AMBROSE & SELDORS
[2020] FCCA 3096
•1 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AMBROSE & SELDORS | [2020] FCCA 3096 |
| Catchwords: FAMILY LAW – Interim parenting – where each parent makes serious allegations about the other allegedly evidenced by independent documents – family violence – mental health concerns. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Goode & Goode [2006] FamCA 1346 Insley & Insley [2018] FCCA 438 MRR v GR [2010] HCA 4 |
| Applicant: | MS AMBROSE |
| Respondent: | MR SELDORS |
| File Number: | WOC 459 of 2020 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 30 September 2020 |
| Date of Last Submission: | 30 September 2020 |
| Delivered at: | Wollongong |
| Delivered on: | 1 October 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Five Islands Legal |
| Counsel for the Respondent: | Mr Guterres |
Solicitors for the Respondent: | Hanna Lawyers |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Wollongong |
ORDERS
Interim Orders be made in accordance with the document marked “A” dated this day 1 October 2020 and attached hereto.
Pending further order, the Father be restrained from audio or video recording any interactions he has with the children X (born in 2017) and Y (born in 2019) (‘the children’).
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
Liberty is granted to the Independent Children’s Lawyer to re-list the matter on 72 hours’ notice by application to the Court in Chambers in appropriate circumstances.
The matter be adjourned to 29 January 2021 at 11:30am for Mention.
“A”
Ambrose & Seldors WOC 459/2020
Interim Orders proposed by the ICL 30 September 2020
Live with and spend time with arrangements
That children X born in 2017 and Y born in 2019 (“The Children”) live with the Mother.
That the children spend time with the Father for a minimum of 2 hours each fortnight supervised by B Contact Centre service (with the location of the B Contact Centre service to be nominated by the Mother), on such days and times as nominated by B Contact Centre.
To facilitate the Father spending time with the children pursuant to Order 2, the Mother and Father are to:
3.1 Contact B Contact Centre within 48 hours of the making of these Orders and make an application for B Contact Centre’s supervised children’s contact service;
3.2 Provide all information and complete all necessary paperwork as may be required by B Contact Centre;
3.3 Attend any intake or assessment appointments as may be requested by B Contact Centre on such days and times as nominated by B Contact Centre; and
3.4 Comply with any other reasonable request or direction of B Contact Centre for the purpose of implementing these Orders.
To facilitate the Father spending time with the children pursuant to Order 2, the Mother is to:
4.1 Ensure that the children attend any intake or assessment appointments as requested by B Contact Centre on such days as nominated by B Contact Centre (including on school days); and
4.2 Ensure that the children attend on each occasion that the children are scheduled to spend supervised time with the Father as nominated by B Contact Centre.
The Father is to bear any costs of B Contact Centre’s supervised contact service (at the relevant concession or non-concession rate) and any costs for intake assessments or appointments attended by the children and the Mother and Father are to bear any costs associated with their initial intake assessments.
These Orders operate as the authorisation of both parents to B Contact Centre to provide the Independent Children’s Lawyer in these proceedings with any information about the parents’ engagement with their supervised contact service or the process of supervised time that the Independent Children’s Lawyer may require.
In the event that B Contact Centre cannot provide a supervised contact service to the parents and / or service is refused or sought to be varied, the Independent Children’s Lawyer has liberty to seek a re-list of this matter upon 7 days-notice to the other parties and to the Court.
That in the event that B Contact Centre is not able to offer the Father a place for supervised time within a two month period from the date of these Orders and the Father is placed on a waiting list, then the children are to spend supervised time with the Father through C Contact Centre until such time that B Contact Centre is able to offer the Father a Supervised contact service.
In the event that the Father’s time with the children is to be supervised by C Contact Centre, the children are to spend each Saturday with the Father from 10:00am until 12:00pm at a venue agreed between the parents but failing agreement, as nominated by C Contact Centre.
10.The Father is to pay the cost of supervision in accordance with Order 9.
11.The Mother and Father are to comply with all reasonable rules and requests and directions of the staff of C Contact Centre for the purpose of supervised time in accordance with Order 9.
12.These Orders operate as authorisation of both parents to C Contact Centre to provide the Independent Children’s Lawyer in these proceedings with any information about the parents’ engagement with their supervised contact service or the process of supervised time that the Independent Children’s Lawyer may require.
Communication
13.The Mother is to facilitate communication between the children and the Father each Tuesday and Thursday at 5.00pm either by telephoning or video calling the Father, at the Mother’s discretion.
14.That the Mother and Father shall communicate with each other for all non-urgent matters concerning the children via text message or email.
15.That the Mother and Father shall communicate with each other for any matters of emergency via telephone.
16.The Mother and Father are to keep each other advised of:
16.1 Any significant medical problems, illness or injury suffered by the children whilst in their care;
16.2 Any occasion that the children are hospitalised whilst in their care;
16.3 Any treatment plan or regime recommended by either of the children’s treating medical professional;
16.4 Any medication; including any dose that has been prescribed for the children that needs to be administered by the other parent; and
16.5 Their contact telephone number and email address.17.The Mother is to ensure that the Father and Independent Children’s Lawyer are kept informed of any specialist medical appointments for the children with any Medical Specialist or Psychiatrist or with any therapeutic health service provider (including but not limited to a Counsellor, Psychologist, Occupational Therapist, Speech Therapist or other therapeutic specialist.
18.That the Mother is to keep the Independent Children’s Lawyer advised about any agency or support service the Mother or the children are engaged with from time to time.
19.That this Order authorises the Father to receive copies of any assessments and reports about the children prepared by a Medical Specialist or Psychiatrist or by any therapeutic health service provider as set out in Order 17.
20.That this Order authorises the Independent Children’s Lawyer to contact the children’s Doctor (including but not limited to a GP, Medical Specialist or Psychiatrist) and any therapeutic or health service provider (including but not limited to a Counsellor, Psychologist, Occupational Therapist, Speech Therapist or other Therapeutic Specialist and obtain any relevant information, assessments and reports with respect to the children.
21.That this Order authorises the Independent Children’s Lawyer to obtain information regarding the children’s educational progress from the school / childcare facility attended by the children.
22.That this Order authorises the Independent Children’s Lawyer to contact Dr D and to receive from Dr D information regarding the mother’s treatment and progress.
23.That this Order authorises the Independent Children’s Lawyer to contact E Families or any other support agency that the Mother and children might be engaged with from time to time so as to receive from E Families or any other support agency information about the Mother’s or children’s engagement and progress with the agency or support service.
Restraints
24.Pursuant to section 68B of the Family Law Act 1975, the Father is restrained by injunction from:
24.1Going within 100 metres of the Mother’s residence; and
24.2From attending any childcare facility that the children might be attending from time to time without the prior written consent or the Mother or further Order; and
24.3From discussing the following things with the children during telephone or video calls with the children in accordance with Order 13:-
a.These Court proceedings;
b.Restrictions on the Father because of any supervised time;
c.Details about where the children might be living such as their suburb or address;
d.Details about where the children might be attending childcare;
e.Which parent the children would like to live with;
25.Pursuant to section 68B of the Family Law Act 1975, the Mother and Father are restrained by injunction from making any negative, critical, belittling and/or derogatory comments in relation to the other parent or members of the other parent's family or household (including, but not limited to, questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or within hearing of the children.
Programs / Support
26.That within 14 days from the date of these Orders, the Mother is to make an appointment to attend upon Dr D.
27.The Mother is to advise the Independent Children’s Lawyer of the date and time of her appointment with Dr D as required under Order 26.
28.The Mother is to obtain from Dr D a letter setting out the Mother’s current treatment and medication, together with any future recommendation Dr D may have in relation to the Mother’s treatment, medication and frequency of attendance upon Dr D.
29.The Mother is provide a copy of the letter received from Dr D in accordance with Order 28 to the Father and to the Independent Children’s Lawyer.
30.The Mother is to continue to engage with E Families for as long as required by E Families.
31.The Mother authorise the Independent Children’s Lawyer to discuss the Mother’s progress with Dr D and E Families.
32.The Mother is to notify the Independent Children’s Lawyer and the Father if E Families plan to cease supporting the Mother or cease supporting the Mother.
33.That the Father receive psychological treatment as per referral made by his GP under Mental Health Care Plan dated 11 June 2020.
34.That the Father provide the name of his treating professional as required under Order 33 to the Mother and to the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Ambrose & Seldors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 459 of 2020
| MS AMBROSE |
Applicant
And
| MR SELDORS |
Respondent
ORAL REASONS FOR JUDGMENT
These Reasons for Judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
Introduction
This case is about 2 children, X, born in 2017, now 3 years old and his sister Y, born in 2019 who is 1 year old. This case has been an extraordinarily difficult decision to make on an interim basis. Each parent makes very serious allegations about risk of harm to the children in the other’s care. None of these allegations can be tested in cross-examination at an Interim Hearing. As will be seen, there is voluminous documentary evidence advanced by the parents and the Independent Children’s Lawyer with the Court being asked to draw conflicting inferences from the same material.
In this matter the Court proposes to make a short-term interim order pending what the Court hopes will be the early availability of a Single Joint Expert Report. One of the most urgent tasks that the Court will ask the Independent Children’s Lawyer to undertake is to arrange for a Single Joint Expert to interview this family and make recommendations, both about the short-term and long-term arrangements for the children. Of course, with a Single Joint Expert’s Report there are issues of cost. In this regard I note that in the Father’s Affidavit, he describes himself as financially able to support himself through investments and as being financially independent. An investment in a single joint expert report for his children would, in the circumstances of this case, be a very good one.
I reproduce in the First Schedule to these Reasons the chronology contained in the Independent Children’s Lawyer’s case outline document, filed 29 September 2020. It is a comprehensive chronology which is particularly useful to the Court because it summarises the evidence filed by both parents as well as various documents that have been produced on subpoena, all arranged chronologically. The Court expresses its appreciation to the Independent Children’s Lawyer for the significant work that must have been put into creating this document. It is however, nothing more than a helpful aid to the Court and it is not evidence per se of the matters asserted.
The Mother is the Applicant in this case. She is 40 years old and lives in the F Region of New South Wales. The Father is the Respondent. He is 49 years old and lives in the G Region of New South Wales. The relationship between the parents commenced in either in 2013 or 2014. Nothing turns on this. The relationship appears to have been in crisis for many years. By mid-2019 the impression formed is that the parents were separated, albeit living under the same roof. The Mother probably left the home towards the end of August 2019. The children went with her.
By March 2020 the Mother had moved into an emergency accommodation in the F Region area. The present proceedings were commenced by the Mother in April 2020. On 24 April 2020 His Honour Judge Kemp made an ex-parte order for the children to live with the Mother and for the Father to return them to the Mother’s care. The Father was to spend time with the children in accordance with the parents’ written agreement.
On 11 May 2020 when the matter first came before me in Wollongong, and with both parents having the benefit of legal representation, interim consent orders were entered into between them for the children to live with the Mother and to spend time with the Father each alternate weekend and one mid-day evening during the alternate week. The Father says that he spent time with the children in accordance with this order until September 2020 when the Mother ceased this time unilaterally.
The matter came before me for Interim Hearing on Tuesday 30 September 2020. The Mother was represented by a solicitor. The Father by Family Law Counsel and the children by a very experienced Independent Children’s Lawyer. At the Interim Hearing the Mother supported the Independent Children’s Lawyer’s proposal which was, in effect, for the children to continue to live with her and to spend time with the Father for a minimum of two hours each fortnight, supervised by the B Contact Centre supervised contact service.
The Orders sought by the Independent Children’s Lawyer are reproduced in the Second Schedule to this Judgment. The suite of orders is comprehensive and includes provisions in relation to communication, restraints and for the Mother to engage in services to assist her. The minute of order proposed by the Father was contained in his Counsel’s case outline document, filed 23 September 2020. He proposed equal shared parental responsibility, that the children live with him and spend time with the Mother each alternate weekend from Friday until Sunday and each alternate week from 5:00pm to 7:00pm midweek. The detailed orders proposed by him are likewise reproduced in the Second Schedule.
These diametrically opposed proposals reflect the diametrically opposed contentions that were made in this case. In each instance allegedly supported by the voluminous documents that are referred to in the tender bundles and in the subpoenaed documents. The Mother and Independent Children’s Lawyer’s case, shortly summarised, was that the Father presented a risk of harm to the children. Primarily, but not exclusively, because of what was described as the, “coercive and controlling violence” perpetrated by him on the Mother.
To be fair however, the evidence in the Mother’s case and the other material before the Court also raised concerns about the Father’s capacity to care for the children. This was presented however, almost as if it were a peripheral part of her case. The Father’s case was that he presented no risk of harm to the children and that, in fact, the greatest risk of harm to the children emanated from the Mother’s mental health in respect of which she had suffered for many years and where he contended there was a real chance of relapse. He denied any reason to be concerned about his capacity to care for the children.
The presentation of the Mother’s case at the Interim Hearing downplayed the significance of past mental health concerns and emphasised that she was currently in good health, well-engaged with the professional services to support her and was medication-compliant and thus presented no risk of harm to the children. As will be seen however, despite how the case was presented that is not consistent with the Mother’s own evidence.
These Reasons for Judgment explain why the Court has made the order proposed by the Mother and the Independent Children’s Lawyer but not for the Reasons advanced in their case.
The evidence before the Court
In the Mother’s case, she relied on the following documents:
a)Initiating Application filed 24 April 2020;
b)Affidavit of Ms Ambrose filed 24 April 2020;
c)Affidavit of Ms Ambrose filed 18 September 2020;
d)Notice of Risk filed 24 April 2020; and
e)Case outline document filed 23 September 2020.
In the Father’s case, he relied on the following documents:
a)Response filed 7 May 2020;
b)Affidavit of Mr Seldors filed 7 May 2020;
c)Affidavit of Mr Seldors filed 18 September 2020;
d)Affidavit of Mr H filed 11 May 2020;
e)Notice of Risk filed 7 May 2020; and
f)Case outline document filed 23 September 2020.
The Independent Children’s Lawyer relied on her case outline document filed 29 September 2020.
The following material was tendered as evidence during the course of the proceedings:
a)Tender bundle prepared on behalf of the Applicant Mother;
b)Tender Bundle prepared on behalf of the Respondent Father;
c)Tender Bundle prepared by the Independent Children’s Lawyer; and
d)Child Dispute Conference Memorandum dated 8 July 2020.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations 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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Furthermore, family violence is defined in s.4AB of the Act:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The case law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In addition, I will include a number of paragraphs from my own decision in a matter called Insley & Insley [2018] FCCA 438, where I discuss some of the authorities about decision making in interim cases:
The Challenge of Fact-Finding in this Case
[61] This Court is in a very difficult position. Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases. The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing.
[62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne. If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father. The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.
[63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible. The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions. To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.
[64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode. Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but 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. The Full Court stated that 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. Nonetheless, the Full Court warned, findings must be couched with circumspection.
[65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.
[66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum.
[67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. It is nonetheless imperative that allegations of family violence are treated seriously.
[68] At [61] in Deiter, the Full Court discussed risk analysis:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
[69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.
[70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.
[71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts. Moreover, at [21] the Full Court recognised:
Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
[72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.
Discussion
This decision is, ultimately, made by reference to the considerations referred to s.60CC of the Act and, indeed, the focus is on risk of harm. Of course, there are other relevant considerations but for present purposes, the case falls to be determined by the risk of harm issue.
The evidence before the Court does create a strong impression however, that each parent has a meaningful relationship with both children. The Father’s proposal will ensure that is, in fact, continued with the time the Mother spends with the children. The Mother and Independent Children’s Lawyer’s proposal for supervised time would greatly limit the Father’s time with the children by virtue of the conditions under which he would enjoy the same. If there is a risk of harm to the children from the Father then even supervised time would provide a mechanism for his meaningful relationship with the children to be continued, albeit on a minimalistic basis.
The major focus in this case, as I have already alluded to, is the risk of harm to the children. The Mother and Independent Children’s Lawyer’s case focused primarily on the assertion that the Father had perpetrated coercive and controlling violence on the Mother during their relationship and, indeed, after separation. The evidence in this regard is primarily the Mother’s own assertions which are denied by the Father. Reliance was also placed on a number of documents that were included in the tender bundles or otherwise in the evidence. For example, reliance was placed on records produced by J Early Learning Centre recording the interaction of the Father with Centre staff. I have examined these records carefully. It is not apparent to me how these records paint the picture of the Father as a coercive and controlling person. He certainly presents as assertive. He could easily be characterised as difficult, indeed, prickly. Other than lay expressions of opinion from unqualified persons in these business records, there is little material here which contributes to the picture of the Father as a coercive and controlling person. Precisely the same impression is formed when the hospital records relied on by the Mother are examined.
Reliance was also placed on documents produced by K Counsellors, with whom the Mother consulted after separation and likewise documents produced by E Families, an organisation supporting the Mother. The weight that can be given to these documents even at an Interim Hearing is questionable. All of these documents purport to contain disclosures by the Mother of what she considered to be the Father’s coercive and controlling behaviour during their relationship. But the disclosures are made after separation.
Of course, there is nothing unusual about this. Victims of violence often make disclosures for the first time after they have left a violent relationship. The evidence nonetheless, needs to be carefully scrutinised and the Court has a number of concerns about it.
For example, it is difficult at times to identify from these documents what the Mother actually said as opposed to the conclusions drawn by whoever made the record. The Mother’s disclosures are inconsistent with other business records, for example, in the context of medical treatment, where not only did she not make any disclosures about coercive and controlling violence in a context where one would reasonably expect it to be made but, indeed, she made assertions to the contrary. Moreover, in assessing the weight to be given to this evidence what is completely unknown is the role and the relevance of the Mother’s well-documented history of bipolar affective disorder.
The Court must also consider the alternate case presented by the Father which was, shortly stated and without doing justice to it, that the Mother’s mental health condition has necessitated him taking an active role in the relationship, motivated not by any desire or intent to control or coerce, but out of necessity due to the Mother’s incapacity. In short, the impression formed and, of course, it can be no higher than this is that the Mother and Independent Children’s Lawyer’s case pertaining to the Father’s coercive and controlling violence is not nearly as clear or as strong as they advocate.
Drawing on the Court’s experience, the Court must take into account the possibility that the allegations are exaggerated or false just as much as the Court needs to take into account the possibility that the Father’s denials are false or that he has minimised the nature and extent of his own behaviour. These are all real possibilities that the Court does not ignore.
However, consistent with Full Court authorities, the Court must act conservatively and protectively of the Mother and the children. The Mother’s allegations about coercive and controlling violence are therefore, in this case, not considered determinative but are nonetheless a factor which the Court takes into account in the exercise of its discretion and in making the order that it proposes to make.
By contrast however, the evidence about the struggle that the Mother has experienced with her mental health over many decades is very strong. It is very clear from the material before the Court that the Mother has had a very difficult life. She was sexually abused as a child and teenager. She experimented with illicit substances in her teenage years. She has had multiple mental health admissions. She appears to have been first diagnosed with bipolar disorder in 2006. The Mother’s first mental health admission after cohabitation between the parents was in 2017 and this occurred 9 months after X was born.
It appears she first attended L Hospital and then later, M Hospital. Whilst it is not entirely clear, her hospitalisation might have been for as long as a total of 6 weeks. The next mental health admission occurs in mid 2019, three months after Y was born. Again, it would seem that she was first admitted to L Hospital and then to N Hospital. When these hospital records are examined it seems as if the Mother was scheduled and that, in fact, she had had 5 previous admissions to mental health facilities with mania-type symptoms before the admission in 2009.
Her records describe her as having a well-documented history of bipolar affective disorder with a history of this in her family as well. She went off her medication before her pregnancies. Some of her admissions records demonstrate behaviour which was very difficult for the staff to manage, as well as agitation. There can be no doubt on the evidence before the Court that when the Mother’s mental health is not good, she presents a risk of harm to her children.
During each mental health admission during the relationship the Father cared for the children. There is simply no objective evidence to support the Mother’s contention that her mental health relapses were somehow attributable to the Father’s pressure on her to go off medication or anything else that the Father did. The more likely scenario is that she went off her medication because of the pregnancies. When the Mother was discharged for the last time in mid 2019, the discharge referral makes it very clear that her risk of relapse remained high, even on her medication.
The Mother relies on a report from her treating psychiatrist, Dr D, dated 4 May 2020. This is a very helpful report which in many ways demonstrates the complexity of this case. For example, it is clear that the Mother’s mental health was in some ways linked to her relationship with the Father and that its decline at the time of, for example, her most recent hospitalisation contributed to her relapse.
Dr D explains that the Mother does have bipolar affective disorder and had a prolonged period of stability however, prior to the 2 pregnancies. Postnatal relapse is a recognised vulnerability for people with bipolar, he explains, and that fact does not mean an increased risk of relapse at other times in the person’s life. Dr D explains that so long as the Mother remains on medication, is compliant with treating medical staff and does not fall pregnant again the risk of relapse is low, but not non-existent.
The Court would have been much more reassured about the specific matters raised by Dr D that is that the Mother remains on medication and is compliant with treating medical staff, if the Mother had herself led this evidence. Counsel for the Father’s submission that the Mother tells the Court so little about her mental health history and current engagement with services is quite right. It is very surprising.
Her evidence seems primarily focused on rebutting the Father’s allegations and alleging his violence. But when the Mother’s case and the evidence in support of it is critically scrutinised, the unfortunate impression formed is that she has and, indeed, continues to minimise the potential significance of her mental health and the risk of relapse. Submissions made by her solicitor in the Mother’s case outline document of 23 September 2020 on this topic are generalised and poorly supported by evidence that the Mother leads.
The material produced by K Counsellors and E Families provides little reassurance or assistance in this regard. They are not mental health professionals. Overall, the assertion that the Mother is well-engaged with her medical treating services and is medication-compliant depends almost entirely on the Mother’s own evidence. This remains an unresolved issue in this case. This Court believes that there is some risk of the Mother relapsing into poor mental health.
Now, the risk may be mitigated because protective orders are made in terms of the children spending supervised time with the Father and thus the parents not having to come into contact with each other. The risk may be mitigated because of the constant scrutiny of these proceedings. It is nonetheless a real risk in the Court’s mind which it must consider and, indeed, the Court has wondered whether or not it should make an order under s.91B of the Act. For the time being and subject to there being early availability of expert evidence, the Court will not do so.
The focus turns to the risk of harm presented to the children by the Father. The issue of the alleged coercive and controlling violence has already been discussed. There are other matters of concern pertaining to the Father which might broadly be described as personality or behavioural issues that do raise questions about his capacity to prioritise the needs of the children over his own.
Even if the Father did not make admissions about this in his evidence, there is ample evidence before the Court to suggest that he both video and audio records conversations and interactions with people, often in the presence of both the children in question and other children. This is unusual behaviour, to say the least. The impression formed is that he considers this behaviour to be normal. It is not. His explanation about this in his Affidavit does nothing to reassure the Court. The Court will order that the Father be restrained from recording in any medium whatsoever any time that he spends with the children.
There is evidence that the Father rides his bicycle with a child strapped to his chest. Indeed, there is photographic evidence of this. The Father agrees to this in his Affidavit. He seems to normalise it. It is not normal. It seems as if the inappropriateness of this was discussed with the Father by the Mother as well as other authorities including the Police. There is evidence of the Father having inappropriate conversations with the children despite their young age.
For example, X was reported as saying to his mother words to the effect that she, “stole Daddy’s kids” from him and that, “you hurt me, Mum. You always hurt us.” The Mother reports the children getting upset after they have telephone conversations with the Father. Even the Father agrees that he sometimes becomes abrupt at times in dealing with other people.
The Court is concerned about the Father’s level of insight in the sense of not understanding how what he says or does might affect people around him, but specifically the children. Thus, for example, when he took the children from their day care centre on 22 April 2020 without the Mother’s knowledge or consent and triggered events that led to the recovery order proceedings before His Honour Judge Kemp. His evidence creates the impression that he considered this appropriate because it was what the Mother had done to him in taking them away from City L without his knowledge or consent.
There is no evidence suggesting that the Father has capacity to understand what this must have been like for the children. The Mother in her evidence also complains about other instances where the Father has acted unilaterally and arbitrarily, as if she has not done the same.
All of these concerns leave the Court to conclude that, at least for the time being, the Father’s time should be supervised. From the Court’s perspective the greatest need for this supervision is to monitor his conversations with his children as well as what he does with them. Professional supervision will provide the independent records of what occurs. As mentioned above, this case involves a very difficult balancing of risk exercise and the Court is far from confident that its interim decision is the best one in the circumstances. Hence, the need for an urgent, Expert’s Report.
The Court gets some reassurance by the number of people who seem to be involved in the Mother’s life, even if it cannot be assured that these are people directly responsible for monitoring the Mother’s mental health. One would hope that the involvement of people from E Families or K Counsellors would act as some form of safety net for her and that they would report accordingly if they observed a decline in her mental health. It might not be an adequate safety net in the circumstances but at least it is there.
The Independent Children’s Lawyer suggests a suite of orders that mandate the Mother’s involvement in services to assist her and that in itself will be monitored and will be another safety factor. By contrast, no such safety net exists for the Father and he is a lone agent who has demonstrated that he simply does what he considers best, irrespective of the consequences.
In this regard, he is less predictable than the Mother. Moreover, the Court is concerned about aspects of the Father’s proposal. The children have never lived exclusively in his care except for periods when the Mother has been in hospital. He proposes that the children spend unsupervised time with the Mother, a proposal that is incongruent with his own stated concerns about her mental health.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 18 November 2020
Schedule One
Chronology prepared by the Independent Children’s Lawyer
Chronology
M4 Affidavit of the Mother affirmed and filed 23 April 2020.
M9 Affidavit of the Mother affirmed 17 September 2020 and filed 18 September 2020.
F5 Affidavit of the Father affirmed and filed 7 May 2020.
F9 Affidavit of the Father affirmed and filed 18 September 2020.
AD5 Affidavit of Mr H affirmed 9 May and filed 11 May 2020.
| Date | Event | Source |
| 1970 | Respondent Father is born. Currently 49 years old. | |
| 1979 | Applicant Mother is born. Currently 40 years of age. | |
| 1988/1989 | Mother alleges she is sexually abused by the MGF on one occasion when she is nine years old. Mother assert the MGF does not share her with other pedophiles. Father asserts the mother told him the MGF’s friends drugged her, sexually abused her and then allowed his friends to sexually abuse her. | M9 P5 |
| Prior 2000 | Mother asserts she experiments with illicit substances in her teenage years. | M4 P82 |
| 2005 | The mother attends ED after her grandmother died the day before. The mother feels she is having some symptoms. Has been off meds and has been well for 4 years. | S3 L Hospital |
| 2005 | The mother attends ED after she is brought in by her boyfriend. | S3 L Hospital |
| 2006 | The paternal grandmother contacts the police about the father whom she believes to be missing since she had not spoken to him since late 2003. The Police locate the father and provide him with the paternal grandmother’s number. The father tells Police his sister had told him the paternal grandmother had died three years earlier. | S14 NSW Police COPS |
| 2006 | The mother attends ED requesting sedatives to help her sleep and voluntary admission to MH unit. Diagnosed with bipolar disorder. The mother attends ED a little later wanting something to help her sleep. She is upset over a death in her family. | S3 L Hospital |
| 2006 | The mother is in ED and waiting for a lift home after being discharged earlier. The mother cries out and becomes agitated. A mental health assessment is completed. | S3 L Hospital |
| 2007 | The Police attend the father’s home after report is made that the father is cutting his wrists. When the Police arrive, they observe superficial cuts on the father’s wrists. The Police note that the PR (father’s former girlfriend) advised that the father told her that he had thoughts of jumping off a cliff. Ambulance officers attended and the father agreed to go to L Hospital without incident. The father attended the hospital voluntarily and the police did not stay. | S14 NSW Police COPS |
| 2008 | The mother attends ED. She is stressed about work and family life. Alert and oriented. | S3 L Hospital |
| 2008 | The mother attends ED. Notes state mother is manic. | S3 L Hospital |
| 2009 | The mother is discharged from L Hospital. The mother was initially brought in on a schedule by police. | S3 L Hospital |
| 2013 | Mother asserts parties commence relationship. | M4 P5 |
| Eary 2014 | Father asserts parties commence relationship. | F5 P4 F9 P3 |
| 2014/2015 | Father asserts he commences recording all conversations after he is involved in lengthy litigation in the Supreme Court. Father asserts it is common knowledge that he records all of his conversations and that the mother and all of the maternal family are aware of this. Mother alleges that the father tends to be obsessive and controlling and that his choice to record their phone calls is evidence of his obsessive nature. | F5 P70 M9 P6 |
| 2016 | Parties commence living together. Father asserts he installs security cameras as there have been several breaks ins in the area. Father states he is familiar with the area as he owns the property next door and a block of flats not too far away. Father asserts the mother is aware the cameras are being installed and that she does not express to the father that she is concerned about having the cameras in the house. Father asserts the mother appears to be extremely comfortable with the addition of the cameras and that she knew that they were going to be installed for safety purposes. | M4 P5 F9 P4, 9 F5 P4, 10 |
| July – Dec 2016 | Mother asserts she gives the father $8,000 total, being $800 a fortnight, to put away for X but that she has no idea what happens to this money as the father finds a cot on the side of the road and the mother buys a new mattress. Mother asserts that while the parents are given a lot of things for X, she pays for anything else they need. | M9 P37 |
| 2017 | Mother asserts the father finds out about the mother’s history of sexual abuse perpetrated by the MGF. Mother alleges the father makes it his job to hold all parties accountable, strongly resents the mother for not having the MGF charged and sent to jail and for the fact that the mother did not seek monetary compensation. Mother asserts the father often tells her “all your financial worries would disappear if you did”. | M4 P83(a) |
| 2017 | X is born. Currently aged 3 years & 8 months. | |
| After birth of X | Mother asserts she takes 12 months off work to stay home and care for X. Mother asserts she has always been the children’s primary carer. | M4 P30 |
| After birth of X | Mother alleges the father’s behavior begins to change after the birth of X in that he becomes dominating and controlling towards the mother. Mother alleges the father uses psychological and emotional abuse, which escalates even further after the birth of their second child. Mother alleges the father always records conversations the parties have, phone calls the mother makes to others and audio/video recording within and around the home as the parties go about their daily living. Mother asserts the father has never physically hurt the children. Mother alleges, despite the children’s young ages, the father uses emotional abuse tactics and manipulation, saying things to the children like “Mummy abandoned us”, “Mummy has better things to do” and “I would never leave you”. Mother alleges the father usually says these things in circumstances where he has taken the children by force or refuses to let the mother take the children home with her. Father denies that he is dominating or controlling. Father agrees that he records all conversation, but that the mother knows this and speaks to him on the phone. | M4 P11-12, 23 F5 P69-70 |
| March 2017 | Mother asserts that this is when she last sees the MGF. | M9 P5 |
| Sept 2017 | Father asserts the mother asks him to film “video diaries” of the mother while she is in hospital. Father asserts the mother tells him while filming that she has been sexually abused by the MGF from when she was nine years old for several years and again when she was 32 years old. Mother says she cannot be sure whether she asked the father to keep video diaries while she was in hospital as she was in a manic state at this time. Mother asserts it is possible, but she believes it is more likely to be a decision the father made, and she was in no position to argue at the time. | F5 P14, 16 M9 P6 |
| 2017 | The mother is brought to hospital by a friend. The mother has an elevated mood. | S5 M Hospital |
| 2017 | The mother is assessed at L Hospital. She is admitted for MH care. | S5 M Hospital |
| 2017 | Father asserts the mother becomes unwell and is scheduled at L Hospital. Father says in the days prior to her hospitalisation, he observes the mother to not be sleeping and constantly talking all day and night. Father alleges the mother wakes him up every couple of hours to tell him about different ‘get rich quick’ scheme she has found. Father says he complains to mother about this as he has to get up early for work, but he is unaware that the mother is becoming elevated and unwell. Father asserts the mother says she will go and stay with a friend for a few days but after a couple of hours there he receives a phone call from the mother’s friend, in which she says “Ms Ambrose has just gone ballistic. I don’t know what to do. I have called an ambulance. My kids are really scared.” Father asserts the mother is taken to L Hospital and he meets her there with X. Father alleges the mother becomes quite aggressive and is placed in a safe room at the hospital and has to be held down while she is sedated. Father asserts he is frightened for the mother. Father asserts that he cares for X while the mother is in hospital and that he takes X to visit her 2-3 times a day until he is told by Doctors not to as it is elevating the mother further. Father says he only visits when told to by the Doctors. Father asserts that following this admission, he and the mother have a meeting with the mother’s psychiatrist in which her psychiatrist asks “Ms Ambrose had you been taking your medication prior to your admission?” and the mother replies “No I was crushing it up and putting it in Mr Seldors’ food”. Father asserts after the mother is scheduled, he cares for X and when the mother returns home, she cares for X and he commences casual employment. Father asserts whilst he is employed, the children are at home with the mother. Father says whilst the mother is in hospital, he cares for the children and he becomes their primary carer. Father says he has always helped to care for the children with preparing food, bottles, bathing, playing with them and helping around the home. Mother denies the father’s allegations about crushing up her medication and putting it in the father’s food. | F5 P24-26, 30, 100-102 M9 P13 |
| 2017 | The mother reports to the Police that the father rode his bike to the hospital with X strapped to his chest. The Police subsequently attend the father’s home to speak to him about this. The police reiterate to the father the importance of transporting babies in approved carriers. The police note the father seems receptive to the advice. | S14 NSW Police COPS |
| 2017 | Dr O, City L MH Inpatient Unit sends a referral letter to the Admission Officer at M Hospital outlining reasons for referral. | S5 M Hospital |
| 2017 | The mother is admitted to M Hospital. She is transferred from L Hospital MH unit for a further period of inpatient recovery and observation following treatment of post-partum manic psychosis. | S5 M Hospital Discharge Summary |
| 2017 | Father asserts after a three week hospitalisation in the Mental Health Unit at L Hospital, the mother is transferred to M Hospital, where she spends another three weeks. Father asserts upon the mother’s admission to M Hospital, the doctors and nurses tell him “Ms Ambrose is suffering from postnatal depression as a result of hormonal changes and not taking her medication during pregnancy". Father asserts after the mother returns from M Hospital her mental health is well managed for approx. two weeks. Father says it becomes apparent to him that that mother’s mental health is deteriorating again and she is becoming stressed when X is unsettled and not wanting to fall asleep. Father alleges the mother often says to him “I am fucking sick of this. Why won’t he sleep. These meds aren’t helping”. Father alleges he also observes the mother will not hear X cry in the middle of the night and as he is a light sleeper, he gets up and settles X until he falls asleep again. | F9 P29-30 |
| 2017 | The mother is discharged from M Hospital. | S5 M Hospital Discharge Summary |
| 2018 | Father asserts he and the mother takes X to the playground in P Park. Father asserts X loves the flying fox, so he runs next to him every time he places him on the flying fox. Father alleges the mother wants to spend some one-on-one time with X and she asks the father to go and get them some drinks. Father asserts after the mother places X on the flying fox, she stands still and does not keep up with him. Father alleges X falls off the flying fox and sustains a cut to his lower lip. Father asserts X does not want to ride the flying fox for many weeks following this incident. | F9 P76 |
| 2018 | The mother is discharged from CMH at G Region Community Health Service. The Discharge Referral notes that the mother was referred for dual case management with Ms Q. The mother’s care is transferred to her Psychiatrist Dr D. | S1 Community Mental Health Service |
| 4 Aug 2018 | The Police record a report the father had made approximately a week prior about the maternal grandfather allegedly sexually abusing the mother. The maternal grandfather is subsequently questioned. | S14 NSW Police COPS |
| 2019 | Y is born. Currently 1 year and 7 months. | |
| After birth of Y | Mother asserts she takes 12 months off work to care for Y and X. | M4 P30 |
| After birth of Y | Mother alleges the father tries to control relationships the mother has with friends and family and works to isolate and disconnect the mother from her supports outside of the home. Mother alleges the following: (a) The father often puts down maternal family members by bringing up past mistakes they have made and using this against them in a current context. Mother says the father behaves in such a way when they are around, that they stop coming to the family home (b) Whenever the mother expresses a desire or makes plans to take the children out to visit friends, the father finds a way to stop the mother from going. Mother says he does this by making alternative plans with the children and then saying “Mummy’s got better things to do than be with you” or he just refuses to allow the mother to take the children. (c) Father constantly tells the mother that the support services she is engaged with (Perinatal nurses, K Counsellors) don’t know what they are talking about. Mother alleges father encourages her to disengage from their services and do things his way instead. Mother alleges father controls her finances to the point where she is afraid to buy essentials for the children and herself. Mother says the parties keep their accounts separate, but that the father hassles her about money all the time, saying that the clothes the mother bought for the children weren’t necessary, that the mother spends too much money on groceries or that it is the mother’s fault the parties cannot buy a house. Mother alleges the father lectures her about all the things that he pays for as though he owns them and uses this as a way of controlling whether the mother can use it. Mother alleges the father accompanies her to her counselling appointments only to hijack these sessions and force his opinions upon the counsellor. Mother says as a result she shuts down and is embarrassed and ashamed to share. Mother alleges on one occasion the counsellor told the father that he needs to offer more support, however the father refused. Mother asserts the father gives her $19,000 and she returns $5,000 because she feels uncomfortable taking his money. Mother asserts the father says the money is “to pay you back for all the groceries and bills you’ve paid”. Mother asserts the father likely gave her this money to prevent her from applying for a property settlement. Father denies allegations that he tried to control the mother’s relationships with family and friends. Father asserts he criticised the MGF for sexually abusing the mother and her family for not reporting the sexual abuse. Father denies allegations that he tried to dissuade the mother from using her support services. Father asserts he is very encouraging of the mother using support services as he can see how they are helping to stabilise her. Father denies allegations that he controled the mother’s finances. Father asserts the mother works two days per week at the Employer R and has her own money. Father says he encouraged the mother to save, he gave her $20 000, but that the mother spent most of the money and gave $5,000 back. Father denies picking fights with the mother. Father says they had some verbal disagreement as he did raise concerns that he has. Father says he is worried that the mother left her medication laying around repeatedly and that she called and speaks to the MGF which affected her mental health. Father says X did not hide, and only recalls this happening when the mother tried to force him to leave with her and he did not want to go. | M4 P13-16 M9 P37 F5 P71, 73, 75, 81-82 |
| After birth of Y | Mother asserts she is hospitalised for her mental health after the birth of both her children. Mother says this is a direct result of her stopping her Bipolar medication in order to breastfeed. Mother asserts she felt as though she had no choice but to cease her medication and breastfeed as she was fearful of the ramifications from the father if she didn’t stop her medication. Mother says the father uses this to belittle the mother and discredit her ability to be a good mother. Mother alleges the father tells her numerous times “X got ripped off” as the mother had to stop breastfeeding after seven months, rather than the two years which the father expected, when she became unwell and is admitted to hospital. Mother asserts during her time in hospital, she was questioned several times by nursing staff about her home life and returning to a domestic violence relationship. Mother says hospital staff expressed some serious concerns after witnessing the father’s behavior when he visited the mother. Mother alleges Mental Health services were scared, intimidated and reluctant to attend the family home to deliver follow-up care as they were afraid of the father. Father denies the allegations that he forced the mother to stop taking her medications in order to breastfeed. Father says the mother was advised by her psychiatrist to cease the toxic medication when the parties started to try to have X and then again with Y. Father says the medication did not stop so that the mother could breastfeed. Father does not deny saying to the mother that “X was ripped off”. Father says this was said in the context that the mother was forced to stop breastfeeding X because she became unwell again. Father asserts he said that X was ripped off because of the MGF’s actions towards the mother which have caused her mental health issues. Father says he never said or expected the mother to breastfeed for two years. Father denies that he intimidates hospital staff. Father asserts he has a verbal argument with a nurse named Ms S about the number of visitors allowed. Father asserts the mother is only allowed to have one visitor per staff member available and when they were short staffed, this meant that the father had to wait outside the ward for a staff member to come back to the ward so that the ratio was correct. Father says this is frustrating as when he arrives at the hospital, the staff are outside smoking while they are at work. | M4 P17-18 F5 P84-87 |
| 4 April 2019 | An intake assessment is completed by G Region Family Referral Service (FRS), Suburb T for the parents. They are having problems with X. The mother reports that the father keeps X up until 9 or 10pm at night while the mother wants to put him to bed early. | S10 K Counsellors |
| 8 April 2019 | FRS worker, Ms U undertakes an initial home visit with the mother. The mother reports some health problems for X. The mother discusses her concerns about her parenting and the impact on her mental health. The father also participates after returning home. The father tells the FRS worker that he has had to be strict with the mother regarding money and that he has made the mother pay for everything to “enforce savings” The father reports recently paying the mother $10,000 as “forced savings and paying bills”. | S10 K Counsellors |
| 16 April 2019 | The mother contacts the FRS worker to advise her she has been hospitalised for a week due to her mental health. The mother asks the FRS worker to contact her Psychiatrist Dr D to discuss supports in the community. | S10 K Counsellors |
| 16 April 2019 | The FRS worker contacts Dr D and expresses concerns regarding DV and the impact of this on the mother’s mental health. Dr D advises the mother returned early as she was feeling overwhelmed. | S10 K Counsellors |
| 29 April 2019 | The mother is referred by the Perinatal infant MH Service to the Adult Case Management team following a brief ACT follow up to monitor her mental state and risk. | S1 Community Mental Health (Pg 2 Discharge Referral 14/5/19) |
| May 2019 | Mother asserts she has last contact with MGF. | M9 P5 |
| 8 May 2019 | The mother is admitted to N Hospital. | S2 N Hospital |
| 10 May 2019 | FRS worker discusses her concerns about the ‘inequality and use of power and control and gas lighting’ by the father towards the mother. The mother discloses that while in hospital, staff approached her and discussed domestic violence and a worker completed a DVSAT questionnaire with her. The mother expresses she feels safe to return home and is not concerned about the father putting her or the children in danger. | S10 K Counsellors |
| 10 May 2019 | The mother is in N Hospital. Dr D schedules the mother and she is transferred to L Hospital. | S3 L Hospital |
| 13 May 2019 | The mother is discharged from L Hospital. Notes state that the mother initially presented to the facility with a request for specialist MH intervention. | S1 Community Mental Health |
| 14 May 2019 | The mother is discharged from CMH at G Region Community Health Service. | S1 Community Mental Health |
| 21 May 2019 | The mother is discharged from the MH Unit at L Hospital. The mother is transferred to N Hospital. | S3 L Hospital |
| 27 May 2019 | Discharge letter prepared by Psychiatrist Dr D for the mother regarding discharge from N Hospital. | S2 N Hospital |
| 2016 –2019 | Mother asserts the father commences employment when the mother is pregnant with X and he stops working when the mother becomes unwell shortly after Y is born. Mother asserts that father works full-time for Employer V and also does odd jobs in town. Mother asserts the father leaves the home early in the morning and returns home from work around 7pm. Mother says the father then usually takes X out for a bike ride until about 8 or 9 pm and then the mother would take over again as the father didn’t change nappies, bathe the children, change their clothes or do anything other than play with them until he was forced to when the mother became unwell. Mother alleges the father does not get up to the children during the night. Mother asserts that when the father is home, he is responsible for maintaining the yard. | M4 P34-35 |
| 2019 | Father asserts he ceases paid employment with Employer W so that he can care for the children and mother. Father asserts the mother sleeps a lot and is not able to provide care for herself or the children. Father asserts that since Y’s birth, he has been her primary carer. Father asserts every day he cares for the children and takes them out with him a couple of times a day. Father alleges the mother does not like to leave the house very much and prefers to be on Facebook and watch TV but does visit friends and meet them for coffee and shopping. Father asserts he is very concerned about how the children will be looked after with the mother recommencing her medication, which is what led him to cease his employment once Y was born. Father asserts the mother appears to be happy and relieved to have him around. Father asserts the mother says to him “Mr Seldors, I am so glad to have the extra pair of hands. I need the support”. Father says this means that he is available to care for the children and mother at all hours of the day, and he is excited about spending more time together as a family. | F5 P32-35 F9 P37-39 |
| Mid-2019 | Mother alleges the father stops X going to daycare and tells him “You don’t need it, Daddy is all you need, I love you too much to put you in daycare when you could be at home with me” | M9 P16 |
| June 2019 | Mother asserts the father makes the decision to end the relationship. Mother says this is shortly after she came home from the Mental Health Unit after being admitted with postnatal mania. Mother alleges father tells her that he can’t cope anymore, saying “you remind me of my mother”, who was very unwell when the father was a child. Mother says it feels more as though she has grown stronger and is unable to be controlled by the father anymore as she is beginning to see more and more of the emotional abuse in the relationship. Mother says her family, friends and support services were highlighting this to her after witnessing it firsthand. Mother asserts she feels relieved about the relationship ending. Mother alleges the father refuses to leave the family home and that it is up to her to find a new place to live. Mother says she initially makes the decision to relocate to another home in the City L area so that the children can be closer to their father and maintain a strong relationship with him. Mother alleges that after she finds a new place to live, the father decides that the mother should stay, and the parties can work on their relationship and even go to counselling. Mother says she refuses, and this angers the father. Mother alleges the father blames her for breaking up the family and that he tells her “the kids will never forgive you for this, I will tell them that you left us”. Father denies the allegation that he tries to reconcile with the mother and becomes angry when she refuses to. | M4 P7-10 F5 P68 |
22.That this Order authorises the Independent Children’s Lawyer to contact Dr D and to receive from Dr D information regarding the mother’s treatment and progress.
23.That this Order authorises the Independent Children’s Lawyer to contact E Families or any other support agency that the Mother and children might be engaged with from time to time so as to receive from E Families or any other support agency information about the Mother’s or children’s engagement and progress with the agency or support service.
Restraints
24.Pursuant to section 68B of the Family Law Act 1975, the Father is restrained by injunction from:
24.4Going within 100 metres of the Mother’s residence; and
24.5From attending any childcare facility that the children might be attending from time to time without the prior written consent or the Mother or further Order; and
24.6From discussing the following things with the children during telephone or video calls with the children in accordance with Order 13:-
a.These Court proceedings;
b.Restrictions on the Father because of any supervised time;
c.Details about where the children might be living such as their suburb or address;
d.Details about where the children might be attending childcare;
e.Which parent the children would like to live with;
25.Pursuant to section 68B of the Family Law Act 1975, the Mother and Father are restrained by injunction from making any negative, critical, belittling and/or derogatory comments in relation to the other parent or members of the other parent's family or household (including, but not limited to, questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or within hearing of the children.
Programs / Support
26.That within 14 days from the date of these Orders, the Mother is to make an appointment to attend upon Dr D.
27.The Mother is to advise the Independent Children’s Lawyer of the date and time of her appointment with Dr D as required under Order 26.
28.The Mother is to obtain from Dr D a letter setting out the Mother’s current treatment and medication, together with any future recommendation Dr D may have in relation to the Mother’s treatment, medication and frequency of attendance upon Dr D.
29.The Mother is provide a copy of the letter received from Dr D in accordance with Order 28 to the Father and to the Independent Children’s Lawyer.
30.The Mother is to continue to engage with E Families for as long as required by E Families.
31.The Mother authorise the Independent Children’s Lawyer to discuss the Mother’s progress with Dr D and E Families.
32.The Mother is to notify the Independent Children’s Lawyer and the Father if E Families plan to cease supporting the Mother or cease supporting the Mother.
33.That the Father receive psychological treatment as per referral made by his GP under Mental Health Care Plan dated 11 June 2020.
34.That the Father provide the name of his treating professional as required under Order 33 to the Mother and to the Independent Children’s Lawyer
Orders proposed by the Respondent Father
Minute of Orders sought on behalf of the Respondent Father.
That the parties have equal shared parental responsibility for the children, namely X born in 2017 and Y born in 2018 (“the children”).
That the children shall live with the Father.
That the children shall spend time with the Mother as follows:
a.Each alternate weekend in Week 1 from 5.00pm Friday until 5.00pm Sunday.
b.Each alternate Wednesday in Week 2 from 5.00pm until 7.00pm.
c.From 4.00pm Christmas Eve until 12.00pm Christmas Day commencing 2020 and each even-numbered year thereafter.
d.From 3.00pm Christmas Day until 6.00pm Boxing Day commencing 2021 and each odd-numbered year thereafter.
e.If the children are not already spending time with the Mother in accordance with the Orders, on Mother’s Day from 5.00pm Saturday until 5.00pm Mother’s Day Sunday.
f.If the children are not already spending time with the Mother in accordance with the Orders, on the children’s birthdays as agreed between the parties and failing agreement from 10.00am until 2.00pm.
g.If the children are not already spending time with the Mother in accordance with the Orders, on the Mother’s birthday as agreed between the parties and failing agreement from 10.00am until 2.00pm.
That changeover shall occur at P Park in City L.
That each parent is to do all things necessary to ensure that the other parent is kept informed at all times and in writing of the residential telephone number, mobile telephone number and residential address of the other parent.
If the children are hospitalised or receive medical attention, the other party who has care of the children at the time will notify the other party as soon as reasonably practicable after the initial attendance with the medical practitioner, medical centre or hospital, with that notification to include details of the illness, injury, treating doctor, the prognosis and treatment, if known. The parties are to comply with any treatment advice or directions given by the relevant medical practitioner.
That in the event of a medical emergency involving the children, the parent with the care of the children is to notify the other parent as soon as reasonably practicable.
That both parents are at liberty to communicate with the children by telephone and/or Skype or Facebook Messenger between the hours of 6.00pm to 7.00pm with the resident parent to facilitate and encourage telephone and video-call occurring.
That each of the parties are hereby restrained from denigrating the other party, the other party’s spouse and/or partner or immediate family in the presence of the children or allow or permit any other person to do so.
10.That the Mother is injuncted and restrained from allowing the children to be in the presence of the paternal grandfather Mr JJJ.
11.That the Mother is injuncted and restrained from allowing the children to be left unsupervised in the care of her sister Ms YY, the mother shall supervise the children at all times personally when her sister Ms YY is present.
12.That the Mother is injuncted and restrained form allowing the children to be left unsupervised in the care of her brother Mr KKK, the mother shall supervise the children at all times personally when her brother Mr KKK is present.
13.That pursuant to s62G of the Family Law Act, a family consultant be appointed to prepare a Family Report in relation to the matter including the wishes of the children as to the time they spend with the Mother and as to the child’s relationship with each parent.
0
10
2