Bachman & Leopold
[2021] FedCFamC2F 28
•10 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bachman & Leopold [2021] FedCFamC2F 28
File number(s): MLC 6357 of 2019 Judgment of: JUDGE MCNAB Date of judgment: 10 September 2021 Catchwords: FAMILY LAW – parenting – risk to children posed by the mother’s mental health issues – supervised time not reasonably practicable – presumption of equal shared parental responsibility displaced – father to have sole parental responsibility for the children – children to live with the father – children to spend time with the mother. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 64B, 65AA, 102NA. Division: Division 2 Family Law Number of paragraphs: 99 Date of last submission/s: 19 June 2021 Date of hearing: 15 – 17 June 2021 Place: Melbourne Counsel for the Applicant: Mr D Goddard Solicitor for the Applicant: Ebejer & Associates Lawyers Counsel for the Respondent: Mr G Thistleton Solicitor for the Respondent: Marcou & Associates Pty Ltd Counsel for the Independent Children's Lawyer: Mr S Raddich Solicitor for the Independent Children's Lawyer: Macgregor Barristers & Solicitors ORDERS
MLC 6357 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BACHMAN
Applicant
AND: MS LEOPOLD
Respondent
ORDER MADE BY:
JUDGE MCNAB
DATE OF ORDER:
10 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Applicant Father have sole parental responsibility for the children X born in 2006 and Y born in 2013 (“the children”) and shall notify the Respondent Mother of all major or long-term decisions regarding the children’s health and education.
3.The children live with the Father.
4.The children spend time with the Mother as follows:
(a)during school terms, from the conclusion of school on each alternate Friday for two hours (with such time to be calculated from the end of the school day for whichever child’s school finishes last);
(b)during gazetted mid-year school holiday periods, on the first and last Sunday of the holiday period from 12.00pm to 2.00pm;
(c)during the gazetted long summer holidays on the first, third and fifth Sunday of those holidays from 12.00pm to 2.00pm;
(d)if the children are not already in the care of the Mother, on each of the children’s birthdays from:
(i)the conclusion of school on the child’s birthday for two hours (with such time to be calculated from the end of the school day for whichever child’s school finishes last) if the child’s birthday falls on a school day; or
(ii)12.00pm to 2.00pm if the child’s birthday does not fall on a school day;
(e)if the children are not already in the care of the Mother, on the Mother’s birthday from:
(i)the conclusion of school on the Mother’s birthday for two hours (with such time to be calculated from the end of the school day for whichever child’s school finishes last) if the Mother’s birthday falls on a school day; or
(ii)12.00pm to 2.00pm if the Mother’s birthday does not fall on a school day;
(f)on Mother’s Day from 12.00pm to 2.00pm;
(g)on Christmas Day from 4.00pm to 6.00pm; and
(h)as otherwise agreed between the parties in writing.
5.For the purpose of changeover, the Mother shall collect the children from their collective schools on school days and otherwise changeover shall occur at the entrance to the C Store in D Corner (being the corner of D Road and D Road, Suburb F).
6.The children communicate with the Mother by phone or video:
(a)each Monday and Wednesday between 5.00pm and 6.00pm; and
(b)as otherwise agreed between the parties in writing.
7.Except in the case of an emergency, the parties shall use ‘My Family Wizard’ to communicate with each other and shall only communicate as is necessary to give effect to these orders.
8.For the purpose of order 7 herein, each party shall keep the other informed of their mobile phone number and shall inform the other of any change to their mobile phone number within 48 hours of such a change.
9.The Father provide X with a mobile phone at the Father’s expense and X shall be at liberty contact the Father at any time he is in the Mother’s care and the Mother be restrained by injunction from preventing X from doing so.
10.In the event that either or both of the children suffer a significant illness or injury whilst in the care of either party, that party shall inform the other party as soon as is reasonably practicable.
11.The Mother shall be at liberty to receive school reports and school photos from the children’s schools at her own expense subject to any policy of the children’s school, and if she seeks to do so, she shall make arrangements directly with the children’s schools and is permitted to provide a copy of these orders as authorisation of the same.
12.The Father provide a copy of these orders to each of the Principals of the children’s schools within 14 days of the date of these orders.
13.The Father be at liberty to provide a copy of the family report and the final orders of the Court to any psychologist or counsellor who is treating either or both of the children.
14.The parties be restrained by injunction from:
(a)discussing these proceedings with the children or allowing them to see any document produced for the purposes of these proceedings; and
(b)discussing with either or both of the children, any allegation or complaint that they have about the other party, and in the case of the Mother, about the Paternal Grandmother.
15.The Mother shall continue to attend upon her psychologist, Ms G, and her Psychiatrist, Dr H, or their respective nominees, and follow their advice as to her ongoing treatment.
16.The Independent Children’s Lawyer shall provide a copy of the final orders and the reasons for judgment in this matter to Ms G and Dr H within 14 days of the date of these orders.
17.The order appointing the Independent Children’s Lawyer be discharged once the Independent Children’s Lawyer has complied with order 16 herein.
AND THE COURT NOTES THAT:
(1)These orders are inconsistent with the intervention order made under the Family Violence Protection Act 2008 (Vic) on 9 December 2020 (L11502653) and, pursuant to s68Q of the Family Law Act 1975 (Cth), these orders prevail to the extent of any inconsistency.
(2)In the event that the Father has reasonable grounds to believe that the Mother’s mental ill-health poses a risk to the children he shall suspend the Mother’s time or communication with the children insofar as it is necessary to protect them and invite her to provide evidence of her compliance with her continued attendance on treating mental health practitioners and confirmation that her mental health does not pose a risk to the children.
(3)For the purposes of order 4(a) herein, in the event that the children’s school concludes early (for example, because it is the last day of school term) the two hours shall be calculated from the earlier conclusion.
(4)For the purposes of order 4(a) herein, the alternate Friday time shall ‘reset’ each school term, such that the children spend the first Friday of each new school term with the Mother and each alternate week thereafter.
(5)Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth) 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.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Bachman & Leopold is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge McNab:
INTRODUCTION
In this matter the Applicant Father is 44 years old and undertakes home duties. The Respondent Mother is 43 years old and works on a casual basis an entertainer and is a student.
The parties met in 2005 and commenced cohabitation shortly thereafter.
In 2006, the child X was born. X lives with several conditions, including Autism Spectrum Disorder (“ASD”), Attention Deficit Hyperactivity Disorder (“ADHD”), as well as speech and learning difficulties.
In or around late 2008, the parties temporarily separated but reconciled. At that time, the Mother moved out of the matrimonial home with X, before returning to the home once the parties reconciled.
In 2013, the child Y was born. Y also lives with several conditions, including ASD, and has required early learning intervention for developmental delay.
In 2013, the parties moved to a property in Suburb F.
In or around February 2019, the parties separated on a final basis when the Mother and children moved out of the Suburb F home.
The significant issue in this matter is the Mother’s capacity to care for the children and the risks presented by the Mother’s mental health.
BACKGROUND
On 12 June 2019, the Father filed an initiating application seeking final parenting orders. The Mother filed her response on 12 July 2019.
The matter came before the Court on 15 July 2019 and orders were made for the child to live with the Father and for the children to spend supervised time with the Mother each Tuesday from the conclusion of school to 6.00pm, and each Saturday from 5.30pm to 8.30pm. Orders were also made for an Independent Children’s Lawyer to be appointed and for the parties to attend and complete a post-separation parenting program. The matter was adjourned to
12 September 2019 for mention and was listed for final hearing on 20 August 2020.
The matter returned before the Court on 12 September 2019 for mention, and orders were made by consent for, amongst other things:
(1)the children to spend supervised time with the Mother as follows:
(a)during the school terms, each Tuesday and Thursday from the conclusion of school to 6.00pm and each Saturday from 6.30pm to 8.30pm;
(b)during the school holiday periods, each Tuesday and Thursday from 11.00am to 3.00pm and each Saturday from 6.30pm to 8.30pm
(c)on Christmas Day 2019, from 11.00am to 4.00pm;
(2)the Mother’s spend time with the child to be subject to:
(a)the Mother being psychiatrically well;
(b)in the event the mother is not psychiatrically well, the spend time arrangements be suspended until the Mother is able to provide evidence that she is no longer suffering from a psychotic episode;
(3)the Mother to continue to engage with her treating mental health practitioners, as directed by her treating practitioners, and to follow all lawful directions made by them, and if she fails to do so, the Mother’s spend time with the children be suspended;
(4)in the event the Mother presents at changeover as suffering from a psychotic episode or symptoms, the Father be permitted to immediately suspend the Mother’s spend time, until the mother is able to provide evidence from her treating health practitioners that she is no longer suffering from such symptoms, and the Father is to notify the Mother’s solicitor and the Independent Children’s Lawyer of the suspension of time and provide particulars of the reason for the suspension of time;
(5)a s69ZW report to be prepared by the Department of Families, Fairness and Housing (“DFFH”) (formerly the Department of Housing and Human Services);
(6)the matter to be adjourned to 30 October 2019 for an interim defended hearing in respect of the question of the children spending overnight and extended time with the children.
Further orders were also made by the Court for a family report to be prepared.
The matter returned before the Court on 30 October 2019, and orders were made by consent for, amongst other things, the children to spend time with the Mother as follows:
(1)from 2 November 2019 to 7 December 2019:
(a)Each Tuesday and Thursday from after school until 8:00pm;
(b)each Sunday from 10:00am until 8:00pm;
(c)from 11:00am to 3:00pm in 2019 for X’s birthday;
(2)from 7 December 2019 to 20 December 2019:
(a)each Tuesday and Thursday from after school until 8:00pm;
(b)each Sunday from 10:00am to before school Monday.
(3)from 20 December 2019 to the commencement of school term 1 in 2020;
(a)each Monday from 10:00am to 8:30pm; and
(b)each Wednesday from 10:00am to Thursday 8:30pm.
(c)on Christmas Day 2019, from 11:00am until 4:00pm;
(4)from the commencement of school term 1 in 2020 to 28 March 2020;
(a)each week from after school Tuesday to before school Thursday;
(b)each Sunday from 10:00am to 8pm;
(5)from 28 March 2020 to 13 April 2020;
(a)one half of school holidays as agreed between the parties and if no agreement then the first week of the school holidays;
(b)half of all school term holidays thereafter as agreed and if no agreement then the first week (7 consecutive nights) of all school holidays;
(6)from 13 April 2020 to 27 June 2020;
(a)in week 1 afterschool Monday to before school Friday;
(b)in Week 2 afterschool Wednesday to before school on Thursday;
(c)for Mother’s day (10 May 2020) from 10:00am Sunday to before school on Monday;
(7)from 27 June 2020 until further order;
(a)in week 1 after school Monday to Sunday at 8:00pm; and
(b)in week 2 after school Wednesday to before school Thursday.
On 1 July 2020, the Father filed an application in a case, seeking a recovery order, on the basis that it was likely that the Mother may withhold the children, in breach of previous Court orders, as the Mother was allegedly displaying signs of a psychotic episode and had taken out an intervention order against the Father on 25 June 2020, claiming that the Father was stalking her, had broken into the Mother’s residence and had tried to poison her. The Father also sought orders that the Mother’s spend time with the children be suspended until the Mother could provide evidence that she was no longer suffering from a psychotic episode.
On 7 July 2020, orders were made by the Court for:
(1)the Mother’s spend time with the children to be suspended;
(2)the Mother to communicate with the children for not more than hour at times agreed between the parties (and failing agreement between 5.00pm and 6.00pm);
(3)the Mother to be psychiatrically assessed for the purposes of obtaining a report,
(4)the final hearing listed on 20 August 2020 to be vacated and the matter be listed for an interim defended hearing on that day;
(5)the matter to be adjourned to 24 February 2021 for final hearing; and
(6)a s102NA order to apply to any cross-examination that occurs in this course of the proceedings.
On 20 July 2020, a lengthy family report prepared by the Family Consultant was provided to the Court. The Family Consultant recommended, amongst other things, that:
(1)the parties have equal shared parental responsibility for the children;
(2)the children live with the Father;
(3)the children spend time with the Mother each alternate weekend from the conclusion of school on Thursday to the commence of school on Monday morning, and in the intervening week, on a Wednesday night;
(4)the children spend time with the parties in equal share on all school holidays, public holidays and special occasions;
(5)the Mother’s spend time with the children be subject to:
(a)the Mother being psychiatrically well;
(b)in the event the mother is not psychiatrically well, the spend time arrangements be suspended until the Mother is able to provide evidence that she is no longer suffering from a psychotic episode;
(c)the Mother continuing to engage with her treating mental health practitioners, as directed by her treating practitioners, and to follow all lawful directions made by them, and if she fails to do so, the Mother’s spend time with the children be suspended;
(6)the Mother participate in an independent psychiatric evaluation for the purpose of preparing an assessment, and if the assessment identifies concerns with respect to the Mother’s mental health, her future prognosis or any potential risk she may pose to the children, the Family Consultant reserves the right to reconsider any recommendations made in the family report; and
(7)the Father participate in a further post-separation parenting program.
On 13 August 2020, the Mother filed an application in a case, seeking orders that, until further order, the children live with the Father and spend time with the Mother as follows:
(1)in week 1, from the conclusion of school on Monday to 8.00pm on the following Sunday; and
(2)in week 2, from the conclusion of school on Wednesday to the commencement of school on Thursday.
The matter returned before the Court on 21 August 2020 and orders were made for, amongst other things, the Mother to spend time with the children pursuant to the orders made on 7 July 2020 but to be supervised by a professional supervisor, the Mother to obtain a referral to be psychiatrically assessed for the purpose of the preparation of a psychiatric report, and for the matter to be adjourned to 15 October 2020 for a mention.
On 14 October 2020, the Mother filed an application in a case seeking orders that she have sole parental responsibility for the children and for the children’s spend time with the Father to be reserved.
The matter returned before the Court on 15 October 2020, and orders were made for the Mother’s application in a case to be adjourned to 24 February 2021.
On 17 February 2021, orders were made in Chambers for the final hearing date on 24 February 2021 to be vacated, the requirements of s102NA of the Family Law Act 1975 (Cth) (“the Act”) to apply to any cross examination that occurs in these proceedings, and the matter to be adjourned to 15 June 2021 for final hearing.
On 1 June 2021, the Father filed an amended initiating application seeking final parenting orders. The Mother filed her amended response on 2 June 2021.
The matter came before the Court on 15 June 2021 for final hearing and was heard over the course of three days. All of the parties had Counsel appear on their behalf. At the conclusion of the hearing, orders were made for the parties to file a joint statement of the evidence and recommendations of the Family Consultant by 4.00pm on 21 June 2021, and otherwise judgment was reserved.
ORDERS SOUGHT
The Father’s Proposed Orders
By way of a minute of proposed orders provided to the Court on 17 June 2021, the Father seeks, amongst other things, the following final parenting orders:
(1)the Father have sole parental responsibility for the children and the children live with the Father;
(2)the children spend time with the Mother as follows:
(a)during school terms, each alternate Friday from the conclusion of school for two hours (with such time to be calculated from the end of the school day for whichever child’s school finishes last);
(b)during mid-year school holiday periods, on the first Sunday of the holiday period from 12.00pm to 2.00pm;
(c)during the long summer holidays on the first, third and fifth Sunday of those holidays from 12.00pm to 2.00pm;
(d)on Mother’s Day from 12.00pm to 2.00pm;
(e)on Christmas Day from 4.00pm to 6.00pm;
(f)as otherwise agreed between the parties in writing;
(3)the children communicate with the Mother by phone or video:
(a)each Monday and Wednesday between 5:00pm and 6:00pm;
(b)on each of the children’s and the Mother’s birthday between 5.00pm and 6.00pm;
(c)as otherwise agreed between the parties in writing;
(4)except in the case of an emergency, the parties shall use text message or an agreed parenting application to communicate with each other and shall only communicate as is necessary to give effect to these orders;
(5)the Father shall provide X with a mobile phone at the Father’s expense and X shall be at liberty to contact the Father at any time he is in the Mother’s care and the mother be restrained by injunction from preventing him from doing so;
(6)the Mother shall be at liberty to receive reports and school photos from the children’s schools at her own expense and subject to any policy of the children’s schools and if she seeks to do so, she shall make arrangements directly with the children’s schools.
(7)the Mother shall continue to attend upon her psychologist Ms G and her psychiatrist Dr H or their respective nominees and follow their advice as to her ongoing treatment, with the Independent Children’s Lawyer to provide a copy of these final orders and the reasons for Judgment to those practitioners.
The Father also relevantly seeks notations to the final orders as follows:
(1)in the event that the Father has reasonable grounds to believe that the Mother’s mental health poses a risk to the children he shall suspend the Mother’s time or communication with the children insofar as it is necessary to protect them and invite her to provide evidence of her compliance with her continued attendance on treating mental health practitioners and confirmation that her mental health does not pose a risk to the children;
(2)for the purposes of spend time during school terms, in the event that the children’s school concludes early (for example because it is the last day of school term) the two hours shall be calculated from the earlier conclusion; and
(3)for the purposes of spend time during school terms, the alternate Friday time shall ‘reset’ each school term such that the children spend the first Friday of each new school term with the Mother and each alternate week thereafter.
The Mother’s Proposed Orders
By way of a case summary document filed on 11 June 2021, the Mother seeks final parenting orders as follows:
(1)all previous parenting orders in this matter be discharged;
(2)the Mother have sole parental responsibility for the children and the children live with her,
(3)the children spend no time or communicate with the Father; and
(4)the Father be restrained by injunction from attending or being within 500 metres of any school either of the children attend.
The Independent Children’s Lawyer’s Proposed Orders
By way of a consolidate minute of orders provided to the Court on 10 June 2021 and oral submissions at the final hearing, the Independent Children’s Lawyer indicated that they seek final parenting orders for the Father to have sole parental responsibility for the children and for the children to live with the Father.
At the conclusion of the final hearing, Counsel for the Independent Children’s Lawyer indicated that the Independent Children’s Lawyer supports the orders proposed by the Father.
EVIDENCE
The evidence of the lay witnesses was not the subject of substantial challenge in
cross-examination, with those challenges being made through the affidavits themselves.
The Father’s Evidence
The Father gave evidence at the final hearing and relied primarily on his trial affidavit filed on 2 February 2021. That affidavit is some 200 paragraphs long, so I will not set it out in any great detail, but I have regard to the entirety of that affidavit in making my determination in this matter.
By his affidavit, the Father gives a detailed account of the fractious relationship between the parties and, in doing so, focuses on the increasingly negative effects that the conflict between the parties has had on the children. As the Father sets out in his affidavit, the children have frequently witnessed the conflict between the parties.
The Father also sets a lengthy account of the Mother’s mental health history, and how, in his view, the Mother’s mental health has affected her capacity to appropriately and adequately care for the children, particularly in early 2020. In setting out his observations of the Mother’s mental health, the Father deposes to being told by the children of events that have occurred whilst they were in the Mother’s care. For example, the Father states at [64] and [66] of his affidavit that:
64. The children had said Ms Leopold [the Mother] had accused them of whispering about her when they were whispering to each other. When X had excused himself for passing gas, Ms Leopold walked into the room and said to the children “what are you whispering about me, is it the same things you have been saying for years?”. Accusing people of whispering about her is something she has done in the past when she been mentally unwell…
…
66. After Ms Leopold picked the children up from school during one of their visits in January 2020, Ms Leopold had a very long bath and the children could hear her sobbing. She then shut herself in her room straight after her bath and the children could hear her crying again. They said that they became very hungry while waiting for Ms Leopold to come out, but they were not brave enough to ask for food, as every time they knocked on the door, they were told not to bother her….
The Father goes on to set out a history of Department of Health and Human Services (“DHHS”) involvement with the family, with the DHHS having being involved since 2006 when X was born, allegedly due to concerns about the Mother’s alcohol and drug use during their pregnancy and that she was ‘distant’ from the child after his birth. There was seemingly no further reports until 2019, but between May 2019 and October 2020, the Father deposes to having had involvement with the DHHS on approximately 10 occasions.
The Father then sets out a history of family violence intervention orders, whereby the Mother was first granted an intervention order against the Father and the Paternal Grandmother on
25 June 2019. The Father deposes to having obtained a full interim intervention order against the Mother on 4 July 2019, where he and the children were listed as the affected family members. The Father deposes to the Mother breaching the intervention order on several occasions, but conceded that he did not report the breaches as third parties had spoken to the Mother and her lawyer. Both intervention orders were mutually withdrawn on 24 October 2019. However, on 23 June 2020, the Mother applied for a further intervention against the Father, to which the Father consented without admission. The final intervention order came into effect on 9 December 2020 and named the Mother and children as the affected family members. That intervention order is due to expire on 8 December 2021. The Father deposes to having agreed to the order as he thought the Mother would continue to bring intervention order proceedings against him, and he did not want to have to continue to attend Court for that reason.
The Father then goes on to set out a number of allegations made against him by the Mother in her material, and, in effect, denies all of those allegations.
The Paternal Grandmother’s Evidence
The Father also called the Paternal Grandmother, Ms Bachman, to give evidence, who relied primarily on her affidavit filed on 3 February 2021.
In her affidavit, the Paternal Grandmother deposes to her observations of the tumultuous relationship between the parties and what she believes, in effect, was the Mother’s deteriorating mental health. For example, the Paternal Grandmother deposes to the Mother displaying paranoid behaviours, including the Mother accusing her on multiple occasions of talking about her behind her back and saying ‘nasty things’ (which the Paternal Grandmother denies) and hearing voices. The Paternal Grandmother states at [61] – [62] of her affidavit that:
61. Ms Leopold has suffered from varying degrees of paranoia during the time that she lived with us to the point where I felt I could not talk to Mr Bachman [the Father] unless she was present and within hearing. This was because she would accuse us of talking about her and saying unkind things about her, even though we were simply talking about other things.
62. Ms Leopold has been known to frequently say that she has heard voices and also have overheard people speaking nastily about her, even when nothing had been said about her. This is particularly so if her paranoia and anxiety are very high.
The Paternal Grandmother also deposes to the Mother displaying depressive behaviours on an almost a daily basis during the 13 years she lived with her, which included spending significant periods of time in bed crying, and not having the capacity to function and cope with day-to-day activities, such as cleaning and caring for the children. Throughout her affidavit, the Paternal Grandmother notes that the children, especially X, have been exposed to the Mother’s mental health issues, are aware of her issues and, indeed, have been affected by the Mother’s paranoia. For example, at [91] – [96] of her affidavit, the Paternal Grandmother states:
91. The child have been affected by Ms Leopold’s paranoia. They are overly concerned that they might be recorded or filmed without them knowing. They have said to me that [the] Mother believes that smoke alarms have hidden cameras.
92. The children are concerned about leaving their belongings at their mother’s house as they do not think it is safe due to their mother’s saying that there is a stalker. The children appear uncertain about whether there is an actual stalker or not, but do not want to take the chance just in case there is.
93. The children have told me that Ms Leopold has told them Mr Bachman is her stalker. The children have said that they do not believe Mr Bachman is stalking Ms Leopold.
94. X frequently mentions that Ms Leopold accuses him of telling lies, which he always denies. He does not appear comfortable conversing with his mother because of this.
95. X has also said that he is fearful about staying overnight at his mother’s house. He says it is because he is scared of the stalker, although he has not seen or experienced any evidence of a stalker.
96. X is concerned that Y will get him into trouble with his mother by telling lies about him as Y has done in the past. Ms Leopold will always take Y’s side over X. X told me that during one of the last overnight visits Y woke up screaming from a nightmare. X woke up in time to hear Ms Leopold rush to Y saying: “What did X do? How did he hurt you?”. X heard Y tell her mother that X hadn’t hurt her, she just had a nightmare which scared her. X said he was sad that his mother thought he would hurt Y deliberately.
In a similar fashion to the Father, the Paternal Grandmother also deposes to a number of events which are said to demonstrate a concern that the Mother cannot appropriately care for and parent the children. For example, the Paternal Grandmother variously deposes to:
(1)the Mother taking the children to the doctors frequently, including, at one stage, on a weekly or biweekly basis. This got to the point where the Paternal Grandmother deposes that Y asked her on one occasion whether she was still sick as she had not been to the doctor for a while;
(2)Y informing the Paternal Grandmother in 2019 that the Mother had told her she can do anything she likes and that she did not have to do anything anyone tells her to, even at school;
(3)both children having informed the Paternal Grandmother on multiple occasions that they are aware that Y is the Mother’s favourite child; and
(4)an incident where, in late 2019, the children’s school advised that they were having a special cheese toasty day, and in the lead up to this event, the Mother told Y that she would die if she ate the cheese toasty. Y told her teacher that she could not have a toasty as it would kill her, and the teacher subsequently spoke to the Father and the Paternal Grandmother at pick up time on that day, saying she was concerned that the Mother would make such a remark to Y.
The Mother’s Evidence
The Mother gave evidence at the final hearing and relied on her trial affidavit filed on
2 June 2021.
By her affidavit, the Mother deposes to ongoing engagement with two therapist, Ms G, Forensic Psychologist, and Dr H, Consultant Psychiatrist. The Mother says that she is “currently mentally stable” and follows all directions of her treating practitioners, including a psychologist on who she attends on a voluntary basis to assist in the management of family trauma that she has experienced.
The Mother then deposes to being subjected to family violence by the Father, in particular, just prior to their separation. The Mother says that the Father has significant anger issues, has stalked her and has harassed her at the residence she began residing at post-separation. That harassment is said to have been to such an extent that the Mother obtained assistance from family violence workers to install safety cameras outside the house. The Mother says that the Father continues to maintain the position that she is mentally unwell, despite experts reporting that she is stable, to tactically further his application before this Court.
The Mother then set outs that the Father has not been forthcoming in relation to the children’s needs, including the psychological and emotional support that they need. The Mother says that the Father did not make any attempt to cooperate with her in respect of arranging for the children to obtain support in respect of their health conditions. The Mother also says that she is concerned the Father is not protecting the children from being exposed to these proceedings. Indeed, the Mother alleges at [18] of her affidavit that:
18. […] I say that the father recorded a private conversation that I had with Justice Connection with monitoring surveillance. Y had recorded a video whilst she was at the father’s house and the private conversation was playing within earshot of the children. The father had recorded the conversation using surveillance technology within my home. I feel that this behaviour amounts to stalking and controlling the children against me. Now produced and shown to me at the time of deposing this Affidavit and marked with the letters ‘L-6’ is a true and correct copy of the recording sent to me by Y which evidences my allegations (attached as exhibit and is electronically available).
At [27] – [172] of her affidavit, the Mother sets out a summary of these proceedings and then refers to the Father’s trial affidavit, and, in large part, denies the allegations and assertions made against her in that affidavit.
Dr L’s Evidence
An independent psychiatric report of the Mother was prepared by Dr L and is dated 25 January 2021. Dr L was called by the Mother to give evidence at the final hearing.
By that report Dr L states that the Mother told her that she was ‘really depressed’ in her late teens and that in her early twenties the Mother had severe anxiety which included an admission (presumably to a hospital unit). This occurred prior to the children being born.
Dr L reports that the Mother had postnatal depression following X’s birth. The Mother saw a psychiatrist in or around 2008 for depression and anxiety, until Y was born in 2008 and the parties moved to Suburb K. The Mother told Dr L that “with what Mr Bachman and his mother were doing, I had severe brain fog, memory issues.” The Mother stated that those issues ‘cleared’ once she ceased living with the Father and the Paternal Grandmother. Dr L notes that the Mother believes that the Paternal Grandmother was causing her physical symptoms via food and drink poisoning during the course of the Mother’s relationship with the Father and when the parties were living with her.
Dr L notes that the Mother was admitted to Suburb K Mental Health in May 2019 for nine days, with a reported ‘acute transient psychosis’. The Mother told Dr L that she appealed the treatment order, and it was removed. Dr L notes that the Mother acknowledged her history of anxiety, postnatal depression and transient psychosis, and denies the Father’s allegations of drug abuse, alcohol abuse and family violence. Dr L states in the report that the Mother does not currently have any significant psychiatric or personality issues affecting her functioning.
Dr L states in the report that the Mother displayed insight into her mental health and wellbeing, and the Mother felt she had improved both physically and mentally since leaving the relationship with the Father.
Pursuant to the ‘DSM-IV: Diagnostic and Statistical Manual of Mental Disorders’, Dr L diagnosed the Mother with “post-traumatic stress symptoms with associated mild dysthymia”, “previous brief reactive psychosis (equivalent to Acute Transient Psychosis, which is of a different ICD-10 classificatory system)”, and “past anxiety, depression, post-natal depression”.
Dr L stated that the Mother displayed the appropriate care and concern for the children’s health and wellbeing, as well as a good understanding of their needs and, in effect, the capacity to appropriately care for the children. Dr L states that the Mother does not appear to pose any risk to the children, whether to their welfare or development, but that the Mother is worried about the children’s long-term safety if the children live with the Father. Dr L recommends that the Mother continue to engage with her current mental health supports and that she see a treating psychiatrist a few times a year so as to monitor her mental health.
Dr L gave evidence at the final hearing and was cross-examined.
The Family Consultant’s Evidence
The Independent Children’s Lawyer called the Family Consultant to give evidence at the final hearing in respect of the family report dated 20 July 2020.
By way of the family report, in relation parental responsibility, the Family Consultant is of the view that the parties are likely to experience difficulties reaching agreement about future parenting decisions, due to the historical struggles during the course of their relationship, an inability to effectively communicate with each other and a breakdown of trust. In the family report, the Family Consultant supports equal shared parental responsibility being ordered in this matter in respect of all major and long-term decisions, but that day-to-day decisions should be made by the party who has the care of the children when decisions are to be made.
The Family Consultant states at [97] of the family report that:
97. […] both parents voiced concerns regarding the overall picture of the children being in the care of the other parent. Ms. Leopold alleged Mr. Bachman has exhibited road rage, the children have returned behaving aggressively following time with their father, she took issue with his parenting and alleged he has pinned Y. Mr. Bachman conveyed an overall concern of the children being exposed to a deterioration of their mother's mental health, along with the concerns he notes in his affidavit material where he claims to have been the carer for Ms. Leopold due to her mental health struggles. In light of such, he maintained concern regarding her capacity to sufficiently look after the children independently in the long-term.
The Family goes on to state at [99] of the family report that:
99. It would appear the crux of this matter rests upon the stability of Ms. Leopold's mental health, her prognosis and whether such poses an unacceptable risk when considering the future parenting arrangements. Whilst Ms. Leopold asserts that her mental health is now stable and she maintains regular treatment, Mr. Bachman holds a level of concern that should her mental health deteriorate once again and she becomes mentally unwell, that such may negatively impact upon the children, her capacity to provide care and they may be placed at risk.
In relation to the Mother mental health issues, the Family Consultant makes mention of the psychiatric report prepared by Dr B dated 6 September 2019 (which was filed with the Court by way of an affidavit on 10 September 2019), which noted that the Mother was admitted to the Suburb K Hospital inpatient unit from 28 May 2019 to 6 June 2019. The Family Consultant formed the view whilst reading the report that the Mother experienced a psychotic episode rather than schizophrenia.
At [106] of the family report, the Family Consultant states that whilst the Mother experienced a significant psychotic episode and then improved, it appears that the Mother has a relatively long history of mental health struggles. The Family Consultant states at [100] that the Mother’s prognosis was dependent on her remaining engaged with her treating mental health practitioners, that she remain taking her prescribed medication and that she continues to maintain a drug-free lifestyle. The Family Consultant notes Dr M’s comment in the psychiatric report that “the risks may change if Ms Leopold stops her medications prematurely or relapses on illicit drug use”.
In relation the parties’ history of illicit substance use, the Family Consultant notes that both parties have self-reported they have ceased all use of marijuana, and that the Mother notes that her continued drug-free lifestyle will greatly enhance her mental health prognosis.
In relation to the allegations made by the Mother against the Father, the Family Consultant states at [102] – [103] of the family report that:
102. At interview, Ms. Leopold made some extraordinary allegations that Mr. Bachman and the paternal grandmother were in effect attempting to poison her during their relationship, that Mr. Bachman had told her of stories where arsenic could be put in food to kill someone and it could not be detected, and that Mr. Bachman also likely wanted to see her die to claim the life insurance. She further alleged great concern regarding the children even spending any time with their father due based upon such allegations, and saw that the children were at risk in their father's care. She alleged an occasion when Y had an upset belly and saw that it was possible her food may have been tainted.
103. In this Family Consultant's opinion, many of Ms. Leopold's allegations in and of themselves, appear concerning and extreme. However, her concerns were based upon alleged historical events and not placed in present time. Had she not been currently involved with her psychologist/psychiatrist, or the children/Mr. Bachman conveyed any very concerning information regarding Ms. Leopold's behaviours or presentation in the weeks leading up to the Family Report interviews, or there had not been a favourable psychiatric report, this Family Consultant may have considered notifying the ICL. Whilst it appeared that much of what Ms. Leopold alleged, was what she claimed occurred during her relationship with Mr. Bachman, but it was somewhat unclear as to whether her allegations were simply her own unusual views, within the context of a parental separation or perhaps an indication of further mental health struggles. In this Family Consultant's opinion, it is assessed that there is a need to have a fuller picture of Ms. Leopold's mental health overall, not just that she was acutely unwell some months ago and then improved. Moreover, Mr. Bachman's material indicates that Ms. Leopold had been unwell for periods over several years. Having a clearer picture would assist when considering the long-term future parenting arrangements of the children.
In relation to the views of the children, the Family Consultant states at [104] that the children reflect positively about the time they spend with both parties, and did not voice any noteworthy concerns save for “X wanting his mother to not yell at his father”. Y indicated to the Family Consultant that she would like more time with both of the parties, but X indicated that he was more comfortable with the Father, as the Father lives in the former family home, and because he wants to spend more time with the Father. The Family Consultant notes that X alleged that the Mother has openly denigrated the Father, by telling X that she does not want him to be like his Father. In relation to what the Family Consultant sees as being in the children’s best interests, the Family Consultant states at [106] – [107] that:
106. […] When considering the best interests and needs of two children who are both on the Autism Spectrum, and have special needs themselves, the long-term parenting arrangements need to consider the most appropriate placement option and where the children's needs will best be met and they have greater opportunity for stability in a safe environment, and in this Family Consultant's opinion, Mr. Bachman appears best positioned in this regard.
107. Whilst Mr. Bachman is supportive of the children spending extensive time with their mother, by way of a continuation of the status quo or even a week-about arrangement, Ms. Leopold conveys the polar opposite to the absolute, seeking a complete suspension of all time between the children and their father, suggesting they need to be protected from their father, citing concern for their safety based upon allegations Mr. Bachman attempted to poison her during their relationship. Such a position would not bode well for promoting and supporting children's relationship with the other parent.
In summarising their position, the Family Consultant states at [108] of the family report that:
108. This Family Consultant is of the opinion that given such a background, the history between the parties, opposing parenting styles, the expressed views of the children, along with the history of Ms. Leopold's mental health struggles, that the parties would unlikely be able to effectively maintain an equal shared-care parenting arrangement. Whilst this Family Consultant is of the view that major decisions regarding the children's future care should not pose limitations when considering the issue of parental responsibility, it is more the day to day living arrangements and day-to-day decisions regarding the children where the parties would likely struggle.
The Family Consultant is of the view, at the time the family report was prepared, that it is in the children’s best interests for the children to live with Father, as to do so would provide them with a more stable, functional and predictable environment. The Family Consultant states at [109] that:
109. […] Mr. Bachman was the long-term carer for Ms. Leopold, he reports having not been in paid employment for the past 12 years to support such an arrangement. It was quite telling on the day of the scheduled Family Report interviews, how the children appeared to gravitate towards their father throughout the day in the waiting area. Moreover, when Ms. Leopold was made an involuntary patient, it is reported the DHHS' involvement resulted in the children remaining with Mr. Bachman, and it could be presumed that if the Child Protection service held concerns regarding Mr. Bachman, the children would have been placed elsewhere.
On that basis, the Family Consultant made recommendations at [111] – [124] as follows:
111. Based upon the aforementioned and in the absence of any other information to the contrary, it is respectfully recommended Mr. Bachman and Ms. Leopold equally share parental responsibility in respect of both subject children, X born in 2006 and Y born in 2013.
112. X and Y to live with their father, Mr. Bachman.
113. Ms. Leopold to spend time with both children on alternate weekends from the conclusion of school on Thursday to the commencement of same the following Monday morning and in the intervening week on a Wednesday overnight.
114. Mr Bachman and Ms Leopold to equally share all school holidays, Christmas, Easter, birthdays and other significant events.
115. It is further recommended that the orders dated 30 October 2019 made by consent at paragraphs 4 and 5 be incorporated verbatim within any future Interim and/or Final Orders, noting the conditions regarding Ms. Leopold's time with the children being conditional upon her mental health remaining stable and the arrangements to take place should her mental health deteriorate.
116. If at any future stage, Mr. Bachman forms a reasonable belief that there may be cause for concern with respect to Ms Leopold's mental health, that he is at liberty to make contact with Ms. Leopold's mental health team including, but not limited to her psychiatrist and/or psychologist, requesting that the said professional forthwith meet with Ms. Leopold to conduct an urgent mental health assessment.
117. Ms. Leopold to continue engaging with her mental health practitioners including her treating psychiatrist, psychologist and/or the N Mental Health Team as directed by the said professionals.
118. Ms. Leopold to participate in an independent psychiatric evaluation with a psychiatrist accustomed to working in the Family Law arena such as Dr. P, Dr. R or Dr. S or another psychiatrist as nominated by the ICL to ensure this Honourable Court is best informed regarding Ms. Leopold's mental health. The said psychiatrist to have full and frank access to the entirety of Ms. Leopold's medical and mental health history, along with a copy of this Family Report.
119. In the event the independent psychiatric assessment identifies concerns with respect to Ms. Leopold's mental health, her future prognosis, diagnosis or any potential risk she may pose to the children, this Family Consultant reserves the right to reconsider any recommendations made herein.
120. Mr. Bachman and Ms. Leopold to refrain from denigrating one another in the presence of the children and ensure such does not occur by any third party.
121. Mr. Bachman and Ms. Leopold to refrain from any and all physical chastisement of the children and to ensure such does not occur by any third party.
122. Mr. Bachman and Ms. Leopold to be restrained from using any illicit substances and/or consuming alcohol 24 hours prior to the commencement of time with the children and to refrain from such during all time spent with the children.
123. Mr. Bachman and Ms. Leopold to both participate in a hair follicle test prior to this matter finalising to confirm both continue to maintain a drug-free lifestyle as each claim.
124. It would likely hold Mr. Bachman in good stead for the future to also participate in and complete a post-separation parenting program, noting Ms. Leopold has already completed such.
For the purpose of giving evidence at the hearing, the Family Consultant was provided with additional material that was not available at the time the family report was prepared, namely:
(1)the Father’s trial affidavit, the Father’s amended initiating application, the Father’s case outline and the affidavit of paternal grandmother;
(2)the Mother’s trial affidavit, the Mother’s amended response, and the Mother’s additional affidavit filed 8 June 2021;
(3)Dr L’s psychiatric report, as well as reports from Ms G and Dr J, all of which relate to the Mother’s mental health;
(4)a report from the Family Contact Service regarding the Mother’s supervised spend time with the children; and
(5)a section 69ZW report produced by the Department of Families, Fairness and Housing (“DFFH”) from 3 June 2021 and 27 November 2020 detailing the DFFH’s contact with the parties and the children and investigations conducted from November 2006 until April 2021.
In respect of the Family Consultant’s evidence at the hearing, orders were made for the parties to prepare an agreed summary of the Family Consultant’s evidence so as to assist the Court. An agreed summary of the evidence was provided to the Court on 19 June 2021 and I have regard to that summary document which was of considerable assistance.
The Family Consultant gave evidence at the final hearing that, whilst there have been periods of time when the Mother is mentally well, there are also indications of historical periods where she has been quite unwell. The Family Consultant expressed concerns (based on the Father’s trial affidavit) that the Mother delayed in attending for a psychiatric assessment that was organised for her, before then later attending upon Dr L.
The Family Consultant went on to give evidence that there is a risk that the children could be negatively affected by the Mother’s ‘delusional’ beliefs about the Father and that the Mother may expose the children to her views, even if her time with them was supervised. The greatest concern, in the Family Consultant’s view, is if the children become part of the Mother’s delusions (for example, if she feels that she needs surveillance camera to protect the children from the Father or if she believes they are being poisoned) and she subsequently takes “radical action”. The Family Consultant stated that Y is at a greater risk, given her age, but that X has some capacity to understand that the Mother’s beliefs in respect of the Father are not real and to tell her as such. Despite these concerns, the Family Consultant notes that Y in particular would benefit from having face-to-face spend time with the Mother.
The Family Consultant gave evidence that, in effect, whilst equal shared parental responsibility would be the preferred option in an ideal world, it is likely not possible or appropriate in this case, given the volatility of the parties’ relationship and because the parties’ respective positions could not be more polarised. The Family Consultant stated that it would be difficult to expect the parties to have equal shared parental responsibility for the children. The Family Consultant said that this, as well as the information provided to them in the course of preparing the family report, led to the revised view that the Father should have sole parental responsibility for the children.
In respect of what time the children should spend with the Mother, the Family Consultant gave evidence that it is a complex issue, but the Family Consultant’s position can be summarised as follows:
(1)if the Court finds that the Mother’s mental health has fluctuated and there is sufficient evidence to establish that it has been too unstable and places the children at risk of being over held by the Mother or raises concerns about including children in her views of Father, then the Mother should either have limited spend time or long-term supervision. The Family Consultant was of the view that, if the Court finds the Mother’s mental health has fluctuated, the appropriate strategy is risk-minimisation for the children, which could be appropriately undertaken by the Mother having shorter periods of spend time with the children, or alternatively supervised time;
(2)if the Court finds that Mother’s mental is stable, her mental ill-health issues are historical and that the experts are satisfied with her prognosis and she is receiving treatment, then the Family Consultant recommends that the Mother have alternate weekend spend time with the children and one overnight in the other week.
In essence the Family Consultant stated that there needs to be balance between the risk of exposure to the children with regular ongoing time and the children maintain a relationship with the Mother.
In respect of what would constitute the Mother being mentally well/unwell, the Family Consultant gave evidence that as long as the Mother can appropriately care for the children after school, for example, by providing the children with snacks and engaging in various activities with them, then any potential risk/harm will be appropriately minimised. However, the Family Consultant gave evidence that if the Mother’s mental health is highly unstable and is unlikely to stabilise in the long term, there should be a third party or supervisor who should be in, at least, substantial attendance, to ensure that all spend time events are a positive experience for the children.
CONSIDERATION
Equal Shared Parental Responsibility
Section 61DA(1) of the Act provides that 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. This is true when the Court is making interim orders, unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
However, s61DA(2) of the Act provides that 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.
The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child or the child's parents to have equal shared parental responsibility for the child.
In this matter, the presumption of equal shared parental responsibility is displaced because of the risk of harm to the children whilst they are in the care of the Mother.
Whilst Dr L expressed the view that the Mother's mental health presented no risk to the children, she did so without reference to a complete medical history. In my view, the Mother's presentation in Court, coupled with her history of mental illness, leads to a conclusion that there is a risk to the children if they remain in her care for extended periods of time. The Mother has very fixated and unfounded views about the Father and the Paternal Grandmother, including that they keep her under surveillance and are trying to poison her. The Mother’s allegations are not referring to past history and instead are related to alleged conduct which is said to be ongoing. None of the allegations are supported by evidence other than the Mother's view.
The allegations made in relation to the Paternal Grandmother seem to be completely unwarranted, borne of a mental illness and not based in reality. Another significant and real concern is that the Mother holds these strong (but unsubstantiated) fears about the Father and the Paternal Grandmother, and seems to have discussed them in front of the children at length. The Mother’s application for the interim intervention order, sets out a clear expression of her views in relation to the Father and the Paternal Grandmother: see the Mother’s trial affidavit, annexure -3. The application relevantly states as follows:
Every night for the past year since moving into a different home the respondent [Father] has been stalking my home, throwing things at the window or banging on the windows. There are times where I can hear noises as if someone is walking on the report. I have made reports to police about this who have attended the property, they leave as they cannot confirm if it is the respondent who is in fact responsible, however once they leave the banging starts again, which leads me to believe the respondent hides until they have left.
About a month ago a woman knocked on my door and they stood out the front of my neighbour’s house until I came outside and then walked down the street with what looked to be the respondent. The respondent used to how me pinhole cameras online concealed in things and tell me about people being poisoned slowly so nothing showed in the autopsy and killed for life insurance when there were poisoning me and gas-lighting me. The respondents mother told me she took out a life insurance policy prior to 2009 & names me as the daughter on the policy, I don’t think she would have cancelled it. I was poisoned for years by him and his mother causing me many physical symptoms, brain fog and fatigue resulting in brain scans and visits to various specialists including cardiologists and the ER. I suspect that the respondent may also be entering my house and poisoning me again as I am starting to develop similar symptoms that I had when we lived together.
I have also noticed that devices are playing up and signs are left in and outside the house. A box was cut open, gone through and taped back up in my house after I moved in here exactly like he was doing during the move and ornaments have been turned sideways in my house as well as regular things being moved in my backyard, a pot emptied under the back veranda and a bung chunk of wood being left in the long grass when it needed mowing.
He has told me how easy it is to get into a house through the manhole and let yourself out the door when no one is home. The police will not investigate them [the Father and the Paternal Grandmother] poisoning me for years or the stalking without evidence of who is doing it have advised me to get an intervention order and install cameras.
I asked a Doctor at T Medical Centre to test me for poison in July 2018 and was told that they couldn’t do that unless I was in hospital but I didn’t want to be separated from my children and was scared of what him and his mother would do if I was admitted to hospital for testing.
He keeps trying to claim that I have always been really unwell mentally and keeps making claims that I am mentally unwell even though I can prove that I have been mentally stable for over a year and have become a qualified life coach, he also told the court that I was calling my kids fat and forcing them to exercise and to get a no contact order against me he claimed that due to me having poor mental health he care sole for X for months in 2008 which never happened, he also told a court that I punched him when I never have.
I want us to be protected from them knowing where I live or being able to stalk me or have anyone else do it and not be able to claim life insurance on me if anything happens to me as I have good reason to believe that him and his mother have been planning to do that for many years and were slowly poisoning me and my children who were also have milder symptoms of random body pains and severe diarrhoea. I developed a heart mummer, had abnormal pressure in a chamber of my heart so they tested for a hole in my heart, I had brain scans for symptoms of MS [Multiple Sclerosis] including severe brain fog and fatigue, numbness, balance problems and then I moved out and get better pretty quickly.
I no longer have any medical issues requiring specialist and am in great physical and mental health. I do see a psychologist for support around the ongoing violence and trauma. He punched my car and stalked me and made by car stop working in 2008, his mother had me write a will.
In circumstances where the Mother is unable to contain the expression of those views, there is a real risk of harm to the children if they are, or continue to be, exposed to her views in relation to the Father. It is for these reasons that the Mother’s time with children must be limited and subject to protective controls.
Statutory Considerations
By operation of s60CA of the Act, the Court is required to have regard to the best interests of the children as the paramount consideration when making parenting orders. To determine what is in the best interests of the children in this matter, the Court is guided by the primary and secondary considerations set out in s60CC of the Act.
Primary Considerations
In terms of the primary considerations under s60CC(2) of the Act, I have regard to the following:
s60CC(2)(a) – the benefit to the child of having a meaningful relationship with both the child’s parents;
Both of the children seemingly enjoy spending time with both parents. However, the children have expressed some alarm at some of the Mother’s views and behaviours, and I expect that feeling of alarm and disquiet will increase as they become older.
s60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I agree with the views expressed by the Family Consultant that there needs to be caution exercised in relation to the spend time arrangements between the children and the Mother because of the manifestations of her mental illness and the views she expresses in relation to the Father. I am of the view that the risk of psychological harm is mitigated by the limited spend time arrangements as proposed in the orders of the Father, which are supported by the Independent Children’s Lawyer.
Secondary Considerations
In terms of dealing with the matters that I must have regard to under s60CC(3) of the Act, to the extent that I have not already done so, I have regard to the following relevant considerations:
s60CC(3)(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;
Both of the children have expressed a view that they enjoy spending time with both parents. Both children have expressed a desire to spend time with both parties, and X, in particular, has expressed the view that he wishes to spend more time with the Father and to live with him. I place no particular weight on the views of the children, although I do give more weight to X’s views as compared to Y, due to the respective ages of the children.
s60CC(3)(b) – the nature of the relationship of the child with: (i) each of the children’s parents; and (ii) other persons (including any grandparent or other relative of the child);
Both children have a meaningful relationship with both parties, although the children seem to have become wary of the Mother as a result of being exposed and experiencing the effects of the Mother’s mental health difficulties. I also note that the children appear to have a good relationship with the Paternal Grandmother.
s60CC(3)(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;
There is no particular evidence that either of the parties have failed to take up the opportunity to make decisions about long-term issues in relation to the children, although there is some question as to the Mother's capacity to do so, because of the mental health issues that she faces. It is reported in the s67Z reports from DHHS that the Father is very involved in the children’s schooling and there is no evidence to suggest that he is unable to make long-term decisions in relation to the children. It would appear that the Paternal Grandmother also assists in getting things done to the benefit of the children in the house where the Father and children also live.
s60CC(3)(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;
Both parents have taken active steps to maintain the children.
s60CC(3)(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;
The orders that will be made provide for relatively limited spend time between the children and the Mother. However, in my view, those orders are in the children’s best interests and provide for sufficient time for the children and the Mother to maintain their relationship, but are limited so as to reduce the risk that they will be exposed to the Mother’s mental health issues and the effects of her poor mental health.
s60CC(3)(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 children’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a particularly relevantly consideration in this matter.
s60CC(3)(f) – the capacity of: (i) each of the children’s parents; and (ii) any other person (including any grandparent or other relative of the children), to provide for the needs of the children, including emotional and intellectual needs;
As set out above, the Mother has a limited capacity to appropriately care for the children as a result of her mental health issues. The Father presented as a man of limited ambition and motivation, although that does not mean that he lacks capacity to be a loving and involved parent. The children have particular needs as a result of their own health issues which are outlined above. It is hoped that that the Father will take the opportunity to access all available health supports are for the children.
s60CC(3)(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;
There was an issue with the use of illicit drugs by both parties in the past, although that does not appear to be a current issue.
s60CC(3)(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;
This is not a relevant consideration in this matter.
s60CC(3)(i) – the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents;
The Mother's attitude is affected by her mental health. She presented as a person who has concern for children and wishes to be as involve as much as possible in caring and raising the children. However, for the reasons outlined above, I am of the view that there are real risks with the Mother spending too much unsupervised time with the children as there is a significant risk that her mental health issues will affect the children in detrimental ways.
s60CC(3)(j) – any family violence involving the child or a member of the child's family;
The Mother asserts that the Father has engaged in family violence by way of stalking, spying and hacking computers, as alleged in Mother’s application for the interim intervention orders, which is set out above. The Mother also asserts that the Father has engaged in family violence by making unfounded allegations about her mental health. The Court finds that these allegations have not been substantiated.
s60CC(3)(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;
The issues around family violence intervention orders is set out above. Whilst the Mother does have a final intervention order against the Father in her favour (which is set to expire in December 2021), I note that, the Mother’s application for the interim intervention order includes a lengthy description of the views and fears that the Mother holds about the Father, as set out above, which I have found to be unsubstantiated and, indeed, are not based in reality.
s60CC(3)(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 that child;
In my view, the orders that are proposed by the Father, and supported by the Independent Children’s Lawyer, are the orders most likely lead to a greater degree of stability for the children and the parties, and provide less recourse to institute further proceedings than the orders proposed by the Mother.
s60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.
The orders sought by the Applicant, and supported by the Independent Children’s Lawyer, have been largely adopted, subject to some modification to allow for the children to spend more time with the Mother during the gazetted school holiday periods, on their birthdays and on the Mother’s birthday.
CONCLUSION
For these reasons, I will make orders in the terms sought by the Father (which are supported by the Independent Children’s Lawyer), subject to some modification.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McNab. Associate:
Dated: 10 September 2021
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