Bartholomew and Regan
[2017] FCCA 676
•19 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARTHOLOMEW & REGAN | [2017] FCCA 676 |
| Catchwords: FAMILY LAW – Parenting – young child – Mother refuses to acknowledge having any mental health issues when independent records over a significant period confirm that she suffers from various psychoses, delusional disorders, paranoia and much else besides – the family consultant in the current proceeding recommended that the child live with the Father and spend only supervised time with the Mother (the child has lived with the Father for some time) – in the course of the hearing the Mother confirmed that if a shared care arrangement could or would not be ordered then she would not see the child (especially if supervision was required) but would speak with him over the telephone each week – the family consultant also cautioned about the psychological and other risks of the child spending unsupervised time with the Mother because of her beliefs regarding the abuse of her older children (who had been removed from her care in earlier proceedings in the Children’s Court) and because of her unfiltered views about the Father being conveyed to the child – sole parental responsibility Order sought by Father supported by ICL and expert. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2A), 60CC(3)(a), (b), (c) & (ca), (d), (f), (i) & (j), 61DA, 65DAA |
| Cases cited: Mazorski v Albright (2008) 37 Fam LR 518 |
| Applicant: | MR BARTHOLOMEW |
| Respondent: | MS REGAN |
| File Number: | CAC 1790 of 2014 |
| Judgment of: | Judge Neville |
| Hearing dates: | 29 & 30 September 2016 |
| Date of Last Submission: | 29 November 2016 |
| Delivered at: | Canberra |
| Delivered on: | 19 April 2017 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mrs K Mistry |
| Solicitors for the Applicant: | Claire Naidu & Co |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children’s Lawyer: | Ms R Curran |
| Solicitors for the Independent Children's Lawyer: | Evans Family Lawyers |
ORDERS
The Father have sole parental responsibility for the child, X (born: (omitted) 2010) (“the child”).
The child live with the Father.
The Mother’s time with the child
The Mother spend time with the child as follows:
(a)For two hours per fortnight supervised at Marymead (omitted), as can be accommodated by that service;
(b)In the event that Marymead (omitted) is unable to facilitate the Mother’s time pursuant to Order 3(a), then for two hours per fortnight supervised at Marymead Canberra as can be accommodated by that service.
For the purposes of Order 3, each of the parties will:
(a)Contact Marymead (omitted) and Canberra within seven (7) days to arrange an appointment for assessment for suitability;
(b)Attend the assessment;
(c)Comply with any appointment made by Marymead;
(d)Comply with all reasonable rules of the Marymead;
(e)Comply with all reasonable requests or directions of the staff of Marymead;
(f)Pay their own fees nominated by Marymead.
If the parties are accepted by Marymead (omitted) or Canberra following intake procedure, then the Mother is to spend time with the child under the supervision of and at times nominated by that service, and it is requested that the Mother’s time be on a fortnightly basis.
The Mother’s supervised contact with the child persist for six (6) months, subject to the Mother’s compliance with Orders 8 and 9.
The Mother’s time with the child in accordance with Order 3 is further subject to her compliance with Order 15.
Forthwith, the Mother shall obtain any referral necessary for her to attend upon a suitably qualified psychiatrist for the purposes of undertaking and obtaining a psychiatric assessment, and thereafter the Mother will comply with all reasonable instruction from the psychiatrist and make herself available to attend upon the appointed psychiatrist and undertake a psychiatric assessment as directed by that practitioner.
Within six (6) months of the date of these Orders, the Mother will supply to the Father the following documents:
(a)The name and contact details of the Mother’s nominated psychiatrist who has expertise in adult mental health;
(b)The dates and times of the Mother’s attendance upon the nominated psychiatrist; and
(c)Any assessments undertaken and reports completed by the psychiatrist in respect of the Mother, including information relevant to any diagnoses and any treatment regime prescribed.
For the purposes of the assessment of the Mother’s mental health and any reports completed, the nominated psychiatrist is required to consider and assess:
(a)Whether the Mother has or currently suffers from a mental ill-health, including personality or other disorders;
(b)The prognosis of any identified mental ill-health;
(c)Any treatment regime prescribed with respect to any mental ill-health identified.
In the event that the Mother does not comply with Order 8 and Order 9 and supply the aforementioned documents within six (6) months from the date of these Orders, or in such other time as may be agreed between the parties, then the Mother’s supervised contact with the child pursuant to Order 3(a) or 3(b) is terminated and Order 3 is thereafter discharged.
The Mother’s telephone time with the child
Subject to her compliance with Order 15, the Mother will communicate with the child by telephone between 7.00pm and 7.30pm each Thursday, and at such further and other times as agreed between the parties.
For the purposes of Order 12, above, the Father will initiate the telephone call to the Mother’s nominated landline or mobile telephone.
The Father is at liberty to terminate the telephone call in the event the Mother discusses with the child any of the matters identified in Order 15 below.
Restraints
The Mother is restrained from at any time discussing with the child the following:
(a)Any matter relating to these proceedings, including the content of any document filed in the proceedings;
(b)Any matter relating to allegations of family violence involving any party to these proceedings;
(c)Any matter relating to allegations of child sexual abuse involving any party to these proceedings.
The Mother’s supervised contact with the child pursuant to Order 3 shall be terminated in the event that the Mother discusses with the child any of the matters set out in Order 15(a) – (c), and Order 3 is thereafter discharged.
Order 12 shall be terminated in the event that the Mother discusses with the child any of the matters setter out in Order 15(a)-(c), and Order 12 is thereafter discharged.
The Mother is restrained from approaching or attending the child’s school or locations where the child may be participating in extra-curricular activities, unless otherwise agreed by the parties.
The parents shall refrain from making critical or derogatory remarks about the other, or their family, in the presence of or within the hearing of the children and the parents shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other, or members of their family, in the presence of or within the hearing of the child.
The Father will communicate with the Mother in relation to the child’s health and wellbeing, medical emergencies and treatment, and will notify the Mother of any injuries or hospitalisation suffered by any child as soon as practicable and by any means necessary.
Each parent will keep the other informed of their current residential address, mobile telephone numbers and any available email addresses, and will advise the other parent of any change to those details in writing within twenty-four (24) hours of such change occurring.
Within fourteen (14) days of the date of these Orders, the Father will provide to the child’s school:
(a)a copy of these Orders; and
(b)an authority for the release of information to the Mother, including but not limited to, school reports and school photograph order forms.
If the Mother’s ‘time-with’ arrangement does proceed at a centre for six months as per Order 3, the parties and the ICL are to undertake a Family Dispute Resolution Conference with a view to finalising longer-term time-with arrangements between the child and his Mother, with the child remaining in the primary care of his Father.
All outstanding matters are dismissed and the matter is removed from the docket.
THE COURT NOTES THAT:
A.It is suggested that the Mother’s time with the child take place at the nearest contact centre, either in Canberra or (omitted).
IT IS NOTED that publication of this judgment under the pseudonym Bartholomew & Regan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1790 of 2014
| MR BARTHOLOMEW |
Applicant
And
| MS REGAN |
Respondent
REASONS FOR JUDGMENT
Introduction
Six year old X has two parents who love him very much. His parents have very widely differing parenting capacities and approaches to that life-time endeavour. For some time, he has lived with his Father and spent time with his Mother.
The Father lives in (omitted) (a small locality near (omitted)) while the Mother lives on the (omitted) at (omitted). She moved there to care for her elderly parents.
Consistently, and for some time, X's Mother has refused to acknowledge that she has any mental health issue(s). On the documentary evidence provided to the Court, such a history is undeniable.
In the light of the Mother’s mental health, the issues before the Court may be summarised as (a) the parenting capacity of the Mother (and thereby the co-parenting relationship between the parents), (b) the risk of [psychological] harm to the child if he was to spend unsupervised time with the Mother, and (c) should there be an Order for sole or shared parental responsibility?
Among other independent records, there are documents contained in Exhibits E – J, which include reports from:
(a)(omitted) Hospital in January 2006 that refer to the Mother’s belief that her children from a relationship at that time were being held in cages (or caves), tortured and sexually abused;
(b)the Mother (on the application of the NSW Police) being scheduled under the Mental Health Act (also in January 2006) with confirmation that she was then suffering from “severe psychosis” and suffering from “bizarre and macabre, paranoid delusions”;
(c)NSW Police records in September 2008 which note the Mother making a complaint about her children being abused (even though her older children the subject of the complaint were no longer in her care), but that upon checking the photographs that allegedly showed relevant abuse they were found to be “up to two years old” and had been shown to (omitted) Police “on prior occasions.” The Police records show that the only course taken was to call the Mental Health triage line. That service indicated that they knew Ms Regan “immediately”;
(d)the history of the removal of the Mother’s older children was pursuant to Orders made in the Children’s Court at (omitted) in January 2006. A summary of those proceedings is set out in an agreed record from those Court proceedings, being an affidavit from Ms C, who was the delegate of the Director-General, as the senior child protection case worker at the time. This document became Exhibit P.
Further records and comments in relation to the Mother’s mental health history are discussed by the family consultant, Dr A in her report, dated 9th March 2016 (Exhibit A), at pars.65 – 70. Such matters are set out in more detail later in these reasons.
In her oral evidence, worryingly the Mother said that if the Court did not allow a shared care arrangement with the Father, and or required that her time with X be supervised, she would not see her son at all, but would still have telephone conversations with him. She presented it in terms, effectively, of an “all or nothing” position: that is – “If I cannot see or spend time with my child without supervision, I will not see him at all.” I discuss these matters in more detail later in these reasons.
Unfortunately, as mentioned earlier, the Mother’s older children from a previous relationship were removed from her care in 2006. She maintained in these proceedings that her allegations in the Children’s Court in relation to those children – e.g. that they were being held captive, tortured and sexually abused – were true then and remained so, notwithstanding the contrary findings and the removal of the children from her care. This intransigent position in relation to her older children was also recorded by Dr A in her Report, at par.29.
For the reasons that follow, in my view the best interests of X are served by making Orders as sought by the Independent Children’s Lawyer (“the ICL”) which also reflect, in part, the Orders sought by the Father.
Orders sought by the Applicant Father
The Applicant Father’s Case Outline, filed 22nd September 2016, set out his final Orders sought as follows:
1) That the father have sole parental responsibility for X born (omitted) 2010 (“the child”).
2) That the child live with the father.
3) That the child spend time with the mother once per month at a supervision centre.
4) That the father facilitate telephone time between the child and the mother on no more than 2 occasions each week.
5) That each of the parties, their servants and agents be hereby restrained by injunction from:
a. Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and
b. Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the child and from permitting any other person to do so.
6) That both parents be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
7) That the father be permitted to suspend the mother’s time on no more than 4 occasions per annum for the purpose of traveling interstate and/or visiting family with the child.
Orders sought by the Respondent Mother
The Respondent Mother’s Case Outline, filed 22nd September 2016, detailed her Orders sought as follows:
1) That the father and mother have equal parental responsibility for the ‘child’ X.
2) That the ‘child’ have week about custody and live with both parents.
3) That the parents provide care around work commitments.
4) That the father provide proper housing arrangements upon Final Orders.
5) That the father and mother arrange medical appointments when required.
6) That both parents facilitate educational requirements and opportunities.
7) That both parents encourage social and sporting activities with similar aged children.
8) That both parents inform, as soon as possible, any unforeseen events.
9) That both parents facilitate reasonable phone contact for the child.
10) That both parents care for the welfare of ‘the child’.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer (“the ICL”) Minute of Orders Sought, filed 23rd September 2016, recorded the following:
With respect to the child X (“the Child”), born (omitted) 2010:
1) The Father have sole parental responsibility for the Child;
2) The Child live with the Father.
The Mother’s time with the Child
3) That the Mother spend time with the Child as follows:
(a) For two hours per fortnight, supervised, at Marymead (omitted), as can be accommodated by that service;
(b) In the event that Marymead (omitted) is unable to facilitate the Mother’s time pursuant to Order 3(a), then, for two hours per fortnight, supervised, at Marymead Canberra as can be accommodated by that service.
4) That, for the purposes of Order 3, each of the parties will:
(a) Contact Marymead (omitted) and Canberra within seven (7) days to arrange an appointment for assessment for suitability;
(b) Attend the assessment;
(c) Comply with any appointment made by Marymead;
(d) Comply with all reasonable rules of the Marymead;
(e) Comply with all reasonable requests or directions of the staff of Marymead;
(f) Pay their own fees nominated by Marymead.
5) If the parties are accepted by Marymead (omitted) or Canberra following intake procedure, then the Mother is to spend time with the Child under the supervision of and at times nominated by that service, and it is requested that the Mother’s time be on a fortnightly basis.
6) The Mother’s supervised contact with the Child persist for six (6) months, subject to the Mother’s compliance with Orders 8 and 9.
7) The Mother’s time with the Child in accordance with Order 3 is further subject to her compliance Order 15.
8) Forthwith, the Mother shall obtain any referral necessary for her to attend upon a suitably qualified psychiatrist for the purposes of undertaking and obtaining a psychiatric assessment, and thereafter the Mother will comply with all reasonable instruction from the psychiatrist and make herself available to attend upon the appointed psychiatrist and undertake a psychiatric assessment as directed by that practitioner.
9) Within six (6) months of the date of these Orders, the Mother will supply to the Father the following documents:
(a) The name and contact details of the Mother’s nominated psychiatrist who has expertise in adult mental health;
(b) The dates and times of the Mother’s attendance upon the nominated psychiatrist; and
(c) Any assessments undertaken and reports completed by the psychiatrist in respect of the Mother, including information relevant to any diagnoses and any treatment regime prescribed.
10) For the purposes of the assessment of the Mother’s mental health and any reports completed, the nominated psychiatrist is required to consider and assess:
(a) Whether the Mother has or currently suffers from a mental ill-health, including personality or other disorders;
(b) The prognosis of any identified mental ill-health;
(c) Any treatment regime prescribed with respect to any mental ill-health identified.
11) In the event that the Mother does not comply with Order 8 and Order 9 and supply the aforementioned documents within six (6) months from the date of these Orders, or in such other time as may be agreed between the parties, then the Mother’s supervised contact with the Child pursuant to Order 3(a) or 3(b) is terminated and Order 3 is thereafter discharged.
The Mother’s telephone time with the Child:
12) Subject to her compliance with Order 15, the Mother will communicate with the Child by telephone between 7.00PM and 7.30PM each Thursday, and at such further and other times as agreed between the parties.
13) For the purposes of Order 12, above, the Father will initiate the telephone call to the Mother’s nominated landline or mobile telephone.
14) The Father is at liberty to terminate the telephone call in the event the Mother discusses with the Child any of the matters identified in Order 15 below.
Restraints
15) The Mother is restrained from at any time discussing with the Child the following:
(a) Any matter relating to these proceedings, including the content of any document filed in the proceedings;
(b) Any matter relating to allegations of family violence involving any party to these proceedings;
(c) Any matter relating to allegations of child sexual abuse involving any party to these proceedings.
16) The Mother’s supervised contact with the Child pursuant to Order 3 shall be terminated in the event that the Mother discusses with the Child any of the matters set out in Order 15(a) – (c), and Order 3 is thereafter discharged.
17) The Mother telephone contact with the Child Pursuant to Order 12 shall be terminated in the event that the Mother discusses with the Child any of the matters setter out in Order 15(a)-(c), and Order 12 is thereafter discharged.
18) The Mother is restrained from approaching or attending the Child’s school or locations where the Child may be participating in extra-curricular activities, unless otherwise agreed by the parties.
19) The parents shall refrain from making critical or derogatory remarks about the other, or their family, in the presence of or within the hearing of the Children and the parents shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other, or members of their family, in the presence of or within the hearing of the child.
20) The Father will communicate with the Mother in relation to the Child’s health and wellbeing, medical emergencies and treatment, and will notify the Mother of any injuries or hospitalisation suffered by any child as soon as practicable and by any means necessary.
21) Each parent will keep the other informed of their current residential address, mobile telephone numbers and any available email addresses, and will advise the other parent of any change to those details in writing within twenty-four (24) hours of such change occurring.
22) Within fourteen (14) days of the date of these Orders, the Father will provide to the Child’s school:
(a) a copy of these Orders; and
(b) an authority for the release of information to the Mother, including but not limited to, school reports and school photograph order forms.
The Father’s Evidence
The Applicant Father, Mr Bartholomew, gave very brief oral evidence. In my view, he gave his evidence fairly and in a straight-forward manner. Should it be relevant or necessary to do so, wherever there is any conflict in the evidence between the parties, I strongly prefer the evidence of the Father to that of the Mother. Unfortunately, she was very inconsistent in her accounts of events, whereas the Father was uncomplicated and much more consistent in his account of events. His evidence may be summarised as follows:
(a)The Father said that he has not spoken with the child about not living with his Mother, and that he has tried to shield X from the ongoing contest;
(b)He also said that during the eight years of the relationship with the Mother she was invariably focussed on her belief that her older children had been abused by her former partner. In the light of documents from the Children’s Court in 2006, that was plainly a matter that pre-occupied the Mother (and that Court) during those proceedings;
(c)The Father confirmed that X was doing well at school (which was confirmed by the school records – Exhibit C – and the comments by the family consultant who had checked with X’s school);[1]
(d)The Mother’s questions to the Father were strongly focussed on the facilities at the Father’s residence, which is somewhat rudimentary on a rural property but there is heating (gas, bar and wood heating), shower and amenities. He now has a (omitted) business on the side with his principal work being as a (occupation omitted). The hours are such that they do not impact on his care of X before and after school;
(e)He denied having a gun, but said that he might need to get one because, in his rural environment, there are feral pigs around;
(f)He confirmed that X needs to see and spend time with his Mother;
(g)I accept the ICL’s submissions (later in these reasons) in relation to issues concerning “family violence” (and one other specific incident involving the Father at his previous place of work);
[1] See par.64 of the Family Report (Exhibit A).
In general terms, the Father’s evidence was unexceptional. His answers, such as they needed to be in relation to the questions asked, were child-focussed and without any hint of trying to undermine the Mother. I accept his evidence without hesitation or qualification.
The Mother’s Evidence
In the light of the extensive documentary evidence that related to the Mother’s mental health and the removal of her older children from her care, unsurprisingly much of her evidence focused on these matters. In no way critically, I observe that the Mother’s presentation during the trial, her approach to even quite straight-forward questions and issues, and particularly her pre-occupation with matters that were, at best, tangential to matters in issue before this Court, were often quite confusing and confused. Often her capacity to focus and or to address relevant issues was obviously very difficult. In her oral evidence, the Mother said that:
(a)her hospitalisation to the (omitted) Centre in 2006 was as a result of fabricated records from Care and Protection Services;
(b)she did not, and does not, have any mental health condition, including “jumbled thoughts” (even though, as already noted, there are multiple medical records that confirm her being diagnosed with one or other mental health conditions);[2]
[2] Among many places, see T 126 ff.
(c)it was her view that the child the subject of these proceedings has [unidentified] behavioural issues;
(d)the communication with the Father is poor and has been since 2007 (well before X was born) but that her communication skills are good;[3]
(e)she has few positive things to say about the Father;[4]
(f)Upon being shown records from the Department of Community Services (and others: see Exhibit K), she accepted that the Father had not sexually abused X;[5]
(g)(later in her evidence) she has “apparent” mental health issues, or maybe that others have a view that she has mental health issues;[6]
(h)she would undertake a mental health assessment if that was ordered for both parties;[7]
(i)if no “shared care” arrangement was ordered by the Court, she would not see the child (especially if supervised), but she would continue to have telephone time with him;[8]
(j)she currently works at the (employer omitted) as a (occupation omitted) and often works weekends. She currently lives by herself;
(k)in answer to questions from Counsel for the Independent Children’s Lawyer (“ICL”), the Mother said that she would not get any mental health treatment or assistance, even if recommended by the Family Report, because she does not need it;
(l)she sees her older children infrequently; that [re]-commenced with supervised time.[9]
[3] See T 157 – 158.
[4] See T 130 ff and 154.
[5] T 116 – 117 & 155; 156 – 157.
[6] Among other places, see T 169 – 170.
[7] T 171.
[8] Generally, see T 133 ff.
[9] See T 154 – 155.
The Report of Dr A
I note the following matters from the Report of Dr A, dated 9th March 2016 (Exhibit A).
First, from those sections of her Report that deal with various kinds of psychological testing, I note her comments, firstly at pars.38 – 40 (emphasis added):[10]
[38] Mr Bartholomew returned a valid PAI protocol. Due to his apparent tendency to repress undesirable characteristics, these test results may underrepresent his problems, although there is no indication of intentional dissembling. His PAI profile reveals no marked elevations indicating clinical psychopathology. He describes NO significant problems in the following areas: unusual thoughts or peculiar experiences; antisocial behaviour; problems with empathy; undue suspiciousness or hostility; extreme moodiness and impulsivity; unhappiness and depression; unusually elevated mood or heightened activity; marked anxiety; problematic behaviours used to manage anxiety; difficulties with health or physical functioning. He reports normal self-concept, assertiveness, friendliness, and concern for others. His treatment motivation is low as he is satisfied with himself and is not experiencing marked distress. These results generate no diagnostic hypotheses.
[39] Ms Regan returned an invalid PAI protocol due to response distortion. The response distortion scales are Positive Impression Management, Negative Impression Management (i.e. PIM= “faking-good” and NIM= “faking-bad”), Infrequency (INF) and Inconsistency (INC). Her scores were extremely elevated on both the PIM (T77) and the INF (T75) scales. The INF scales include bizarre or unlikely statements which most normal people will not endorse. Reasons for such atypical endorsement could include inattention, illiteracy or highly idiosyncratic information-processing. High scores on PIM indicate blanket denial of common shortcomings and problems which most normal people will acknowledge. Ms Bartholomew’s score on the Treatment Resistance scale was also very high (T72) indicating she perceives no clinical distress, is entirely self-satisfied and sees no need for personal change. She would be very hard to engage in psychotherapy and unlikely to comply with professional advice.
[40] As Ms Regan’s responses to scales tapping psychopathology were invalidated by extreme response distortion, no meaningful comparison to clinical profiles on the data base was possible, so no diagnostic hypothesis were generated by computer scoring. The pattern of her results on distortion scales support two sorts of inferences: firstly, that she was responding defensively and/or that her self-enhancing responses index an extraordinary lack of insight into her personal short-comings (consistently with her PDS results); secondly, that she is someone who thinks in highly unusual ways which most people taking this test would find odd. The clinical cut score of T70 divides the distribution at the 98th percentile, a score of T72 at the 99th percentile. So fewer than 1% of the population would answer as oddly to the INF scale items (or exaggerate their virtues as much) as Ms Regan. Random responding due to illiteracy or inattention is unlikely because her scores were low on INC and because her impression management was all positively skewed (her NIM score was low).
[10] See also other comments by the report writer in relation to other formal testing conducted by her in relation to both parties at pars.47-49 of her Report.
Dr A’s evaluation section from her Report is important to set out in full (pars.71 – 88) (emphasis added):
[71] It is not in dispute that Ms Regan was formerly the child’s primary caregiver. X seems to enjoy loving relationships with both parents but expresses a residential preference for his mother. Determining weight cannot be given to the child’s views due to his immature judgement. Child welfare is the determining consideration. The mother alleges the child is at risk of sexual abuse (with attendant psychological harm) in the care of the father while the father alleges the child is at risk of psychological abuse in the care of the mother as an outcome of her delusional beliefs about child sexual abuse. The mother claims that formerly X’s behaviour was disturbed after visits to his father. She also claims that X’s behaviour was disturbed after a recent weekend visits to her, with maltreatment by the father as the presumable cause in both cases.
[72] After family separation, some children moving between high conflict parents display unsettled behaviour or angry outbursts on return from visits to the non-residential parent. Such behaviour may index situational distress in general rather than pointing uniquely to maltreatment during the visit. Young children are soothed by routine and familiarity and upset by unpredictable disruptions to the normal flow of events, such as family separation. In X’s case he has also experienced a sudden, inexplicable move to (omitted) (involving a loss of familiar places and faces) followed by an equally unexpected change of primary caregiver. Before leaping to the conclusion that maltreatment (including sexual abuse) explained the child’s emotional distress, a sensitive, reflective parent would consider X’s predicament in terms of such factors as loyalty conflicts, confusion, grief, disrupted routines and awkward or hostile transitions between parents. Once other commonplace factors had been eliminated, or if specific disclosures were made, child sexual abuse might be identified as the best explanation for the child’s behaviour. However, it seems Ms Regan is not open to considering any explanation for X’s alleged emotional and behavioural disturbance except sexual abuse by the father.
[73] Ms Regan reports for X a severity of emotional and behavioural disturbance which would be consistent with some form of child abuse. Such serious problems would be expected to manifest across social contexts. Yet other observers do not report the same level of disturbance. JIRT has closed the case. Teachers raise no alarms and in fact report good school adjustment. There was nothing in X’s presentation at interview or in information from collateral sources to suggest his father is not meeting community standards of care, protection and affection, or that the child does not have a comfortable, trusting relationship with his father. That is not to say the possibility of CSA is categorically excluded, but rather that nothing has emerged from this assessment which would substantiate the mother’s concern.
[74] At the present time Ms Regan seems to be alone in her conviction that Mr Bartholomew has sexually abused X. That she is the only “true believer” would not of itself not make her crazy or her belief wrong, Consensual validation is not the same as truth. When most people believed the world was flat consensus did not make it so. Dissenters who thought the world was round were considered crazy by the flat-earthers, but now it is the flat-earthers who are considered crazy. Ms Regan will be deemed delusional if she persists in alleging CSA even in the face of contradictory evidence. It was the majority view of health, welfare and legal professionals 2006-2009 that her belief in CSA was delusional with respect to her older three children, although mental health professionals at differed about her diagnosis, some favouring psychosis, one favouring personality disorder and one deferring diagnosis. Despite the lack of consensus, her thinking was deemed too bizarre for restoration by the Children’s Court Magistrate in 2009. Mr Bartholomew claims Ms Regan is argumentative, overbearing and difficult. Her older children have reported coercive, intrusive behaviour. Descriptors which recur in professional reports and medical notes about Ms Regan are “bizarre”, “outlandish” “delusional” and “odd.”
[75] Some people who are described by others as “odd” and “hard to get along with” will meet diagnostic criteria for Cluster A personality disorders (which include Paranoid or Schizotypal PD). Diagnostic criteria for Schizotypal Personality Disorder include difficulties in relatedness, unusual beliefs inconsistent with societal/subcultural norms, odd thinking and speech (vague, circumstantial, tangential, over-elaborate, metaphorical or stereotyped), suspiciousness and paranoid ideation. There can be an overlap with schizoid, paranoid, avoidant and borderline personality disorders. Schizoptypal personality disorder is more prevalent among first-degree relatives of those with schizophrenia (Ms Regan says her brother Mr P is schizophrenic) but only a small proportion of people diagnosed with Schizotypal PD develop a psychotic illness. The general diagnostic criteria for Personality Disorder (DSM-V:646) include an enduring pattern of behaviour that deviates markedly from expectations of the individual’s culture, which is inflexible, pervasive and leads to clinically significant distress and/or impairment in adaptive function (society, work, relationships)
[76] Some reasons why Ms Regan has hitherto eluded a firm psychiatric diagnosis may be that for the most part she can function adaptively in society (not true of those with schizophrenia) and that she does not report problems causing her “clinically significant distress” (often true of PD, in so far it is others who experience significant distress caused by the disturbed individual’s behaviour). She has not lost contact with consensual reality, and she does not display flagrant symptoms (negative or positive) of psychotic illness. She did not present in psychiatric crisis at interview. Although her speech and thinking were odd, there was no sign of paranoid delusions - except perhaps in regard to these proceedings, where she seems to feel she has been deliberately disadvantaged by the unhelpful attitudes of statutory authorities to the child welfare issues in dispute. Another diagnosis to consider is Delusional Disorder - a psychotic condition in which, apart from the delusions and their ramifications, the individual’s functioning is not markedly impaired and their behaviour is not grossly bizarre.
[77] In absence of other signs and symptoms of psychosis, persecutory thinking may be a non-specific sign of psychological maladjustment. Ms Regan’s distorted information-processing is probably dispositional and only becomes grossly bizarre under stress, including in conditions which invoke attachment-related distress. This may be why those who meet her in conditions of low stress perceive her differently from those who meet her in crisis or under high stress. For example, apparently the Children’s Court Clinician only observed Ms Regan to be frankly delusional on the last day of the 2006 assessment. Such an evaluation process is inherently stressful to parents whose children have been removed: meetings between parents and children which are convened for assessment purposes stir up attachment-related distress – longing for reunion, sorrow about separation, despair about the possibility of repairing ruptured bonds – which is inflamed rather than soothed as the assessment progressively fails to provide the consummation so devoutly desired.
[78] Family break-ups are inherently stressful. People may feel abandoned, rejected and materially deprived (loss of income and property). Anyone with a tendency to persecutory thinking might feel personally targeted by events in the aftermath of separation which are in fact simply part of the process. In Ms Regan’s case additional stress may have been caused by competing demands from her family of origin. Everyone who belongs to a family will be faced on occasion with the need to balance competing demands from others (parents, partner, children, siblings) with rational self-interest. Normally adjusted adults who have enjoyed a secure attachment to their own parents, can usually sensibly balance their competing role-obligations even under stress. Exercising due diligence as a parent may require that the survival and developmental needs of a young child are prioritised over the needs of the parent, parent’s partner or of older family members – such as ailing, aging grandparents.
[79] Parents who are not well psychologically-individuated may be unable to prioritise the coming generation over the going generation. Others may have perverse motivations related to unresolved family relationships or trauma history. Examples of a mother who might make choices about aged care which disadvantage her children could include a woman who is too enmeshed with an exploitative, manipulative parent to evaluate competing role-obligations objectively; a woman who seeks one last chance to find satisfaction in relationships which were previously unsatisfactory; a woman who seeks to turn the tables on an abuser in his/her weakness; or a woman who hopes for some material advantage (relative to her siblings) by becoming the primary carer of aged parents. On the basis of information available I cannot form a concluded opinion about Ms Regan’s motivation to become the main carer of her parents (and her brother?) Some explanation seems required given that she has previously alleged serious childhood adversity in her f-o-o and given that Mr Bartholomew alleges she was previously estranged from her f-o-o.
[80] That Ms Regan justified her precipitate relocation to (omitted) in terms of a duty of care to her family of origin also prompts various speculations about her social judgement as a mother and about her candour. Firstly, about the extent to which unresolved family of origin issues cloud her judgement about X’s best interests. Secondly, about the extent to which she is driven by undisclosed, self-interested motives which do not relate to X. Thirdly, about the possibility that her stated reasons are merely specious rationalisations.
[81] In essence, Ms Regan’s allegations about CSA are “This problem is caused by child sexual abuse.” This proposition may be true on one level, even if the Court finds it to be unfounded with regard to X. In other words, the child sexual abuse which is problematic may be her own, with its attendant impact on her capacity for normal relatedness, emotional self-regulation and rational thinking under stress. Documents before the Court indicate she has previously disclosed her childhood sexual abuse to professionals. Traumatic attachment relationships (including abuse) during youth and childhood exert a highly destructive effect on personality development, particularly for those with heritable tendencies to atypicality. However, Ms Regan did not reveal enough about her upbringing to support a nuanced formulation and a concluded view. Ms Regan seems to have responded very defensively at interview and to questionnaires.
[82] Nothing has emerged from this assessment to suggest the mother poses an immediate risk of harm due to physical abuse or neglect. The father does not doubt that she could meet community standards of material care and affection. However, it is clear that Ms Regan is not a normative parent with regard to her perceptions of her child’s psychosocial needs – in particular his relationship to his father. She has a distorted view of her own centrality to the child’s life and the father’s marginality – indeed dispensability. Her fixed belief that the father is dangerous is likely to remain immune to correction by contradictory, objectively-verified evidence. If X was permitted to live principally with his mother, it is most likely that she would undermine and block his contact with his father and continue to raise allegations of abuse. She would also try to recruit him to her odd worldview and habits of persecutory thinking, which would be unhelpful for his psychological development.
[83] It was striking that X spoke of his older siblings as though they were known to him even though there have never been any established relationships. It is possible he feels an only-child’s longing for brothers and sisters – especially in his current predicament where he might hope to soothe the pain of disconnection and loss (loss of family unity, of closeness with his mother, of a familiar home environment) with hopes of (idealised) family relationships which have never been tainted by adversity or discord. It is also possible that X’s preoccupation with his older siblings indexes his emotional alignment with his mother – that he feels his mother’s yearning to re-establish the lost connection to these older children as though it were his own. If this line of thinking is correct, it strengthens the possibility that the risk of X of living alone with his mother, without much counter-balancing input from his father or paternal kin, is that the mother’s emotional intrusiveness/neediness would stifle X’s growth to psychological individuation. In other words, X may not be free to express his own thoughts and feelings if doing so displeased his mother.
[84] Aggregated information supports the conclusion that the father will be more effective as X’s primary caregiver because he appears to be better oriented to consensual reality than the mother, and is more thus likely to make rational decisions in the child’s best interests, including with regard to complying with Court Orders about time spent with the other parent. Given the mother’s fixed views there is deemed to be no realistic prospect of improving the parental teamwork to the extent which would make joint decision-making work in X’s best interests.
[85] Although the mother is not recommended as a primary carer, it is not in dispute that X loves his mother. X is too young to understand his predicament, or for it to be easily explained to him by his adults. Even though it will be harmful to X’s peace of mind as well as to his attachment security to both his parents if his mother tries to elicit disclosures of “abuse” or install false beliefs about his father, there is the risk that without any contact with his mother X would feel abandoned and draw conclusions harmful to his self-esteem and destructive of his trust in his father. Common mistakes in thinking which young children make when contact is lost with one parent: “It must be my fault. I must have done something wrong. My mother/father does not love me. My mother/father is punishing me.”
[86] Therefore, it will be to X’s benefit to maintain his affectional tie with his mother if visits can be made safe and comfortable for him, and if he can be insulated from this dispute. At present these felicity conditions can only be met with supervision, although in the future Ms Regan’s time with her son might progress if the Court could be satisfied she had achieved a resolved state of mind with respect to the family reconfiguration; a normal ability to make realistic risk assessments; and a child-centred approach to communicating with her child. It is unlikely Ms Regan could achieve a wiser approach to post-separation parenting without professional assistance, although case history gives rise to little confidence she would engage constructively with a counsellor. X’s engagement with a counsellor may assist in monitoring the progression of the mother’s time, and could also provide a safety net. While nothing has emerged to prove CSA, absence of evidence is not evidence of absence.
[87] One general design principle for drafting workable proposals for young children to spend time with the non-residential parent is that the benefit of maintaining a secondary attachment should exceed the stress of executing the contact arrangements. As no need has been demonstrated for X to move to (omitted), and no impediment is known to the mother residing at her property in (omitted), it seems unnecessarily stressful to persist with supervised contact in (omitted) if a vacancy becomes available in a closer centre – such as Canberra. Another alternative might be a contact service in (omitted), since a daytime visit to the mother could be followed by an overnight visit to the paternal grandmother or other paternal kin, making the regular road trip less onerous.
[88]A practical obstacle to progressing the mother’s time with X is that no family member acceptable to both sides has been identified as a visit supervisor in the long-term. If a period of supervised visits went well, during which time the Court was satisfied the mother’s state of mind with respect to parenting was normal, Mr Bartholomew may become willing to accept visit supervision by the maternal grandmother, but has expressed reservations about the maternal grandfather. Furthermore, age and infirmity limit the capacity of the maternal grandparents. If the maternal uncle, Mr P requires the supervision of his sister in farm and home management, then he is not sufficiently functional to be a contact supervisor. All things considered, weekend visits supervised by the maternal kin at the home of the maternal grandparents in (omitted) are unlikely ever to be suitable.
In the light of her assessments, Dr A’s recommendations were as follows (pars.89 – 97):
[89] Unless the evidentiary material reveals a risk of immediate harm in the care of the father which did not emerge during this assessment, the following recommendations are made:
[90] X should live with his father, who should exercise sole parental responsibility
[91] X should continue to spend supervised time with his mother once per fortnight
[92] Both parents should be asked to complete a six-week post-separation parenting course
[93] X should attend a child psychologist for a Happiness Check-up every three months. The psychologist should have no privileged communication with either parent, but should provide parenting tip sheets to either or both of them as s/he deems fit. This should be a professional without previous connection to either parent.
[94] The mother should be referred to an appropriate psychotherapist who can assist her to respond to X in the way most likely to help him adjust to his situation.
[95] X’s time with his mother could progress depending on the advice received in December 2016 from the two treating clinicians mentioned above on the following issues:
· Whether or not X is thriving in his father’s care; whether X is displaying any signs indicative of maltreatment or trauma; whether the benefit to the child of contact with his mother seems to be exceeding the stress involved in executing the visitation arrangements. (NB. This advice will be most meaningful after a minimum of 3 meetings with the psychologist, who should also be provided with copies of X’s school reports and this report)
· Whether Ms Regan has achieved a resolved state of mind regarding the parenting arrangement; whether she is complying with Orders with regard to abstaining from conveying inappropriate ideas or information to the child; whether she is complying with treatment, including any prescribed medications or further medical investigations which may be recommended. (NB. This advice will be most meaningful after a minimum of 12 meetings with the psychologist, who should also be provided with a copy of this report)
[96] If the Court finds that X is not at risk of child sexual abuse or physical maltreatment in the care of his father but nonetheless Ms. Regan persists in raising CSA allegations which are not substantiated by investigation and/or persists in harassing the child on that topic, then it will not be to X’s benefit to spend frequent time with his mother, certainly not unsupervised time. If so, supervised visits 4-6 times p.a. at a Children’s Contact Centre will be sufficient for X’s identity needs.
[97] In the event that Orders are made for infrequent, supervised visits, X will need a child-friendly explanation. Unless the Court prefers to publish a Children’s Judgement specifically for X, the ICL should provide the treating child psychologist with a copy of Final Orders and a summary of the reasons for judgement, so the clinician can devise an explanation which will help X make sense of his situation in a way which supports his self-esteem and honours his attachment to both parents.
In her brief oral evidence, Dr A noted the following:
(a)The Father was well equipped to care for the child, including that he had insight into the harmful impact on the child regarding the confusion about the availability and conduct of the Mother;
(b)After many questions by the Mother regarding the psychometric testing, Dr A confirmed that, in her view, it was not in X’s best interests to be “parented” by both parents and that the Father was best suited to parent X in all of the circumstances;[11]
(c)She also said that if the Mother would not accept her need for any treatment for mental health issues then it made it even more imperative that her time with the child take place in a supervised setting because the child had to be protected from the Mother’s conduct and delusional thought patterns and the like;
(d)Part of the Family Consultant’s concerns related to the child’s possible confusion about the absence of the Mother from his life. This would need to be managed, possibly professionally;[12]
(e)In relation to the Mother effectively “vanishing” from X’s life”, and more generally in relation to the parenting relationship, Dr A said:[13]
… the two parents have really incommensurable views of this situation. However, I still would be concerned if Ms Regan just totally vanished from X’s life, that that might not be good for him either…
[11] See T 147.
[12] T 151.
[13] T 150.
I accept all of Dr A’s evidence. Both in the Report and in her oral evidence, she was balanced (and respectful) particularly of the many and nuanced difficulties that confronted the parties, and in turn the Court. She was especially mindful of the need for sensitivity in dealing with and responding to the Mother.
Submissions on behalf of the Applicant Father
The Father’s submissions, filed 21st October 2016, were as follows:
1. These proceedings relate to X (born on (omitted) 2010, age 6).
2. Mr Bartholomew seeks that X live with him and spend limited supervised time with the mother. Ms Regan seeks that her time with X be unsupervised and that the parents share care arrangements of X equally or, in the alternative if her time is required to be supervised, the mother is not seeking any in person time with X. The orders sought by the father are set out in his case outline save for the amendment of proposed order 3 as outlined in paragraph 12 of these submissions.
3. The recommendation of the family expert, Dr A, as set out in paragraphs 90-91 of the Family Report dated 9 March 2016 (“Family Report”) recommends that Mr Bartholomew have sole parental responsibility for X and that X continue to spend limited supervised time with his mother.
4. Per Dr A’s oral evidence, if the in person visits between the mother and child are stopped altogether (as proposed by the mother during her cross examination if the mother’s time is required to be supervised) Dr A recommends that X have a meeting with someone such as a child psychologist to help explain the transition.
Legislative Pathway & Consideration of Section 60CC: X's Best Interests
5. Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.
6. Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. In determining what is in a child’s best interests the Court must consider the matters set out in section 60CC of the Act.
7. There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The court must also take into account those of the “additional considerations” that are relevant.
8. The father submits that to protect the child from harm in the mother’s care, the child should remain in his care given the concerns about the mother’s capacity to assess risk and address the concerns related to her mental health issues. Per the Family Report, at paragraph 2f of the Executive Summary, the mother’s “information-processing is distorted. She will encourage deviant thinking in her child.” The Executive Summary further states that “the mother seems unable to make rational, child-focused decisions in her son’s best interests.”
9. The father is in the best position to facilitate a meaningful relationship with both parents by facilitating supervised time between the child and the mother at a supervision centre (should the mother choose to participate) as well as telephone time. The father submits that the mother will not or cannot facilitate a meaningful relationship between him and X. Paragraph 82 of the Family Report states “If X was permitted to live principally with his mother, it is most likely that she would undermine and block his contact with his father and continue to raise allegations of abuse. She would also try to recruit him to her odd worldview and habits of persecutory thinking, which would be unhelpful for his psychological development.”
10. Per section 60CC(b), in order to protect the child from psychological harm by the mother, it is submitted that the arrangement proposed by the father for the mother to continue to have supervised time is the best method to protect the child from risk of harm posed by the mother.
11. Given the mother’s evidence that she does not want to spend any in person time with the child if her time is required to be supervised, the father is prepared to facilitated supervised time between the mother and child but seeks to amend proposed order 3 to:
a. The child shall spend supervised time with the mother as offered by the father. The father shall offer a minimum of two in person supervised visits per annum at a supervision center nominated by the father and these visits are to be facilitated if the mother accepts the proposed visit in writing.
60CC(3)(a & b): X's Views & His Relationship with the Maternal and Paternal Family
12. Per section 60CC(3)(a), the child enjoys a relationship with each parent. It is submitted that the father is in the best position to ensure an ongoing relationship between himself and X as well as X and the mother in circumstances where the mother is either unable or unwilling to accept the importance of X’s ongoing relationship with the father.
13. Per the Family Report at paragraph 25, the mother asserted that X would lose nothing if his father was banished from his life and in her oral evidence, the mother was unable to elaborate on that point save for to say that the father cooks a good curry. Given the mother’s actions to date (including but not limited to limiting and then stopping the father’s time with the child and then unilaterally relocating without notice to the father), there is concern that if the child were to live with the mother, the mother would not facilitate or encourage the child’s time with the father.
14. The father has given evidence that he is prepared to facilitate time between the mother and the extended maternal and paternal family. It is submitted that it is in best interests of the child for the child to remain in the father’s care to ensure that those relationships are maintained and facilitated.
61DA(4) and 60CC(3)(c): Parental Responsibility
15. In consideration of 61DA(4) and 60CC(3)(c), the father seeks an order for sole parental responsibility. Per the Executive Summary in paragraph 2(f) of Family Report, “there is mutual distrust between the parties. The parenting alliance is non-viable for co-parenting.” At paragraph 42, Family Report states that “their parenting alliance is too problematic to support joint decision-making.” At paragraph 84, the report writer states “Given the mother’s fixed views there is deemed to be no realistic prospect of improving the parental teamwork to the extent which would make joint decision-making work in X’s best interests.”
16. The father gave evidence that due to the mother’s mental health issues and ongoing difficulties in communicating with the mother, the father is unable to communicate with the mother for the purpose of making decisions in relation to X.
17. In accordance with the father’s proposed orders for sole parental responsibility, the father submits that he is in the best position to make decisions in X’s best interests and should bear the responsibility of making those decisions and informing the mother of the decisions thereafter.
60CC(d): Effect of any Change to the Child’s Circumstances
18. The child has been living primarily with the father for almost 12 months and spending supervised time with the mother throughout this period. The father gave evidence that save for some incidents caused by the mother, this arrangement has been working relatively smoothly and the father maintains that it is in X’s best interests to continue to see his mother from time to time to enable X and his mother to maintain their relationship.
19. Per the Family Report at paragraph 2f of the executive summary, “the mother is likely to attempt to alienate the child since she devalues the father.” The executive summary further states “The child would grieve if his father was excluded, as seems likely in the mother’s care. If the mother persists with unfounded allegations, the child’s relationships and peace of mind will be disturbed.”
20. In consideration of section 60CC(d), a change to X’s circumstances is not in X’s best interests. It is submitted that the mother remains an unacceptable risk to X if X were placed in her unsupervised care for any period of time given the mother’s unmanaged mental health issues and unwillingness or inability acknowledge or accept the importance of the X’s ongoing relationship with his father.
60CC(e): The practical difficulty and expense of the child spending time with and communicating with a parent
21. The father resides in (omitted) and the mother resides in (omitted). Subject to the availability of affordable supervision facilities closer to the father’s residence, supervised visits should take place at a supervision facility closest to the parties as offered by the father.
22. At present, the supervision facility the parties attend upon is a 4 hour round trip for the child. The mother confirmed in her oral evidence that there may be a supervision facility available in (omitted). In the event that the supervision facility in (omitted) becomes affordable and available, it is submitted that future supervised visits (if the mother chooses to attend such visits) should take place at the closer facility.
60CC(j and k): Abuse & Family Violence
23. The mother previously made allegations that the child was at risk from the father of psychological trauma, sexual abuse, physical abuse and neglect. The father denies these allegations and submits that the child is at risk of psychological trauma, sexual abuse and neglect in the care of the mother.
24. The mother previously alleged that the father physically abused her and that the father sexually abused the child. Then the mother gave oral evidence that she never held a belief that the father sexually abused the child nor did she believe that he was a paedophile. The mother also denied that she had alleged that:
a. Her former partners had sexually abused her biological children;
b. All men were pedophiles; and
c. Her father had sexually abused her and her sister
notwithstanding the reports of alleged sexual abuse made by the mother in Exhibits H, I and J, which directly contradicted the oral evidence the mother gave.
25. The mother also gave oral evidence that she would be prepared to leave the child in her father’s care and the father submits that this remains an unacceptable risk to the child given the mother’s previous allegations of sexual abuse perpetrated by her father.
26. The Family Report at paragraph 96 recommends “supervised visits 4-6 times p.a. at a Children’s Contact Centre” to meet X’s identity needs. Given that the mother gave oral evidence that she would not attend supervised visits if her time was required to be supervised, it is submitted that X’s time with the mother should be limited to supervised visits a minimum of two times per annum.
60CC(3)(ca): Obligations to Maintain the Child
27. The mother has alleged that the father does not properly manage the child’s health, that the child missed school days whilst in the father’s care, that the child does not have suitable accommodation and that the father cannot provide basic amenities to the child.
28. The father denied the mother’s allegations in his oral evidence and in his affidavit filed 7 September 2016. The father has outlined his diligent ongoing management of the child’s health, detailed his current accommodations and amenities to meet X’s needs (for example, the heating evidenced in Exhibit B) and has detailed what accommodation he intends to obtain in future to continue meeting X’s needs. The evidence further showed that the child had missed over 15 days of school in the mother’s care and only 6 days in the father’s care, with one of those dates being the day the father took the child to be interviewed for the Family Report and the remainder of days were when the child was ill. The mother was not able to provide an explanation for the volume of missed school days whilst the child was in her care.
29. At paragraph 47 of the Family Report, it states “Ms Regan denied that she had ever been cross with X and insisted they were always in perfect harmony…She also denied ever feeling guilty for any parenting deficits of her own… The main implication of a parent’s inability to demonstrate a capacity for critical self-reflection is that s/he will not be able to inhibit unhelpful emotional responses in order to prioritise the child’s needs.” It is submitted that the mother is unable to demonstrate her capacity to self reflect and therefore will continue to exhibit unhelpful emotional responses and fail to prioritize the child’s needs as a result.
30. Per section 60CC(3)(ca), it is submitted that the father has been maintaining and attending to the child’s needs and continues to be capable in maintaining the child and facilitating the child’s time with the mother.
60CC(3)(f & i): Capacity of Parents to Provide for Child & Concerns for Mother’s Mental Health
31. There are ongoing risks associated with the mother’s mental health. The mother confirmed in her oral evidence that despite the recommendations of multiple practitioners that she attended upon (for example, per the reports in Exhibits E, F, and G), she does not agree that she has suffered from mental illness, does not accept that she may suffer from mental illness and therefore does not intend to seek any assistance or treatment for her mental illness. The mother’s position in this regard continues to pose an unnecessary risk to X’s safety and wellbeing.
32. Given that Family Report at paragraph 39 states that “[Ms Regan] would be very hard to engage in psychotherapy and unlikely to comply with professional advice”, the father submits that the Court cannot be satisfied that the mother will or can minimise the risks associated with her mental issues due to the mother’s inability to address her mental issues and comply with professional advice in relation to her mental health issues.
33. Per section 60CC(3)(i), it is submitted that the mother does not have capacity to meet the responsibility of parenthood as the mother has ongoing mental health issues that she cannot or does not intend to address.
34. Per the Family Report, at paragraph 2f of the executive summary, the mother’s “information-processing is distorted. She will encourage deviant thinking in her child.” The Executive Summary further states that “the mother seems unable to make rational, child-focused decisions in her son’s best interests.”
35. The father submits that the proposed final orders as outlined in the father’s case outline (with the amendment to proposed Order 3 as outlined in paragraph 12 of these submissions) should be made.
Submissions by the Respondent Mother
The Mother filed two separate, and slightly different, written submissions: the first on 21st October 2016; the second on 29th November 2016. There is some overlap between them; there were no Orders pursuant to which the second set of submissions was filed. However, for the sake of completeness both sets of submissions are set out below.
The Mother’s first submissions were as follows (it might be noted, in no way critically, that the Mother speaks about herself in the third person throughout):
1) I am the Respondent Mother [referred to as Ms Regan], born on (omitted) 1969, and I am currently 46 years of age. I reside at (omitted), in the State of New South Wales. Ms Regan has Casual and Part-time employment with the (employer omitted) as a (occupation omitted).
2) The Applicant Mr Bartholomew, [referred to as Mr Bartholomew], born (omitted) 1968, and currently 47 years of age. Resides at (omitted), in the State of New South Wales. Mr Bartholomew is casually employed.
3) Mr Bartholomew and I have one child together. His name is X born (omitted) 2010, and is currently 6 years of age. Resides with his father, (omitted), in the State of New South Wales. Enrolled with (omitted) School.
Housing Arrangements for X
4) X's mother has provided a 2 bed-room home on rural setting 10 km from serviceable township; and is seeking 'equal parental responsibility'.
5) Mr Bartholomew has a caravan with attached annexe; gas, electricity, and wood heating; showering facilities unknown; a queen size bed observed and provided in court. Unknown Legal entitlement to build or capacity to finance a new home; on rural setting 56klm from serviceable township; and seeking 'sole parental responsibility'.
The primary considerations are:
6) X will benefit from a meaningful relationship with his mother for his emotional,·psychological, physical, practical, social and educational skills. X's mother loves and cares about the welfare of her children, and the need to nurture her children's present and future education, social, physical, creativity developments, and personal integrity; to develop a sense of self; good moral standards and social adjustment; in an environment that has the emotional stability and protection from harm, neglect, psychological and physical abuse, focused on long-term good health, well-being, preservation and opportunities.
7) X will benefit in stability with his mother's long-term employment and financial security, and further career opportunities within NSW Health. X's mother is socially conditioned and adaptable within the society; and has fulfilled and represented oneself as capable to deliver these proceedings to the Federal Circuit Court of Australia.
8) X will continue to benefit from family orientated lifestyle, social integrity, within a number of family orientated communities. Along with long-term well-being and welfare, where both parents consolidate·their skills, qualifications, by nurturing and protecting the best interests for our son; together with co-operation, and the ability to be flexible; in an adjacent focus on parenting matters and responsibilities. X can grow to be a secure and adequate person; with the participation of both parents; in an environment of supportive persons', good experiences and guidance, that will benefit X's ability to develop self-reflection with relation to appropriate behavioural development.
X's capacity to understand his 'needs' and 'desires'.
9) X frequently wants to go with his mother from supervised visits at Marymead.
10) X enjoys going to the zoo, the movies, and to (omitted) in a plane with his father.
11) X has mentioned these people: Grandma Bartholomew in (omitted), Mr Bartholomew's Aunty Ms P, Grandma Regan (Nanny), Poppy Regan and Uncle Mr P. C and J, S, A, W, E, C, Uncle Mr A, S, E.
12) X is well loved and missed by all that know him. X always says, “I love you mum, and/or I miss you mum.” On the evening of the 18/10/16 X said,” I love you, repeatedly.”
13) Expert reports, “X 'wants' to live with his mum, but stay with his father two days.”
14) X has the capacity to understand genuine care; his own desire and needs for close family relationships. X's mother has always placed his best interests a priority, and focuses on her children, by way of maintaining mental, physical and social aspects; care and protection.
X's relationship with his Parents
15) Ms Regan and X have developed our relationship since birth. We have worked within a mother's intuitive and caring nature. X and his mother enjoy quiet times, making and doing things at home; enjoyed inviting his friends for visits; camping and our animals.
16) Ms Regan had always provided the utmost care, support, and protection for her four children X, Ms F, A, B. With good moral standards, in principle based social and ethical judgement, and is a good mother thus consent for 'Equal Shared Responsibilities' for X. Both Mr Bartholomew and Mr T, (Fathers) of these said children; respond with, “Ms Regan is a good mum.”
17) Ms Regan volunteered 2-3 days a week/2-3 hours p/d; during 2015 with X's school. I was asked to attend to the school for my (employment omitted) in 2005 and 2015. X is a younger student for his year; and has accomplished well throughout his 'Kindy' first year. At all times, Ms Regan has informed X's School Principle of any intention to attend school.
18) Mr Bartholomew stated on the 29th September 2016, “X is happy with his father.” Mr Bartholomew stated, “yes” to X having a meaningful relationship with his mother, when prompted. Mr Bartholomew stated, “children are hard-work.” Also stated, “going to his mothers in (omitted) with X, and doing the washing there.”
Parenting Responsibilities
19) Ms Regan did initiate a 'parenting meeting' with Mr Bartholomew on the 19th June 2015 at the (omitted) with regard to parenting matters and concerns.
20) Mr Bartholomew has offered on three occasions extended supervised time with X, at Marymead (omitted). Ms Regan's work commitments are part of her responsibility, when under-taking employment. Work Rosters can be flexible and times be adjusted, appropriately and responsibly, in a timely manner. Mr Bartholomew is aware of the mothers' time commitments to work, when arrangements are made with Marymead (omitted).
21) Mr Bartholomew distracts and prevents X from talking about something daddy is doing; sometimes terminates calls or fails to make telephone contact.
22) Ms Regan maintained continuity with regard to contact arrangements between X and his father.
Making decisions about major long-term issues
23) The willingness of both Ms Regan and Mr Bartholomew to prioritise on major long-term decisions for our son; that will minimize any concurrent health, welfare and behavioural issues; in an appropriate manner that is collaborative, and primarily focused on X's psychological and physical health, education developments, attachments and healthy social networks.
24) X has stated to his mother, “I'd like to be home, with my toys.” “Paint the cubby house with dinosaurs.” Ms Regan agreed, quoted, “this would be a good idea.” X enjoys and likes to share his interests and ideas with his mother.
25) X wishes to contact his mother on the telephone. Ms Regan believes that X needs this to happen, as this is important to X, and these wishes ought to be facilitated and encouraged by both parents when he wants to speak to either parent.
Parenting Obligations to maintain the child/parent relationships
26) Mr Bartholomew has failed to provide contact at (omitted) due to his assertions that are not valid. Mr Bartholomew has not provided real reasons for ceasing contact at the time. Albeit, the Court felt to initiate Marymead program, (omitted).
27) Mr Bartholomew stated, “it's not in X best interest", in relation to X speaking with his mother over the telephone. Mr Bartholomew has at times sabotaged phone contact with his own false perceptions and judgement.
28) Contrary to the father making available contact times suited to his own needs, rather than the emotional rights of X. Mr Bartholomew gave these reasons; "collection of sheep'', in the school holiday period; inadequate finances for "registration of vehicle", when Government subsidies apply for the father; and the inappropriateness of supervision in (omitted).
29) When questioning Mr Bartholomew, “do you think X needs his mother's input”, Mr Bartholomew replied, “yes.” Mr Bartholomew is available through 'text' messaging and does not supply a more appropriate contact being that of the landline home number; as there are mobile reception problems where X lives. X's mother 'text' her concerns and strategies in relation to notable health problems to address X's health distress.
30) Mr Bartholomew has refused to inform or forward to the mother legible documents when asked; and/or information with regard to X's health and/or behaviour. Furthermore, has isolated the mother's concerns that have been on-going for 3 years, regarding X's health and behaviours, thenceforward, the court documents and procedures, the mother is currently advised.
31) Mr Bartholomew stated when questioned, ‘how do you think X is going?’, Mr Bartholomew sworn statement, “X is going good, at school.” Further questioned, has X been pinching other children”. Mr Bartholomew initially stated, “unaware.” When further prompted with DoCs report, Mr Bartholomew stated, “in Pre-school, X was pinching other students, also himself ‘. Further making a statement, “X has been showing his bum, sandwiching, flashing doodle at girls, and other boys.”
The ‘Effect’ of changes in the child’s circumstances
32) X understands a supportive, safe, comfortable and caring environment. X does.not agree with the courts decisions, quoted to his mother some months back, “I will get up and tell the Judge.” X's school reports suggest that he is not doing as well this year compared to when the mother had X in her care in 2015. X’s health has been severe, and his undesirable behaviours have multiplied.
33) X frequently mentions his Grandparents farm in (omitted), and states, "he can help them with the cattle; are the horses looking for me?"
34) X's Grandmother (Ms P), is an experienced person with children. There is a long history of my parents minding other people's children, along with raising eight children. My parents have always worked hard for everything they own, and are financially sustainable, due to this hard work. They have loved and supported X. It has been a tremendous tragedy upon my mother. Ms P went into shock, on return from her 'respite' time her girlfriend.
35) Ms Regan has objected to supervised visits as it does not hold the best of long-term interest for X. There are difficulties with what she explained as “X being Tugged,” between the two parents. X's mother has experienced this 'Tug' which really is the 'X's state of mind'. As one parent's need to control, in an effort to remove the other parent from the X's life, is subsequently consciously or unconsciously purposeful by the 'controller'. What is once understood by the child, is then 'confused,' and becomes the loss of identity, and sense of belonging, and thus loss of self-esteem, love, and self actualization. Expert reports paragraph 62, “X is at high risk of emotional disorder (such as anxiety or depression).”
36) Statement made by Mr Bartholomew on Dept. Family and Community report dated the 25/06/2015, (page 1 of 1), “if my son grows up queer because of this and necks himself ', father stated in cross-examination, “yes, highly emotional.” Departmental records “Mr Bartholomew expressed taking the matter into his own hands, because no services are acting". This is one of my reasons for not informing Mr Bartholomew of my relocation until we were clearly out of his physical reach.
37) Being that there have been no mental health issues for Ms Regan; no concerns regarding the Ms Regan's care for X, (upon temporary relocation to a familiar environment, and destination on the 4th Sept. 2015). These changes will no doubt have the debilitating effect on X.
The practical difficulties and expense of a child spending time and communicating with a parent
38) On the 29/09/16, Mr Bartholomew stated, “financial” inadequacies, to provide contact for X and his mother; “happy to finance mothers' time supervised in (omitted).” Furthermore, Mr Bartholomew stated, “intention to build a 3 bedroom home,” and included holidays 4 times a year, with his casual employment income.
39) At present X is travelling to School 2hrs a day; X is travelling to Canberra 4.hrs, (omitted) 2.hrs and (omitted) 3.5hrs, by road standards. These include activities, going to the museum or park;' visiting his mother per fortnight; visiting his Grandmother in (omitted).
Parenting capacity of child's parents
40) X's mother has had a long interest in emotional and physical perspectives, capped with continued education, learnings and employment. Ms Regan has the capacity and capabilities to render the psychological, the emotional, physical support and protection; the financial supports; to responsibly guide and provide X's future prospects and personal developments.
41) Mr Bartholomew's slant and attitude on X's mother's parenting capability or capacity to a meaningful relationship are malicious and conflicting conjectures, and are reflective in the fathers' extraneous inference and motivation. The following statements made by X's father are: “Ms Regan's not fit enough to have X”, “Ms Regan's not an appropriate mother,” “not progressing,” “scorned women”, “spite or mental health,” “not able to look after X,” “not capable,” and agreed with, “no good will or foresight outside supervised contact, not suitable and is a reject of society,” Mr Bartholomew's responded, “yes.”
42) Mr Bartholomew reports experiencing ''to stressed, too busy, too stressed", on cross-examination. A serious breach of (employer omitted) conduct; Mr Bartholomew explained frustration with aspects of the culture in the work depot, and processes around rostering overtime. (employer omitted) condones any physical abuse of others; Mr Bartholomew was dismissed from employment with (employer omitted) 2014, and commitment to attend counselling 4 occasions". Mr Bartholomew quoted the vent, “cock-sucker mates and grabbing colleague shirt fronted.”
43) Mr Bartholomew stated, “the need for a fire arms licence,” and has quoted paragraph 123(b), Affidavit filed 07/09/2016, 'fun with the neighbourhood children in getting rid of feral pigs in the area'. Mr Bartholomew was questioned by X's Lawyer in relation to attending post separation course, Mr Bartholomew states, ''No, children are hard-work".
44) Mr Bartholomew’s capacity to keep regular employment. Mr Bartholomew had stated, “was working in (omitted)”, prior to “casual work with (employer omitted).” Mr Bartholomew has a restrictive earning capacity to provide the financial requirements to cover his intention to build, and/or ability to register motor vehicle. Mr Bartholomew has stated, “go on holidays 4 times per year”’, and offered expenses for X to see his mother.
Authority examination
45) Expert cross-examined on the 300 Sept. 2016, Paragraph 38, PAI valid score. “Peoples' Response Style,” for Mr Bartholomew. On examination of incidences in 2009 and 2014. NSW Police report (charges), 300hrs community service. Employment dismissal and counselling commitment. Ms Regan referred to PAI Profile; posed the question, “is this a questionable personality trait, shortcomings and opt to more behavioural problems than indicated.” Expert reports with “behavioural observations,” “jealous behaviour, inability to self-reflect, able to accept insight of his behaviour,” “No, father's treatment scale is low”, although unable to find the psychometric score.
46) Further evidence supporting findings on PAI valid score of Mr Bartholomew. Ms Regan presented to the Court under cross-examination by X's Lawyer (ICL). The fact that Mr Bartholomew and Ms Regan separated in February 2008, and there had been no prior contact between the person's for a period of 15 months prior to the incident in 2009, Mr Bartholomew being charged with Malicious Damage, Break and Enter, Malicious intent to harm and subsequently 300hrs Community Service for Mr Bartholomew.
47) Expert examined paragraph 50 of her report, in consolidating her determination of the mother's, 'dependence on the child', responded with “clinical deception, clinical judgement; case history, discord,” and concluded “aggregated information.” (omitted) Centre in (omitted), (omitted) induction has stated, “contrary to DoCs report, the mother was caring for her children.”
The Mother’s [later] November submissions were as follows (emphasis in original) (with some overlap in matters addressed or comments made):
1) These proceedings relate to the child, X (born (omitted) 2010), and is currently 6 years. Residency in (omitted) from 20/11/15. Enrolled with (omitted) School.
2) Applicant Father Mr Bartholomew [referred to as Mr Bartholomew], born (omitted) 1968, and currently 48 years of age. Resides at (omitted), in the State of New South Wales. Mr Bartholomew is currently casually employed with (employer omitted)
3) I am the Respondent Mother Ms Regan, [referred to as Ms Regan], born (omitted) 1969, and currently 46 years of age. Notice of Address filed 15/12/2015 as (omitted), (omitted) in the State of New South Wales. Ms Regan has Part-time and Casual positions with (employer omitted), as a (occupation omitted).
Applicant Father seeks Orders upon Mother relocating.
4) Children’s Court Queanbeyan 2006, records filed interviews with Mr T children dated 23rd December 2005, by Department of Family and Community; Canberra Rape Crisis Centre 03/01/2006, (omitted) Medical Centre 12/2005. (omitted) Police 19/12/2005; (omitted) Centre discharge summary, “family and the (omitted) report, caring appropriately for her children contrary to DoCs reports. Ms Regan referred to (omitted) Centre on 09/01/2006, released by Psychiatrist on 19/01/2006. Further assessment with Dr W Psychiatrist for (8) sessions with no diagnosis reported.
5) Ms F (born (omitted) 1998), living in Darwin; A (born (omitted) 2000), 16 years living out of care since 12/10/2016; B (born (omitted) 2002), living with Mr T (father).
The primary considerations for X are:
6) X’s mother has provided a 2 bed-room home on rural setting 10klms from serviceable town, is seeking ‘equal parental responsibility’. Mr Bartholomew has a caravan/annexe on an isolated property 56klms from serviceable town; (3) heating appliances; showering facilities unknown; a queen size bed observed and provided photos in court. Unknown Legal entitlement to build or capacity to finance a new home; and seeking ‘sole parental responsibility’.
7) X will benefit from stability with his mother’s employment and comfortable setting. Ms Regan is socially conditioned, adaptable and diligent; with good moral standards; the capabilities in realistic risk assessment and child-centred. With paramount consideration for X’s long-term good health, sense of self, well-being, preservation and opportunities. Ms Regan has presented capable to deliver these proceedings to the Federal Circuit Court of Australia to the best of her capabilities and understandings.
8) X will benefit from a meaningful relationship with both parents consolidating their skills, collaborative, flexibility, nurturing and protecting the best interests of our son. X can grow to be a secure and adequate person; to develop self-reflection.
X’s capacity to understand his ‘needs’ and ‘desires’.
9) X’s on-going reluctance to return to his father from supervised visits. X always says, “I love you mum, and/or I miss you mum, repeatedly”. Expert reports,“X ‘wants’ to live with his mum, but stay with his father two days.” X has the capacity and understandings of who/what is important to him.
X’s relationship with his Parents/Grandparent/Relatives
10) In birth X and his mother work with good moral and principle based social, ethical judgment and standards. Both Fathers respond with, “Ms Regan is a good mum.”
11) X has many relatives. X enjoys helping on his Grandparents property; and states “helping them with the cattle”; “are the horses looking for me”, and lots of fun.
12) Report Writer notes (para 23), Ms M, “good mum to a baby”. Obesity, diabetic and hospitalization; enquiry with Mr Bartholomew in our Parenting meeting 19/06/2015. (Poppy) Regan has diabetes, hospitalization and failing health issues. Ms P (Nanny) Regan is an experienced child minder, and Grandmother to 25 children; and in good health. Brother Mr P is a great help around the farm, occasionally needs supervision when a difficult task is needed. X and Mr P are good mates. Parenting Responsibilities
13) On the 19th June 2015 Ms Regan initiated a ‘parenting meeting’ at the (omitted) for any parental concerns or matters. Subsequently Mr Bartholomew initiated Legal assistance from former Lawyer Johnson and Sendall, (omitted), letter dated 25/06/2015, “playing with his wee, at bathing time” (para.26 ICL submission). Subpoena filed 17/08/2016 for suitable housing etc. Department Family and Community report dated the 25/06/2015, (page 1 of 1). “Mr Bartholomew expressed taking the matter into his own hands, because no services are acting”.
14) Ms Regan volunteered her time in 2005, throughout 2015, 2-3 days for the (omitted) School. Had part-time employment with (employer omitted) work.
15) Court orders 18/11/2015 where the father facilitates contact times. Recorded material of infrequent, disruptive, limited and pressured for X. Extended time offered on (3) occasions at Merrymead, Mr Bartholomew is aware of Ms Regan’s work commitments.
16) Ms Regan maintained continuity of weekly and fortnightly hand-over until 2013-2015; and weekly telephone time.
Making decisions about major long-term issues
17) The willingness of both Ms Regan and Mr Bartholomew to prioritise decisions that will minimize any concurrent health, behavioural issues; in an appropriate and amicable manner. For arrangements to managed, facilitated, encouraged, and provide X contact for the purpose of any emergency or other.
Parenting Obligations to maintain the child/parent relationships
18) Mr Bartholomew has failed to provide contact at (omitted) due to his assertions that are not valid. Albeit, the Court felt to initiate Marymead program, (omitted). X’s emotional rights have not been upheld, rather the “collection of sheep”, in the school holiday period; inadequate finances for vehicle registration returning from vacation and when Government subsidies apply for the father.
19) On cross-examination, “do you think X needs his mother’s input”, Mr Bartholomew replied, “yes”. “How do you think X is going?’, Mr Bartholomew states, “X is going good, at School.” Further questioned, “has X been pinching other children”. Mr Bartholomew initially stated, “unaware”. When further prompted with DoCs report 25/06/2015, Mr Bartholomew stated, “in Pre-school, X was pinching other students, also himself”. Further making a statement, “X has been showing his bum, sandwiching, flashing doodle at girls, and other boys”. Expert report (para.63), “manifest across social contexts”. Mother’s affidavit filed 2 incidences of random grabbing of other people’s privates at school in August 2015.
20) There are mobile reception problems where X lives; a landline home number has been refused. Mr Bartholomew has refused to inform or forward to the mother legible documents when asked. The mother is recently advised of X’s behaviours at a recent parent/teacher meeting; and medical history.
The ‘Effect’ of changes in the child’s circumstances
21) Changes occurred from 20/11/2015 has no doubt had a debilitating effect on X. X quoted to his mother some months back, “I will get up and tell the Judge”. X’s school reports suggest not doing as well academically with multiple incidences. The change of residency, separation, without privacy. X’s on-going health and undesirable attitude at school is current, and travels 2 hrs to school.
The practical difficulties and expense of a child spending time and communicating with a parent
22) On the 29/09/16, Mr Bartholomew stated, “financial” inadequacies; “intention to build a home”, 4 vacations a year, pay off a mortgage, and has offered to pay for Ms Regan to see her son, with his casual employment income.
23) Ms Regan has objected to supervised visits as X and his mother have functional and enjoyable time; thou does not hold the best of long-term interest for X. “X being Tugged”. This ‘Tug’ which is ‘X’s state of mind’. As one parent’s need to control; in an effort to remove the other parent, is subsequently consciously or unconsciously purposeful by the ‘controller’. What is once understood by the child is then ‘confused,’ and becomes the loss of identity, and sense of belonging, and thus loss of self-esteem, love, trust and self-actualization. Expert reports paragraph 62, “X is at risk of emotional disorder (as anxiety or depression)”. Paragraph 63, “precocious behaviours and deviant“.
Parenting capacity of child’s parents
24) Ms Regan has the experience, studies in (omitted); the financial supports; to responsibly guide and provide X with personal prospects. Mr Bartholomew’s slant and attitude on toward the mother capability are malicious and conflicting conjectures, and are reflective in the fathers’ extraneous inference and motivation. The following statements made by X’s father are: “Ms Regan’s not fit enough to have X”, “Ms Regan’s not an appropriate mother,” “not progressing”, “scorned women”, “spite or mental health”, foresight outside supervised contact, not suitable and is a reject of society”, Mr Bartholomew’s responded sarcastically, “yes”.
25) Mr Bartholomew stated, “the need for a fire arms licence”, and has quoted paragraph 123(b), Affidavit filed 07/09/2016, ‘fun with the neighbourhood children,’ Mr Bartholomew states, “No, to post-separation course; further children are hard-work”. Mr Bartholomew reports experiencing “to stressed, too busy, too stressed”, Mr Bartholomew stated, “yes” to X having a meaningful relationship with his mother. Unreported incidences Mr Bartholomew denied.
26) Mr Bartholomew’s capacity to keep regular employment or communicate maturely or amicably.
Family Report Writer
27) Expert cross-examined on the 30th Sept. 2016, Paragraph 38, PAI valid score. “Peoples’ Response Style” as Repression for Mr Bartholomew. On examination of incidences in 2009 and Employment conduct/dismissal in 2014. NSW Police report (charges), 300hrs community service. A serious breach of (employer omitted) conduct in 2014, reports “Mr Bartholomew frustration with aspects of the culture in the work depot, and processes”. Mr Bartholomew quoted the event, “cock-sucker mates and grabbing colleague shirt fronted”. Dr A quoted no recollection of employment dismissal filed as evidence. Ms Regan posed the question, “is this a questionable personality trait, shortcomings and opt to more behavioural problems than indicated”, Responded with, “behavioural observations”, “jealous behaviour, inability to self-reflect, able to accept insight of his behaviour”, “No, father’s treatment scale is low”, although unable to find the psychometric score.
28) Paragraph 50 of her report, in consolidating, ‘dependence on the child’, responded with “clinical deception, clinical judgement; case history, discord”; and opinion from “aggregated information”.
29) Ms Regan presented evidence that Mr Bartholomew and Ms Regan separated in February 2008, and there had been no prior contact for a period of 15 months. Mr Bartholomew being charged with Malicious Damage, Break and Enter, Malicious intent to harm and possible 7 year jail term in 2009.
Submissions on behalf of the Independent Children’s Lawyer
The ICL submissions, filed 4th November 2016, were as follows (unfortunately and surprisingly, they were eleven pages longer than the 6 pages ordered):
BACKGROUND
1. The proceedings are between the applicant father and respondent mother in relation to the only child of their relationship X born (omitted) 2010.
2. The mother has three children by a previous relationship, Ms F born (omitted) 1998, A born (omitted) 2000 and B born (omitted) 2002. X has no relationship with his half siblings. Since 2005/2006 those siblings have lived with their father. The mother gave evidence that has seen them only a couple of times, since X’s birth. Emergency action was taken by NSW Department of Communities in 2005/2006 and orders were made for those three children to live with their father.
3. It is not in dispute that from the date of separation of the parties, the child remained living with his mother and arrangements were made for X to spend time with his father. Initially that time was weekly and regular but in 2013 the time was changed to fortnightly and then in May and July 2015 there was a period where the mother ceased the time because of concerns she had for the child. In August or early September 2015, the mother removed the child from school in (omitted) and she relocated to her parent’s home in (omitted). Interim orders were made 18 November 2015 providing for the child to with his father and have supervised time with the mother.
4. The mother has a history of mental health issues. In the material filed by the mother, in her oral evidence during the proceedings, as noted by the expert in the proceedings Dr A and as confirmed in the mother’s written submissions dated 20 October 2016, the mother does not acknowledge or accept that she has now, or that she has ever suffered from any mental health issues. (paragraph 11(f) of submissions of the mother “being that there has been no mental health issues for Ms Regan: no concerns regarding Ms Regan’s care for X, (upon temporary relocation to a familiar environment and destination on the 4th Sept 2015). These changes will no doubt have the debilitating effect on X.”)
5. It is primarily as a result of the mother’s mental health and her unwillingness to seek any assessment or professional assistance from any medical practitioner, that the expert forms the basis of her opinion of risks to the child. The recommendations of Dr A are relied upon by the ICL.
PROPOSALS
6. The proposal of the Independent Children's Lawyer is as set out in the minute filed in court. It includes an order that the mother attends upon a medical professional and follows the advice of that professional in relation to her mental health. If she refuses to do so within 6 months, the orders are discharged. This is in accordance with Dr A’s recommendation.
7. The mother in cross examination stated that she was unwilling to attend upon a psychiatrist, even for the purposes of an assessment.
8. The proposal of the mother is still somewhat unclear. The mothers oral evidence was that if there was an order for supervised time in a contact centre that she would not avail herself of that opportunity to spend time with X, although she was still proposing telephone communication on a regular basis.
9. The ICL proposes the mother continue to have the opportunity to spend time with the child in a supervised setting. The mother was self-represented and may not have appreciated the consequences of her assertion in court (that she would not see him if it were ordered to be supervised at a contact centre). To date the mother has attended for the majority of the supervised time periods and the Marymead supervision notes are mostly positive. The mother and child are reported by the expert to have a close relationship and the mother gave evidence of the child expressing that he loves and misses her. The mother has seen the child at school and has regular telephone communication. The expert notes that the father was “well aware that the child misses his mother and needs to see her” (Family Report paragraph 16)
10. The ICL submits that the opportunity for the relationship to continue to be explored once the pressures of the court proceedings are concluded, is in the child’s best interests.
EVIDENCE
11. The mother was self-represented and relied upon all previous affidavits she had filed in the proceedings.
12. The father relied upon previous affidavits filed in the proceedings and an affidavit of his mother, Ms M.
13. The ICL relied upon the single expert's report prepared by Dr A dated 9 March 2016, which recommended that the father have sole parental responsibility and that the child continue to spend supervised time with the mother. The ICL adopts entirely the recommendations of the expert.
14. Dr A's oral evidence, given by telephone, was that if the mother ceased supervised visits (with the effect that the child would no longer see his mother) that there should be a meeting with the child's psychologist to explain the change. The ICL supports that order, subject to the attempt to continue the relationship and relies on paragraphs 10 and 11 above.
15. A number of records produced under subpoena were tendered including records from the New South Wales Police, Marymead supervision reports, school attendance records, New South Wales Department of Communities records relevant to the mothers three children by her first relationship, New South Wales Department of Communities records relevant to X and medical records from (omitted) where the mother had been an inpatient in 2005.
LEGAL PRINCIPLES
16. Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act (Cth) 1975. When making a parenting order the court must consider both the objects of the legislation and the principles which underpinned those objects (s60B).
17. When making a parenting order (s64B) the court is mandated to regard the child's best interests as the paramount consideration (s60CA and s 65AA) and the criteria which must be considered by the court is set out at section 60CC.
18. There is a rebuttable presumption that the child's best interests are served by an order for equal shared parental responsibility for the child (s61DA). The presumption does not apply in certain circumstances including child abuse and family violence (s61DA(2)), and the presumption may also be rebutted if the court is satisfied it would not be in the child's best interests for the parents to have an order for equal shared parental responsibility (s61DA(4)).
19. If an order is made for equal shared parental responsibility the court must then consider the child living for equal time with both parents, or living primarily with one and spending substantial and significant time with the other parent (s65DAA). If sole parental responsibility for the child is ordered, the court will exercise its discretion about the living arrangements for the child, but that discretion must be exercised in circumstances where the child's best interests is the paramount consideration.
BEST INTERESTS- PRIMARY CONSIDERATIONS (s60CC(2))
20. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to exposed to abuse and neglect of family violence. Greater weight is to be given to the second of the primary considerations. The court must also take into account the additional considerations.
Section 60CC(2)(a) and (b)
21. The evidence of Dr A is that the mother will be unable to facilitate a meaningful relationship between child and his father. Dr A forms the view that the mother would “undermine and block” the child’s “contact with his father and continue to raise allegations of abuse. She would also try to recruit him to her odd worldview and habits of persecutory thinking, which would be unhelpful for his psychological development.” (Family Report paragraph 82).
22. The evidence of Dr A is the mother has mental health issues which impact on her parenting in numerous ways. While ever they remain untreated the risk to the child arising as a consequence of the mother’s behaviours also remain. In cross examination, the mother confirmed that she was unwilling to seek assessment or treatment. Accordingly, the unresolved psychiatric issues remain. The expert undertook various tests and observed the parties and child and formed conclusions. She also had access to evidence filed and collateral sources of information in relations to the mother's mental health (Family Report paragraph 64 to 70.) It is not in dispute that the mother was a psychiatric inpatient between 10 and 19 January 2006 at (omitted) facility in (omitted). During this time of the mother was seen by a number of medical professionals, and different diagnoses were opined including likely psychotic disorder delusional disorder, schizophrenia, paranoid disorder (not otherwise specified) and paranoid psychosis. The expert suggested delusional disorder as a likely diagnosis. It is not in dispute also that at that time also the mother rejected any diagnosis and refused further testing, treatment, assessment or medication. In May 2006 psychiatrist Ms J suggested a diagnosis of paranoid psychosis and opined that without medication the mother would be inaccessible to counselling. Mr J psychologist in June 2006 reported that the mother may have a personality disorder. The mother also rejected his advice to seek medication. The mother relied upon her attendance upon a psychiatrist in 2008 and gave evidence that he had reported no psychosis at that time. The ICL submits that little weight could be given to that evidence when the most recent assessment of the expert and the balance of the medical notes are consistent with the expert’s conclusions. The mother remains steadfast in her refusal to be further assessed or accept treatment.
23. The expert concludes that the mother does not poses an immediate risk of harm due to physical abuse or neglect.
24. The expert goes on to say that the mother “has a distorted view of her own centrality to the child's life and the father's marginality - indeed dispensability. Her fixed belief that the father is dangerous is likely to remain immune to correction by contradictory, objectively-verified evidence. If X was permitted to live principally with his mother, it is most likely that she would undermine and block his contact with his father and continue to raise allegations of abuse. She would also try to recruit him to her odd worldview and habits of persecutory thinking, which would be unhelpful for his psychological development” (Family Report paragraph 82) further “that the risk of X of living alone with his mother, without much counterbalancing input from his father or paternal kin, is it the mother's emotional intrusiveness/neediness would stifle X's growth to psychological individuation” (Family Report paragraph 83).
25. The concern expressed is that the child will continue to be at risk of psychological harm by reason of his exposure to the mother’s untreated mental health issues which would include likely continued allegations of sexual abuse, unless the time is supervised.
26. The mother’s oral evidence in cross-examination was that she did not believe that the father had sexually abused the child. This is contrary to her report to the expert ((Family Report paragraph 74) and to third-party evidence that the mother had made reports of her concerns that the father had sexually abused the child. Specifically, she agreed she consulted Dr J at (omitted) on 16 October 2015 that she was concerned about potential sexual abuse with his father. Doctor J referred the child to a psychologist. The mother took the child to psychologist Ms W on 4 November 2015 and asked the court to approve further counselling for sexual abuse concerns. She annexed a letter dated 25 June 2015 from her then solicitor Johnson which reports concern of the father “playing with his wee” (affidavit of mother paragraph 23 annexure F)
27. It is the submission of the ICL that accepting the evidence of the expert, the mother would be likely to continue to make such allegations and is unwilling to engage in any assistance for her ongoing mental health issues, despite her oral evidence that she did not believe the father had sexually abused the child.
RISK OF HARM
28. The mother's case was that the child would be exposed to multiple risks of harm living with the father including risk of family violence, risk of sexual abuse, risk of neglect both in the environment in which the father lives with the child and in relation to alleged inadequate medical and health care for the child.
29. The mother told the expert that “the child had witnessed his father's uncontrollable temper and physical abuse” and “that if the child was not restored to her care he would become violent and grow up to be a criminal” (Family Report paragraph 25). The mother gave evidence of “physical, verbal abuse and threats”, that “the father intimidated harassed physically assaulted and name calling” (paragraph 3 mother's affidavit of mother 7 December 2015 paragraphs 3, 8,10, 11c and 11a)
30. The mother was critical of the father's supervision of the child and made reference to an incident where whilst in the care of the father the child who was only 3 years of age had wandered off and the police were notified. This incident was verified by the NSW police records (Exhibit K). The New South Wales police records established that the child had in fact wandered off on two occasions that have been reported to the police, once whilst in the care of the father and the other time whilst in the care of the mother.
31. The mother was critical of the father in relation to the number of school absences of the child since he had been in the primary care of the father. The school records verified a number of absences however if this is to be a criticism the records established that it is a two-way street and the child had school absences whilst both in the care of the mother and of the father.
32. The mother was critical of the father's management of an ongoing hygiene/urinary tract infection/irritated red penis of the child. The father's evidence of management of this issue included attendances upon the general practitioner antibiotics, cream and a further medical referral if the irritation doesn't improve.
33. In relation to the risk of sexual abuse the mother reported to the expert that she was concerned about X when he returned from visits “as he was reluctant to undress or shower, and behaved aggressively to her and to animals. She alleged X killed his goldfish and an old chook, and had punched her old dog (which later died).” (Family Report paragraph 27). This level of detail was not contained in the affidavit material. The expert reported that according to his mother the child displays “more -sexual abuse specific behaviours, than 99.9% of boys aged under six. Such extreme behaviour would manifest across contexts - including at school.” (Family Report paragraph 63).
34. The expert concluded there was no identified risk of sexual abuse in the care of either parent. The expert notes that that the mother reports for the child “a severity of emotional and behavioural disturbance which would be consistent with some form of child abuse. Such serious problems would be expected to manifest across social contexts. Yet other observers do not report the same level of disturbance. JIRT has closed the case. Teachers raise no alarms and in fact report good school adjustment. There was nothing in X's presentation at interview or any information from collateral sources to suggest his father is not meeting community standards of care, protection and affection, or that the child is have a comfortable, trusting relationship with his father. That is not to say the possibility of CSA is categorically excluded, but rather that nothing has emerged from this assessment which would substantiate the mother's concerns.” (Family Report paragraph 73).
35. The father had filed evidence and was cross-examined in relation to the arrangements in respect of housing, hygiene, health and education. The expert had raised queries after the mother raised issues about the adequacy of housing with the father, which were addressed and photographic evidence and oral evidence was given.
36. No issue was raised by the father in relation any practical matter if the child was to live with the mother. The evidence supports that both the mother and father would have capacity to provide practically the requirements for the child including in relation to housing, hygiene, health and education.
37. The ICL submits that evidence does not support findings of any risk of sexual abuse, neglect or inadequate health or medical care for the child whilst with the father, or whilst with the mother.
FAMILY VIOLENCE
38. There was an incident of very serious family violence by the father where the mother was the victim in 2009 (Exhibit L & Q). The father was charged and convicted. The mother provided evidence in relation to the nature of the family violence. The father admitted the offence in the Notice of Risk filed and advised the expert he was sentenced to 300 hours of community service. (Family Report paragraph 15). This incident predated the resumption of the relationship and predated the birth of X. It was family violence between the parties nonetheless.
39. The mother asserted incidents of violence during the relationship to the expert as referred to in paragraph 30 above. There was no further evidence in relation to these matters.
ADDITIONAL CONSIDERTIONS
Section 60CC(3)(a)
40. The mother give evidence about the views expressed by the child and Dr A reports X “seems to enjoy loving relationships with both parents but expresses a residential preference for his mother. Determining weight cannot be given to the child's view due to his immature judgement.” (Family Report paragraph 71)
41. It is the submission of the ICL that given X's young age the views expressed ought to be given little weight.
Section 60CC(3)(b)-(d)
42. The evidence of each of the parties and of the expert is that X enjoys a positive relationship with both parents and derives benefit from his relationship with each of his parents. There is no doubt that each of his parents love him and are concerned about his welfare. They both wish to be involved in the nurture of their child and involved in his education. They have both expressed that they wish their child to live with them and that both have expressed they are capable of providing emotional stability and adequate housing in an environment of love and support.
43. The child has been living primarily with the father for a period of almost the last 12 months. Subject to comments in paragraph 49 below the father has facilitated and encourage the relationship between the child and his mother. It is the submission of the ICL that would continue to be provided by the father.
44. From the time of separation, under November 2015, the child was living primarily with his mother. The parties appeared to be able to facilitate an ongoing relationship until early 2015 where communication broke down and eventually the mother unilaterally remove the child from his school and relocated.
45. Dr A raises a concern that if the child were to live with the mother, she is “likely to attempt to alienate the child and notes that the child would grieve if his father was excluded, as seems likely in the mother's care. If the mother persists with unfounded allegations, the child's relationships and peace of mind will be disturbed” (Family Report paragraph 2(f))
Section 60CC(3)(e)
46. The mother resides in a two-bedroom home on a rural setting approximately 10 km from (omitted). The father resides on a rural property in a caravan with an annex near the township of (omitted). The child catches the bus to attend school at (omitted). He is doing well at school and has been since he commenced school.
47. The father's evidence is that he would support and do anything necessary for the child to spend time with the mother in the supervision centre.
48. When cross examined the father agreed that he had cancelled scheduled supervised time between the child and his mother on two occasions and acknowledged that the time is limited (to 2 hour blocks) and that X enjoys and looks forward to spending time with his mother. The father's evidence was he could not afford the trip on one occasion due to having to register a vehicle, and that on another occasion he cancelled the time because he had to be home to receive delivery of some livestock. This is inconsistent with the Father's assertion that he was “willing to take X wherever he needed to go” (as reported to the expert paragraph 20).
49. The possibility of a contact centre closer to the father's home, such as at (omitted), may alleviate some of the financial burden on an ongoing basis. The current (omitted) arrangement according to the father is a four-hour round trip, and the (omitted) option would be half that time. The mother suggested there may be a quicker route for the father to attend (omitted). In any event the mother evidence was that she would not see the child if the supervision were to occur in (omitted). As both parents are in casual employment the cost is relevant. It is not clear, given the evidence of the mother whether she will take up the opportunity to see the child in any supervised environment.
Section 60CC(3)(f) – (h)
50. The evidence of the expert is that father has the capacity to provide for the child's emotional and intellectual needs. The mother's capacity is impaired due to her mental health issues.
Section 60CC(3)(i)
51. There is no doubt that both parents love the child and believe they are the best parent to provide for his needs. The mother's beliefs about her providing for her other three children appear to be inconsistent with the reality, that is, that they have lived with their biological father since 2005.
52. An ongoing risk to the child is associated with risk to his emotional and psychological welfare arising from the mother's mental health. The mother agreed that multiple practitioners that she had attended upon in the past had recommended assessment and treatment for her psychiatric health. The evidence was that she did not then accept the advice of the practitioners, does not accept that she suffers from a mental illness currently or ever has in the past, and she remains unwilling to seek any assistance, treatment or assessment for any mental health issue. The historical (omitted) records from 2005 and 2006 report that the mother then was unwilling to engage in an assessment process and was discharged in circumstances where she did not accept that she had a mental health issue. (Exhibit E)
53. The expert concluded that on the basis of her presentation and interview the mother could “not deemed to be child focused, mainly because her expectations and attributions about her child seemed so unrealistic but also because she did not seem to be appropriately prioritising her child's needs above the needs of her own parents in her justification for relocation” (Family Report paragraph 34) and that the mother would be “hard to engage in psychotherapy and unlikely to comply with professional advice” (Family Report paragraph 39).
Section 60CC(3)(j) – (k)
54. As referred to in paragraph 39 there had been serious family violence prior to the parties resuming their relationship.
Section 60CC(3)(l)-(m)
55. X is only six years of age. His arrangements have been changing since his parents separated around four years ago. It is the submission of the ICL that these final orders should be made as they will alleviate the need for further proceedings in relation to the child.
PARENTAL RESPONSIBILITY
56. The presumption of equal shared parental responsibility in the ICL’s submission, should be rebutted pursuant to section 61DA(4) in this matter based on the evidence before the Court, that is, that it would not be in the best interests of X for his parents to equally share parental responsibility in circumstances where the mother’s untreated mental health issues expose X to significant risk, and where the likelihood of the parents being able to communicate effectively is seriously compromised, as detailed below.
57. It would still be possible to make an order allocating equal shared parental responsibility for the child to the parties but only if X's best interests would be served by such an order. It is the submission of the ICL that the evidence comprehensively establishes that it would not be in X's best interest to have such an order made.
58. The evidence of both parties is they do not trust in one another. The parties are unable to communicate in any meaningful way. The evidence of the father is the communication was “all by text” and “only by text.” The mother's evidence was “I have contacted via text to remove the risk of him making up allegations against me” (paragraph 24 mothers affidavit 7 December 2015) and “I have tried to communicate with Mr Bartholomew and it has failed” (mother's affidavit paragraph 29 7 December 2015) and “I initiated a communication book, it failed” (mother's affidavit 7 December 2015 paragraph 29)
59. The single expert Dr A recommends strongly against equal shared parental responsibility and reports that “there is mutual distrust between the parties” and that “the parenting alliance is too problematic to support joint decision-making (Family Report paragraph 42) and “given the mothers fixed views there is deemed to be no realistic prospect of improving the parental team work to the extent which would make joint decision-making work in X's best interests”(Family Report paragraph 84).
60. Accordingly, the ICL submits an order for sole parental responsibility to the father as recommended by the expert, in the terms set out in the ICL’s minute of orders sought.
61. Dr A recommended that if orders are made for infrequent supervised visits, the child need a child friendly explanation. (Family Report Paragraph 97). The report of Dr A in the submission of the ICL should also be made available to the treating child psychologist.
SPEND TIME WITH ORDERS
62. In respect to the Minutes of Orders sought by the ICL, it is the submission of the ICL that the spend time with and additional orders best meet the needs and interests of X. Firstly, they seek to maintain an ongoing relationship between X and his mother in an environment that supports and protects X from the potential exposure of his mother’s mental health issues. Additionally, the Minutes provide for a regime whereby the mother can access further treatment that, if successful, may permit her to spend continued time with X, if that is what she wished to pursue, and the parties agreed that this was appropriate. However, the success of the spend time with arrangements is conditional upon the mother seeking the recommended treatment as identified by the expert Dr A.
63. The mother’s failure to comply will result in a self-executing order that her time with X be terminated. This is supported in part by the recommendations of the expert at paragraph 95-97 of the report of Dr A, that is, that the mother’s time remain supervised and be reduced to 4 to 6 times per annum. This should be weighed against the impost on the father to continue to make X available for ongoing supervision, potentially for years, against the mother’s own evidence that she did not intend to spend anytime with X at all, and not at the contact Centre if that time where to be in (omitted). This position is reiterated by the mother in her own submissions at paragraph 11(d).
Consideration & Disposition
First, I accept the submissions of both the Father and the ICL. Those submissions (and Orders sought) refer to the Court making an Order for sole parental responsibility in the Father’s favour. I agree. They recognise, among other things, the inability of the parties to communicate, and their significant distrust. This being so, there is no need to consider s.65DAA.
Secondly, as already recorded earlier in these reasons, I accept the totality of the evidence from Dr A, including her recommendations.
Thirdly, having accepted those submissions, strictly speaking, obviates the need for the Court to traverse the same ground – either in relation to evidence or in relation to treatment and consideration of the legislative pathway.
Fourthly, in light of my acceptance of the evidence noted, and the submissions of the Father and the ICL, I need only touch on the following legislative and jurisprudential matters very briefly.
Brown J’s “twin pillars” of Part VII of the Act, set out in Mazorski v Albright, are well known and well accepted.[14] Those pillars relate to the Court’s protective responsibilities towards a child in relation to both physical and psychological harm and, to the degree that it is in that child’s best interests, for the child to have a meaningful relationship with both parents.
[14] Mazorski v Albright (2008) 37 Fam LR 518 at [3] – [6] and [20] – [26] (these latter paragraphs deal with “meaningful relationship”); cited and otherwise approved in McCall v Clark (2009) 41 Fam LR 483 at [115], and Sigley v Evor (2011) 44 Fam LR 439 at [131] – [136] & [182], [183] and [187].
Here, the child plainly has a good relationship with both parents, but there are a range of risks, identified by the Family Consultant, if the child were to spend unsupervised time with his Mother. In my view, the evidence clearly highlights proper concerns about the Mother’s mental health and her capacity to put X’s interests above her range of unfiltered beliefs about, for example, the risks posed to her children from an earlier relationship by their Father. In my view, the Father showed that he has the capacity to promote, to the degree that he can in all the circumstances, X’s relationship with the Mother. I could not be in any way confident that the Mother could or would do the same in relation to the child’s relationship with the Father.
Further, the Mother’s mental health issues (which she refuses, or is unable, to address), in my view, provide sufficient ground for the Court to hold (as I do) that the presumption in s.61DA of the Act in relation to equal shared parental responsibility is rebutted because such an Order wold not be in X’s best interests.
In my view, the Mother’s mental health impacts quite adversely on her parenting capacity. This is both as a matter of history (in relation to her older children who were removed from her care) and in relation to X. Both her grasp on certain parenting basics and her capacity to respond to information, in the light of all the evidence, must be treated with the utmost caution. This is so to the degree that the Family Consultant’s recommendations must be accepted (and the reasons for them) in their entirety.
In short, the Court’s protective responsibilities must outweigh all else. Only by giving precedence to those responsibilities, as required by s.60CC(2A), will X’s best interests be properly served.
To the degree relevant, I simply note, by reference to various (only those that the Court considers to be directly relevant in the light of the evidence) parts of the “pathway” that:
(a)The child’s views are of little if any weight because of his age;
(b)I have already noted that X has a good relationship with both parents. This must be qualified by the evidence of Dr A regarding the Mother’s comments, at trial, where she said that she would effectively remove herself from the child’s life (except for telephone calls) if a shared care arrangement was not ordered;
(c)The Mother’s focus on the child’s hygiene and allegations of abuse (of X and of her older children), as well as her persistent denial of having any mental health issues, in my view, show significant difficulties in the Mother’s perceptions of reality, which in turn impact on her ability to parent in an appropriate manner. Such matters are relevant to s.60CC(3)(c),(ca), (f) and (i);
(d)Regarding s.60CC(3)(d), I accept the Family Consultant’s concerns about the need for there to be some form of professional management should there be a very significant change in the child’s time with the Mother;
(e)Issues in relation to violence, including family violence, which arise in relation to the Father’s conduct – once involving the Mother, the other occasion involving a person at the Father’s previous place of work – are now a very significant time ago. While important, two matters only are raised, and their relative antiquity makes them relatively unproblematic for current purposes.
The Court genuinely hopes that the Respondent Mother does not adhere to her comments/proposal during the trial that she will, in large measure, remove herself from the child’s life, and confine herself to telephone calls.
In any event, in my view, the Orders proposed by the ICL are in X’s best interests in the light of all the evidence.
In the event that the Mother undertakes time at a contact centre with X, I simply suggest – nothing more – that it take place at the nearest such centre, possible in either Canberra or (omitted).
And also, if that time-with arrangement does proceed at a centre for six months, the parties and the ICL are to undertake a family dispute resolution conference with a view to finalising longer-term time-with arrangements as between X and his Mother, with the child remaining in the primary care of his Father. Again by way of suggestion only I would think that it could, for some years (subject to any medical evidence to the contrary), only be perhaps one overnight per month for introduction, and thereafter, no more than two overnights per month. Anything beyond this would require, in my view, clear expert evidence from a mental health expert to confirm the Mother’s well-being.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 19 April 2017
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