Abernathy & Coxson
[2021] FedCFamC2F 227
•22 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abernathy & Coxson [2021] FedCFamC2F 227
File number(s): PAC 862 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 22 October 2021 Catchwords: FAMILY LAW – interim parenting – best interests of children – Orders made Legislation: Family Law Act 1975 (Cth), ss 69ZL, 60B, 60CA, 60CC Cases cited: Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
Marvel & Marvel(No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36
Division: Division 2 Family Law Number of paragraphs: 85 Date of last submission/s: 21 September 2021 Date of hearing: 21 September 2021 Solicitor for the Applicant: Ms Spain Solicitor for the Respondent: Mr Cummings SC ORDERS
PAC 862 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ABERNATHY
ApplicantAND: MS COXSON
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
22 OCTOBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.That the child spend no time with the Father.
2.Pursuant to section 68B of the Family Law Act 1975 (Cth) that the Father be restrained by injunction from entering within 100 metres of:
(a)the child’s residence,
(b)the child’s preschool or school, and/or
(c)the place of employment of the Mother
3.The Father’s proposed Minute of Orders sought in his Outline of Case Document (Interim Hearing) filed 17 September 2021, seeking to spend time with the child, is dismissed.
4.The proceedings are adjourned to 28 October 2021 at 9:30am for mention.
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 a pseudonym Abernathy & Coxson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN
These are short form reasons under section 69ZL of the Family Law Act 1975 (“the Act”) in relation to an interim parenting hearing held on 21 September 2021 relating to the child, X, born in 2020.
The Father is yet to spend time with the child. He seeks interim parenting Orders as set out in his Outline of Case Document (Interim Hearing) filed 17 September 2021.
The Father seeks interim parenting Orders, inter alia:
(a)To spend supervised time with the child each Monday and Wednesday from 3 PM to 6PM, to be supervised by B Contact Centre, C Contact Centre, D Contact Centre, or such other child contact supervising agency as conveyed to the Mother by the Father in writing at the Father’s sole cost;
(b)The Mother to do all acts and things and sign all necessary documents so as to complete any intake procedure required by the child contact supervising agency within 48 hours of receiving the intake forms;
(c)The supervisor is to prepare a report following any periods of time the child spends with the Father at the Father’s sole cost;
(d)The Mother shall deliver the child, or cause him to be delivered, to the supervisor at the commencement of the Father’s time with the child and she shall collect the child, or cause him to be collected, from the supervisor at the conclusion of the Father’s time with the child;
(e)From 14 December 2021 onwards, that the child shall spend unsupervised time with the Father each Monday, Wednesday and Sunday from 3 PM to 6 PM, and changeovers shall occur as agreed between the parents, but failing agreement, at McDonald’s Suburb E.
The Mother’s proposed interim parenting Orders are set out in her Response to Application for Final Orders filed 12 April 2021; she seeks Orders that, inter alia, the child spend no time with the Father, and she seeks a section 68B injunction restraining the Father from entering within 100 metres of the child’s residence, the child’s preschool or school; and/or the place of employment of the Mother.
On 14 April 2021, interim parenting Orders were made by consent, inter alia, that the child live with the Mother.
MATERIAL RELIED UPON
The Father relied upon his Outline of Case Document (Interim Hearing) filed 17 September 2021 and which set out the documents that he relied upon for the interim hearing:
(a)Initiating Application filed 22 February 2021;
(b)Notice of Risk filed 19 February 2021;
(c)Affidavits of the Father filed 19 February 2021 and 13 September 2021;
(d)His Tender Bundle of documents emailed to the Court on 21 September 2021.
The Mother relied upon her Case Outline filed 17 September 2021 and which set out the documents that she relied upon for the Interim Hearing:
(a)Response filed 12 April 2021;
(b)Notice of child abuse, family violence and risk filed 12 April 2021;
(c)Affidavit of Mother filed 16 September 2021;
(d)Affidavit of Dr F in filed 12 April 2021;
(e)Affidavit of Dr G filed 14 September 2021.
(f)Her Tender Bundle of documents emailed to the Court on 21 September 2021.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
…
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3) and in this regard the Court refers to Banks & Banks above.
The Father is aged 39 years. He is self-employed and has his own company.
The Mother is aged 39 years. She works as a finance professional.
The Father was in a short relationship with the Mother. The parties began dating from about mid 2019 and they separated, alleged by the Father, on 12 November 2019. The Mother alleges the parties separated in late September 2019. The parties never lived together according to the Father.
The Father alleges that in about 2019, the Mother informed him that she was pregnant. He alleges that when they separated, the Mother was 10 weeks pregnant.
The Father alleges that on 4 December 2019, he received a letter from the Mother’s lawyer stating, inter alia, that he had been harassing and intimidating the Mother, which the Father denied. He alleged that the letter also requested that he refrain from contacting the Mother directly.
The Father alleges that in 2020, the Mother texted him to advise that the baby had been born. He alleges that the Mother texted him stating that once the child had been immunised she would contact the Father.
The Father alleges that on about 12 July 2020, he texted the Mother asking how everything was going with the child however the Mother did not respond. On about 5 August 2020, he instructed his lawyers to send correspondence to the Mother’s lawyers requesting that the Mother provide a regular schedule as to when he could spend time with the child.
The Father acknowledges that the Mother had a difficult upbringing. He states that during the parties’ relationship, the Mother expressed words to the effect of, “I was a heroin baby” and “I was raped and beaten during childhood, left homeless and was attacked with a sledgehammer by my grandfather.”
In the Father’s Tender Bundle of documents, there are alleged copy text messages between the parties during the Mother’s pregnancy relating to the Father’s future involvement in the child’s life.
The Father vehemently denies having non-consensual sexual intercourse with the Mother on 13 September 2019 or at any time. The Father alleges that he had consensual unprotected sex at the Mother’s request on 18 September 2019 and on 13 October 2019.
The Father alleges that the situation between the parties started deteriorating so he had an initial appointment with his solicitors on 25 November 2019. He alleges that he told the Mother that he was in the process of seeking legal advice because the Mother was being unreasonable. The Father alleges that in early December 2019, he received the first letter from the Mother’s solicitor. He alleges that from this date up until about mid-June 2020, the parties were on amicable terms, and the Mother was being cooperative and agreed to do a paternity test.
The Father accepts that he texted the Mother the words, “you are overreacting. The drugs are going to your head. You are crazy” on 28 September 2019. He states that in hindsight he should not have texted her this message.
The Father alleges that in about mid November 2019 the Mother advised him that she had left his things at her front door.
The Mother alleges in her Affidavit filed 16 September 2021, inter alia, that she currently has no contact with the Father.
She alleges that she is currently working from home and caring for the child full-time.
The Mother alleges a very disturbing childhood. She alleges that as a child she was exposed to her Mother and her partner’s severe heroin addiction and their prostitution to fund their addiction. She alleges that she did not know her biological Father until 2002. She alleges she was brought up by her Mother and de facto Father Mr H (hereinafter “Mr H”) until 1988 when the maternal grandfather was awarded care of the Mother and her brother.
The Mother alleges between 1984 and 1990 when she was 2 to 8 years old, Family and Community Services (‘FACS’) was heavily involved with their family as a result of the physical, sexual and mental abuse suffered by the Mother and her brother. The Mother alleges that she was prostituted, physically abused, starved, malnourished, dirty and lived in constant fear.
The Mother alleges that between the ages of 2 and 6 she was frequently sexually assaulted by Mr H’s friends in return for money which Mr H used to fund his heroin addiction. She alleges that they were removed for frequent short periods by FACS and then returned to her Mother’s and Mr H’s care.
The Mother alleges that in 1988, her Mother was killed in a car accident. She alleges that between February 1988 and late August 1988, they were often homeless and slept in train stations and parks whilst Mr H hid the Mother and her brother from the police and/or FACS. She alleges that she and her brother lived in various foster homes at times when they were not living with Mr H. She alleges that Mr H found them at each home and abducted them until the police tracked them down and arrested Mr H again. She alleges that Mr H became increasingly violent and on one occasion when the police attempted to forcibly remove the Mother and her brother, Mr H held a gun to the Mother’s head and said words to the police to the effect of “if you try to take the children I will kill them and then I will kill myself.”
The Mother alleges that as a result of her childhood experiences, she finds it difficult to trust or rely on people. She alleges that she is highly protective of the child.
In the Mother’s Affidavit, she describes and alleges an extensive medical history, including surgery in 2019.
The Mother alleges that on 13 September 2019, she went out to dinner with the Father and consumed alcohol, in addition to her prescribed pain medications. The Mother alleges that she does not recall events upon their return home other than the parties having a glass of wine and watching television. She alleges she did not wake up until the following day 12:30 PM to 1PM. The Mother alleges that on 13 October 2019 she advised the Father that she was pregnant and told the Father that she did not know how this happened. She alleges that the Father stated that he did know, and told the Mother that she was passed out drunk on the living room floor and he picked the Mother up and took her to bed and that the Father was drunk too. The Mother alleges that these statements of the Father to her on 13 October 2019 caused her to believe that on 13 September 2019 the Father had had non-consensual sexual intercourse with her whilst she was unconscious. The Mother alleges that she was in a state of shock at the revelation of her pregnancy, recovering from surgery and unable to comprehend the effect of what the Father had said. She states that she did not report the (alleged) rape to the police at the time and she remained in contact with the Father for the following few weeks. She alleges that she has now reported the alleged rape to the police.
The Mother acknowledges that she previously intended to include the Father as part of the child’s life. She alleges that she did not anticipate the complex trauma that would be triggered after the child was born.
The Mother alleges that in mid-November 2019, the parties had a disagreement over money. The Mother alleges that there were text messages exchanged. She alleges that she was incredibly distressed by a comment of the Father in relation to one message.
The Mother alleges that the impact of the Father’s commencement of these proceedings has been profound. She alleges that she is under the care of her GP who she currently attends monthly. She was also seen by her psychologist weekly until June 2021 when she commenced attending upon Dr G, psychiatrist. She alleges she now attends upon Dr G weekly and no longer attends upon her psychologist.
She alleges that Dr F her GP, the psychologist and Dr G have each diagnosed her with dissociative disorder arising from post-traumatic stress disorder and severe separation anxiety. She alleges she suffers from, inter alia, dissociative episodes, anxiety, depression and sleeplessness. She alleges that she has constant anxiety and panic that the Father will harm or abduct the child and that she suffers from frequent and recurring nightmares where the Father appears in lieu of her stepfather Mr H. The Mother alleges that as a result of her disassociation, she struggles to distinguish between the Father and Mr H in the present day.
The Mother alleges that when she suffers from a dissociative episode, she experiences vivid flashbacks to her childhood, she is unable to comprehend her surroundings or where she is and she believes she is in danger. She alleges she hyperventilates and experiences dizziness, disorientation and uncontrollable shaking. She alleges that this is triggered by events such as been contacted by her solicitors, receiving legal advice, reading court documents, when she becomes fearful that the Father is nearby and when people discuss the child not being in her care. The Mother alleges that she has no memory of what occurs around her when she is dissociated. She alleges that her dissociative episodes have become more frequent since these proceedings and are becoming longer in duration, with severe episodes lasting up to 12 hours. The Mother alleges that she has been prescribed medication including antidepressant medication to assist her coping with the alleged trauma of the Father’s commencement of these proceedings.
The Mother alleges that she is coping well with the demands of parenthood with the support of the maternal grandfather and a nanny when she is affected by the alleged psychological trauma of dealing with the Father and this litigation.
The Mother alleges that she is currently breastfeeding the child and will continue to do so until the child self-weans. She alleges that the child feeds approximately every three hours throughout the day and when he wakes during the night. She alleges that she has downsized her business to focus on the child. She alleges that she was previously assisted by a nanny three days per week. However, the Mother alleges that the nanny is not currently assisting the Mother due to Covid 19. She alleges that she continues to have the assistance of her grandfather.
In the report of the Mother’s GP dated 1 April 2021, the GP states, inter alia, that over the past 9 years he has seen the Mother for about 100 consultations. He states that over the years he has treated the Mother for depression and the Mother has responded well to treatment. He refers to the Mother’s significant trauma and emotional distress stemming back to childhood issues, parental and fiancé death, but she engaged well with treatment. He states that the Mother’s mental state was good in mid-2019. He states that early on in the Mother’s unplanned pregnancy, the Mother described to the GP “having issues” with the Father and the GP advised the Mother to seek legal advice on 30 November 2019. The GP asserts that on 16 January 2020, he also noted ongoing paternity issues at the consultation. He asserts that after the birth of the child on 21 July 2020, he consulted with the Mother and it was clear that her mood and anxiety had further deteriorated. The Mother described her fears that the Father would kidnap the baby, as had happened to the Mother as a child. The Mother and the GP agreed to increase the Mother’s medication as a result of this increased anxiety and to organise a referral to a psychologist. The GP states that he saw the Mother 8 August 2020 and her anxiety had worsened despite the increased medication. At this point the GP refer the Mother to a psychiatrist.
The GP refers to the Mother continuing to suffer with increasing anxiety as a direct result of her fears of losing custody of the child. On 26 October 2020, the GP reviewed the Mother’s Mental Health Plan. At this point, the Mother had a physical exacerbation of her acne as a result of her stress. The Mother described feeling paranoid as a result of the child’s Father and his pursuit of custody. The GP states that over the last few months he has continued to see the Mother. He states that the stress of the ongoing family law proceedings have caused the Mother to become anxious and trigger a PTSD-type response to her own childhood traumas and abduction. The GP states his opinion that the pressures and stresses brought on by these proceedings have moved a woman who had a stable and well-managed mental state, able to run a successful business, to a woman who was anxious, agitated and now having flashbacks of previous trauma. He states his opinion that had these events not occurred, the Mother would not be in the current state of distress that she is. He states that he is unable to comment on the potential long-term effects that such stress and trauma will have on the Mother and her son, but he worries that this ongoing stress will have a detrimental effect on them both. The Court takes into account the contents of the report of the Mother’s GP dated 1 April 2021 whilst acknowledging that that report remains untested.
The report of Dr G is dated 13 September 2021 and is relied upon by the Mother. That report is annexed to an Affidavit by that psychiatrist filed 14 September 2021.
The Court does not propose to set out the entirety of the report of Dr G, the Mother’s treating psychiatrist, and now refers to relevant parts of it pertaining to the Mother.
Dr G refers to having had about 10 consultations with the Mother since 29 June 2021. He states the Mother is currently being reviewed on a weekly basis.
In paragraphs 10 to 19, Dr G refers to the material that he considered for the preparation of his report, including an Affidavit of the Father filed 19 February 2021, an Affidavit of the Mother filed 12 April 2021, the Affidavit of Dr F filed 12 April 2021, a letter from that GP, and the history obtained from the Mother during the assessment interviews.
Dr G refers to the Mother presenting with a history of severe anxiety and distressed mood subsequent to events following the birth of the child. He states that the Mother’s history was initially difficult to obtain due to significant anxiety with crying and disassociation occurring when discussing past and recent traumatic events in her life. He states the Mother’s history was consistent throughout all interviews, displaying openness and honesty in answering questions.
Dr G states that the Mother described her mood as variable with periods of anxiety and low mood interspersed by normal mood periods sustained for days at a time. The episodes of low mood were of several days in duration. The Mother described a disturbed sleep pattern with initial insomnia due to anxious thoughts which were difficult if not impossible to control.
Dr G refers to the Mother experiencing significant anxious thoughts, of an intrusive type, which were difficult if not impossible to control and included, inter alia, repetitive intrusive thoughts of the Father kidnapping the child, memories of past events with images of herself when she was subjected to traumatic events involving Mr H, images and memories of being sexually assaulted as a child from the ages of 3 to 6 years of age, images and memories of being kidnapped by Mr H, images of Mr H assaulting her Mother, and images of Mr H assaulting other people, involving the use of weapons, especially knives. The doctor states that the Mother’s intrusive disturbing images were triggered and increased in intensity and frequency if she went near the locations where previously disturbing events had happened. An example of this was her experiencing flashbacks when at a retail outlet near to where the Father lives. Another trigger causing intrusive images was the sight of NRL jerseys of a sports team that the Father follows as well as media mentions of this team.
Dr G states that the Mother has experienced nightmares on most nights of the week involving both Mr H and the Father.
Dr G refers to the Mother experiencing dissociative episodes and during these she has feelings that the past events are occurring, including her being kidnapped and she then believes the same is happening to her child and she has flashbacks of her past traumatic episodes.
Dr G states that the Mother’s anxiety and associative episodes are brought on by a range of cues including:
(a)If she sees someone holding a knife, she experiences the memory of Mr H holding a knife and she fears someone will be stabbed. Whilst she never felt comfortable around knives, the current fear reaction has only been triggered since the current proceedings.
(b)Certain words, for example, the words Mr H will trigger the anxiety as do the words Mr Abernathy.
(c)Shows with violence previously caused anxiety but now she is not able to watch any violence in shows as a severe anxiety reaction is triggered.
Dr G refers to the Mother experiencing some physiological responses to the above triggers which include a rapid heart rate, sweating, rapid shallow breathing, visual disturbance and feeling faint.
Dr G refers to the Mother displaying avoidance of stimuli or memories related to past events as these trigger severe anxiety and include:
(a)Avoidance of talking about the past events, including childhood events and events around the relationship with the Father.
(b)She avoids shops and the suburbs which the Father frequents.
(c)Avoidance and heightened fear around public spaces as she feels that passing cars and strangers are connected to the Father and are monitoring her with the intent of kidnapping the child.
Dr G refers to the Mother’s fear of the child being kidnapped having an overvalued quality, which has led the Mother to repeatedly check locks on her house, install security shutters and CCTV monitoring and change her car and number-plates.
Dr G refers to the Mother displaying negative alterations in cognitions and mood, including loss of trust and negative perceptions including, inter alia:
(a)She holds a belief that in the same way she was kidnapped as a child, the Father will kidnap the child if he is given access to the child.
(b)She has difficulty trusting others.
(c)She believes that the legal system will let her down as happened during her childhood.
(d)She perceives that the Father is the same as Mr H, saying “he is exactly like Mr H and he wants his way… He will take (the child)… unless he is in full control and he gets what he wants it is his way or no way – and if he gets his way he will want more the next day… there are systems in place but it will not stop him taking (the child) and trying to control my life”.
Dr G refers to the Mother, following the receipt of a text message from the Father on 14 June 2020, coming to believe that the Father wanted access to the child for the wrong reasons, these being he is forcing his way back into her life so as to manipulate and control her. This being a parallel to the behaviours of Mr H caused a significant escalation of symptoms and emergence of other symptoms such that her function was affected.
Dr G took a history from the Mother relating to the events of the evening of 13 September 2019. This history included the Mother contacting the Father and telling him that she was pregnant and that he allegedly told her what had happened the night when they went to dinner. The Mother stated to Dr G that the Father told her that she had passed out and he took her to her bedroom and had sexual intercourse with her. The Mother had told Dr G that following the consumption of alcohol by the Mother on the evening of 13 September 2019, the Mother lost her memory of the subsequent events that evening.
Dr G refers to the Mother, in light of her traumatic childhood, wanting to give the child a good upbringing including a relationship with the Father and as such tried to include the Father. Dr G took a history from the Mother that in the ensuing period the Father became more controlling and demanding and the Mother began to experience anxiety. He takes a history that arguments between the parties continued until November 2019 with the Mother terminating contact with the Father due to his behaviours.
Dr G under the heading Past Psychiatric History, states that whilst there was no history of diagnosed adolescent depression, on retrospective history there was a presence of significant symptoms indicating undiagnosed depression and PTSD.
Dr G referred in some detail to the Mother’s mental state examination at interviews. Inter alia, he referred to the Mother being very anxious at the first interviews and she became tearful and cried on relating her past history and she frequently dissociated. He referred to the Mother’s affect (emotional reactivity) being somewhat expanded, displaying hyperarousal and hypervigilance with resulting anxiety and crying. Dr G referred to the Mother’s minimisation of symptoms, frequently focusing on perceived personal deficits.
Under the heading Opinion Re: Mental Illness, Dr G states that the symptoms of the Mother are consistent with a diagnosis of Post-Traumatic Stress Disorder PTSD with dissociative symptoms, depersonalisation and derealisation and with delayed expression. He stated that specifically the Mother has met the criteria for causation i.e. witnessing or experiencing actual or threatened serious injury. He refers to the symptoms of the Mother having resulted in significant distress and impaired function.
Under the heading Management, Dr G refers to the Mother currently being treated with psychological therapy including cognitive behavioural therapy and supportive therapy. He refers to the Mother commencing on medication with the range of potential medications being limited due to ongoing breastfeeding.
Dr G specifically answered questions asked of him in a letter from the Mother’s solicitors. Importantly, Dr G answered the following questions as set out below:
·“Your opinion as to the effect that involvement in the proceedings may have on (the Mother)”:
The current proceedings are having a significantly negative effect on (the Mother) having caused severe symptoms of PTSD to be expressed. The termination of these proceedings is essential to minimising the impact and full recovery.
·“The effect of any Orders that (the child) spend time with (the Father) might have on our client’s functioning and in particular her parenting capacity”:
The effect of (the Father) spending time with the child is significant due to the parallels of the relationship with Mr H and her past childhood abuse. (The Mother) was repeatedly removed as a child by Mr H to coerce (the maternal grandMother) despite safeguards to prevent this, including DOCS involvement. (The Mothers) fear that these actions will be re-enacted by (the Father), that is kidnapping of the child and use of the child to coerce (the Mother) are significant. Furthermore, as a child (the Mother) was part of a controlling coercive relationship with Mr H involving her and her Mother and this style of relationship is repeated in the relationship with (the Father). There is a very significant parallel between the sexual abuse experienced by (the Mother) as a child and the sexual relations with (the Father). Additionally, the conception of the child was a non-consensual event and the reminder of this event would occur on any contact with (the Father). My opinion for that event being non-consensual is based on (the Mother) being inebriated and being on a significant amount of opiate medication making consent not possible.
·“The symptoms of (the Mother’s) diagnosis, including whether the symptoms include any behaviours that may constitute a risk to herself or any other person, or impact upon her parenting generally”
In regards to symptoms affecting parenting capacity there are no concerns at the moment. It must be noted that her symptoms are intermittent, occurring when triggered. (The Mother) has put in place measures to minimise exposure to triggers and to minimise the impact of symptoms….The cessation of family law proceedings will assist with recovery, given that they reduce exposure to (the Father).
There are no symptoms or behaviours such that these currently constitute a risk to herself or others. However, should continued exposure to (the Father) occur there is a possibility of suicidal risk emerging, this risk being much higher in patients suffering from PTSD who are repeatedly exposed to causal factors. By virtue of the parallels of (the Father) and (the Mothers) relationship to her childhood history as well as the events surrounding the conception of the child, (the Father) presents as a causal factor in (the Mothers) PTSD.
·“Impact of (the Mother’s) family history on her capacity to co-parent with (the Father)”
As noted in paragraph 194.2 (the Mother’s) childhood history and the parallels with the relationship with (the Father) play a significant part in her current symptomatology. As such, co-parenting with (the Father) presents a significant risk to (the Mother’s) well-being as this would be recurring exposure to a causal factor.
·“Your recommendations, if any, in relation to future treatment and any proposed treatment plans”
Future treatment will include ongoing treatment to deal with the PTSD and is outlined in the section on Management above. Significantly any exposure to (the Father) should be avoided due to the risk of impact on her health and consequentially on her parenting capacity. Should her parenting capacity be impaired it may have a negative effect on the child. This risk would need to be weighed against the impact on the child not having a relationship with the biological Father, keeping in mind that no current relationship and therefore no parental bond has yet taken place between the child and the biological Father.
The Court takes into account the contents of the report of Dr G, psychiatrist, whilst acknowledging that his report is untested at this interim stage.
The Court, for the purpose of this interim hearing, broadly accepts the submissions of the Mother in preference to the submissions of the Father.
The Mother, through her senior counsel, submitted, inter alia, that having regard, in particular, to the allegations of the Mother and the contents of the report of Dr G there was a significant risk that the Mother would experience severe symptoms of PTSD should the Court make the Father’s proposed interim parenting Orders that the child spend a period of initial supervised time with the Father and then unsupervised time with him; senior counsel submitted that if such symptoms were experienced by the Mother there was a real risk that the Mother’s parenting capacity for the child would be adversely affected with consequential adverse effects upon the child. Senior counsel for the Mother also submitted that Dr G’s opinion that “should continued exposure to (the Father) occur there is a possibility of suicidal risk emerging, this risk being much higher in patients suffering from PTSD who are repeatedly exposed to causal factors” was of significant concern.
In the view of the Court, there is an unacceptable risk of harm posed to the child if he were to spend an initial period of supervised time with the Father and then unsupervised time, as proposed by the Father. This risk of harm would be the significant risk that the child would be exposed to neglect in the Mother’s primary care; such exposure to neglect would arise by reason of the significant risk that the Mother would experience severe symptoms of PTSD, with other symptomatology, as opined by Dr G in paragraph 181 of his report in particular, should the child spend time with the Father as proposed by him.
The Court should state that it would even assess, taking into account in particular the Mother’s allegations and the content of the reports of Dr F and Dr G, that the above unacceptable risk of harm posed to the child would exist even were the Court to order only supervised time between the child and the Father. This is because, on the material before the Court, there is a significant suggestion that Orders for supervised time, when facilitated, may, for example, trigger adverse dissociative symptoms in the Mother, and may, as another example, cause the Mother to be reminded of what she alleges was a sexual assault at the instance of the Father.
Were the Mother to be legally required, pursuant to interim Orders of the Court, to facilitate the child spending supervised time with the Father, as proposed by him, she would thereby be exposed, albeit not face-to-face, to the involvement of the Father in the child’s life. In such circumstances, on the material before the Court, there is a significant suggestion that the Mother would be subjected to the real risk of experiencing adverse symptomatology as opined by Dr G. In this context, the Court has taken into account the views of Dr G, inter alia, that the Mother’s exposure to the Father carries the risk of the Mother experiencing adverse symptomatology, and his opinion that “the termination of these proceedings is essential to minimising the impact and full recovery (of the Mother).” As submitted by the Mother, if the Father’s proposals were acceded to by the Court, the Mother would thereby be constantly reminded of these proceedings, being required to produce the child to spend time with the Father, initially two days each week when supervised, and then three days each week when unsupervised.
The child would appear to have a meaningful relationship with the Mother and will likely benefit from a continuance of that relationship. Again, the child has not yet met the Father. The child is very young having been born in 2020. The Court recognises, on the material before it, that the child may well benefit from developing a meaningful relationship with the Father.
However, as submitted by senior counsel for the Mother, this is an unusual case and the Court should act cautiously and conservatively, having regard to the above discussions relating to risk. The Court notes that under section 60CC(2A) of the Act, the Court, in applying the meaningful relationship primary consideration and the need to protect primary consideration under s60CC(2) of the Act, is to give greater weight to the need to protect primary consideration, and the Court does so, again having regard to its above discussions as to risk. The Court should state that it gives significant weight to the need to protect primary consideration at this interim hearing, by reference to its above discussions as to risk.
Counsel for the Father submitted, inter alia, that presently it was a crucial time for the child to begin to form an attachment to the Father. It was submitted, on behalf the Father, that the child may be subjected to a psychological risk of harm if he was not given the opportunity to develop a meaningful relationship with the Father. In this context, it was submitted on behalf of the Father that these risks would be heightened if interim Orders for the child to begin spending time with the Father were not made and a final hearing could not be held for some 2 to 3 years. There is some force to these submissions on behalf the Father, however, and again, the above discussed risk issues relating to the Mother and child are, taking into account, inter alia, the expert evidence at this interim hearing, of greater significance and given greater weight by the Court.
With respect, the Father’s submission that should the child begin to spend supervised time with the Father the Mother “will come to understand” that the child is safe with the Father and that the Mother can work on her mental health through her psychiatric treatment, fails to deal with the significant risk that in the meantime the Mother may experience adverse mental health symptomatology, as opined and discussed by Dr G, through having exposure to the Father.
The Father submitted that historically the Mother has responded well to psychological treatment and in this context referred to, inter alia, the report of Dr F. However, the apparent prominent emergence of the Mother’s PTSD symptomatology, as opined and discussed by Dr G, in the current circumstances is a new circumstance for the Mother and Dr G has significant concerns as to the continued experience by the Mother of adverse symptomatology through having to endure these proceedings and have exposure to the Father.
With respect, the Father’s submission that if the Court makes interim Orders for the child to spend supervised time with the Father, and the Mother thereby experiences a decline in her mental health, the Mother can return to court “if the Orders are not working” to seek a variation of the Court’s Orders, fails to recognise that such possible decline in the Mother’s mental health may have significant consequences for the Mother’s well-being and thereby entail adverse outcomes for the child.
The Court recognises that Dr G appears to have placed significant reliance upon the history given to him by the Mother in the formulation of his opinions. The Court observes that Dr G not only took a history from the Mother during the assessment interviews with her but also had documentary information available to him as set out in his report. In this context, senior counsel for the Mother submitted that Dr G had interviewed the Mother on many occasions and had found a very disturbed person and the Mother giving reasons. Further, it was submitted by the Mother that Dr G was entitled to take a subjective approach to his patient, the Mother, and take her as he “found her”; there is force to these submissions at this interim stage.
The Court has not overlooked that Dr G appears not to have obtained information directly from the Mother’s former treating psychologist, nor from the Father or members of the Mother’s extended family. Nevertheless, there is no material before the Court to suggest that these third parties, apart from the Father, would have provided information to Dr G significantly at odds with the history given by the Mother. Having stated this, the Court also recognises that the Father’s allegations, in some respects, are significantly at odds with the Mother’s allegations, in particular relating to the alleged sexual assault upon the Mother. Dr G provided a report expressing certain views based significantly upon the history given to him by the Mother, giving reasons for his opinions, and, in the view of the Court, his report, admitted into evidence without objection, can be considered and taken into account by the Court at this interim hearing, whilst acknowledging that that report is untested. In this context, the Court observes, pursuant to relevant legal principle, previously discussed in these Reasons, that it is entitled, when conducting its risk assessment, to give consideration to allegations made by a party which are refuted by the other party. An example of this is the Mother’s allegation of a sexual assault in relation to which the Court makes no finding. However, as observed by the Court at the interim hearing, having regard to the Mother’s allegations in this context, there is a significant suggestion, on the material before the Court, that the Mother at least believes to have been the victim of a sexual assault at the instance of the Father and which suggestion the Court takes into account when considering and taking into account the report of Dr G.
The Court accepts the submission of the Mother that the mere fact that the Mother made an allegation(s) to Dr G which allegation(s) was not contained within her own Affidavit does not preclude the Court having regard to Dr G’s report in this regard.
The Mother sought Orders pursuant to section 68B of the Act seeking to restrain the Father by injunction from entering within 100 metres of the child’s residence, the child’s preschool or school, and/or the place of employment of the Mother. Taking into account the Mother’s allegations in particular under the heading “Impact of these Proceedings” in her Affidavit filed 16 September 2021, including the evidence of Dr F and particularly the evidence of the Mother’s psychiatrist Dr G, it will be appropriate for the welfare of the child to make such proposed injunctions.
The Mother sought an interim parenting order for sole parental responsibility for the child. No submissions were made by either party at the interim hearing in relation to parental responsibility. In any event, at this interim stage, taking into account the very young age of this child, and taking into account that there would appear to be no major decisions looming for this child, it will not be in the best interests to make an order for parental responsibility at this interim stage.
Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the child, at this interim stage, to not make Orders relating to the child spending time with the Father, whether supervised or unsupervised. It will be in the best interests of the child to order at this interim stage that the child spend no time with the Father. It will be in the best interests of the child to make the Mother’s proposed interim Orders pursuant to section 68B of the Act that the Father be restrained by injunction from entering within 100 metres of the child’s residence, the child’s preschool or school, and/or the place of employment of the Mother.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 22 October 2021
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