Algaris & Redifer
[2021] FCCA 53
•19 JANUARY 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Algaris & Redifer [2021] FCCA 53
File number: ADC 1824 of 2017 Judgment of: JUDGE YOUNG Date of judgment: 19 January 2021 Catchwords: FAMILY LAW – parenting – application concerning a child who is five years old – where the child lives with the father – whether the child should spend supervised time with the mother – where the mother has a long-term diagnosis of a serious psychiatric illness – where child not sufficiently attached to mother – where limited supervised time is in the best interests of the child to foster a sense of identity – where the child is to live with father and the father have sole parental responsibility. Legislation: Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 61DA, 65DAA
Mental Health Act 2009 (SA)
Number of paragraphs: 93 Date of last submissions: 9 December 2020 Date of hearing: 23-25 November 2020, 9 December 2020 Place: Darwin Counsel for the Applicant: Mr Praolini Solicitor for the Applicant: CG Family Law Counsel for the Respondent: Mr Childs Solicitor for the Respondent: The Family Law Project Counsel for the Independent Children's Lawyer: Ms Lee Solicitor for the Independent Children's Lawyer: J Richard Croft ORDERS
ADC 1824 of 2017 BETWEEN: MS ALGARIS
Applicant
AND: MR REDIFER
Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
19 JANUARY 2021
THE COURT ORDERS THAT:
1.The father have sole parental responsibility for the child X born in 2015 (“the child”).
2.The child is to live with the father.
3.The child shall spend supervised time with the mother for a period of one hour to occur once in every four week period at B Contact Centre or, if B Contact Centre is not available, at a place nominated by the father which he is satisfied provides adequate supervision, and to give effect to this order the father is to:
(a)Confirm with B Contact Centre or the other nominated supervised contact service their availability and advise the mother of the date and time they are available; and
(b)Each party is to share equally in the payment of any fee the service requires.
4.The child shall spend time with the mother on the child’s birthday as follows:
(a)For a period of one hour at B Contact Centre or, if B Contact Centre is not available, at a place nominated by the father which he is satisfied provides adequate supervision but if there is no such place then he shall facilitate a call by the child to the mother by electronic means on the terms set out in Order 6.
5.In the event that the staff at B Contact Centre raise concerns that the mother’s mental health is such that it is not appropriate for the child to spend time with her or the father believes on reasonable grounds relating to the mother’s mental health that it is not appropriate for the child to spend time with her, the father may cease the time until the mother provides written advice from a medical practitioner that her mental health has stabilised. Further, if the child exhibits distress during the time he spends with the mother the father may cease the time during that session but it is to resume on the next scheduled date.
6.The father is to facilitate communication by telephone or other electronic means between the child and the mother every 4 weeks at the mid-point between the time spending provided for in Order 3:
(a)The mother shall instigate the call to the father’s mobile telephone, or other device as agreed, and the father shall answer the call;
(b)In the event the call is missed, the father shall return the call as soon as practicable after the missed communication occurs;
(c)The father may monitor the electronic communication between the mother and the child and cease the communication at any time if he considers it is appropriate to do so.
7.The mother is at liberty to send the child cards, letters and gifts and the father is to provide these to the child if he is satisfied they are appropriate for the child.
8.The father is to advise the mother of any change to his contact phone number, postal address and email address within 7 days of any change occurring.
9.The father is to provide the mother with:
(a)Regular information about the child’s educational progress, school related activities, copies of the school reports, photographs, photograph order forms, certificates, and awards obtained by the child and other forms, certificates, and awards obtained by the child and any other school communications;
(b)As may be necessary, information about the child’s medical history, reports, diagnoses and any other relevant information about the child's welfare, development and progress.
10.This order shall act as authority to the child’s school and treating medical practitioners to provide the mother with any of the information described in Order 9.
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 under the pseudonym Algaris & Redifer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE YOUNG:
This is a parenting case about a child, X, who is a little more than five years old, having been born in 2015. X lives with his father and has done so since his birth. The mother was involuntarily detained shortly before the child's birth under mental health legislation. She also returned a positive urine test for methamphetamine at that time. Shortly after the child’s birth the child welfare authorities obtained an order that the child live with the father and he has done so since that time.
The mother was diagnosed with schizophrenia in 2014. Her illness is serious and fluctuating in that she has had periods of psychosis and hospitalisation, most recently for three months between September and November 2019.
The matter was originally set for trial in October 2019 but the trial dates were vacated when the mother was hospitalised. According to Dr C, the psychiatrist who assessed the mother, her prognosis is poor, although at various times she has been in remission from her illness. Dr C prepared four reports in all, dated 26 June 2018, 30 May 2019, 12 February 2020 and 2 October 2020.
In his report of 2 October 2020 Dr C said that the mother suffers from a "serious psychiatric disorder and she continues to have some psychotic symptoms despite appropriate treatment”. Dr C said that her condition is currently well-controlled, although she still has some evidence of delusions. Dr C expressed concern that the mother has previously been non-compliant with her medication regime and noted she was no longer subject to a community treatment order. Dr C was of the view that the mother was well enough for the child to spend supervised time with her. He thought that if the supervised time progressed well over a long period then unsupervised time could be considered. Dr C recommended that the mother would benefit from an attachment-based parenting program because one of the significant factors in the case is the mother’s evident lack of empathy and attunement to the child's needs. Dr C considered that it was important that the mother have some therapeutic intervention to address that issue. The mother has not acted on that recommendation.
However, prior to giving oral evidence Dr C was provided with more detailed information about the mother's admission to hospital in September 2019. He said the mother had told him she had initiated her admission but he subsequently found that was not correct. She had told him that she had spent the extended period in hospital in order to be monitored. That was not correct and the mother had been involuntarily detained because she was psychotic. Dr C said that this showed the mother lacked insight into her condition. He said that when she was unwell, she was seriously unwell.
The material from the D Hospital also showed that the mother had been reluctant to take her medication. A community treatment order was made which obliged her to comply with her medication regime. That order expired in November 2020. Medical notes from August 2020 showed that she had been “argumentative, resistant to treatment and belligerent." Dr C said this was of concern and possibly reflected her psychiatric condition or possibly personality traits, such as borderline personality disorder or narcissistic disorder. Dr C said he had reassessed his opinion and recommended that the child should spend supervised time only with the mother. Dr C’s opinion was not challenged.
At the time of trial the mother's proposal was that the child spend time with her for one and a half hours twice a week and for five hours each Saturday at a children's play centre called B Contact Centre. In addition, she sought orders that the child spend time with her for five hours on Christmas Day, Easter Saturday and the child's birthday.
The father's position was that the child should not spend any time with the mother and that the father should have sole parental responsibility.
The position of the independent children's lawyer (ICL) was that the father should have sole parental responsibility, that the child should live with the father and that the child spend one occasion each month for two hours or as agreed at B Contact Centre and the father is to keep the mother informed about major issues concerning the child's welfare or medical needs. The ICL further proposed that if the mother appeared unwell to the father then the father could suspend the time and time would resume on provision by the mother of written confirmation from her doctor that she was well enough for the child to spend time with her. In addition, the ICL proposed that the mother be permitted to send letters, cards and gifts to the child on condition that the father was satisfied they were suitable.
The evidence
The mother gave evidence that she had been diagnosed with schizophrenia in 2014. She said that early in her pregnancy with the child she ceased her medication because she believed it may affect the child. She did not consult her doctor before doing so. The mother said that her positive test for methamphetamine at the time of her hospital admission was a result of the father spiking her drink or food with methamphetamine. The father denied that he had done so and I generally accept the father as a reliable witness. In addition, there was some evidence that the mother had attempted to avoid her a urine test at the time of her involuntary admission prior to the child's birth. The mother had made another allegation during a psychotic episode that her sister spiked her food. I am satisfied that the father is unlikely to have spiked food or drink consumed by the mother and that the most likely explanation is that the mother had voluntarily taken methamphetamine. There is no evidence that the mother has taken methamphetamine since that time.
The mother also alleged that the father had been violent towards her shortly after the child's birth and had attempted to push her in front of a moving car. Again, I am not satisfied that the mother is a reliable witness in relation to that allegation.
The mother's trial affidavit asserted that she had been compliant with all treatment and medication regimes. She asserted that her schizophrenia was well-managed. The mother asserted that the child was attached to her and happy to spend time with her. She said the father did not encourage the child's relationship with her. I am satisfied that there are important qualifications required before accepting any of these claims.
The history of interlocutory orders in this matter, largely by consent of the parties, indicates that the father has been willing in the past to support a relationship between the child and the mother. In 2016 it appears that the child spent time with the mother at the father's home after an agreement at mediation. The child later began spending time with the mother at B Contact Centre for about three hours on a Friday. Later in 2016 the father agreed to the child spending time with the mother twice a week for four hours at B Contact Centre.
In May 2017 the mother commenced proceedings. In June 2017 there were consent orders that the child live with the father and spend four hours on the Tuesday and Thursday at B Contact Centre in week one and with a similar regime in week two.
In October 2017 it was agreed that in week one the child spend time with the mother on Tuesday and Thursday for seven hours at B Contact Centre and on Friday at E Play Centre for four hours and in similar regime in week two. In May 2018 orders were made that the child spend time with the mother in week one for seven hours on Monday, four hours on Wednesday and seven hours on Friday and similar times on Monday, Wednesday and Saturday in week two. In August 2018 there was an order by consent that the child spend eight hours on Monday and Wednesday with the mother in week one, and for eight hours on Monday Wednesday and Saturday in week two, in all cases at B Contact Centre or E Play Centre.
At about this time, in September and October 2018, the mother's mental health deteriorated and she agreed to supervision of the child's time with her by her father and/or sister. In December 2018 there was an order that the mother undergo a hair follicle drug test, which was negative. There was also an order that the mother obtain a further psychiatric report. The child's time with the mother was varied to two blocks of three hours on Mondays and Wednesdays.
In September 2019 the mother experienced a significant deterioration in her mental health and was involuntarily detained at the D Hospital. The mother was detained until 14 November 2019. In October 2019 orders were made suspending the child's time with the mother and the trial dates set for October 2019 were vacated.
It is clear from this history that the mother’s mental health has fluctuated. In September 2019 she experienced symptoms of psychosis and was involuntarily detained for a lengthy period and made the subject of a community treatment order. I also accept Dr C’s evidence that the records show the mother has been resistant to her medication regime at times. I am satisfied that the father has been prepared to support the child’s relationship with the mother subject to being satisfied that the mother poses no risk to the child. I am also satisfied that the father’s concerns about the mother and her lack of insight into her illness are well-founded. In March 2020 the mother telephoned the father asking him to check if there were any black crosses on the child’s palms. It was apparent from the evidence of the mother’s sister that the mother was suffering from delusions at that time. The mother conceded in evidence that she was suffering from delusions but also said she had “read too much into palm reading”, suggesting that her insight was limited. At another point in her evidence the mother referred to “spiritual beliefs” but without indicating the content of those beliefs. In context her remark suggested that she invested a degree of reality into some of her delusional beliefs. At another point the mother was asked:
But an aspect of psychosis is irrational behaviour, is it not? – – In some cases, yes.
And what about in your case? – – No, not in my case. I would never do anything irrational.
So is it your view that you – when you’ve been ill, when you’ve been suffering from psychosis – that you’ve never done anything irrational? – – I don’t believe so.
The mother’s father and her sister also gave evidence in her case. Given that the mother conceded that the child’s time with her ought to be supervised the evidence of her father and sister was directed towards qualifying them as potential supervisors.
Mr Algaris, the mother’s father, was cross-examined about the mother’s deterioration in mental health in about September and October 2018 leading to the father ceasing the child’s time with the mother and then insisting that the child’s time with the mother be supervised. It was put to Mr Algaris that he was supervising the child’s time with the mother but had not told the father about the mother’s deterioration in mental health when it became apparent to him. Mr Algaris asserted that the mother had agreed to her treating doctors giving information to the father about her health so the father was kept informed about her mental health in that way. He said:
Mr Algaris: … So he knew what was happening as well as everyone else did.
Mr Childs: Well – but your answer – –?
Mr Algaris: Why do I have to tell him?
Mr Childs: Okay, thank you, sir.
His Honour: Well, the reason that you might have to tell him, Mr Algaris, is this: your daughter has, very unfortunately, a severe illness. That severe illness is schizophrenia. And – an aspect of her schizophrenia is, from time to time, that she is psychotic. And in those – those times, when she is psychotic, it is not appropriate that the child spent time with her. Do you agree with that?
Mr Algaris: Not at all.
On being asked to explain this answer Mr Algaris appeared to suggest that the child should be expected to adapt:
… But you only get one mother and one father in this world. You don’t get any more. So, you know, you – what you’re dealt with is what you’re dealt with, and you’ve got to make the most of it.
When asked what benefit the child would get from spending time with his mother if she was experiencing psychosis, however mild, Mr Algaris said:
Well, at least when he gets a bit older he will be able to tell us whether she is better or worse or whatever, won’t he? I mean, we’ve got to have a ballpark figure somewhere.
On 7 December 2018 Mr Algaris filed an undertaking to the Court in the following terms: “In the event I hold concerns or become concerned in relation to the mother’s mental health or observe a decline in the mother’s mental health then I will advise the father as soon as possible”.
Mr Algaris agreed in cross-examination that the mother was not well in January 2019 and her medication did not appear to be effective. Although the father did not give evidence that he was not informed of the deterioration in the mother’s health at that time his counsel asked Mr Algaris in cross-examination, presumably on instructions, why he had not informed the father as the undertaking required. He replied “I most probably did. I don’t remember”. There is no positive evidence that Mr Algaris failed to comply with his undertaking. Similarly, there is no evidence that he did comply with his undertaking in circumstances where I am satisfied that he was required to do so. Mr Algaris was also cross-examined about his awareness of the mother’s deterioration in mental health in September 2019. Mr Algaris said he was interstate at the time and heard of the matter from other family members. Nevertheless, there is no evidence that he complied with his undertaking at that time either.
Mr Algaris is clearly very loyal to his daughter, which is laudable. However, his insight into the needs and vulnerability of the child is limited. I am not satisfied that in in all circumstances Mr Algaris would put the child’s needs before the interests of his daughter, as he perceives them. All in all, I am not satisfied that Mr Algaris would be likely to comply with his undertaking and I am not satisfied that he is an appropriate person to supervise the child’s time with the mother.
The mother’s sister, Ms F, also gave evidence in the mother’s case. She gave evidence that she was scared of the father, allegedly because he had raised his voice during a change-over; she considered him to be a “narcissist”; and believed he had spiked her sister’s food or drink with methamphetamine prior to her involuntary detention in 2015. None of these matters were established in evidence or were the subject of cross-examination. Ms F agreed that she had an “extremely low opinion” of the father on a personal level.
Ms F was cross-examined about whether there had been an unpleasant confrontation between her and her sister where the child had been present and he had become scared. Ms F said she did not recall such an incident. According to the family consultant, Ms G, the child spontaneously raised such an incident with her during interview. Ms G was of the view that the child was probably scared or anxious about Ms F. The father also gave evidence that the child had said things to him indicating the child may be scared of or anxious about Ms F. The mother confirmed in evidence that such an incident had taken place. I am satisfied that such an incident occurred although I cannot say whether Ms F was genuine or not in her evidence that she did not recall such an incident.
Ms F was aware of her father’s undertaking to the court. Further, on 16 May 2019 an order was made by consent that “In the event that the maternal grandfather or the maternal aunt have concerns about any deterioration in the mother’s mental health then the maternal grandfather and/or the maternal aunt shall contact the ICL and the father’s solicitor.” Such an order does not, of course, bind the maternal aunt, Ms F, in the way that a filed undertaking would. Nevertheless, Ms F gave evidence that she was aware of the order and that it was a part of the agreement leading to the father accepting her as a supervisor of the child’s time with the mother. While I am satisfied there was no legal obligation binding Ms F, as a non-party, in the absence of a filed undertaking I am satisfied she was aware of the reason for the order, even if it was ineffective.
There was evidence that the mother’s mental health began to deteriorate about a week or a week and half before her involuntary detention under the Mental Health Act 2009 (SA) on the evening of 3 September 2019. Ms F is recorded in the hospital notes as providing that information to the hospital at the time of the mother’s admission. The child was due to spend time with the mother between 11:00 AM and 2:00 PM on 3 September 2019. Although the evidence was not entirely clear it appears that the child probably did spend time with the mother on that date. The father positively asserted that was the case although there was correspondence between the lawyers indicating that the child’s time with the mother may have ceased at the end of August 2019. Ms F in cross-examination appeared to agree that the child spent time with the mother earlier in the day on 3 September 2019. The child was also due to spend time with the mother on 5 September 2019. At 3:59 PM on 3 September 2019 Ms F sent an SMS to the father saying that she was feeling unwell – she said in evidence she had gastrointestinal upset – and that she was unable to supervise the child’s time with the mother on 5 September 2019. Later on that evening the mother was detained under the Mental Health Act. Ms F said that she advised the father some three or four days later that the mother had been hospitalised.
Given that there was evidence that Ms F was aware the mother’s mental health was deteriorating prior to her admission to hospital on the evening of 3 September 2019 it is significant that Ms F did not notify the father of that. Ms F said that there is nothing to indicate that the child was at risk so she did not think it necessary. Further, she said that the mother’s mental health was, in her opinion, not that bad that he needed to be notified prior to her admission. Nevertheless, she agreed that she had told the hospital that she had noted a decline in the mother’s mental state. She said in cross-examination that there were “small signs” such as the mother being “a little bit paranoid that people were watching her”.
In my view, if the mother was exhibiting signs of psychosis – “a little bit paranoid” – prior to the child spending time with her Ms F should have informed the father. She did not do so.
I am not satisfied that Ms F will put the child’s interests before the interests of the mother, as Ms F perceives them. I am not satisfied that Ms F is a suitable supervisor of the child’s time with the mother.
The father was the only witness in his case. The father said he was concerned about the “transparency” of the mother’s family about her condition. I have found there is a basis for that concern. The father also said that the child was often anxious about his mother and that since the child last spent any time with his mother in September 2019 life had been “normal”. The father said that he saw no benefit for the child in a relationship with the mother. I accept that his concern about the benefit to the child of a relationship with his mother is genuine and reflects real problems generated by the mother’s mental illness and the lack of attachment between the child and his mother. I put to the father that it may be in the child’s best interests, at a minimum, to spend some time with the mother in order that the child is able to identify her as his mother and that he does not grow up with an unrealistic idea about her. The father did not accept that proposition and repeated that he saw no benefit to the child in having any relationship with his mother.
The family reports
The only other witness was the family consultant, Ms G, who prepared family reports dated 5 March 2018, 6 December 2018, 3 May 2019 and 12 October 2020. In each of these reports the child was observed to be relaxed with his father and the father was properly attuned to the child’s needs. He was observed to be an empathetic and sensitive parent. No concerns of any kind were raised about the father by the family consultant. On the other hand, across the reports the family consultant consistently raised concerns about the mother’s lack of emotional attunement to the child, her lack of insight about the child’s needs and her lack of insight about her own illness.
In her report of 5 March 2018 (when the child was two years and three months old) Ms G observed that the mother “seemed vague and emotionally disconnected”. She said that the mother “presented as self-focussed whereby she seems to have difficulty in appreciating X’s needs, particularly the child’s need for security and overall attachment needs in relation to Mr Redifer.” During her observation of the child with the mother the family consultant noted the child to ask for the mother by referring to her as “mummy”. The child ran up to the mother and greeted her with an embrace. The family consultant noted that there was an evident emotional connection between the mother and child. However, the family consultant noted a lack of attunement to the child by the mother and that the child was “somewhat uncertain and insecure”. She said the child did not present as sufficiently secure in relation to the mother. The family consultant also noted that the mother was “reluctant to acknowledge the extent of her previous episodes of mental illness”. She said the “lack of attunement to the child during the observed interaction is somewhat concerning”. Nevertheless, the family consultant evidently considered that a degree of attachment may develop. She recommended that the mother undergo psychiatric assessment in relation to the child spending unsupervised and overnight time with the mother. Pending that assessment she recommended that the child spend supervised time with the mother in non-consecutive blocks of 6 to 7 hours supervised by the father or the maternal aunt, and a period of four hours at a play café. These recommendations were reflected in consent orders.
The report of 6 December 2018 (when the child was three years old) had been prepared after a period in September and October 2018 when the mother’s mental health had deteriorated and the father had ceased the child spending time with the mother for a period.
In the family report Ms G noted that the mother was “focused on her need to spend time with X” and “felt entitled to spend at least 50% of the time with X”. She said the mother had limited understanding of the child’s developmental needs. The child initially refused to spend time with the mother for the purpose of an observation. After encouragement by the paternal grandmother the observation went ahead. The child was observed to be tentative and wary of the mother. The mother embraced the child, seemingly unaware of cues which indicated that the child wished to be released. The child said he wished to leave, became distressed and began to cry. The mother did not attempt to comfort or reassure the child. The mother herself became overwhelmed and began to cry. She embraced the child and again the child indicated he wished to leave. The mother released the child only upon being instructed to do so by the family consultant. The family consultant observed the mother to be “intrusive and self-focused in relation to X”. She was also rude and somewhat aggressive toward the paternal grandmother. The session was then terminated.
The mother and maternal grandfather requested the observation be re-attempted. The child was brought into the session by the father. He was initially upset and resistant. However, about two minutes after the father left the child settled. The mother did not allow the child to familiarise himself with the room but, instead, picked him up for a cuddle. The child did not appear comfortable and arched his back in the mother’s arms, wishing to create some space between himself and the mother as she continued to hug him. The child became distressed and started to cry. The mother distracted the child by initiating play with a toy. After about three minutes the child appeared slightly more comfortable and settled or “perhaps resigned”, as the family consultant put it, to spending time with the mother. She was attentive enough to the child to ensure his engagement. However, he continued to appear wary and to create physical distance between himself and the mother. The child terminated the session by announcing that he wished to “go home”. The mother embraced the child and appeared to prolong the embraces for as long as possible despite the child’s apparent discomfort. The family consultant intervened to allow the child to leave.
This family report was prepared after the provision of a psychiatric assessment by Dr C and after the mother’s deterioration in mental health in 2018. The family consultant was aware of the mother’s diagnosis and the mother’s lack of insight into her condition. She was aware of Dr C’s opinion that the mother’s prognosis was poor. She also observed that the child was not sufficiently secure with the mother. The family consultant said that a key issue was “the dilemma of how to support X’s relationship with Ms Algaris…”.
The family consultant recommended, among other matters, that the child’s time with the mother recommence, supervised by the maternal grandfather, for three hours on two occasions a week, then, after three months, for two occasions of six hours a week and then after a further three months, the addition of one block of eight hours for one day on the weekend until the child commenced primary school and, on the child commencing primary school, from after school until 7:00 PM one night per week and one block of 6 to 8 hours on the weekend or two days in each alternative weekend. The initial part of this recommendation was reflected in consent orders.
The family report of 3 May 2019 (when the child was 3 ½ years old) recorded that the father reported that the child was resistant to spending time with the mother. He questioned how a relationship with the mother benefited the child.
In the formal observation of the child with the mother the child separated easily from the father to spend time with the mother. Once he saw the mother he ran up to the mother to greet her with a warm embrace. The mother was emotionally responsive to the child and demonstrated her delight in the child. The mother had brought some toys to the session which she knew the child enjoyed playing with at her home. The mother asked the child age-appropriate questions about his play and assisted him to develop the play and hence support his learning and development. The child presented as comfortable with the mother. When the family consultant told the child it was time to return to his father the child readily and swiftly concluded his play farewelled the mother and returned to the father’s care.
At the end of the formal observations the family consultant observed the father to tell the child that he would be spending time with the mother immediately following his departure from the office. The child’s demeanour immediately changed and he became a little withdrawn and upset. The father encourage the child to spend time with the mother but the child responded “I want to go home….I don’t like mummy”. Despite further encouragement from the father the child remained insistent that he did not wish to spend time with the mother. He ceased protesting when the mother came to the door and “in a resigned manner” transitioned to the mother’s care. The family consultant expressed the opinion that the child did not have sufficient sense of security with the mother to freely express his wishes in the mother’s presence.
The family consultant recommended that the child live with the father, that an updated psychiatric report be obtained about whether there would be any risk to the child in the event of the child spending unsupervised time with the mother and that the child, in the interim, spend time with the mother in two blocks of six hours per week supervised by the maternal grandfather. She also recommended, if the updated psychiatric report did not raise any concerns about the mother’s mental health, that the child spend time on an increasing basis with the mother and, after evidence of six months of strict compliance with her medication regime, that the child spend from after school one night a week with the mother and on alternative weekends for one day of the weekend for up to 8 hours supervised by the maternal grandfather. She recommended that in the second year of the child’s primary schooling consideration be given to extending the time to both days on the alternative weekend supervised by the maternal grandfather. She recommended that in the event of the maternal grandfather having concerns about the mother’s mental health those concern should be communicated to the father and advice sought about whether the child’s time with the mother should be reduced or suspended.
In the family report dated 12 October 2020 (when the child was four years and 10 months old) the family consultant noted that the mother had been detained at the D Hospital under the Mental Health Act between 3 September 2019 and 15 November 2019. The family consultant noted that the mother appeared unable to intellectually consider some of the child’s emotional needs but the dominant theme of her narrative was her “preoccupation with her emotional need to feel connection to X”. The family consultant expressed concern about the mother’s “capacity to prioritise X’s emotional needs above her own”.
The family consultant noted that the mother was supported by an NDIS funded support worker who attends her home 3 to 4 times a week and assists with daily life tasks such as shopping and attending leisure activities. The mother also said she had another support worker who helped her engage in self-care activities such as yoga. The family consultant observed that these supports promote the mother’s socialisation and safeguard against the risk of social isolation. She said, however, that the extent of the support also highlights the extent to which the mother requires support for regular adult tasks.
During the formal observation of the child with the mother the child appeared on entry to the room “to be making an effort to emotionally regulate and to be brave, however, it was apparent from his facial expressions and demeanour that he was apprehensive, uncertain, and possibly a little fearful”. The child gave limited verbal responses and limited eye contact when the mother attempted to engage in conversation. For the majority of the session his responses were “Yep” although he became slightly more conversational at the end of the session. The child appeared to be physically trying to move away from the mother for the majority of the session. The mother lacked sufficient attunement to notice that the child was attempting to create physical distance between himself and her, demonstrating, according to the family consultant, the mother’s preoccupation with her own emotional need to be and feel close to the child.
The family consultant advised the mother not to expect the child to embrace her when he entered the room. When the child very tentatively entered the room the mother embraced him. The child obliged but did not appear comfortable according to the family consultant. The family consultant said the mother was unable or unwilling to accurately read the child’s non-verbal cues and was, hence, unable or unwilling to prioritise the child’s sense of comfort and security over her own emotional needs. The mother appeared to have difficulty emotionally regulating during the session and the family consultant had to provide guidance to the mother on calming herself. The mother appeared to have significant difficulty in engaging in child led play with Duplo. The mother asked the child whether he would prefer to build his own creation or build something with the mother. The child responded that he wished her to build something “with me”. The family consultant concluded from this that the child was willing to develop some level of connection with the mother. After about 20 minutes the child asked if he could leave “now”. At the end of the session the mother embraced the child who appeared slightly uncomfortable.
During the interview the child made some negative comments about Ms F, the mother’s sister, indicating that the child was not sufficiently secure with Ms F if she were to provide supervision. The child also indicated by some responses that there were concerns about the maternal grandfather “fighting” with the mother. The family consultant said this raised concerns about whether the child had been sufficiently shielded from conflict within the maternal family.
The family consultant also discussed Dr C’s opinion about the mother, which as far as the family consultant was aware, was still to the effect that the child could spend some brief unsupervised periods with the child. As noted, Dr C subsequently changed that opinion.
The family consultant expressed the opinion that the formal observation of the child and the mother strongly indicated that the mother required substantial parenting support and guidance when “attempting to re-establish” a relationship with the child. She also expressed the view that the observation raised the concern that the mother does not have the ability to independently maintain sufficient child focus and to emotionally regulate herself enough to ensure the child’s sense of comfort. She repeated her observation that the mother lacked attunement to the child’s needs and was unable to be emotionally available to the child, and thus attend to the child’s needs, on a consistent basis. Further, according to the family consultant, the child’s responses and behaviour indicated that he did not have a sufficient sense of security with the mother, was possibly fearful or uncertain of her and was unable to tolerate spending an extended amount of supervised time with her.
The family consultant observed that the mother’s parental capacity is limited because of her mental illness and her apparent emotional need “to feel connected” with the child. She also said the mother’s capacity to empathise with the child appeared limited. She said the ability to empathise with the child is a significant protective factor. She said the mother’s responses did not indicate that a close emotional connection had developed between the child and her.
The family consultant said these observations raise two issues. First, the mother would require the support of a child focused practitioner to supervise the time spending periods in order to support the re-establishment of a relationship between the child and the mother. Secondly, she asked whether the re-establishment of a relationship and time spending with the mother is “congruent with his needs”. She noted the father’s statement that the child was more settled over the 12 months that he had not spent time with the mother and was thriving in his developmental domains.
The family consultant nevertheless recommended that the child spend time with the mother at a children’s contact centre with a graduating program beginning with the child spending one hour a week with the mother and, if the child appeared comfortable, to increase the time to 1 ½ or two hours a week and, after six weeks, the mother be at liberty to include the maternal grandfather in the supervised time spending at the contact centre, provided that the maternal grandfather had completed an attachment-based parenting course.
In oral evidence, Ms G said that her observations of the child and the mother indicated that the child could not tolerate long periods with the mother. This was based on the observation in October 2020 when the child asked to leave after 20 minutes.
The family consultant recommended that if the court thought it desirable to progress the child’s time with the mother any further then a review be made of the arrangements within a period of a further 6 to 9 months, with the preparation of a further family report. All this was on the assumption that the mother’s mental health was stable and she was compliant with her medication regime.
In cross-examination Ms G conceded that she had had difficulty in identifying an appropriate “trajectory” for the child to spend time with the mother. In response to a question from the court Ms G said that if the child were to spend time with the mother it would require further therapeutic intervention to help the mother emotionally attune or empathise with the child. She said any therapeutic intervention would need to involve the child as well. She said the period of supervision would be indefinite.
In cross-examination by counsel for the mother the family consultant agreed that letters, cards and gifts from the mother would be appropriate to help maintain the connection between the child and the mother. Ms G, however, went on to say that the possibility for a meaningful relationship between the child and the mother was limited by the mother’s illness. She saw the point of a relationship as ultimately being about maintaining connection so that the child was aware that the mother loved him and was thinking of him. She expressed concern about the child having no connection with the mother because she believed that may be harmful to the child in the long-term. She said she believed the child needed a narrative to explain that the limited relationship between himself and his mother was “not about him”.
I generally accept the ultimate opinion expressed by Ms G. I also accept that the mother’s illness is severe and permanent. I accept that the mother is unlikely to ever be able to properly “emotionally attune” or empathise with the child in a way that provide sufficient psychological protection for him while he is with her.
Dr C in oral evidence expressed a similar opinion to the family consultant. He said the mother struggles to empathise. He said lack of empathy and “blunting of emotion” is a characteristic of her illness and it is a long-standing and severe problem. He said that was unlikely to change. He raised the possibility that psychiatric or psychological intervention could help the mother develop empathy or attunement and mentioned H Counselling Service as providing inpatient and outpatient facilities. However, it is to be noted that the mother had not taken up an earlier recommendation that she engage in therapy to help in this respect. In my view, there was no evidence that such intervention would be likely to assist the mother in the way mentioned by Dr C. In any event, to explore this possibility would require the continuation of this litigation for an indeterminate period, the preparation of further reports and assessments, and exposure of the parties and the child to the strain of litigation for a doubtful or unlikely outcome. In my view that is not justified.
Dr C in oral evidence said that, given the circumstances, “ongoing contact with the mother may not be that helpful”. Dr C was asked by the court if the child spending no time with the mother might have deleterious effects on the child in the long-term, such as problems with his identity or an unrealistic idea of his mother. He was asked, if for that reason, it would be appropriate to have some limited supervised time with the mother. Dr C said he was not a child psychiatrist and he felt the question was on the border of his expertise but he saw merit in that suggestion. He said any such time would need to be in a very structured environment with people who were aware of the mother’s problems and could pick up if she were paranoid for example.
Consideration
The resolution of a parenting dispute under the Family Law Act 1975 (Cth) (“the Act”) requires adherence to the legislative pathway set out in Part VII of the Act.
In determining what is in the best interests of a child the court must consider the matters in subsections (2) and (3) of section 60CC of the Act.
Turning to subsection 60CC(2), the primary considerations in determining the best interests of the children are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
When applying section 60CC(2) factors, the court is to give greater weight to the consideration set out in (b).
I am satisfied that there is benefit to the child in having a meaningful relationship with his mother. However, given that the mother suffers from a serious and permanent illness, schizophrenia, which severely limits her parenting capacity there is some difficulty in giving appropriate content to the words “benefit” and “meaningful relationship”. The mother lacks empathy and suffers from emotional blunting, which is a characteristic of her illness, and this is unlikely to change. She is also focused on her own emotional need for connection with the child and is incapable of properly understanding and meeting the child’s emotional and intellectual needs. This is also unlikely to change.
In my view subsection 2(b) is also engaged. The family consultant consistently observed over four reports and an extended period that the child was insecure with the mother, avoidant, anxious and sometimes fearful of her. The relationship of the child to his mother had not developed or progressed to the point where the child was secure or comfortable with her. In my view, prolonged or extended time spent by the child with the mother, including in a supervised environment, constitutes an unacceptable risk of harm to the child and would constitute abuse or neglect.
I am satisfied, however, that simply making an order that the child not spend time with the mother also runs a risk of psychological harm to the child. Ms G emphasised that she believed the child needed a “narrative” about his mother which reassured the child that his mother loved him, valued him and that the limited nature of any relationship was not the child’s fault or “about him” as she put it. The evidence about this issue was scant, it must be acknowledged. There was no evidence from a child psychiatrist or psychologist about the psychological developmental issues involved in this case. I accept that Ms G’s view is an expert one which she is entitled to express. I give her view significant weight. Dr C, although primarily giving evidence about the nature of the mother’s mental illness and disavowing expertise as a child psychiatrist, said he saw merit in that approach, subject to appropriate safeguards for the child.
I am satisfied, after giving appropriate weight to subsection 2(a) and (b), that there is benefit to the child in a relationship with his mother. However, for the relationship to be meaningful for the child it must be understood that the child will not benefit from spending extended time with the mother. The purpose of the time is to protect the child’s sense of identity and value but at the same time to protect him from the harmful consequences of his mother’s parental incapacity.
I will now turn to the additional considerations in subsection 60CC(3).
In relation to (a), the child’s views, the child is too young at 5 years old to express a considered view. However, the observations of the family consultant, which I accept, are that the child has an insecure and undeveloped relationship with his mother and is also avoidant of her at times.
In relation to (b), the nature of the relationship of the child with his parents and any other persons, the child is strongly attached to the father with whom he has lived all his life. Despite the child spending significant time with the mother over a period of years his relationship with her is insecure, undeveloped and unsatisfactory. This is the unavoidable result of the mother’s illness which involves lack of empathy, emotional blunting and an inability to focus on the child’s needs. This will not change.
In relation to (c), the extent to which each of the parents has taken, or failed to take, the opportunity to participate in decision-making about major long-term issues for the children and spending time with and communicating with the children, the father has taken responsibility for these issues.
In relation to maintenance of the child under part (ca), the evidence was that the mother was in receipt of Centrelink benefits and paid minimal child support.
In relation to (d), the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their parents or any other child or other person with whom they have been living, a change in the child’s circumstances in not contemplated. However, the orders I make will mean that the child will spend little or no time with the extended maternal family. Given my findings about the maternal grandfather and the maternal aunt I am not satisfied that this is deleterious to the child. I am not satisfied the child has a close relationship with them.
In relation to (e), the practical difficulty and expense of the child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents, this is not an issue that arose in the trial.
In relation to (f), the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs, I am satisfied that the father is capable of providing for the child’s emotional and intellectual needs. For the reasons discussed above, the mother’s capacity to provide for the child’s emotional and intellectual needs is severely limited.
In relation to (g) the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child the court thinks are relevant, there is nothing requiring further consideration.
In relation to (h), the child is not an Aboriginal or Torres Strait Islander child.
In relation to (i), the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents, both parents love the child but the mother’s capacity as a parent suffers from the limitations described above.
In relation to (j), any family violence involving the child or a member of the child’s family, I am not satisfied there has been family violence.
In relation to (k), no family violence order applies.
In relation to (l), whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, I have given this consideration in the orders I propose to make.
In relation to (m), any other fact or circumstance that the court thinks is relevant, there is no other such fact or circumstance.
The applicant mother did not make a submission about parental responsibility. The father sought sole parental responsibility. The independent children’s lawyer submitted that the father should have sole parental responsibility.
I apply the presumption in section 61DA of the Act that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child but I find this presumption is rebutted by evidence to the contrary. The child was placed with the father soon after the child’s birth by the child welfare authorities pursuant to an interim order of the Youth Court of South Australia. The father asserts that order was made permanent but the court was not provided with any evidence of that. I will proceed on the assumption that legally the parents currently have shared parental responsibility. The father has made the relevant decisions about the child’s long term welfare. There was no evidence before me to suggest that the mother has taken any role in making major or long decisions about the child. There was no evidence before me that she was capable of doing so or has sought to do so. I am satisfied that it is in the child’s best interests that the father have sole parental responsibility.
As there will not be an order for shared parental responsibility the court is not required by section 65DAA to consider whether the child spending equal time or substantial and significant time with each parent is in the best interests of the child.
In this case I am satisfied for the reasons discussed above that it is in the child’s best interests that he spend one hour each four weeks with the mother. The time is to be supervised. The father said in evidence that he has confidence in the staff at B Contact Centre to monitor the mother’s behaviour and the safety and security of the child. He proposed that the time take place there. I will make orders accordingly.
If the father thinks that some other place provides adequate supervision of the child’s time he may nominate that other place if B Contact Centre is not available.
In addition, on the child’s birthday he is to spend one hour with the mother at B Contact Centre or, if B Contact Centre is closed, at any other venue deemed suitable by the father or if there is no venue he deems suitable, the father is to facilitate the child communicating with the mother by Skype or other electronic means.
The mother may speak to the child by Skype or other digital means once every four weeks at the midpoint between the times at B Contact Centre. The father may monitor the time and cease the communication if he considers it appropriate.
The mother may send cards, gifts or letters to the child and the father is to provide these to the child if he considers them appropriate.
The father is to provide authority to the child’s school or treating medical practitioners to provide information about the child to the mother. In any event, the orders I make will provide sufficient authority to do so.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 19 January 2021
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