to re-open (discussed at paragraphs 54 to 56 of these Reasons), said that her aunt had given (subsequent to the hearing) a statement to Police. In my view the failure by the mother to adduce evidence from her two aunts, enables an inference to be drawn that they had no evidence that could have supported the mother’s case on this incident (Jones & Dunkel [1959] HCA 8; (1959) 101 CLR 298).
82. I make the following findings about the incident on 1 December 2020, on the balance of probabilities, and specifically find that I prefer the evidence of the father where his evidence differs from the evidence provided by the mother and the maternal grandmother on this event, namely:

(a) the father parked his motor vehicle early in the car park on 1 December 2020;

(b) the mother, accompanied by the maternal grandmother and the two aunts, parked after the father. The mother says she did not see the father’s car parked;

(c) I do not accept the mother’s case about the father moving his car to be within four to five car spaces, after the mother parked. The father denies doing so. I accept his evidence;

(d) I accept the mother was likely in a distressed state when she left the property hearing before me mid-morning, choosing not to return. It matters little where she went, save that I am satisfied that the father, after approximately 2.30pm (the Court having completed the property hearing), returned to his car. He says, and I accept, that he was required to leave the car park after 3.00pm to get the benefit of the “early bird” parking fee reduction. He chose to ring his partner Ms AN on his mobile whilst in his car. The father saw the maternal grandmother and the two aunts approach their car, but at that time did not approach them;

(e) shortly after, the mother was seen by the father to exit the car park lift. I am satisfied the mother became immediately distressed upon seeing the father; began screaming; made gestures to the father of the rude “middle finger” and a “slitting motion with her index finger across her throat”. The father did not get out of his car and the mother got back into the lift and left the floor;

(f) the father, somewhat naively, then got out of his car and approached the maternal grandmother. There was little point in him doing so – he says he wanted to explain to the maternal grandmother he had no real issues with her. The father says, and I accept, the maternal grandmother by this time was also upset (I infer no doubt having witnessed her daughter’s behaviour) and said to the father, words to the effect of “if [Ms  Newett ] commits suicide tonight it will be on your head”; and

(g) the father returned to his car and left the car park. He subsequently gave a statement to the Police (Exhibit 3) on 13 August 2021 (having made an oral report to Police on 2 December 2020).

83. I am unable to be certain if the mother was informed the father was parked and in his car, before she chose to get into the car park lift on the ground floor. The mother could have been collected at the ground exit point rather than choosing to go up in the lift.
84. Although the father asserts that the mother’s contact with him on that occasion is a breach of the Domestic Violence Order in his favour, I make no finding as such. The father further says that the incident on 1 December 2020 has caused the Police to charge the mother with a breach or issue a warrant for her arrest – and this is the reason, since 7 December 2020, the mother has refused to cross the border from New South Wales. On the evidence before me I cannot be satisfied if that is the case.
85. However, any attempt by the mother to use the incident on 1 December 2020 as a basis to justify her actions, contrary to Court Orders, to return the children to the father on 7 December 2020 and then withhold them until the Recovery Order was executed on 15 December 2020, is without any merit. Although, I do not go so far as to find the mother orchestrated an interaction on 1 December 2020 in the car park in the hope it would assist her case, I do regard the mother’s behaviour on that occasion as bizarre and concerning – even allowing for her likely distressed state of mind.
86. Before I leave this discussion – one which the mother’s submissions make clear she regards as seminal to this whole case, at times repeating to me that this is a “domestic violence case” – I find that the father did not commit financial abuse against the mother. I rely upon my earlier findings made in the property adjustment Reasons as well as the findings by the Magistrate and the District Court Judge which reveal how the dispute between the parties about financial issues was highly contentious.
87. I am satisfied that as this relationship began to deteriorate to a significant degree, exacerbated by increasing financial difficulties and tensions, the parties’ relationship became volatile. Both parties are intelligent and articulate. They know which “buttons to push” to provoke a reaction from the other party during a verbal disagreement. My view is that they both engaged, at times, in such behaviour. Although the children were only aged six, four, and three at separation on 29 January 2018, it is likely the children were exposed to the parents’ verbal exchanges with each other and it would have caused the children, I am certain, some sadness. Both parties should take some responsibility for this effect on the children.
88. Finally, the mother’s attempt to connect the father’s admitted childhood acquired brain injury; his past episodes of epilepsy and her view of his mental state with her claims of his “violent” behaviour, simply fail for proof. The father had previously, as directed by the Court, produced evidence from Dr FF. The father has ongoing regular consultations with his general practitioner. The father has the right to drive a car (see Exhibit 2).
89. The mother even attempted to use the opportunity with Dr A in the witness box, to get him to connect the dots in the way the mother is convinced is obvious. She has failed at all levels to do so, and attempts to try and rely on reports, scans and the like that she has produced, do not satisfy me that the father’s brain injury all those years ago has any affect whatsoever on his parenting capacity.
90. Before I discuss the other mental health issues raised in this case, on the evidence, I feel compelled to record that the evidence reveals the mother has been domestically violent towards the father, not as she has consistently alleged, the other way. This is a relevant finding for the purposes of determining, amongst all the other factors, what is in the children’s best interests.

MENTAL HEALTH OF THE PARENTS

91. So far as the father is concerned, I rely upon earlier findings but also accept the evidence of the single expert Dr A in his report dated 16 October 2018 (filed 30 October 2018) that the father “did not appear to suffer from a psychotic illness nor was there any evidence of a major mood disorder”. Dr A noted that the mother described the father “as having narcissistic and antisocial traits”. In accepting that his role is not to determine facts in dispute between the parents, Dr A opined that in the absence of findings by the Court that the father had engaged in domestic violence over a significant period of time and was continuing to stalk the mother through electronic and other means, he expressed the opinion that “it would not be my view that the father be seen to be displaying personality vulnerabilities of the nature that would be of concern to the court.”
92. The Court makes no such findings against the father that he had “engaged in domestic violence with the mother over a significant period of time”, and as a result, I comfortably accept Dr A’s opinion about the father.
93. The assessment of the mother’s mental health, and the concerns the mother holds that the Court regards her as “mentally ill” or “unstable” has fuelled to a large degree the mother’s behaviour – particularly since the Orders made to change residence of the three girls on 6 March 2019. I can understand that when Judge Spelleken relied upon the then untested evidence of Dr A as well as other evidence offered by the father (all disputed by the mother), the mother became, in my assessment, fixated and obsessive with the need to establish at least:

(a) the father was a domestically violent person (using the widest description);

(b) the father’s brain lesion was the source of his behaviour;

(c) the mother’s admission to the mental health unit on 24 May 2019 and then again on 2 August 2019 were unnecessary and designed to demonstrate her poor mental health for the father’s purposes;

(d) that the father and anyone supporting him or retained by him were part of a form of corrupt conspiracy to attack her and to keep the children from living with her. As the evidence reveals, with this entrenched view (shared I find generally by the maternal grandmother), the mother:

(i) launched continual applications, appeals, and reviews; and

(ii) commenced private criminal prosecutions against the father; his solicitor; the ICL Mr AQ; the Commissioner of Police; a Police Officer and some witnesses who had given affidavits in the father’s case heard by Judge Spelleken. In the trial before me, the father no longer relied upon the lay witnesses – much to the frustration of the mother, who wanted to cross-examine them.

(e) some of the mother’s allegations, absent of any probative evidence at times, became more bizarre and vitriolic – even accusing, by inference, the father and/or his solicitor and/or the ICL of being involved in a “possible paedophile ring.”

94. I do not repeat the allegations the mother has raised against me, including failing to discharge my judicial duty; being corrupt; being in some way in collusion against her in company with the father and his legal team, and other similar allegations. I have dealt with most of these allegations when deciding not to recuse myself from this case – and my decisions in that regard have not led to any appellate intervention.
95. However, even this history and the evidence I soon discuss, did not cause the father to seek a finding at the trial that the mother is “mentally ill”, nor did the ICL, in final submissions.
96. As I hope to explain, although the history of the mother’s behaviour has been at times bizarre and entrenched, I have come to the ultimate conclusion that this litigation and the mother’s lack of insight into her increasing erratic and concerning behaviour, has been almost the self-fulfilling result of her demonstrated actions.
97. Said more simply, although the mother has many talents and abilities, accepting a view contrary to her own – be it from the father; her mother; the experts in this case or the Court – is not one of her traits. Sadly, not only does she disagree (as she is perfectly entitled to do) but in the furtherance of her view of the unassailable correctness of everything she believes, she has shown a capacity to attack anyone using all means available to her. Even many judgments by judicial officers against her numerous positions, including Magistrates, a District Court Judge; Supreme Court Justices; officers and Judges of this Court; has not in any way dented or tempered her views or apparently caused her to reflect on her approach.
98. This is a case where, after the Orders on 6 March 2019, for over three years the mother has been on a rampage. Attempts by this Court to make the proceedings less adversarial, have failed at every stage.
99. In the absence of any independent evidence which establishes the mother suffered mental health challenges prior to separation, the history since at least March 2019 satisfies me that the mother has been unable to cope with the litigation in reality. The “system” may have contributed to and exacerbated the mother’s underlying vulnerability.
100. However, where the Court’s paramount consideration is the children’s best interests, the Court can hardly (even sympathetically) ignore the mother’s behaviour and the risk her behaviour presents to the care of the children. I make such a finding even though the medical evidence which I now assess would not lead to a definite finding the mother has a diagnosed mental health condition – although Dr V did identify three primary possibilities.
101. Before I turn to the evidence of the single expert Dr A, I record the evidence (in full) of the mother’s current treating Psychologist Dr V, who was not required for cross-examination, namely at paragraphs 3 to 22 of his affidavit filed by leave on 20 September 2021:
     3. I first saw [Ms  Newett ] at [City T Hospital] on Monday 5 August 2019, after being referred to me by her treating Psychiatrist ([Dr S]) for a second opinion. Given the complexity of her case I spoke with [Ms  Newett ’s] mother as well as a friend and also spoke with a Private Investigator to get collateral information
     4. Based on the above I had felt that she was suffering from Anxiety and an Acute Stress Disorder and my recommendation was that she be discharged from the hospital, as she could not be held under the Mental Health Act
     5. Following her discharge from the Mental Health Service [Ms  Newett ] chose to continue to see me as her treating Psychiatrist in Private, and her first clinic appointment with me was on the 19/09/2019.
     6. Since that date I have seen [Ms  Newett ] more or less regularly, on roughly 15 occasions, the last time being on the 9th of this month
     7. All through this period [Ms  Newett ] has consistently described “emotional/mental abuse” which had been inflicted on her by her ex-partner, and the alleged harm that is being caused to her children who have been taken away from her care
     8. I have no access to any independent reports to support or refute [Ms  Newett ’s] claims, so (as I had stated before in a previous report to the court) I am only able to come up with some provisional differential diagnoses
     9. I did request a second opinion from a senior colleague of mine ([Dr W]) and he more or less concurred with my own thoughts.
     10. [Ms  Newett ] at various times had expressed thoughts that people had been trying to physically harm her, for eg on one occasion she alleged that someone had tampered with her car brakes and it was a miracle that she had survived and not had a fatal accident
     11. She had also spoken about people breaking into her home and car etc, and stalking her, but again I am not in a position to state whether her claims are based in reality or not (in my opinion the Police would be best suited to investigate such matters).
     12. [Ms  Newett ] moved to NSW in December 2020, and I have had a few telehealth appointments with [Ms  Newett ]. Since moving there she seems to be more settled and does not feel that she is being stalked thus allaying her anxiety, and I think it’s important to note that she has family support there.
     13. My opinion regarding her Mental Health conditions remain the same, with 3 primary possibilities:

a) Adjustment Disorder with mixed Emotions
b) PTSD related to past trauma associated with overvalued ideas and
c) Delusional Disorder

14. The last diagnosis can only be considered to be true if someone (the Police or other Investigators) can categorically and with absolute certainty dismiss her allegations
15. Overall, I think [Ms  Newett ] is stable and has been taking medications as prescribed ( as far as is known to me)
16. In terms of ongoing treatment and needs

Plan:

• Continue Lovan 40 mg mane
• To commence Seroquel 25 mg nocte for anxiety
• To see a Psychologist
• Practice Mindfulness/Relaxation
• Review in 4 weeks

17. Given that her primary stress revolves around her lack of access to kids and the associated despair that she is feeling, I would imagine than once the ongoing court proceedings end and if her children (if the court saw fit) were to be returned to her then there is likelihood of at least a partial recovery.
18. I feel [Ms  Newett ] could return eventually to part time work, but only in some low stress environment as she has gone through an extensive period of intense emotional trauma, and would need time to heal
19. At no point have I had any evidence that [Ms  Newett ] is anything but a loving caring mother. I have repeatedly asked her questions about her parenting capabilities and I have never had any grounds to believe that she could pose any harm to her kids.
20. This has been confirmed through my discussions with [Ms  Newett ’s] mother
21. However, I am not a specialist in the field of child care and safety and I would suggest that someone with expertise in the field could observe her interactions and attachment with her kids and come up with a more definite idea regarding this matter
22. Lastly, I can state that many people with mental disorders can be very effective parents as long as they are being adequately treated through medications and/or psychological therapies

102. That Dr A was capable of continuing to offer, in my view, a clearly professional and objective opinion of the mother, after he has seen her on the one occasion on 16 August 2018 is a credit to him considering the mother’s response to his report. The mother has attacked Dr A both professionally and, most obviously, by taking action in the Supreme Court of Queensland in respect of his Report. She was entirely unsuccessful and was ordered to pay costs of some thousands of dollars.
103. Dr A was cross-examined by the mother at the trial, however, she was unable in my assessment to establish in any way his opinions were unreliable. I note that during cross-examination the mother was robust at times but respectful. No doubt Dr A in his practice has encountered many patients under stress, and his responses to questions revealed were clear and often empathetic.
104. In the end, Dr A held to the opinion expressed in his report under the heading of “diagnostic issues in the mother” and treatment recommendations at (i), (ii), (iii) as follows:

(i) Given the above formulations, I would have no concerns that the father would be deprived of the capacity to make decisions with respect to the children. I would have some concerns about the mother's capacities if her decisions are being driven by morbid thought processes. It is not clear to me that this is in fact the case. The mother’s views about health care and the like whilst not mainstream, certainly do not appear to be driven by any psychotic thought processes. I would have some concerns if the children’s medical needs were being treated solely by non-mainstream medical services but again it does not appear that this is the case.

(ii) As to the issue of treatment, I would recommend that the mother continue to seek treatment with a suitably qualified psychiatrist and/or psychologist. It may well be of benefit to the mother’s psychiatrist, that this psychiatrist have access to mine, as well as perhaps the family report, as it is likely that we have had access to collateral information that may otherwise not be apparent. In particular, I would recommend that the mother undertake more longitudinal assessment around the possibility of the presence of a psychotic illness or a hypomanic illness. As an aside, I wonder whether a treatment with a medication such as Quetiapine might assist the mother in her sleep patterns but also may assist in her thought processes as well, but I would leave that to the expertise of the mother's treating psychiatrist.

(iii) If the mother was appropriately engaged in treatment and able to demonstrate an ability to protect the children from any negative views or anxieties she may hold towards the father and was demonstrating an ability to appropriately care for the children including their attendance at school in a timely manner and was not exposing the children to any persecutory stance towards the father, I would have no concerns the children would be at risk of significant harm in the care of the mother on either a supervised or unsupervised basis. If, however, the mother was unable to demonstrate the above, I would have some concerns about the welfare of the children in the prolonged unsupervised care of the mother, although I would suspect that shorter periods of unsupervised time would not place the children at significant risk of harm although would defer to the expertise of others with respect to these issues.

(iv) As for the father, unless the court were to find that the father was indeed demonstrating psychopathic/antisocial or narcissistic traits by continuing to harass or stalk the mother suggesting a profound inability to prioritise the needs of the children ahead of his own, or if the court were to find the children were at sexual risk in the care of the father, I would have no concerns that the children be at risk of significant harm in the care of the father on either, a supervised or unsupervised basis.

(v) As to the exact custody arrangements that would be in the best interests of the children, I would leave that to the expertise of others.

105. I take all this evidence into account which I assess (with all the evidence), as establishing that the mother’s fixation (if not paranoia which I make no exact finding about) presents as a significant risk to the children of psychological harm and supports a finding she would be unable to facilitate and support the children having any relationship with their father. Her proposed minute of order demonstrates this concern in my view.
106. I am not satisfied on all this evidence that I should find the mother suffers “delusional disorder”. Dr A expressed caution in making such a definitive assessment.
107. The Court is always concerned about “labelling” a parent. As Dr V opined, with which I agree, many people with mental disorders could be very effective parents. What comes directly into focus in this case is the clear inability of the parents to “co-parent” – creating an unhealthy dynamic. As I seek to explain, the mother’s entrenched views do exist and although it might not be capable of leading to a finding of a diagnosed mental illness, the behaviour of the mother demonstrated consistently, is the source of the emotional risk to these children.
108. I accept that if a diagnosis was possible, that might have established a more unambiguous foundation for the mother’s behaviour. Dr A considered the mother would be assisted with some different medication.
109. In the final analysis, put simply, the risk to the children I identify in these Reasons arises not from a “diagnosis” but from her past behaviour and, on my assessment on all the evidence, a strong likelihood her views will not change.

SEXUAL ABUSE ALLEGATION

110. The mother has maintained her belief that the children are at risk of sexual harm by the father. The mother, in her cross-examination, carefully explained that whilst she does not assert she witnessed any abuse and does “not know what happened”, she holds such a low opinion of the father that she has a belief he may have touched the children inappropriately either, I infer from the nature of her belief, for his own sexual gratification or as an exercise in “child grooming”.
111. Any allegation of sexual abuse of a child requires close, serious and real consideration to the facts said to support the allegation (see Stott & Holgar and Anor [2017] FamCAFC 152 at [34]–[38] and the further authorities mentioned in that discussion of principles). Although the civil standard of proof applies, cases such as Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (now incorporated in s 140 of the Evidence Act 1995 (Cth)) make it clear that the seriousness and magnitude of the allegation (for both the children and the father) need to be taken into account.
112. Before commencing such analysis, I record that the father has strongly and consistently denied any inappropriate sexual behaviour and his cross-examination on this did not raise any concerns as to the honesty of his denials, in my view.
113. In the mother’s affidavit filed 10 April 2018 (shortly after separation), and effectively still relied upon as set out at paragraph 101 of the mother’s affidavit filed 13 September 2021, the mother deposed that:
     61. On March 3, [Y] disclosed she didn't want Daddy to look after her and her sisters because of the ‘brown worm on his bottom’. When I asked her why, she said ‘because I don't like it’. I was alarmed by this disclosure and reported it to Police, who referred the matter to· Child Protection Investigation Unit (‘CPIU’). An officer from the CPIU called me on the Monday and advised me to continue with psychology sessions and potentially have the children consult a psychiatrist.
     62. On March 13, [Z] tried to touch [X] and [Y] on their private parts, which caused them some distress. After reprimanding [Z] for her actions, I removed the girls from the bath. [Y] then went on to describe her shower with Daddy, how the ‘worm pops out’ and she didn’t touch it, but she ‘caught the water’ that comes from it. I reported this to the police and informed the girls’ psychologist.
114. In the following paragraphs (63 to 68), the mother says she lodged a formal notification on 9 April 2018 with “child safety services”; asserts the father was telling the children to lie to the mother; complains about a profile of the father on Tinder (a dating app) which included the child Y in her school uniform and asserts that in 2017 she discovered the father “watched pornography” and television shows with “psychopathic, espionage, murder and drug crime” themes.
115. There is no evidence produced from Queensland Police or the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) nor any evidence (save for a s 93A interview which I refer to next), that the authorities took any action or formed a view that the children were at risk of sexual harm in the father’s care. Certainly, when a Judge of the Federal Circuit Court of Australia (as it was then known) made orders for the children to spend unsupervised time with the father five days a fortnight, these concerns of the mother did not seem to shape the order made. Even though the mother says the children’s then Psychologist felt Y was “hiding something” and there may be “something”, no evidence from that Psychologist was adduced at the final hearing.
116. The mother continued to press for an investigation by authorities as she was perfectly entitled to do, and on 9 August 2018 the child Y underwent a s 93A interview. The interview was played in open Court during the hearing. At the time of interview, Y was five years of age. I agree with the submissions of the father (at paragraph 48) that during the interview Y appeared comfortable; confirmed the father had assisted with showering but “always had his shorts and shirt on” and made no disclosures at all of inappropriate touching or behaviour.
117. Whilst I accept the statements the mother says were made by the child about a “brown worm” are confusing in the absence of any better context, those statements do not support the mother’s belief that the father has sexually harmed the children.
118. The mother relies upon the evidence adduced by the maternal grandmother in an affidavit filed 12 September 2021, where it is alleged that:

(a) on 7 December 2020 (which is the Monday following the day the mother failed to return the children to the father), the children had spent the day with their cousins BF and BG. BG told the maternal grandmother that she “was brushing Y’s hair that she disclosed her father sometimes uses the brush to brush her private genitals”. This, the maternal grandmother says (at paragraph 6) caused 12 year old BG to become distressed and cry, and told the maternal grandmother “what [Y] had told her”; and

(b) on 8 December 2020 when Z and Y were having a shower, the maternal grandmother observed the girls singing and dancing and Z (aged six years) was “rubbing her genitals whilst Y (age[d] seven) was acting the part of a male masturbating”. The maternal grandmother says she was shocked; chastised the girls and told them to stop the behaviour, which they did. I refer later in these Reasons to how these events were revealed (for the first time to the family report writer during interviews conducted on 9 August 2021 – see paragraphs 57 to 59 of the family report), which, at paragraph 8 of her affidavit filed 12 September 2021, she sought to explain as follows:

8. The reason why I did not write this affidavit before disclosing to the report writer, I was afraid that the courts would blame me for the girl’s actions, as has happened to many concerned grandmothers in past cases. I kept it to myself and decided not to tell their mother to save her from further trauma. [Ms  Newett ] and the girls were having too much fun at the time to spoil their precious time together. I had to tell her after disclosure to the report writer.

119. When cross-examined before me about her reasons for not informing the mother (or anyone) for over eight months about these concerning allegations, I found the maternal grandmother entirely unconvincing, and felt it was a further demonstration of her inability to put the children’s best interests first. If she, as a concerned grandmother, seriously believed the statements and observations revealed the father was sexually abusing one or more of the children, she would have taken some action at the time. I am unable to be satisfied whether or not a comment, as alleged, was made to the children’s cousin BG on 7 December 2018.
120. However, on the evidence offered to this Court, I agree with the submissions of the ICL and the father that a finding that the father has either sexually abused these children or is likely to do so, is not open. In making such a clear finding, I am conscious of higher authority which cautions against making a positive finding either way (see M v M (1988) 166 CLR 69). However, on all the evidence in this case, I am persuaded by the father’s submissions at paragraph 62 to make the finding I have made above.

FAMILY REPORT EVIDENCE

121. The evidence given by the Court Child Expert is but part of the evidence the Court must consider and, like all experts, the foundation for their expressed opinions must be exposed in their report. They are not in a position to make findings on disputed facts which is ultimately the task of the judge, however they use their professional skills and experience and the unique opportunity to observe and speak to the children to assist the Court. The Court is not bound to accept the opinions and/or recommendations of a Court Child Expert, but is entitled to give it weight where it is found the opinions are based on a factual foundation established by the Court’s assessment.
122. This is why, usually, as was the case in these proceedings, the Expert Ms HH gave evidence last and was cross-examined. For the reasons which follow I do give significant weight to the opinions expressed by the Expert as urged upon me by the ICL in final submissions.
123. Ms HH conducted her first interviews and observations in person (save for the maternal grandmother Ms Adlam) on 29 July 2020, resulting in a report published on 7 August 2020 (Exhibit 12). Subsequently, and helpfully considering the events that took place after July 2020, Ms HH conducted further electronic interviews on 9 August 2021 and published her report on 25 August 2021. The reports identify the enormous volume of material perused by the Expert.
124. Ms HH observed that her assessment is limited “in that the information gathered can be relied upon only to the extent that the parties are truthful”. The Expert further reflected on the fact that all interviews for the second report were conducted electronically and, as a result, she did not “observe” the children with either parent or Ms Adlam.
125. Ms HH said, and I accept, that as previous observations conducted of the children with the parents were positive, and based on information provided by the children during the second assessment she “assumed any observations conducted on this occasion would bear the same positive outcome” and in these circumstances it is likely she would not have conducted observations even if attendance in person was possible. Fairly, where the mother would not come into Queensland, Ms HH decided to interview the father and the children (all in Queensland) electronically as well. During cross-examination by the mother, Ms HH explained how she was satisfied that the children, when interviewed by her, had been afforded privacy in the father’s home.
126. Because so many important events occurred affecting the children between the two reports, I find the first report became a useful and accurate foundation for the second report. In the first family report, the Expert opined at paragraph 187 that:

When reflecting on this matter as a whole, it seems to me obvious that the parents, moving forward, are not going to be able to co-parent co-operatively or effectively with one another. This will either be because [Mr  Newett ] will continue to disempower and dominate the mother, or [Ms  Newett ] will continue to disparage the father. Regardless, it is important the scope for either scenario to occur be limited, namely to protect the children from being exposed to such.

before recommending that if the Court determines the mother poses an unacceptable risk to the welfare and wellbeing of the children, then the children should live with the father and spend time supervised or no time at all with the mother. Further, if the Court determines the father poses an unacceptable risk to the children, then they should live with the mother and spend supervised or no time at all with the father.

127. At paragraph 94 of the second report, Ms HH opined:

Twelve months on since the previous assessment, and the scope and the dynamics of this parenting dispute remains the same. The outcome of this matter will see [X], [Y] and [Z] [sic] live with one parent, and essentially lose a relationship with their other. This is sad.

128. I entirely agree with this opinion.
129. The second assessment, at paragraphs 95 to 118 evaluates the data available to the Expert and, in summary records that:

(a) the children impressed “as adoring of and loving their parents with equal measure and without condition”;

(b) the grounds the children rely upon to explain their preference “only just” to live with the mother instead of the father should not be given significant weight and are “superficial, and/or symptomatic of the circumstances of this matter”, as further explained at paragraphs 96 to 100;

(c) she could not “discount either that the children’s views and wishes are not influenced or informed by a narrative they might have heard from either parent” as further explained at paragraphs 101 to 104;

(d) clearly Ms HH, having read the Reasons expressed by the District Court Judge, regarded that as a significant factor in concluding that the children remain living with the father. The expert, in accepting the findings of the District Court of Queensland, as I do, whilst noting the mother “disputes the integrity of the Magistrate’s findings”, acknowledged that if the mother “is successful in her court matter against the various government authorities she believes have colluded with the father against her”, then the Expert will “stand corrected”. The mother has had no success in establishing the collusion alleged;

(e) at paragraph 109, the Expert opined it would be a significant disruption to the children’s lives to go live with the mother whether the mother experiences poor mental health or not;

(f) Ms HH’s assessment is that the father’s parenting is not compromised as the mother alleges;

(g) the mother has demonstrated she will not adhere to Court orders which “feeds back into [Ms  Newett ’s] unrelenting belief that everything [Mr  Newett ] does is violent”;

(h) whilst supporting the children spending supervised time with their mother “it is sadly not likely to occur” and in any event “[s]upervised time is not likely to completely protect the children from the mother’s negative narrative about the father, and this might place pressure on the stability of their living arrangements with their father by creating conflict with him” (paragraph 117); and

(i) concerning the girls’ relationship with the maternal grandmother and extended maternal family, Ms HH opined that any time should be supervised because the maternal grandmother would not be able to protect the children from the adverse views held by the mother.

130. Frankly, despite the best efforts of the mother and maternal grandmother in cross-examination to obtain any positive concession or opinion to support the mother’s case from the Expert, she failed to do so, save that:

(a) Ms HH confirmed the children said on occasions the father “smacked” them as a discipline measure and once put them on the balcony but had never said the mother “smacked” them;

(b) unlike the mother, even when the time became unsupervised between the children and the mother, the father complied with Orders; and

(c) Ms HH believed a “big issue” is which parent is best able to promote a meaningful relationship between the children and the other parent, and the mother is unlikely to be able to do so.

131. The father’s cross-examination of Ms HH was focused on how any views the children express could be influenced by comments such as the mother’s statements to the children that:

(a) they are moving to live with her;

(b) they are moving into a new house and will go to new schools; and

(c) she has a puppy for them or will get one,

which I accept has occurred as the father, at paragraphs 83, 85 and 87 of his trial affidavit deposes to.

132. Ms HH expressed concerns about the mother’s actions and statements to the children – going so far as saying the mother and maternal grandmother are showing selfishness.
133. I accept the broad thrust of the opinions expressed by the Expert and, as will become apparent during the analysis which follows of the relevant s 60CC(2) and (3) considerations, I too have come to the conclusion that there is a real challenge in making orders for the children to spend time with their mother in New South Wales and their maternal family in a way which protects them from the emotional harm the mother and even the maternal grandmother’s beliefs about the father would create.
134. Sadly, Ms HH said to the ICL, under cross-examination, that for the welfare of these children “enough is enough” and finality is necessary. The Expert agreed that it will be challenging to be able to explain to the children any orders where they do not spend time or communicate with their mother other than limited supervised time – if at all.

PRIMARY AND ADDITIONAL CONSIDERATIONS

135. I rely upon but do not repeat earlier findings made during the analysis that follows of the competing proposals within the matrix of the primary considerations (s 60CC(2)) and additional considerations (s 60CC(3)).
136. I accept that the children will benefit from having a “meaningful relationship” with both parents. As already identified, the challenge in this case arises from how that can occur. I agree with the opinion of the Court Child Expert that sadly the toxic and dysfunctional relationship between the parents means the options are limited and will mean that by living with one parent, the ability to maintain the existing meaningful relationship with the other parent will cease until the children become adults.
137. Section 60CC(2)(b) requires the Court to consider “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. The Court is required to give greater weight to s 60CC(2)(b) than the benefit of the children in having a meaningful relationship (s 60CC(2A)).
138. The earlier assessment in respect of the father demonstrates that I do not find the children are at a risk of sexual abuse, family violence or psychological abuse in the father’s care. In making this finding, I do not ignore that the father (as admitted by him) has on rare occasions “smacked” the children and may have made denigrating remarks about the mother. I am satisfied his continually improving parenting skills (arising from being the primary carer now for over three years) means he is better equipped to use other strategies such as “time out” and limiting access to privileges which are more child focused. He should not, in exercising “time out” discipline, put the children on the balcony – which was, I find, an isolated error in judgement.
139. Before moving to the concerns I hold about the mother, I record that, at paragraph 8 of her affidavit filed 30 August 2021, she deposed that:
     8. I note that I maintain the Father is the cause of the various assaults against my physical and mental wellbeing, as deposed before the Court; including:
        1. Strangulation on 19 November 2017 in presence of the Children
        2. Assault on 29 January 2018 in presence of (and direct witness) by the Children
        3. Fraud from 20 November 2017 to 28 January 2018, and then escalating in post-separation to steal the business, income and livelihood from the Mother
        4. Abduction and detention of the Children by the Father, where they were named persons on a Protection Order against the Father protecting the Mother
        5. Criminal cyberstalking admitted in affidavit
        6. Theft of the Mother’s motor vehicle
        7. Coercive control of the Mother from her home and from the State of Queensland
        8. Physical stalking, threats, intimidation and harassment
        9. Threats to harm or kill with a vehicle on at least five occasions
        10. Threats to burn, by particular damage to the house gas fittings, fire alarms etc.
        11. Other property damage to the family home, pool and security gates
        12. Gaslighting and emotional abuse of the Mother
        13. Collusion and corruption of court officers, such as ICL [Mr AQ]
        14. Subornation of witnesses, such as [Dr A], [Dr FF], [Dr BH].

(As per the original)

140. For reasons already given, I do not accept the father is a risk as the mother asserts. I am not satisfied, as the mother and maternal grandmother assert, that the father has been stalking the mother and/or the maternal grandmother – either physically or electronically. The mother had an evidentiary onus to establish her fears were actually true and, on the balance of probabilities, she has failed to do so.
141. The mother submitted the father is neglectful of the children. She points to some of the ways in which he has managed some of the children’s medical needs. The father’s approach may at times be different to that adopted by the mother, but the evidence does not establish the father is neglectful of the children’s medical needs or has not seriously taken on the responsibility of seeking appropriate medical advice in a timely way. No evidence from the children’s medical or health professionals was adduced to suggest otherwise. Whilst I understand the mother, with the limited time she has spent in recent years engaging with the children, has concerns, they are simply, on all the evidence, not established.
142. The concerns about whether the mother is a risk to the children have already been dealt with at some length. I do not find, if the children lived with her, that she would have any difficulty in meeting the children’s physical and educational needs. She did so from birth to separation. After separation, and before the change of residence ordered on an interim basis in March 2019, the evidence reveals that the pressures in the mother’s household and increasing tensions arising from the litigation (both financial and parenting) were proving a challenge – to both parents. However, after the interim Orders to change residence were made, the history shows increasingly erratic behaviour by the mother – no doubt exacerbated by her immediate sense of loss in her role as the primary carer and the sense of injustice and unfairness she has felt and carries every day since March 2019.
143. In making the finding that I do that the mother is an emotional and psychological risk to the children, I have not sought to speculate whether the mother would have presented at trial differently if the events post-March 2019 (and in particular the change of residence) had not occurred.
144. However, those events did occur and the mother’s entrenched beliefs about the father and anyone who she perceives believes his narrative (and consequently does not believe her narrative) makes it impossible at this time for the children to escape the exposure to the mother’s opinions and actions arising from those opinions – thereby effectively and significantly reducing, if not extinguishing, the other positive benefits she has the capacity to offer the children. The maternal grandmother has adopted, without any reflection, the position of her daughter, and in doing so, the maternal grandmother (the only other member of the extended maternal family who gave evidence) also presents as an emotional risk to the children.
145. Section 60CC(3)(a) requires the Court to consider “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”. The mother says, and I accept, the children tell her repeatedly that they wish to both see her more and live with her. Not surprisingly, the mother says that the children’s wishes should be given determinative weight. At the time of the first report interviews (in July 2020) the wishes recorded by Ms HH (at paragraphs 95 to 141) reflected a strong wish by the children to live with the mother – even though they had been primarily living with the father for some 16 months. By the time of the second interviews, the children had:

(a) been living primarily with the father for nearly two and half years;

(b) a period between March 2019 to approximately June 2020 when they had spent supervised time with the mother;

(c) a period from approximately June 2020 to early December 2020 when they had spent unsupervised day time on alternate weekends with the mother;

(d) about a week in the sole care of the mother when she withheld them; and

(e) since recovery in December 2020, no physical time with the mother – only telephone calls or FaceTime interaction.

146. Considering this level of disruption, the views expressed by the children to Ms HH in August 2021, whilst still slightly supporting living with the mother, were not as strong.
147. The mother feels this is because of the influence the father has over the children. I disagree. Despite the mother’s concerted attempts to gather evidence from the children; to involve them in the dispute and to try and encourage their support for her position through comments she makes to them, the children’s wishes reflect, in my assessment, an increased level of comfort living with the father. Considering the ages of the children and their history of care, I am cautious about giving much weight to the children’s wishes – but I do not ignore them. Certainly, I do not give them determinative weight as the mother seeks.
148. In respect of the nature of the children’s relationship, I accept the evidence of the Expert Ms HH that at the time of the most recent assessment, the girls have an “adoring” and “loving” relationship with “equal measure”. It is reasonable to infer that since separation, and with the time the children have spent with the father, his relationship with them has strengthened. I do not find the children’s relationship with the mother has deteriorated, although with the limited time they have spent and communicated with her, it is different. I find that the father has, unlike the mother, tried to support the children’s relationship with the mother (within the boundaries set by the Orders) and as their primary carer, the fact they are still able to see their mother in a positive and loving light, demonstrates this fact. I accept the mother believes otherwise.
149. The children’s relationship with the maternal grandmother and the wider extended maternal family has been affected by the lack of time the children have spent with them. The challenges that the elderly and frail maternal grandfather sadly faces, makes opportunity for time to be spent together limited. Before the mother chose to leave Queensland and not return, and when there was the unsupervised day time ordered, on some weekends the maternal grandmother was able to get to Queensland and spend time with the children, whilst in the mother’s care. The evidence establishes, and I find, the children love their maternal grandparents and their cousins, but the mother’s actions (for which she must accept some responsibility) and the mobility issues for the maternal grandfather (and consequential carer responsibility undertaken by the maternal grandmother) has meant limited options to even spend time separate from the mother. In this regard, the record reveals that when the Court was asked by the maternal grandmother on 1 December 2020 whether the children could spend time with the maternal grandparents in City EE in December 2020, the father (through his Counsel Mr McGregor) indicated he would facilitate a visit for the children (in the absence of the mother) when a car return from a planned holiday to Sydney was to be undertaken. The mother’s actions on 6 December 2020 “scuttled” that visit. Although it does seem, with the children spending some time in City EE after the mother withheld them, the maternal grandmother and maternal grandfather did see the children.
150. In my view, the mother’s decision since December 2020 not to enter the State of Queensland has meant she has failed to take opportunities to spend time with the children – in particular supervised time. The father has been prepared to facilitate supervised time in Queensland but the mother refuses to accept any supervised time and will not come to Queensland. At paragraphs 116 and 117, the Court Expert in her second report refers to her support for the children spending time with the mother, but, correctly in my assessment, points to the mother’s resistance to “face the Police’ – a possible consequence of entering Queensland. The children are the ones who really then suffer the loss of an avenue “in which to maintain some level of connection to their mother” – limited as it might be.
151. The evidence is that the mother has not consistently met assessed child support obligations, but in the circumstances of this case, this is not a significant factor.
152. Section 60CC(3)(d) invites the Court to consider “the likely effect of any changes in the child’s circumstances” by the competing proposals. In this respect, I summarise and repeat earlier findings that:

(a) if the children remain living with the father, they will continue their current schooling and primary carer, as has been the case since March 2019. I do not find the children are at risk in the father’s care. Sadly, if they remain living in the father’s home, they are unlikely to spend any physical time with the mother and even ongoing supervised time, if it occurred at all, would be limited. They would spend no regular time with the extended maternal family including their maternal grandparents;

(b) if the children return to live primarily with the mother, they would be required to adjust to a change of schooling, State curriculum and establish new peers. Although, as Ms HH opines, this is likely to be disruptive for the children, I believe these resilient children would cope with the change in time. Of course they would be primarily in the mother’s care, and would be able to spend time with the extended maternal family. However, as I have found, the children would be exposed to the mother’s both highly negative views of the father and those around her, and the mother has no capacity (and likely no real willingness) to disguise or filter her views. Her entrenched perceptions about authorities would also likely be passed on to the children. The children, as a result would be at risk of substantial emotional harm, even if it were possible for orders for the children to spend substantial and significant time with the father (which of course the mother opposes). Furthermore, there is little likelihood the mother would comply with Court orders and, as such, the conflict between the parents is only likely to continue, and it is even possible considering the history, escalate.

153. This factor strongly supports the children continuing to live with the father, which I again note is consistent with the assessment of the Court Expert Ms HH.
154. The practical difficulties of the children spending time with the parent they do not live with are created by the mother’s decision, firstly to move to New South Wales (which as an adult she is perfectly entitled to do), but then to expect the father and/or the children to come to her. These children could have spent supervised time with their mother at a contact centre in City T with which they were familiar, save for the mother’s concrete attitude about coming into Queensland (acknowledging some Covid-19 restrictions did apply in the past). The mother’s positon is immovable on this issue into the future.
155. As to the capacity of the parents and others (s 60CC(f)) to provide for the needs of the children and the demonstrated attitude to the children and the responsibilities of parenthood (s 60CC(i)), I rely upon earlier findings made.
156. As to family violence issues, I have already dealt with the evidence in that regard and, for completeness, that current family violence order exists naming the father as the aggrieved and the mother as the respondent.
157. Section 60CC(l) asks the Court to consider “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 will return to this issue when I grapple with the issue of what orders should be made for the children’s time with the mother if they live with the father, as will be my decision.

THE WRITTEN SUBMISSIONS OF THE MOTHER AND MATERNAL GRANDMOTHER

158. As I identified earlier in these Reasons, the ICL delivered oral submissions, after which the mother and maternal grandmother delivered lengthy written submissions initially, then followed (after the written submissions of the father were received) by further lengthy submissions in reply – a total of 211 pages.
159. Some duplication is evident, and whilst I do not say the mother prepared totally her mother’s written submissions, some similarity in themes and phrases is apparent.
160. I have read and considered these submissions, and as earlier noted, the Court is not obliged to deal with every submission. I accept the mother and maternal grandmother might choose to believe I have ignored their submissions (because the result is not what they have hoped for), but that is not the case. As the Full Court recently observed in Duarte & Morse [2022] FedCFamC1A 66 at [30]:

...A judge is not required to mention in the reasons for judgment every fact or argument relied on by the losing party as relevant to an issue (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 132...Only the rejection of a substantial argument need be explained. Reasons need only usually identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge (DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 at [32] and [130]–[131]).

161. I make these further comments on the submissions received:

(a) Although I did not structure my Reasons to answer, the question “the mother seeks to be answered”, all the relevant evidence has been considered and findings made;

(b) I reject the mother’s submissions (paragraphs 1 to 32) that the mother was denied a fair trial or to cross-examine the father. The effect of s 102NA of the Act is clear;

(c) I reject the assertion that during the conduct of proceedings (paragraphs 33 to 49) that the mother and maternal grandmother “throughout proceedings were treated as criminals” or that, in effect, the Court is not permitted to rely upon the findings of the Magistrate or the District Court Judge in the domestic violence proceedings. The Court was not required to consider any submissions to the Supreme Court in support of some form of “judicial review” application, which has, on the evidence, not resulted in any determination in the mother’s favour;

(d) I reject, as the mother submits (paragraphs 50 to 62) that the Court has failed to “follow and apply the law”. The mother’s apparent reliance in her submissions on reports by committees or the like are simply in this case of no assistance. What is critical are findings made on the evidence in this case. Further, at paragraphs 63 to 85 the mother seems to purport the mother’s submissions on the evidence are akin to her being an expert qualified “to critically analyse the performance and compliance of Court professionals and other professionals involved in the case”. The mother was, by operation of s 102NA of the Act, unable to cross-examine the father, but did question other witnesses relied upon. Her “opinions” are not independent expert evidence;

(e) The mother’s attacks on the qualifications, integrity and evidence of the experts relied upon is without foundation. The accusation (at paragraph 108) that Ms HH “committed an obvious misfeasance of public office” is without foundation – however alleged by the mother. I do not accept that “the family report of [Ms HH] is invalid, save to report what the parties and children have told her”;

(f) The mother’s insistence that the Court apparently must apply or adopt views expressed by organisations such as Australian Institute of Family Studies or a Mr Grant Wyeth, misunderstands the role of a judge determining facts on the evidence;

(g) The report of Psychologist Mr B was not before the Court, although it was aware the report had been prepared at a much earlier time in July 2018, well before the interim change of residence in March 2019. The suggestion that only a Psychologist is able to give expert evidence on these issues – and not a social worker such as Ms HH – is not accepted;

(h) The mother, at paragraphs 146 to 156, submits in effect a finding is not open that the mother suffers from a “delusional disorder”. No such finding has been made, as the Reasons demonstrate;

(i) I have, in my Reasons, dealt generally with allegations each party makes against the other and how the children, in my view, have been exposed to the parental conflict. No recordings of telephone calls was admitted into evidence so no “entrapment” of the mother arises for determination;

(j) I have considered the submissions at paragraphs 174 to 183 relating to certain legal principles but have not, nor am I required to mention, the cases cited by the mother. The mother’s summary (at paragraph 184) is not consistent in every respect with the findings of the Court, and my findings are explained;

(k) It is not appropriate, as the mother consistently argues, for this Court to act as an appeal court in respect of the domestic violence proceedings before the Magistrate; or the appeal before the District Court Judge. The mother confirms that a judge in the Supreme Court of Queensland dismissed her judicial review application and is now pursuing the State of Queensland, presumably in the High Court of Australia;

(l) From paragraph 199, the mother repeats many earlier submissions she made about the father’s brain lesion and the father being a member of a “men’s group”. Dr A gave evidence, under cross-examination by the mother, about the possible effect of a child brain injury. I have dealt with that medical evidence and providing a scan photo to the Court is of no assistance, as the Court is not of itself qualified to interpret a scan;

(m) The mother, at paragraph 199(c) makes submissions about the father “stalking” the mother – which the father under oath has denied. The mother relied upon affidavits filed 13 September 2021 by Ms BJ, Ms G and Ms N and also an affidavit by Ms BK filed 27 November 2020. Only Ms BK was required for cross-examination by the father;

(n) The evidence of the three witnesses relied upon by the mother that is relevant and has been taken into account was:

(i) the evidence of Ms N related to a telephone call on 13 December 2020, at a time when the mother had failed to return the children and the father was asking if she knew where they were. Ms N said she did not. The father’s enquiry, in the circumstances, was proper and the fact he was concerned about the mother’s “state of mind and the kids” is not surprising from his perspective;

(ii) Ms G gave evidence that contradicted the previous evidence of the “babysitter” Ms K about the state of the mother’s house prior to the change of residence. As evidence from Ms K was no longer relied upon by the father, this evidence does not assist me now. The fact that another untested witness says something different does not lead automatically to the conclusion that Ms K made “false accusations about” the mother. At paragraph 9, Ms G (a school teacher) says on an uncertain date in 2018, after a bath, Y “began talking to me about her genitals at that point I was shocked. I don’t recall everything that she said”. The evidence in the affidavit does not indicate any specific comment Y made at all. The comments (at paragraphs 11 to 13) about a “middle aged woman sitting in a blue car” near the mother’s home lead to no conclusion that the father was stalking the mother – nor do the events described at paragraphs 16 and 17 which related to the mother being taken to the hospital;

(iii) Ms BJ gave evidence of witnessing “a warm loving relationship between a mother and her children”, which is consistent with the observations initially made independently by Ms HH. The fact that Ms BJ saw the father at the contact centre in mid-2020 (where changeovers were taking place) is hardly surprising. Paragraphs 6 and 7 relating to a white car and her concern the occupant “had been filming or monitoring [Ms  Newett ]”, contain no evidence of the basis for her belief – save that the occupant “appeared to be on the phone”. If, as asserted, she obtained the number plate for the white car, there is no evidence who was the registered owner of the vehicle or the driver. The fact that, in a public place, the father with the children came close to the mother, might be explained by the fact the mother used the opportunity to give Z her birthday gift, but as the father was not questioned about the incident the evidence at paragraph 8 takes the mother’s case nowhere. If, as I assume, one purpose of the evidence was to demonstrate the father was not fearful of the mother (and Ms BJ states she is a person who has experienced domestic violence), then that may well be the case. What is clear on the history is that the events of December 2020 referred to in these Reasons did create further tensions in the parents’ relationship. Ms BJ’s evidence asserting the current ICL in these proceedings “destroyed” her family in her own family law proceedings, raises issues about her objectivity, but no need to explore her family situation (and the asserted deficiencies in the father of her child), arises in the case of the  Newett  children that requires determination by me;

(iv) Ms BK was the subject of cross-examination, and whilst I can well accept the mother receiving the interim Reasons for Judgment would have been very distressing for her, the evidence of a “Ripped Up Hetty Johnstone Sign – 26 May 2019” the “Strange Prank Phone Call – 8 June 2019” by a person with a Scottish accent; and the other incidents on 19 August 2019 and 16 September 2019, do not sensibly, if true as asserted, link in any way to the father. It is hardly surprising experienced Counsel for the father did not cross-examine on the event, save for the “prank call”. Whether or not “Ms L just took $488 of my money from the go fund me campaign” as the mother asserted, I do not know – however how this is construed as relevant to where the three girls in this case should live is not clear – even though I am aware Ms L was an initial witness for the father and a person targeted by the mother for one of her private criminal prosecutions. The attempt by the mother to somehow link these various events to demonstrate the father (with others) has been harassing or stalking her fails for evidentiary foundation;

(o) The mother continues to assert the father and his solicitor Mr Armstrong committed a criminal offence of “cyberstalking” – by, it seems, monitoring her social media pages. She says she has lodged complaints with the Police but they have not taken action. If the mother has chosen to use social media, it could hardly be surprising that persons, including the father, may be able to access her posts whatever the alleged restrictions of use may be. I have taken into account the other summary of submissions and principles the mother included in her document, some of which are ill directed and without foundation on all the evidence I was required to take into consideration; and

(p) The written response by the maternal grandmother in many instances repeats the themes in the mother’s submissions. The submissions can be seen as directed to the mother’s case more than the proposal by Ms Adlam, saying (at paragraph 15) that:

The ICL’s final recommendations to the court are a disgusting disgrace both morally and lawfully as well as being considerably offensive to the mother, myself and my husband.

162. In my Reasons, I deal with the weight to be applied to the children’s wishes – a significant area of submission by the maternal grandmother. The author of the written submissions takes issue with many of the oral submissions of the ICL (and was assisted no doubt by my Order that the mother and the maternal grandmother have a copy of the transcript, at the Court’s cost). At times, the comments are directed as a personal emotive criticism of the ICL’s Counsel, without basis, and the mother’s case, as perceived by her mother, continues in the submissions to use value laden comments – for example, at paragraph 60, when it is submitted the ICL failed to address the Court on the temporary protection order on 15 August 2018 (in the mother’s favour) which “on 6 February 2019 the father subsequently contravened by abducting the children from the court ordered care of the mother which Queensland Police refused to act on”. The history shows although the father did not comply with the Orders in place in February 2019 by retaining the children, the Orders of Judge Spelleken in effect supported his decision on an interim basis. When the submissions of the maternal grandmother, at paragraphs 80 to 89 refer to “a meticulous search of both volumes of the Family Law Act 1975” and further analyse the Reasons for Judgment of Judge Spelleken (at paragraph 83), it is clear to me the mother has at least authored those submissions – relying on her analytical expertise. The maternal grandmother supports, it seems, the mother’s claim of “corruption” and the mother’s view about how family violence should be found and applied in this case. Sadly, as often occurs with unrepresented parties, both the mother and maternal grandmother, when dealing for example with the issue of the mother’s mental health, a reference is made to “no less than 5 psychiatric specialist reports”, when in the mother’s case she relies upon Dr V, and the single expert Dr A are the only tested and probative specialist reports on the issue (save for notes on admission and discharge for the mother’s time in the hospital ward).
163. Finally, I have read the submissions in reply to the father’s written submissions. Submissions were, by practice, to be strictly in reply, but they are not in this case – rather they are a further attempt to make the same earlier submission again; rely on new “evidence” and make outlandish legal statements. I see little point frankly in responding to such comments as:

(a) reliance on the findings in the State domestic violence proceedings “would result in his Honour’s failure to perform public duty, and failure to exercise the requirements of this jurisdiction” – I explain why I am permitted to rely on s 69ZX(3)(b);

(b) Mr  Newett  is likely suffering delusional disorder on account of his long term denials of fact in relation to the brain lesion. The evidence is the father is well aware of his medical history and simply does not accept the mother’s “lay medical” view that it creates parental incapacity now (paragraph 96);

(c) At paragraph 166(c), the Court is “requested to recommend an overturning and correction to the domestic violence orders made” by the District Court Judge – without any jurisdiction to do so;

(d) “the evidence adduced on 27 September is prima facie evidence of risk of sexual harm to the children... His Honour must remove the children from sexual risk of harm” (paragraph 172); and

(e) “The medical literature provide to the Court on 5 September 2021 demonstrates [Mr  Newett ] may have acquired paedophilia and acquired psychopathy”. There is no evidence in this case properly before me to support such a finding. The further “written submissions in reply” by the maternal grandmother are also not strictly in reply, but a further attempt to make, at times, similar or further submissions. I have read them and, where necessary, taken them into account.

164. For completeness, in a document filed by the mother on 15 November 2021 titled “Addendum”, the mother refers to:

(a) corrections to her earlier written submissions described as “minor immaterial and typographical error (corrections)” but actually also contains some further submissions;

(b) 27 authorities;

(c) 29 articles, guidelines or other “secondary sources”; and

(d) attempts to rely on other affidavits not before me at the hearing.

165. I have explained already why use of “secondary sources” is not permitted in a Court where the currency to be used is evidence.
166. It is not necessary in this case to refer to many of the authorities cited by the mother – some of which restate appellate level principles and some, at a trial level, which are distinguishable on their facts from the facts, as found, in this case.

PARENTAL RESPONSIBILITY

167. My findings in respect of family violence are sufficient to find that the presumption of equal shared parental responsibility does not apply (s 61DA(2)(b)). In any event, the presumption is also rebutted, as I am satisfied it would not be in the best interests of the children for the parents to have equal shared parental responsibility. The toxic relationship and inability for the parents to communicate in any effective way is enough to establish this rebuttal (s 61DA(4)).
168. It is in the best interests of X, Y and Z to live with the father, and for him to exercise sole parental responsibility for all major long term issues. Whilst ideally the mother should be consulted, and I have no doubt she would like to be consulted and may be able to add value to some major decisions (if her absolute hatred for the father had subsided), the risks in effective decision making of ordering consultation are too great.
169. I find that the alternative position advanced by the maternal grandmother Ms Adlam that if the Court does not place the child in the residential care of the mother, then the children should live with her, confronts similar obstacles as those identified by the mother’s proposal, and in addition:

(a) I have no confidence that if the children lived with the maternal grandmother, she is able to protect them from the mother’s views of the father, views which she entirely supports and adopts. No orders, that would be complied with, could be made to prevent the mother’s influence if the children were to live with the maternal grandmother. There is clear evidence that the mother does what she wishes to do and is not likely to follow sage or sensible advice by her own mother, if offered. After the mother withheld the children, Ms Adlam says she told the mother to return the children to the father. The mother did not do so; and

(b) although I accept Ms Adlam is a loving and caring grandmother, who is desperate to spend time with the children, her capacity at her age and with her care responsibilities to her husband, to meet the needs even physically of three active young children full time, is not only completely untested, but on the evidence, entirely inferior to the father’s demonstrated capacity to do so.

IF THE CHILDREN LIVE WITH THE FATHER WHAT ORDERS CAN BE MADE FOR THE CHILDREN TO SPEND TIME AND COMMUNICATE WITH THE MOTHER AND THE MATERNAL GRANDMOTHER?

170. The mother chose to run her case on almost an all or nothing basis – that is to say, if the children were not to live with her or her mother Ms Adlam, then she would not take up any order that required the children’s time with her to be supervised. She also made it clear that she expected the children (transported by the father) to come to her in New South Wales – probably in the City EE area – so they could spend at least unsupervised time with her (although at one stage conceded she might be able to do a handover at BL airport).
171. I am comfortably satisfied that, on the evidence, any time (including communication by telephone or FaceTime) between the children and the mother must be professionally supervised. The maternal grandmother is not an option to supervise the children’s time with the mother for reasons already given, and as the Expert Ms HH assessed appropriately.
172. Recently, the Full Court in Duarte & Morse observed at [50] that “parenting orders make provision for the time which children spend with a person (s 64B(2)(b)); not the time the person spends with the children. The statutory emphasis is on the children’s entitlement rather than the parties’”. Furthermore, the Court said relevantly at [48] that:

[O]rders only dictate the manner in which the children will spend time with the appellant if she is prepared to permit it. If she refuses to allow the children to spend time with her under the conditions imposed by the orders, she can hardly be conscripted to do so (B & B: Family Law Reform Act [1997] FamCA 33; 1995 (1997) FLC 92-755 at [10.63]–[10.64]). That is because children are liable to experience a sense of rejection in the company of parents whose attitude betrays irritation at being forced against their will to allow the children to spend time with them, which is not conducive to the promotion of the children’s best interests.

173. The proposals of the ICL, broadly adopted by the father, are for professional supervised time between the children and the mother (and the maternal grandmother if she seeks to do so) at a AH Town children’s contact centre:

(a) for two hours on the first Saturday of every Queensland gazetted school holiday period; and

(b) during each school term, on the fifth Saturday – which would be approximately the mid-point of each school term.

174. The travel time for what could be a maximum of eight two hour visits a calendar year, would not be too onerous a requirement for the children or the person transporting them to the contact centre. Whilst I do understand the father says he has some fear about travelling into New South Wales and what the mother might do, I do not find he will be at risk if he travels to AH Town eight times a year.
175. Of course, eight visits a year or a total of 16 hours is a very limited opportunity for the children to see their mother and hopefully Ms Adlam. However, where more frequent visits could occur in City T if the mother was prepared to do the travelling, the mother’s evidence of no intention to travel prevents any real consideration of City T contact centre visits (which of course would be more beneficial for the children).
176. I accept the submission of the ICL, again supported by the father, that the risk to the children of the mother’s erratic behaviour during a telephone conversation outweighs the benefit to the children of continued prescribed telephone calls occurring. The mother, because of her asserted fears, is unlikely to provide the father with any details of how the children could contact her if the father wished to facilitate some oral communication.
177. I am not of the view the father would resist, in time, further oral contact, however I am not prepared to prescribe time at this time because it is likely, in view of this history, that such events will be more disruptive to the children than beneficial.
178. Proposed order 10 by the ICL is in these terms:

10. In the event that:-

(a) The Mother fails to pay her share of costs of the supervision;
(b) The Mother fails to attend the centre to spend time with the children on more than two occasions each calendar year;

then Order 7 shall be discharged.

179. It is appropriate and in the best interests of the children that they have supervised contact with the mother as proposed by the ICL. The mother’s asserted position that she will not exercise any supervised time, confirmed at one stage by interruption of the oral submissions of the ICL, creates these issues:

(a) Preparing children, who would be excited no doubt to see their mother and perhaps their maternal grandmother if she attended, for a scheduled visit that does not take place is likely to be a very distressing occurrence for the children;

(b) It happening more than once might prove even more distressing and could lead to the children feeling their mother does not care about them or has in some way abandoned them. I accept the mother deeply loves her children, but is unable to accept that supervised time is either necessary or in the children’s best interests; and

(c) Although the father will bear the costs of travel with the children and 50 per cent of the supervision costs, the emotional impact on the children of the mother failing to attend is a much greater impact.

180. At paragraphs 83 to 86 of the father’s written submissions, he contends that:
     83. There is no utility in making a contact order that the father must comply with for not less than the first two occasions only to have the mother a ‘no show’.
     84. The First Respondent mother should give 14 days notice that she is going to spend time with the children in accordance with the orders before the father is obliged to take the children to [AH Town].
     85. If the First Respondent mother does not give notice that she will be attending to spend time with the children then the father should not be required to travel with them to [AH Town].
     86. If the First Respondent mother does not attend to spend time with the children at the contact centre for two occasions then there should be no requirement for the Applicant father to schedule and further appointment for the remainder of that calendar year. The Applicant father should be able then to make plans for the care of the children such as vacation care or a holiday without worrying that the First Respondent will suddenly decide she will attend.
181. There is some merit in these submissions by the father, although sensibly all the visits take place on a Saturday, and with a visit on the first Saturday of each holiday, vacation care is unlikely to arise and holiday plans for the children with the father, unlikely to be disrupted.
182. If the mother is true to her evidence and submissions, she is not likely to attend. The first step would be for her to attend and complete any intake procedures for the contact centre. If she fails to do so as ordered, then contractually the contact centre may be unable or reluctant to offer a service to the family (where limited time exists for all families).
183. I will slightly amend proposed order 5 to allow the parties 30 days to complete the intake procedure.
184. I will further make order 7 as follows:

(a) If the mother and the father comply with order 5, then the time between the children and the mother prescribed at order 4 shall commence subject to the availability of the contact centre;

(b) If the parents do not comply with order 5, then order 4 for time between the children and the mother shall be discharged; and

(c) If intake/enrolment processes are completed and the mother fails to attend the contact centre to spend time with the children on two consecutive occasions, then order 4 shall be discharged.

185. I accept that if the mother attends, but fails to pay her share of the fees, then the contract centre may withdraw the service, however my hope is she will complete the intake procedures and attend.
186. It is hard to speculate, if the mother fails to allow the children to exercise their right to spend time as prescribed, what the basis could be for the mother to seek to reinstitute proceedings and overcome the requirements of decisions like Rice & Asplund [1978] FamCAFC 128; (1979) FLC 90-725 – but that is a matter for the future and probably for a different judicial officer.
187. The injunctions proposed by the ICL at orders 14 and 15 under s 68B of the Act are onerous but in this matter, on the evidence, I am satisfied they are appropriate for the welfare of the children.
188. I am conscious of authorities such as Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375 and the undesirability of, and the practical difficulties associated with long term supervision at a contact centre. May J in Moose (her Honour having also dealt with this issue earlier in TF & JF & Children’s Representative [2005] FamCA 394; (2005) FLC 93-227) said at [10] that:

In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders... his Honour should have made orders which would allow for some review of the situation in the future...

189. There was no recommendation or proposal of the ICL for a “sunset clause”. Although I accept that eight visits a year is hardly optimal, apart from the increasing maturity that age often brings, the evidence does not allow me to be satisfied if or when the mother’s destructive views of the father and others that have fuelled much of her legal endeavours in this and other courts will ever reach a level that the children, as children, are not at risk of emotional harm.
190. Neither the ICL nor the father proposed a “no time” order and I could not support that order as being in the best interests of the children who love their mother deeply, but do not have the maturity or capacity to understand how destructive her belief system is at this time. If, for example, these Reasons and the orders pronounced had an effect on the mother seeking, through therapeutic means, to deal with her obsessive thoughts then that may provide a glimmer of hope for the future. No such evidence was offered, and where the mother (supported by the maternal grandmother) is absolutely convinced of the correctness of her position, one wonders if she will ever grasp the difficulties her behaviour has created for her – but particularly her three daughters.
191. Therefore, a “sunset clause’ based:

(a) on the age of the children at some future time better accepting the mother’s destructive views are not reasonable; and

(b) the mother obtaining some qualified medical advice which, post the type of therapy recommended by Dr A, might suggest she has developed some insight into the emotional risk to the children of her unfiltered views, is simply unlikely to occur.

192. For the reasons given, the orders at the commencement of the Reasons are in the best interests of X, Y and Z on the evidence at this time.

APPLICATION FOR THE MOTHER TO BE DECLARED A VEXATIOUS LITIGANT

193. The father’s Application included seeking an order in the following terms:
     14. That the mother is prohibited from instituting any proceedings relating to the children against the father under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act.
194. The relevant statutory provisions to be considered are as follows:

(a) The power to make a vexatious proceedings order is found in s 102QB of the Act as follows:

(1) This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:

(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or

(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.

(2) The court may make any or all of the following orders:

(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;

(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;

(c) any other order the court considers appropriate in relation to the person.

Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
(3) The court may make a vexatious proceedings order on its own initiative or on the application of any of the following:

(a) the Attorney-General of the Commonwealth or of a State or Territory;

(b) the appropriate court official;

(c) a person against whom another person has instituted or conducted vexatious proceedings;

(d) a person who has a sufficient interest in the matter.

(4) The court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(5) An order made under paragraph (2)(a) or (b) is a final order.
(6) For the purposes of subsection (1), the court may have regard to:

(a) proceedings instituted (or attempted to be instituted) or conducted in any Australian court or tribunal; and

(b) orders made by any Australian court or tribunal; and

(c) the person’s overall conduct in proceedings conducted in any Australian court or tribunal (including the person's compliance with orders made by that court or tribunal);

including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section.

(b) Where such an order is made, s 102QE of the Act provides the means whereby a person prohibited may seek leave of the Court to commence proceedings, providing:

(1) This section applies to a person (the applicant) who is:

(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or

(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).

(2) The applicant may apply to the court for leave to institute proceedings that are subject to the order.
(3) The applicant must file an affidavit with the application that:

(a) lists all the occasions on which the applicant has applied for leave under this section; and

(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and

(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.

(4) The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

(c) Section 102QG is concerned with the granting of leave if it has been sought by a person who is the subject by an order under s 102QB; and

(d) Where a person who is subject to a vexatious proceedings order, and where in contravention of that order the person commences proceedings (without seeking or being granted leave to do so), s 102QD sets out sanctions which may follow such a contravention.

195. In support of the order for the mother to be restrained from commencing further future proceedings without first applying for leave, at paragraphs 89 to 107 of the father’s written submissions it is contended that:

(a) the mother has instituted “an inordinate number of applications and appeals in this matter”, which have required at least 27 procedural and interim hearings (see  Newett & Newett  [2021] FamCA 82) and appeal judgments arising from my decisions, including my rejection on two occasions to recuse myself;

(b) the mother is a person “with no self control”, such that she should be seen as a “serial litigator”;

(c) the mother has brought proceedings in other courts related to the family law proceedings in this Court, including at least:

(i) a domestic violence appeal to the District Court of Queensland and an attempt to judicially review the dismissal by the District Court Judge to the Supreme Court of Queensland;

(ii) civil proceedings in the Supreme Court of Queensland against the single expert Psychiatrist Dr A, resulting in a dismissal of her claim and an order for costs;

(iii) private criminal prosecutions against the father, his solicitor, the Independent Children’s Lawyer at the time Mr AQ; the Commissioner of Police and at least one other Police officer; two or three witnesses who had sworn affidavits in the father’s case relied upon by the father in the interim proceedings (see the details in  Newett & Newett  & Anor (No. 5) [2020] FamCA 1023);

(iv) an unsuccessful contempt application; and

(v) proceedings pending, on the mother’s case, in the High Court of Australia (possibly arising from a complaint initially to the Australian Human Rights Commission),

and she seemingly is not concerned about the costs orders which have been made against her.

(d) The proceedings instituted by the mother “generally lack bona fides and/or are malicious” and the mother is filing “endless applications and appeals as a form of harassment”, with the father forced to respond.

196. The ICL made no submissions in respect of the father’s application under s 102QE.
197. The mother, at paragraphs 106 to 118 of her written submissions in reply appears to respond to the written submissions of the father for the order under s 102QE. I include the relevant submissions as expressed by the mother as follows:
     106. The hijacking of the Children’s proceedings for collateral purpose to bring this Vexatious Litigant application is an abuse of process. This fourth attempt should result in the Father receiving a vexatious litigation order, as he has failed on every previous attempt of which there have been at least three.
     107. The “serial litigator” comment made by Mr McGregor – Counsel for the Father is invalid – as the alternate actions were brought for proper legal purpose in genuine dispute of fact; to correct a mischief and to correct orders that are made ultra vires, and to correct the face of the records to prevent the Court from being led further into error during proceedings.
     110. It is to be remembered that all Criminal Prosecution Actions are able to be restored on account of the Father deliberately perverting the course of justice on 1 December 2020 to avoid Criminal Proceedings against himself, [Mr Armstrong] and [Mr AQ].
     111. It is to be remembered that all appeals did have legal foundation and were either “blocked” by unreasonable cost orders, or were dismissed on “legal technicality” and are appealable; as justice being served, and assurance of proper interpretation and application of the Law is the purpose of an appeal.
     113. All arguments made by the Mother in all cases have been grounded in legal foundation, with strong legal reasoning trying to “unravel the fraud” caused by the Father, his lawyers and Police, and are only ever dismissed on “technicality” due to her being self-represented without any legal assistance; and unable to write in a proper legal manner.
     114. The matters may be re-enlivened at any time, and will be at least to remove all Cost Orders, for her genuine attempt to correct the course of justice that had been perverted by the Father and his accomplices.
     116. Each and every action in every alternate Court was GENUINE brought by the Mother as a victim of tort and crime, who has the right to swift justice, and in a genuine effort to shed light on the covert criminal and tortious behaviour of various legal and medical professionals in the case, and produce correct and accurate State records - which would then be available to Family Court for a prudent and correct judgment.
          1. These actions can now be re-enlivened and Cost Orders reversed, upon new evidence of “fraud and deceit” by [Mr  Newett ] and his accomplices; per McDonald v McDonald (1965) 93 CLR 529 and McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418, under definitions in Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, upon statements made by the Father during cross examination on 20 September 2021 in the Family Court trial.
     117. A Writ of Prohibition and Mandamus will force the State of Queensland and Federal Authorities to act upon the full investigation and prosecution of such criminal acts of those who sought to harm the Mother and Children on instruction and direction of the Father.
     118. The Mother hopefully will not need to invigorate any further proceedings other than these Writs, which will require State and Federal Police to act on the matters; which then should correct the records; and actions taken for the reversal of Cost Orders. Exactly which entities are responsible for delivering appropriate compensation to the Mother and Children to account for their financial loss, personal loss, and associated trauma will be further examined.

(As per the original, emphasis removed)

198. I have read the mother’s submissions that I should not hear this application, but her view that me doing so might be construed as an “act of revenge” is without merit.
199. Where other courts have made decisions contrary to the mother’s position/claims and made costs orders against her, it is a matter for those courts as to whether costs orders are discharged. They also have available to them powers to restrict actions if they believe a litigant is vexatious in their jurisdiction.

DISCUSSION

200. It is clear the mother has made numerous interim applications – at times seeking the same relief as had earlier been dealt with by me. Not all of her applications have been without merit or unsuccessful, although most were.
201. The prolongation of the proceedings, for the reasons set out in the history, especially after the change of residence in March 2019, and the fact that the mother was usually unrepresented, meant that the mother’s inability to accept any adjudication contrary to her position, fuelled her actions. However, until the final orders have been made now in both property proceedings and parenting proceedings, the mother found no relief for her passionate advocacy other than to file further applications for discovery etc in the property proceedings and to agitate for variations to the interim parenting orders.
202. That the mother has had the capacity to launch so many applications in so many jurisdictions over a relatively short space of time of about four years is remarkable.
203. It is inevitable that the mother would wish to appeal the final parenting orders pronounced today and it would be proper for her to exhaust her available remedies to do so. The Full Court decision dismissing her property appeal is likely, I understand, to be the subject of a current application for special leave to the High Court of Australia. Again, the mother is entitled to exhaust her remedies.
204. I agree with the mother that an order sought by the father has a high threshold.
205. Whilst the proceedings were on foot in the trial division it could be asserted that the mother should have been restricted in launching so many applications. The father had made an application, on at least one occasion, for a s 102QB order during the proceedings which I refused to make.
206. In my view, the Court’s desire to conduct a trial in both matters to finalise the applications was the best it could so. Thereafter the appeal processes take their course.
207. I would not confidently predict what might be the mother’s chosen litigation course in her disputes with the father. I am aware the mother as a pending s 79A Application and the father an enforcement Application, which are to be heard by a different judge.
208. Subject to any successful appeal, the final parenting orders could only be varied after the requirements of cases like Rice & Asplund are dealt with, and it would be inappropriate for me to speculate that no material change of circumstances could arise in the future with children of this age.
209. Mr McGregor referred to a number of authorities, as did the mother. Where this case differs from so many of the earlier authorities I was referred to, is that the numerous applications by the mother in this jurisdiction all arise in a period from the commencement to a final decision.
210. Where a litigant, having received the final decision and having exhausted all appeal remedies just continues unrelentingly to commence new proceedings about the same issues, then the descriptor of “serial litigator” may be more apt.
211. I accept the mother has engaged, during this period and in the shadow of the decisions made about her children and her home/property, in litigation in other courts.
212. After careful consideration, in the exercise of discretion, I do not make the order sought by the father.
213. In his submissions, Mr McGregor referred the Court, amongst other authorities, to the Full Court decision in Sandex & Bondir (No. 2) [2017] FamCAFC 130, where the Full Court did not disturb an order made by the trial judge pursuant to s 64B(2)(g) of the Act that the mother be restrained from making any further application in relation to the children without first seeking leave by way of ex parte application to a judge.
214. In that case, there had been a final hearing (where the children were ordered to live with the father) and after multiple contraventions eight months later, the mother filed an application seeking the child live with her. It was after the second trial that the s 64B(2)(g) order was made. I can only assume the second application proceeded to trial after the Court had considered whether the principles in Rice & Asplund should apply.
215. The father’s application did not specifically seek an order under s 64(2)(g), and if the Court was minded to make such an order, the parties would be entitled to be heard on the Court’s contemplation about making such an order.
216. Ultimately, at this stage of these parties’ journey, I have decided that there is no need to seek further submissions as, on balance, I would not make an order under s 64(2)(g) anyway for the same reasons I have dismissed the father’s application for the s 102QE order.
217. The mother however should be on notice that the father could, in the future, make a similar application, when the history of these proceedings, and the Reasons now delivered, might be relied upon at that future time before a different judicial officer.

Associate:

Dated: 8 July 2022

APPENDIX ONE

1. That the Further Amended Initiating Application filed 13 September 2021 by Mr  Newett  in the Family Court of Australia be dismissed.
2. That all previous Orders be discharged.

Parenting

Live with

3. That the Children live with the Mother.
4. That in the event that the Court Orders that the Children do not live with the Mother, that the children live with the Maternal Grandmother (Second Respondent).

Parental Responsibility

5. That the Mother have Sole Parental Responsibility in relation to the Children, X born 2011, Y born 2013 and Z born 2014 (“the Children”).

(a) That whenever the Children are in the care of the Mother; the Father, his agents, associates, representatives or anyone on his behalf is restrained and an injunction is granted restraining the Father and any such person from:

(i) Contacting or approaching or attempting to approach the Mother and Children in any way;

(ii) Attending at or contacting the Children’s school in any capacity whatsoever;

(iii) Causing the Children to attend upon any medical practitioner, medical specialist, psychologist, psychiatrist, social worker or any other mental health professional;

(iv) Discussing with the Children anything about the Mother or the Orders of the Court;

(v) Being within 500m of where the Mother lives;

(vi) Surveillance of the Mother and the whole of the Children’s Maternal Family; their associates and friends by means of any form of monitoring or tracking of movements, activities or interpersonal associations including, for example, by using technology which includes such things as:

• reading of a person's SMS text messages;
• monitoring of a person's email account or internet browser history;
• monitoring of a person's account with a social networking internet site;
• using a GPS device to track a person's movements;
• accessing and/or checking of the recorded history in a person's GPS device.
• accessing by any means a person’s mobile or landline telephone or telephone account.

(vii) Requesting or engaging any third party to do anything outlined in points (5)(e)(i.-vi.) above.

Living Arrangements in the Alternative, where the Mother is not granted Sole Parental Responsibility and/or Orders to Live with the Children

6. That in the event that the Court does not give Sole Parental Responsibility of the Children to the Mother the following orders are sought:

(a) That the 2^nd Respondent maternal grandmother, Ms Adlam be given full sole parental responsibility (Guardianship) of the Children until such time as the Children are of age to make their own decision with whom they wish to live.

(b) That the maternal grandmother, Ms Adlam have sole responsibility for making decisions about the day to day care, welfare and development of the Children while ever the Children are in the care of the maternal grandmother.

(c) That the Mother and the Father contribute an amount to be determined by the Court in line with their respective income and business revenue, to be garnished by the Child Support Agency; paid monthly into a trust account for the Children for their care.

(d) That while the Children are in the care of the Maternal Grandmother; the Mother be permitted to be supervised with the Children by the Maternal Grandmother, at times agreed with the Maternal Grandmother.

(e) That whenever the Children are in the care of the Maternal Grandmother; the Father, his agents, associates, representatives or anyone on his behalf is restrained and an injunction is granted restraining the Father and any such person from:

(i) Contacting or approaching or attempting to approach the Children in any way;

(ii) Attending at or contacting the Children’s school in any capacity whatsoever;

(iii) Causing the Children to attend upon any medical practitioner, medical specialist, psychologist, psychiatrist, social worker or any other mental health professional;

(iv) Discussing with the Children anything about the Children's living with the maternal grandmother;

(v) Being within 20 kilometers of where the maternal grandmother lives.

(vi) Surveillance of the maternal grandmother and the whole of the Children’s maternal family; their associates and friends by means of any form of monitoring or tracking of the Children’s maternal family’s movements, activities or interpersonal associations including, for example, by using technology which includes such things as:

• reading of a person's SMS text messages;
• monitoring of a person's email account or internet browser history;
• monitoring of a person's account with a social networking internet site;
• using a GPS device to track a person's movements;
• accessing and/or checking of the recorded history in a person's GPS device.
• accessing by any means a person’s mobile or landline telephone or telephone account.

(vii) Requesting or engaging any third party to do anything outlined in points (6)(f)(i.-vi.) above.

Children’s Time with the Maternal Grandparents and Maternal Family

7. That the Children spend time with the Maternal Grandparents and Maternal Family at all times as may be agreed, but failing agreement, as follows:

(a) Christmas school holidays 2020;

(i) From the conclusion of school at the end of Term 4, 2020 until the commencement of school or 9:00am on Wednesday, 27 January 2021.

(b) In consideration that the children have not spent any time with their Maternal Grandparents or their Maternal Family since Christmas 2018 and they have spent every school holiday period in 2019 and 2020 with the Father and the Paternal Family;

(i) That the children spend all of Christmas Day and Boxing Day with the Maternal Family.

(c) During school holidays of 2021 and thereafter;

(i) For the first 2 weeks of all school holiday periods and the whole of the 2021/2022

(ii) Christmas school holiday period.

8. That changeover pursuant to Order 7 is to occur with the Mother or her authorised agent at the Children’s School.
9. That during the time with the Maternal Grandparents and Maternal Family that the Children have no contact with the Father and Paternal Family.

Time with Father

10. That the Father have no physical contact with the Children; save, pursuant to the conditions of Order 11 below having been fully met:

(a) One supervised visit every School Holiday period of no more than two (2) hours at a Supervised Centre in the BM Region selected at the discretion of the Mother, to be held under video and audio surveillance conditions, and such recordings to provided to the Mother for review; and

(b) the Father be at liberty to send cards and gifts to the Children, with the Mother at liberty to check and determine the appropriateness of such cards or gifts before providing to the Children.

11. That following evidence provided to the Mother of complete Medical Reports, showing:

(a) Evidence of detailed pathological and neuropsychiatric assessment, treatment and management of his brain injury;

(b) Full detailed psychiatric assessment, and follow up psychiatrist attendance by the Father for a minimum of 6 visits over 3 months, with a commitment to ongoing care until the Children are 18 years of age, and

(c) Psychotherapist attendance by the Father for a minimum of 24 visits for no less than 24 months,

(d) A detailed psychotherapist report at the conclusion of every 12 months psychotherapy demonstrating behavioural change of the Father, ability to take responsibility for actions and behaviours towards the Mother and Children, and a complete change in thought patterns of the Father in relation to the Mother.

School

12. That the Mother have and maintain at all times full Educational Guardianship of the Children.
13. That the Children attend school at a private school chosen by the Mother.
14. That the Father shall pay the full cost of the children’s schooling, school-related activities and extra-curricular activities.
15. That the Father be restrained from any contact or communication with the Children’s School.

Medical

16. That the Mother have and maintain at all times full Medical Guardianship of the Children.
17. That the Children attend at medical practitioners chosen by the Mother.
18. That the Father shall pay the full cost of the children’s medical needs and requirements.
19. That the Father be restrained from any contact or communication with the Children’s Medical Practitioners or Services.

Parental Responsibility (Day-to-Day)

20. That the Mother have sole responsibility for making decisions about the day to day care, welfare and development of the Children while ever the Children are in her care.

Exchange of Information

21. That the Mother provide information to the Father on an emergency and needs basis only, solely at her discretion.
22. That while the Children are in the unsupervised care of the Father, the Father is to provide any and all information to the Mother regarding the Children’s Schooling, Sporting, Health and Emotional Status within 4 hours of any request by the Mother.
23. That any and all communication between parties regarding the children is to occur through the use of a co-parenting application as determined by the mother.
24. That the Father is prohibited from providing a copy of any court document or any other information relating to the Mother other than current court orders to any person; including the Children’s School, treating Medical or other Allied Health practitioners, any Court of Australia, and any Australian Federal or State Government Department or Authority, except by the written agreement of the Mother.
25. That the Mother is permitted to review all Records; including the Children’s School, treating Medical or other Allied Health practitioners, any Court of Australia, and any Australian Federal or State Government Department or Authority; and have the content rectified in terms of any false information held therein.

Airport Watch List

26. That until further order, the parties Father, their his servants, associates and/or agents be and are hereby restrained by injunction from removing or attempting to remove the children, X born 2011, Y born 2013 and Z born 2014 from the Commonwealth of Australia.
27. That the Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders, including all things necessary to include and retain the said child’s/children’s name on the Watch list in force at all points of arrival and departure in the Commonwealth of Australia, and to maintain the child’s/children’s name on the Watch list for a period of ten years from the date of these Orders or until further order of the Court.
28. That upon expiration of the period referred to in the preceding Order and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s / children’s names from the Watch List.

Passports

29. That within five (5) days of order the Children’s passports be returned to the possession of the Mother.
30. That the Mother retain possession of the Children’s passports at all times that the Children are not travelling overseas.
31. That the Father, his family, his agents and/or associates be prohibited from obtaining passports for the Children in the domicile of any country other than the Commonwealth of Australia.
32. That any existing passport in the name of the Children obtained in the domicile of any country other than the Commonwealth of Australia be immediately destroyed and revoked.

Authority to Travel Overseas with the Children

33. That the Father, his family, his agents and/or associates be prohibited from travelling with the Children overseas without the express written permission of the Mother.
34. That in the event the Children are to travel overseas with any parent, they Children are prohibited from travelling to any country that is not a signatory to the Hague Convention.
35. That while the Children are in the care of the Mother, the Children are permitted to travel overseas in the accompaniment of the Mother, and

(a) Supervised visitation and phone contact with the Father are to be suspended upon any travel overseas; and shall resume on the Children’s return to Australia.

Recovery Orders

36. That until further order, the parties, their servants, associates and/or agents be and are hereby restrained by injunction from removing or attempting to remove the children, X born 2011, Y born 2013 and Z born 2014 from the Court Ordered Care of the party to which the orders give benefit.
37. That the Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to immediately take all necessary steps to give effect to these orders, including all things necessary to return the children to the Court ordered care to the party which the orders give benefit.

Ongoing Child Maintenance

38. That the Father pay ongoing Child and Spousal Maintenance to the Children and the Mother in line with the Father’s business revenue and earning capacity, at no less than 30% of gross business revenue payable within 24 hours of receipt of such revenue, and at no less than $1500 per week; and be determined by the Court.
39. That Orders result in an allocation that serves the best financial and long term interest of the Children with specific attention to;

(a) Stable housing and transport at pre-separation standards

(b) Private school education at pre-separation standards

(c) Long term private health needs are met at all times.

(d) Personal growth development needs met at all times in line with the Children’s talents and life interests.

40. That the Father pay the cost of the Mother and Children’s rental accommodation (or replacement mortgage) for a period of no less than three calendar years, at a fixed price of $1000 per week, with monies placed in an Account as defined by the Wife; and monies to be paid one month in advance of each calendar month.
41. That the Father pay an amount of $60,000 to the Mother to procure a suitable long-term vehicle for the use of the Children’s care.

Costs

42. The Applicant pay the full cost of these proceedings for all parties to the Case, including Appeal Hearings, Cost Orders derived from these proceedings or affected by these proceedings in any jurisdiction in any Court of Australia, and ancillary costs incurred by all Parties.

APPENDIX TWO

1. That all previous Orders and Parenting Plans be discharged.
2. That except as otherwise stated, the Father is to have sole parental responsibility for the major long term issues of the children X born 2011 Y born 2013 and Z born 2014.

Exchange of Information

3. That the Mother and Father shall keep the other parent informed at all times of their current email address.
4. The Father shall, not less than once each six months, provide by email to the Mother a report as to the health, educational progress and general social activities of the children.
5. That during the time the children are with either parent, that parent shall:

(a) respect the privacy of the other parent and not question the children about the personal life of the other parent;

(b) speak of the other parent respectfully;

(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavors to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

Time with the parents

6. The children shall live with the Father.
7. That the children shall spend time with the Mother:

(a) On a supervised basis for a period of two hours at the BB Contact Centre at AH Town on the first Saturday of every Queensland gazetted school holiday period; and

(b) On a supervised basis for a period of two hours at the BB Contact Centre at AH Town on the fifth Saturday of every Queensland gazetted school term.

8. The parents shall, within 14 days, enrol with the BB Contact Centre at AH Town at their own cost and do all acts and things and pay all monies required to undertake any enrolment process.
9. The parents shall be equally responsible for the costs of the contact centre.
10. In the event that:-

(a) The Mother fails to pay her share of costs of the supervision;

(b) The Mother fails to attend the centre to spend time with the children on more than two occasions each calendar year;

then Order 7 shall be discharged.

11. The Mother shall be at liberty to send cards, gifts and letters to the children and the Father shall forthwith provide the cards, gifts and letters to the children unless he considers the content of them to be inappropriate.
12. The children shall spend time and communicate with the maternal grandparents at such times and in such manner as agreed between the grandparents and the Father only.
13. Notwithstanding order 12, the maternal grandparents shall be at liberty to spend time with the children at the same time the Mother is spending time.
14. Except as set out in Order 7, pursuant to section 68B of the Family Law Act 1975 (Cth) the Mother and anyone on her behalf is restrained and an injunction is granted restraining the Mother and any such person from:

(a) Contacting or approaching or attempting to approach the children in any way;

(b) Attending at or contacting the children's educational facilities, sporting or extracurricular activity providers, counsellors or medical practitioners in any capacity whatsoever;

(c) Disseminating any information about the Father to any parents of the children who attend such educational facilities, sporting or extracurricular activity providers, counsellors or medical practitioners; and

15. Except as set out in Orders 12 and 13, pursuant to section 68B of the Family Law Act 1975 (Cth) the maternal Grandmother and anyone on her behalf is restrained and an injunction is granted restraining the maternal Grandmother and any such person from:

(a) Contacting or approaching or attempting to approach the children in any way;

(b) Attending at or contacting the children's educational facilities, sporting or extracurricular activity providers, counsellors or medical practitioners in .any capacity whatsoever;

(c) Disseminating any information about the Father to any parents of the children who attend such educational facilities, sporting or extracurricular activity providers, counsellors or medical practitioners; and

(d) Causing the children to attend upon any medical practitioner, medical specialist, psychologist, psychiatrist, social worker or any other mental health professional;

16. Pursuant to S.11 (2) of the Australian Passports Act 2005, the Father is authorised to obtain an Australian travel document for each of the children without requiring the mother's consent or signature.
17. The Independent Childrens Lawyer be discharged.