Asturias & Nasir (No 2)
[2025] FedCFamC1F 65
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Asturias & Nasir (No 2) [2025] FedCFamC1F 65
File number: BRC 8781 of 2023 Judgment of: CAREW J Date of judgment: 12 February 2025 Catchwords: FAMILY LAW – CHILDREN – Where there is a challenge to the psychiatric report of the single expert psychiatrist – Where the report raised the risk of kidnapping and fleeing, as well as filicide-suicide by the mother – Where a child was removed from the mother and placed with the father on an interim basis – Where significant restrictions were placed on the mother – Where it is conceded psychiatric evidence relied upon does not support finding of unacceptable risk of harm – Where it is submitted that the single expert report should be afforded little or no weight – Where risks have been identified in the mother’s household – Where it is accepted the risks are not unacceptable – Where the child will remain living with father on an interim basis until trial Legislation: Evidence Act 1995 (Cth) ss 76, 79
Family Law Act 1975 (Cth) s 60CA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.02, 6.1, 6.2, 12.06
Cases cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Number of paragraphs: 38 Date of hearing: 6 February 2025 Place: Brisbane Counsel for the Applicant: Mr Jordan Solicitor for the Applicant: Oner Family Law Counsel for the Respondent: Mr Puckey KC with Ms Davison Solicitor for the Respondent: Michael Lynch Family Lawyers Counsel for the Independent Children's Lawyer: Dr Sayers with Ms Bassano Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDER
BRC 8781 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ASTURIAS
Applicant
AND: MS NASIR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.All previous parenting orders be discharged.
2.Mr Asturias (“the father”) and Ms Nasir (“the mother”) have joint decision-making in relation to all major long-term issues (as defined by s 4 of the Family Law Act 1975 (Cth)) in relation to the child X born 2018 (“the child”) other than in relation to a major long-term issue concerning the child’s health for which the father has sole parental decision-making.
3.In relation to a major long-term decision concerning the child’s health, the father:
(a)advise the mother of the decision that is required to be made concerning the child (except in the case of an emergency where the father is to notify the mother of the decision that he has made as soon as possible, and in any event, within 24 hours);
(b)seek the mother’s input into that decision and for this purpose the mother is to advise her response within 48 hours, or such earlier time as the father advises in the event the required decision is urgent;
(c)genuinely consider the input of the mother; and
(d)within 24 hours inform the mother of the decision that has been made.
4.The child live with the father.
5.The child spend time with the mother at all such times as may be agreed between the parents and failing agreement as follows:
(a)Week 1:
(i)from after school Friday (or from 3.00 pm if the child is not attending school) until 6.00 pm Sunday; and
(ii)from after school Wednesday (or from 3.00 pm if the child is not attending school) until the commencement of school Thursday (or 9.00 am if the child is not attending school); and
(b)Week 2:
(i)from 9.00 am Sunday until the commencement of school Monday (or 9.00 am if the child is not attending school); and
(ii)from after school Wednesday (or from 3.00 pm if the child is not attending school) until the commencement of school Thursday (or 9.00 am if the child is not attending school).
THE COURT FURTHER ORDERS THAT:
Court fees
6.The applicant pay the trial setting down and hearing fee by 4.00 pm on 14 April 2025 unless a fee exemption application has been approved beforehand.
Filing material
7.The applicant file and serve any amended application and one affidavit of evidence in chief of himself and of any witness upon which he intends to rely and an updated financial statement by no later than 4.00 pm on 14 April 2025.
8.The respondent file and serve any amended response and one affidavit of evidence in chief of herself and of any witness upon which she intends to rely and an updated financial statement by no later than 4.00 pm on 21 April 2025.
9.The Independent Children’s Lawyer (“ICL”) file and serve any material upon which she intends to rely by no later than 4.00 pm on 14 April 2025.
10.Any affidavit by the applicant strictly in reply be filed and served no later than 4.00 pm on 28 April 2025.
11.In the event that a party (including the ICL) refers to a document within the body of an affidavit of evidence in chief, any such document is not to be annexed to the said affidavit, unless it is a report by a single expert or treating practitioner, but is to be included in an indexed and paginated folder (including a reference to the paragraph number within any affidavit where the document is mentioned) and provided to the other party (including the ICL) at the time of service of the affidavit AND a copy of the folder should be available to be tendered, if required, by forwarding an electronic copy of the bundle, which is to be paginated to reflect the electronic page numbering, to …@... prior to the commencement of trial.
12.Each party including the ICL file and serve a case summary document no later than 4.00 pm on 7 May 2025, including a chronology; list of applications or responses and affidavits to be relied upon at trial; list of any witnesses proposed to be called at trial pursuant to subpoena; and a summary of argument with any authorities relied upon.
13.The parties file a joint list of issues for determination at trial within 21 days.
Notification to Single Experts
14.The ICL is requested to forthwith notify the single experts in writing of the trial dates and confirm their availability to give evidence on those dates, if required.
Disclosure
15.Pursuant to Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) each party must comply with their ongoing duty to give full and frank disclosure of all information and documents (including recordings) relevant to an issue in the case, in a timely manner.
16.Pursuant to r 6.02 of the Rules each party must file and serve a written notice:
(a)Stating that the party:
(i)Has read Parts 6.1 and 6.2 of the Rules; and
(ii)Is aware of the party’s duty to the Court and each other party (including the ICL) to give full and frank disclosure of all information relevant to the issues in the case, in a timely manner;
(b)Undertaking to the Court that, to the best of the party’s knowledge and ability, the party has complied with, and will continue to comply with, the duty of disclosure; and
(c)Acknowledging that a breach of the undertaking may be contempt of Court.
(d)And the undertaking as to disclosure for each party should be filed with the Court prior to the commencement of trial and a sealed copy served up each other party.
Costs Disclosure (Rule 12.06)
17.No later than 4.00 pm on 9 May 2025 the lawyer for each party must give the party a written notice of:
(a)The party’s actual costs, both paid and owing, up to and including the trial;
(b)Any expenses paid or payable to an expert witness or, if those expenses are not known, an estimate of the expenses;
(c)If the matter is a financial case, specify the source of the funds for the costs, both paid and owing or to be paid (pursuant to r 12.06(6) of the Rules);
18.No later than 4.00 pm on 9 May 2025:
(a)a party’s lawyer must give to the Court and each other party a copy of the said notice by filing same with the Court and serving a sealed copy upon the other parties.
19.No later than 4.00 pm on 9 May 2025, the ICL must give to the Court and each party a written statement of the actual costs incurred by the ICL up to and including the trial by filing the costs notice with the Court and serving a sealed copy upon the other parties.
Joint Trial Balance Sheet
20.The applicant provide to the respondent no later than 4.00 pm on 14 April 2025 a draft Joint Trial Balance Sheet setting out the asset pool contended for by the applicant including assets, liabilities and financial resources and their asserted value and the respondent by no later than 4.00 pm on 21 April 2025 shall insert into that Balance Sheet the respondent’s contentions as to the asset pool including assets, liabilities and financial resources and their asserted value and return the Joint Trial Balance Sheet to the applicant no later than 4.00 pm on 5 May 2025.
21.In relation to any issue or dispute in the completed Joint Trial Balance Sheet the parties are to footnote their reason for their contention and the reference to the evidence that supports their contention.
22.The applicant is to cause the completed Joint Trial Balance Sheet to be forwarded to the Court for filing by no later than 4.00 pm on 8 May 2025.
Compliance Hearing
23.The matter is listed before Judicial Registrar Brooks for a Compliance Hearing at 11.00 am on 28 April 2025, at which time all parties including the ICL should be able to inform the Court of the name of Counsel briefed to appear at trial.
Amendment of trial directions
24.If any of the parties require these trial directions to be amended, that party may make an application to do so on the giving of seven (7) days’ notice in writing to each other party.
25.If any of the parties at any stage forms the view that the matter may not be ready to proceed to trial on the allocated dates, or may require a longer time for hearing than the allocated dates, or may require a shorter time for hearing than the allocated dates that party must contact the Case Manager by email to …@... on notice to the other parties to seek that the matter be urgently relisted.
NOTATIONS:
A.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
B.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Asturias & Nasir has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
X is a six year old girl who, until 9 December 2024, lived with her mother, Ms Nasir and spent five days a fortnight with her father, Mr Asturias. As a consequence of some alarming concerns raised by Dr C, a single expert psychiatrist engaged by the Independent Children’s Lawyer (“ICL”), the child was placed with the father on an interim basis and significant restrictions were placed on the mother’s contact with the child.
The matter has returned to Court for an interim parenting hearing after the mother has had a chance to properly respond to the matters raised, and in so doing she relies upon other expert evidence contesting the reliability and/or validity of the risks said to have been identified by Dr C.
The mother contends that the 9 December 2024 order should be discharged, and the parenting arrangements revert to those contained in the order made on 18 December 2023 on an interim basis, namely, that the parents have equal shared decision-making, the child live with the mother and resume spending five nights per fortnight with the father.
After initially seeking a continuation of the order made on 9 December 2024, the father capitulated and conceded that the psychiatric evidence relied upon to remove the child from the mother at the end of last year does not support a finding that the mother poses an unacceptable risk of harm to the child. I infer from that concession that he accepts that the psychiatric evidence from Dr C is unreliable. The father nevertheless submitted that on an interim basis the child should remain in his care until the trial which will commence on 12 May 2025 for six days and that the mother should spend five nights per fortnight with the child unsupervised.
The ICL also appeared to capitulate from her initial position about risk and was said to be “agnostic” on whether any risk posed by the mother is unacceptable. Nevertheless, the ICL supports the child continuing to live primarily with the father and spending unsupervised time with the mother on an interim basis. It is unclear to me what follows from the ICL’s submission of being “agnostic” about risk. Suffice to say, the ICL did not advocate for a finding that any risk posed by the mother should, on an interim basis, be found to be unacceptable.
For reasons which will be explained, I propose to order that the child continue to live with the father and spend time with the mother five nights per fortnight unsupervised.
BACKGROUND
The parents separated in March 2023 and the father commenced parenting proceedings in July 2023. The child has global developmental delay and until recently, she was still wearing nappies and having a baby bottle twice a day. She has a medical and allied health team providing support and has made significant improvements since 2022 particularly since she started prep in 2024.
In a letter dated 6 September 2024 to the National Disability Insurance Scheme, the child’s paediatrician, Dr D, noted the child’s need for ongoing supports in the following areas:
•Speech therapy
•Occupational therapy
•Physiotherapy
•Ongoing psychological support
•Psychological review at least biannually
•Bi-annual paediatric review
•Assistance with toileting
In late 2024, Dr D referred the child to E Psychology for an assessment regarding “complex neurodevelopment disorders and a cognitive assessment for [the child]” (Exhibit 8).
The father contends that the mother’s own mental state or personality vulnerabilities have delayed the child’s progress. For example, he contends that as a consequence of the mother’s germ phobia the child never walked without shoes, never touched food with her hands, and that he was largely forbidden from touching the child when the parents were still together. The mother contends the father’s evidence is exaggerated.
The matter first came before me after an urgent written request from the ICL who sought to manage the release of a psychiatric report which raised serious risks posed by the mother to the child if the report were released to her while the child was in her care, including kidnapping the child or killing her and/or herself.
On 9 December 2024, the mother consented to the child living with the father “for the purpose of ensuring orders are in place on an interim basis until the matter can be set down for an interim hearing” and “reserve[d] her position in relation to orders that reflect the child’s best interest at the upcoming interim hearing”. The mother also gave notice that she intended to rely upon a report from another psychiatrist she had retained to prepare a medico legal assessment of her.
In December 2024, the parents jointly attended a session with the clinical psychology registrar from E Psychology, Ms F. The parents are awaiting a letter of recommendation once all collateral information is obtained to inform whether it is Ms F’s professional opinion that the child would benefit from cognitive assessment to determine the presence of any possible neurodevelopmental conditions (Exhibit 3).
The mother’s time with the child has been supervised since the 9 December 2024.
DR C’S EVIDENCE
The mother objected to the admissibility of the report annexed to an affidavit by Dr C affirmed on 22 November 2024[1] and an addendum to her report annexed to an affidavit by Dr C affirmed on 27 November 2024.[2] Dr C is the single expert psychiatrist retained by the ICL. As the affidavits have not actually been filed and were not tendered during the hearing they were not formally before me but as all parties proceeded on the basis that they were before me, nothing turns on that irregularity.
[1] This affidavit was received into evidence during the hearing on 29 November 2024 and marked as Exhibit 2. It has not been filed.
[2] This affidavit was received into evidence during the hearing on 29 November 2024 and marked as Exhibit 4. It has not been filed.
In the alternative to a finding of inadmissibility, the mother submitted that Dr C’s report should be afforded little or no weight. The mother conceded that a decision on the weight that should be afforded to the report may be a preferable outcome to one that may be perceived to be a purely technical rejection of the report.
It was submitted by the mother that Dr C’s report did not come close to what is required to establish unacceptable risk. The mother contended that the history of the proceedings and the parties’ conduct was informative. Firstly, the father commenced the proceedings in July 2023 after the parents separated in March 2023. Secondly, a psychiatric assessment undertaken by the previous single expert psychiatrist, Dr G, in October 2023 identified some problems in each parent. Thirdly, the mother thereafter engaged with a psychologist and when the psychologist went on leave, a social worker. Fourthly, a family report was filed 29 November 2023 and recommended the child live with the mother but spend more time with the father. Fifthly, there was a contested interim hearing on 7 December 2023 (with determination on 18 December 2023) which provided for the child to live with the mother and spend time with the father gradually increasing such that by April 2024 she was spending five nights per fortnight with the father. Sixthly, there had been no agitation to change that arrangement prior to a final hearing.
The mother submitted that the only catalyst for the removal of the child from the mother was Dr C’s report which involved a “significant ambush of the mother” and which the ICL “ran” with.
To the extent the submissions made on behalf of the mother suggest some wrongdoing by the ICL, I reject the submission. To the contrary, the ICL acted appropriately in bringing the matter to the attention of the Court in the manner she did, and equally appropriate was the mother’s initial consent to the orders removing the child from her care. The actions by the ICL and the mother were appropriately child focussed.
Given the concessions made by the father and the ICL, it is perhaps unnecessary to determine the issue of the admissibility of Dr C’s report or the weight to be afforded to it. However, it is significant that the following criticisms of Dr C’s report were not challenged:
(a)Dr C does not have qualifications in risk assessment and only tenuous experience in working with parents in family law proceedings.
(b)The report contains internal inconsistencies. For example:
(i)In paragraph 2 of her report, Dr C states that the mother presented with mental health symptoms that would “potentially” meet the Diagnostic and Statistical Manual of Mental Disorders (5th edition) (“DSM-5”) diagnostic criteria for:
•Factitious disorder by proxy [also known as Munchausen syndrome by proxy]
•Personality disorder – borderline, histrionic, and obsessive traits
(ii)Cf at paragraph 67 of her report, Dr C opines that the mother’s presentation “would” fulfill the DSM-5 criteria for a personality disorder, with borderline, histrionic, and obsessive traits;
(iii)And at paragraph 126 of her report, Dr C states that the mother “would” meet the DSM-5 criteria for a personality disorder, unspecified at present, but with borderline, histrionic, and obsessive personality traits;
(iv)At paragraph 59 of her report, Dr C opines that the mother “did not meet the full symptom criteria for any major mental illness, … however, a diagnosis of factitious disorder by proxy could not be excluded”;
(v)Cf at paragraph 125 of her report, Dr C opined that the mother “would potentially” meet the DSM-5 criteria for factitious disorder by proxy, however, this could not be concluded during the assessment;
(vi)Cf at paragraph 149 of her report, Dr C said she assessed the mother as having “a potential significant mental illness and a personality disorder that negatively impact on her capacity to parent and meet the needs of her child”.
(c)At paragraph 55 of her report, Dr C sets out the DSM-5 criteria for factitious disorder by proxy as follows:
•Falsifying physical or psychological signs or symptoms in another person
•Causing injury or disease in another person
•Presenting the other person as sick, injured, or impaired to others
•The deceptive behaviour persists even when there's no obvious gain or benefit
•No other mental health condition can explain these behaviours
(d)And at paragraph 56, Dr C noted that the disorder is “a form of abuse that can put a child in serious danger of injury or unnecessary medical care”.
(e)Yet Dr C does not identify any facts upon which she relied to support even a potential diagnosis for factitious disorder by proxy in circumstances where both parents accept the diagnosis by the child’s long-time paediatrician that the child suffers from global developmental delay. As to Dr C’s reference to a person with factitious disorder by proxy seeking “unnecessary medical care”, the father’s case is the opposite of that. He contends that the mother has resisted medical care.
(f)Dr C noted the many inherent limitations presented by the assessment of the mother taking place by video conference in relation to mental state status examinations and psychometric testing and noted that she did not see the mother with the child. The mother submitted that these limitations are “fatal” to her conclusions.
(g)At paragraph 75 of her report, Dr C recommended that “the Report not be released directly to [the mother]” but provides no explanation for that recommendation.
(h)At paragraph 78 of her report, other than providing a list of statistical and demographic factors, many of which would apply to all litigants in family law proceedings, or simply did not apply to the mother, Dr C refers to such factors “increasing [the mother’s] risk of suicide” without identifying any facts to suggest the mother has ever threatened suicide or presented with suicide ideation or explaining why she thought, if she did, that the mother posed a risk of suicide.
(i)The same criticism was directed at Dr C’s assessment of the risk of “filicide-suicide” at paragraph 85 of her report.
(j)Again, the same criticism was directed at Dr C’s assessment of the risk of child abuse by the mother. A list of statistical and demographic factors that have been observed to be present in persons who have abused their children is seemingly relied upon to support a suggestion that this mother poses a risk without identifying any facts or providing any explanation for her conclusion at paragraph 135 of her report that the “risk of child abuse and neglect in the form of physical abuse, medical abuse, emotional abuse, neglect, and exposure to family violence has been assessed as significantly raised”.
(k)At paragraph 133 of her report, Dr C regarded the “risks of violence and professional slander to the professionals involved in the legal proceedings as high”, in a complete absence of any identified facts or explanation.
(l)At paragraph 137, Dr C opined that the “specific risk of kidnapping and fleeing with the child, as well as the risk of filicide-suicide would be very significantly elevated … her risk to herself and the child … the highest possible risk category”, yet again failed to identify any factual basis for her opinion.
(m)At paragraph 138, Dr C opined that if the mother even thought there was a possibility that the Court “might be what she would perceive as engaging the father in a bigger aspect of the child’s life”, she would behave erratically. This sits oddly with the fact that the Court made an order in December 2023 giving the father a greater role in the child’s life including by spending five nights per fortnight with the child yet there is no suggestion the mother acted “erratically” as a result.
(n)Despite noting the “protective factors” present for the mother at paragraph 96 of her report being factors that ameliorate the various risks noted in her report it remains unexplained how Dr C took those factors into account when assessing risk and why the limiting factors of the assessment identified at paragraph 120 were seemingly given no weight.
(o)Despite all of the risks identified by Dr C, one very important line in her report seems to have been overlooked. At paragraph 134 of her report, Dr C opined that, “[n]o immediate risks to the child have been identified”.
(p)By paragraphs 155-158, Dr C concedes that any reliable diagnosis requires further assessment.
Many of the shortcomings in Dr C’s report, as identified by the mother above, relate to the absence of any factual foundation in the report (or elsewhere) for the opinions expressed.
It is important to recognise that an opinion of itself is insufficient to prove the existence of a fact about which the opinion is expressed (s 76 of the Evidence Act 1995 (Cth) (“Evidence Act”)).
Section 79 of the Evidence Act creates an exception to the opinion rule based on specialised knowledge. Section 79 provides as follows:
(1)If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2)To avoid doubt, and without limiting subsection (1):
(a)a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and
(b)a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i) the development and behaviour of children generally;
(ii)the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
The oft cited authority of Makita (Australia) Pty Ltd v Sprowles[3] (“Makita”) establishes several principles relevant to this exception:
(a)It “must be agreed or demonstrated that there is a field of ‘specialised knowledge’”;
(b)There “must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert”;
(c)The “opinion proffered must be ‘wholly or substantially based on the witness's expert knowledge’”;
(d)So “far as the opinion is based on facts ‘observed’ by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way”;
(e)It “must be established that the facts on which the opinion is based form a proper foundation for it”; and
(f)The “opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight”.
[3] [2001] 52 NSWLR 705 at [85]. See also Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.
Many of the shortcomings identified in Dr C’s report by Dr H (forensic psychologist) and Dr J (consultant psychiatrist) appear to be well founded.
Regrettably, Dr C’s current evidence can be given little weight.
In any event, the primary risk identified by Dr C appears to relate to the impact of her report on the mother if she felt her position with the child were threatened. In circumstances where the mother appropriately dealt with the disappointment in December 2023 of the father achieving, against her wishes, a gradual increase in his time with the child to five nights per fortnight and that arrangement had been in place since April 2024, and the mother has now had the benefit of reading the report and conferring with psychiatrists and psychologists, any risk identified appears to have been ameliorated. I further note Dr C’s assessment that despite the various risks identified in her report, there was no imminent risk to the child.
I also noted that neither the mother’s treating psychologist nor treating social worker raise any concern about the mother being a risk to the child and the mother’s recent psychiatric assessment from Dr K filed 29 January 2025 rejects the contention that the mother poses a risk of harm to the child.
WHAT INTERIM PARENTING ORDER IS IN THE CHILD’S BEST INTEREST?
Despite my conclusions about Dr C’s report and what may have been an injustice visited upon the mother in December 2024, those factors cannot supplant the statutory requirement to afford paramountcy to the child’s best interests (s 60CA of the Family Law Act 1975 (Cth)).
The father contended that the child’s condition has had a marked improvement since coming into his primary care. However, the reasons for such improvement, if they have occurred, cannot be determined, in my view, in the absence of expert evidence. In this context, I note that the child’s paediatrician, Dr D, whom the child has seen since 2022, had already noted considerable improvement in the child since she had been working with her allied health team and attending kindy and then school (Exhibit 8).
The father argued that the following additional factors favour leaving the child in his primary care:
(a)It would be too disruptive to change the current living arrangements when they may have to change again if the father is ultimately successful at trial;
(b)There are no identified risks in the father’s household compared to the possible risks identified in the mother’s household;
(c)Although there are deficiencies with Dr C’s report, the risks she identifies are serious but as yet “unknown” and can only be fully considered at trial;
(d)All indications are that the child has settled into the father’s household and is doing well;
(e)The supervisor’s notes record the child asking for the father during the supervised visits between the mother and the child, in particular, at times the child appeared stressed, and the child has happily returned to the father at the end of each visit;
(f)The father is a perfectly adequate carer for the child;
(g)The father will ensure the child maintains her relationship with the mother as demonstrated by his agreement to the child spending five nights per fortnight with the mother in the interim;
(h)The mother is seeking to reduce the father’s time, at trial, to three nights per fortnight which may indicate an unwillingness to promote the father’s relationship;
(i)Despite what was submitted on the mother’s behalf about the circumstances of the change in primary care in December 2024, the change did not occur ex parte, the mother consented to the change which indicates her implicit acceptance that the father is an adequate carer for the child;
(j)The mother on her own evidence struggles to care for the child on a primary care basis e.g., she told Dr C that the child “has no fixed routine” and can have a bath, eat, and sleep at times she pleases, and that the child was “much harder work than a normal six‑year-old”, and that she “cannot force her”;
(k)The father points to numerous actions by the mother which he contends has delayed the child’s progress, including:
(i)The mother continued to treat the child as a baby e.g., not allowing her to walk, only giving her pureed food, not allowing her to eat the food provided at daycare/kindy, and only allowing the child to use a ‘sippy’ cup;
(ii)Only allowing the child to sleep next to her;
(iii)Not encouraging the child to dress herself;
(iv)The child was never toilet trained and was still in nappies at six years of age;
(v)Only engaging the child in play activities suitable for a much younger child;
(l)The mother resisted intervention to assist the child e.g., report from the child’s GP dated 19 May 2022 stating “mum is struggling to see that there is any delay at all”;
(m)The mother exhibited an “extreme germ phobia/paranoia” during the relationship which impacted on the child e.g., the mother had a fear of the child picking up germs if her skin was exposed so covered her skin head to toe even in summer; used excessive wiping during nappy changes causing distress to the child; was obsessive in her use of antiseptic wipes on the child’s hands and face to the point of causing inflammation on her skin; was excessive in her use of soaps and creams such that bath times took up to an hour; and she never allowed the child to crawl on the floor or to touch food with her hands;
(n)The mother’s extreme germ phobia led to her refusing to touch the father for the five and a half years prior to separation leading a dermatologist, Dr L, to opine in December 2019 that the mother’s condition was most likely a psychiatric issue and “probably a delusional disorder”;
(o)The Family Report writer noted that there was a “marked difference in the way [the child] related to each of her parents, and she interacted more freely and affectionately with her father”;
(p)At [250] of the Family Report it is observed:
[The mother’s] tendency to stand back and avoid physical contact with [the child] is likely to be related to her concerns about the hygiene implications of engaging with her directly on a physical level and exchanging affection. By her own account, [the mother] is reluctant to kiss [the child] because of the risk of contagion.
(q)At [259] of the Family Report it is noted that the mother conceded she had “difficulties managing some of [the child’s] more challenging behaviour when she is in her care”;
(r)Since coming into the father’s care, the child no longer has a baby bottle and is close to being out of nappies permanently;
(s)The child’s constipation has stopped, and she is now passing bowel motions every day; and
(t)The father has made sure the child takes prescribed medication and attends all appointments and he has arranged for the occupational therapist to do home visits.
The father also relies upon parts of the mother’s recent psychiatric assessment by Dr K. In particular, the father refers to the following matters in Dr K’s report:
(a)Dr K notes that it was difficult obtaining a relevant history from the mother;
(b)Dr K quotes from the mother’s general practice records dated 4 November 2019 where it is reported that the mother, “[h]as very fixed views about her skin. Thinks touching her husband will cause a transient itchy rash; hasn’t touched him in two to three years. Won’t touch anything he has touched unless it is cleaned first”;
(c)The GP referral letter dated 19 November 2019 refers to “[c]omplicating this problem is the fact that [the mother] has a […] daughter…who is kept isolated in either her cot or stroller due to [the mother’s] fear of germs”;
(d)Dr K notes that “[d]espite having lived in Brisbane her entire life, [the mother] has a small support network consisting of her sister-in-law, some cousins, and her best friend, […]”; and
(e)Dr K opines that the mother has “significant difficulties with interpersonal relationships” and while she does not pose any direct threat to the child, he opined that “she would struggle to support the child’s social development if she had full custody”.
As earlier noted, the ICL supports the father retaining primary care pending the trial in May 2025.
The mother resists variation of the 18 December 2023 on an interim basis and submits that many of the matters raised by the father are triable issues. In particular, the mother refers to her evidence about the child’s social interactions and notes that the child is being assessed for autism. Further, the mother points to the repeated comments by the child during supervised visits that she misses the mother and wants to spend more time with her.
DISPOSITION
It seems to me that in applying the paramountcy principle to the facts of this case, the child’s best interests narrowly fall on the side of leaving the child in the primary care of the father but substantially increasing the child’s time with the mother and removing supervision.
The child has already endured major upheaval in December 2024 and if the child were returned to the primary care of the mother on an interim basis and the father was ultimately successful at trial it would involve yet another major upheaval. There have not been any risks identified in the father’s household. By contrast there have been risks identified in the mother’s household which although they do not reach the level of being unacceptable and may be more associated with long term rather than short term risk, they are matters that inform the child’s best interests even on an interim basis. The mother’s own evidence, as reported to Dr C, (and not challenged) indicates that the mother struggles to meet the child’s needs.
Accordingly, the child will continue to live with the father on an interim basis and spend five nights per fortnight with the mother. It seems to me that the parents should share decision-making relating to major long-term issues other than health. Although historically there has been some cooperation between the parents regarding health decisions, their most recent attendance with the child’s psychologist in December 2024 was less than helpful and certainly not child focussed. The father will have sole decision-making power for the child’s major long‑term health issues pending the trial. As the child will be spending significant time with both parents, I do not intend to include a provision in the order about telephone communication but that should not prevent either parent from facilitating contact between the other parent and the child if appropriate. Given the imminent trial, I do not consider it necessary to make any separate provision for the Easter holidays. The parents are of course free to reach agreement about that period if they are able.
I note that in the order made on 9 December 2024 (amended 12 December 2024), it was anticipated that trial directions would be made at the hearing on 6 February 2024. No party mentioned trial directions, but it seems to me to be appropriate to include my usual trial directions in the order. If any party wishes to amend the trial directions, there will be provision in the directions for that to occur. I note that the trial will include issues relating to financial matters. The parties will be required to submit a joint list of issues for determination at the trial within 21 days.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 12 February 2025
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