Bell & Quiroga (No 3)
[2024] FedCFamC2F 589
•13 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bell & Quiroga (No 3) [2024] FedCFamC2F 589
File number(s): HBC 1192 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 13 May 2024 Catchwords: FAMILY LAW – parenting – final orders – application for sole parental responsibility by each parent of a young child – mother obstructing child’s relationship with father – mother historically primary carer – father seeking order that child live with him and proposes residence in rural location remote from mother – orders made for the child to live with the mother and spend increasing time with the father
FAMILY LAW – parenting – contravention – where mother admitted contravention of court order with reasonable excuse – reasonable excuse not established – orders made for term of imprisonment of four months – sentence of imprisonment suspended on condition of entry into a bond to be on good behaviour and comply with final orders
Legislation: Evidence Act1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Aldridge & Keaton [2009] FamCAFC 229
Dasreef v Hawchar (2011) 243 CLR 588
Bell & Quiroga [2022] FedCFamC2F 1825
Bell & Quiroga (No 2) [2023] FedCFamC2F 988
Goode & Goode [2006] FamCA 1346
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
MRR & GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1
Division: Division 2 Family Law Number of paragraphs: 134 Date of hearing: 22-23 January 2024 and 13-16 February 2024 Place: Hobart Counsel for the Applicant: Ms Ryan Solicitor for the Applicant: PWB Lawyers For the Respondent: The Respondent in person ORDERS
HBC 1192 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BELL
Applicant
AND: MS QUIROGA
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
13 MAY 2024
THE COURT ORDERS THAT:
Contravention
1.For the contravention of Order 17 made on 9 June 2023 the Court imposes a period of imprisonment that is to be served after the expiry of the sentence imposed in late 2023, but will be suspended on condition that the Mother enter into a bond to be on good behaviour for a period of three years and does not breach any parenting Order made by the Court in that period.
Parenting
2.All interim parenting Orders are discharged.
3.The Applicant Father MR BELL (“the Father”) and the Respondent Mother MS QUIROGA (“the Mother”) have equal shared parental responsibility for X born in 2020 (“the Child”).
4.In respect of major or long-term decisions concerning the wellbeing, welfare or safety of the Child and for the purpose of exercising the decision making required or authorised by Order 3 of these Orders, the following terms will apply, except in the case of an emergency:
(a)If a party proposes to exercise decision making about parental responsibility, they must notify the other party in writing of the proposed decision and their reason(s) for it;
(b)The party receiving notice pursuant to subparagraph (a), must within 14 days provide their written response to the proposed decision, indicating if they agree or disagree and if they disagree their reason(s) for disagreeing; and
(c)Within 7 days of the notice in subparagraph (b) being sent, the parties are to arrange a time with a parenting coordinator or with E Services to confer for the purpose of coming to a joint agreement about the decision to be taken.
5.In the event that the parties do not reach agreement as to the decision to be taken about parental responsibility for the purposes of Order 3 and 4, providing the Mother has complied with Order 4, she is authorised by this Order to solely make the decision to be made.
6.The Child live with the Mother.
7.If the Father maintains his residence in Town K, the Child spend time with the Father in the greater City B area as follows:
(a)From the date of these Orders until the expiry of eight (8) weeks, on each alternate weekend on Saturdays from 10:00am until 4:00pm;
(b)After the expiry of eight (8) weeks, on each alternate weekend from 10:00am Saturdays until 11:00am Sundays; and
(c)Each alternate week, on Wednesdays from 3:00pm until 6:00pm.
8.If the Father maintains his residence in the greater City B area, the Child spend time with the Father as follow:
(a)From the date of these Orders and for eight (8) occasions, on each alternate weekend on Saturdays from 10:00am until 2:00pm Sundays;
(b)After eight (8) occasions of the arrangements referred to in subparagraph (a), on each alternate weekend from 10:00am on Saturday until 4:00pm on Sunday;
(c)From the beginning of Term 3 in 2025, on each alternate weekend from the completion of school on Fridays until the beginning of school on Mondays or if Monday is a non-school day, at 3:00pm;
(d)In alternate weeks to subparagraphs (a), (b) and (c), on Wednesdays from 3:00pm until 6:00pm;
9.For the purposes of changeovers of the child between the Mother and the Father pursuant to Orders 6, 7 and 8 of these Orders, changeovers are to occur:
(a)Outside the Suburb D Venue in City B prior to Term 3 of the 2025 school year and on non-school days;
(b)After Term 3 of the 2025 school year on school days, at the Child’s school.
Injunctions & Responsibilities
10.The Mother will engage with a psychiatrist as recommended at [385] of the Single Expert Report of Dr L released 9 January 2024, and the Mother will provide the treating psychiatrist with a copy of that report within seven (7) days of making an appointment.
11.The Mother will strictly adhere to the treatment recommendations of her psychiatrist, including the taking of medication, but not limited to that.
12.Neither party will relocate the residence of the Child to outside the State of Tasmania.
13.Neither party will take the Child outside the Commonwealth of Australia without the written consent of the other parent.
14.Unless the other party consents in writing, neither party will take the Child outside the State of Tasmania during times in which he is ordered to spend time with the non‑travelling parent.
15.Within thirty (30) days of these orders, the Mother will complete and sign all relevant documents for an Australian Passport for the Child to be issued and for this purpose the Mother will obtain the necessary forms, complete them and then forward them to the Father for his completion and signature.
16.Within thirty (30) days of receiving the documents referred to in Order 15, the Father is to complete his part, sign the forms and return them to the Mother. Should the Father refuse or neglect to complete, sign and return documents pertaining to the Child’s passport application, then a Registrar of the Hobart Registry of the Federal Circuit and Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 (Cth), to sign or execute such a document on behalf of the Father upon lodgement of such document and the filing of an affidavit of the Mother as to the said neglect or refusal.
17.Upon obtaining a valid passport for the child, the Mother forthwith deliver it to the Manager, Court Services of the Hobart Registry of the Federal Circuit and Family Court of Australia, to be held on trust and subject to the following:
(a)In the event the Child is to travel overseas with a parent and requires the passport, the parent shall provide the other parent with written notice of details of the child’s proposed itinerary, including plane flights, accommodation and contact details for such travel not less than 30 days prior to the departure date;
(b)The parent be permitted to collect the Child’s passport upon providing the written consent of both parties for the collection to write to the Manager, Court Services of the Hobart Registry of the Federal Circuit and Family Court of Australia, 21 days prior to the departure date upon receiving evidence that they have complied with subparagraph (a); and
(c)Within seven (7) days of return of such travel, the parent return the Child’s passport to the Manager, Court Services of the Hobart Registry of the Federal Circuit and Family Court of Australia.
18.The Mother is restrained from making application for any passports except those issued by the Commonwealth of Australia.
19.In respect of all travel interstate by the Child, the travelling parent will provide to the non-travelling parent:
(a)A copy of the return travel tickets;
(b)A copy of any relevant travel itinerary, including details of accommodation; and
(c)A contact number for the Child during the period of travel, should the travelling parent’s mobile telephone not be anticipated to provide connection.
20.Each party keep the other informed of any serious illness or accident, or threat to the Child’s welfare whilst they are in that parent’s care and keep the other informed of any medication to be taken by the Child.
21.That for the purposes of these Orders and the parties’ communication with each other, the parties must communicate using the “Our Family Wizard” app and the Father is to establish the account within seven (7) days and invite the Mother to join, with each party paying their own costs of obtaining the app.
22.Each party is to advise the other party in writing within seven (7) working days of any change in telephone number, email or residential contact.
23.The parties will use civil and respectful language to communicate with each other and they each be and are hereby restrained from:
(a)Abusing, insulting, belittling or otherwise denigrating the other parent to the Child, or in the presence or hearing of the Child and nor will they permit any other person to do so;
(b)Exposing the Child to any verbal or physical abuse or conflict between each other;
(c)Discussing with the Child or in the presence of the Child, any conflict between them and nor will they permit any other person to do so; and
(d)Discussing with the Child or in the presence of the Child these proceedings and/or any Orders made in these proceedings and will remove the Child from any location where other persons are doing so.
24.This Order shall act as an authority for each parent to:
(a)Make all reasonable enquiries of and communication with the Child’s medical or health professionals;
(b)Provide a copy of these Orders to the Child’s school and to any medical and health professionals involved in the Child’s care;
(c)Attend any school attended by the Child and communicate with the school staff;
(d)Receive copies of information from the Child’s school including information required to undertake home schooling, school reports, photographs and notices usually provided to parents, at their own expense; and
(e)Attend all functions and activities, including extra-curricular activities, to which parents are invited to attend.
25.The parties are restrained from ingesting, consuming, using or otherwise being under the influence of alcohol or any legal or illegal drug or substance, when caring for the Child and in the twelve (12) hours prior, except for:
(a)Any legal medication prescribed for him/her by a registered medical practitioner, and taken or used by him/her in accordance with such prescription; and
(b)Any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets or chemists (which does not contain codeine) and taken strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
BACKGROUND AND UNCONTENTIOUS FACTS
These parenting proceedings concern X (“the child”) born in 2020. The father, Ms Bell, commenced these proceedings on 1 December 2020. The child’s mother is Ms Quiroga, who had a short relationship with the father between late 2018 and mid-2020. The mother was pregnant at the time of separation.
The circumstances in which the relationship ended are disputed, with the mother alleging that she was threatened, abused and “kicked out” of the parties’ rental accommodation when she was pregnant. The father disputes this account, saying that he asked the mother to leave and there was an argument but that she left the home without being “kicked out”.
During the course of the proceedings, interim spend time Orders were made by consent following family dispute resolution, but there was non-compliance with the Orders by the mother on numerous occasions, due to her alleging variously that it was unsafe for the child to spend time with the father because of his perpetration of either family violence, drug or alcohol abuse, unsafe driving or neglect.
The mother’s non-compliance with the interim parenting orders led to two contravention applications, which were heard and judgments delivered on 19 December 2022 (“the first contravention judgment”)[1] and 9 August 2023 (“the second contravention judgment”)[2] respectively. Consequent to judgments delivered in the contravention applications, the mother was found to have contravened parenting Orders on a total of 12 occasions, 11 without reasonable excuse and one with reasonable excuse.
[1] Bell & Quiroga [2022] FedCFamC2F 1825.
[2] Bell & Quiroga (No 2) [2023] FedCFamC2F 988.
As a result of the first contravention judgment, the mother was ordered to pay a fine and enter into a bond to be on good behaviour and abide by parenting orders made by the Court.[3]
[3] Order 2, Orders made 19 December 2022.
On 9 June 2023, prior to the second contravention hearing and judgment, the Court made an Order for the mother to contact City B Children’s Contact Service within seven days and do all such things and sign all such documents required by City B Children’s Contact Service, so that changeovers could occur at the service.
On 22 September 2023 a further contravention application was made by the father, alleging that the mother had not complied with the Order referred to above at [6]. As the final hearing of the parenting proceedings were listed to commence on 22 January 2024, the father agreed that the further contravention application be heard at the time of final hearing.
ISSUES IN DISPUTE
The parties’ case outlines and closing submissions identified the following issues to be in dispute and relevant to the making of final parenting orders concerning the child:
·Whether the father perpetrated family violence against the mother during the relationship;
·Whether the father consumed, and continues to consume, drugs and alcohol such to pose an unacceptable or serious risk of harm to the child;
·Whether the mother suffers a psychiatric disorder or psychological symptoms and if so, the impact of the same, including her capacity to allow the child to have a meaningful relationship with the father; and
·Whether the father can safely care for the child or may risk the child being exposed to neglect or inadequate physical or emotional care.
Regardless of the above disputes, the mother was agreeable to the father spending time with the child but sought orders for limited time and a very gradual progression, which only conceded the possibility of the child first spending overnight time with the father when he was five years of age.[4]
[4] Mother’s case outline filed 19 January 2024 at p 15, annexure A.
The father sought a change of the child’s primary residence so that he would live with him and spend supervised time with the mother, which should then gradually increase. He also sought an order for sole parental responsibility.
THE HEARING
The final hearing commenced on 22 January 2024 at which time the father was represented by counsel and the mother appeared self-represented but assisted by Mr M. Mr M identified himself as a community member who knew the mother. It subsequently transpired that Mr M had connections within the Country N community in City B as his wife is from Country N, like the mother.
Mr M is a retired professional. I considered it reasonable to allow Mr M to assist the mother and gave him leave to sit beside her at the bar table. I understood Mr M was no longer a professional. Accordingly, I impressed that his role was to support and assist the mother, but not give legal advice or appear on her behalf. Mr M indicated he understood this.
The father’s case
The father’s case entailed identification of his trial affidavit filed 22 December 2023 and it being taken as read in evidence.[5] The Court also received, without objection, copies of text messages exchanged between the parties in mid-2020, shortly after separation.[6]
[5] Exhibit A2.
[6] Exhibit A3.
Counsel for the father referred to and relied upon the case outline filed 15 January 2024. This identified that the father would also rely on the report of the Court Child Expert, Ms O, and the Single Expert, Dr L. Ultimately, the report of Ms O was received in evidence without either party seeking to cross-examine her.[7] Dr L was intended to be called on 23 January 2024, but due to procedural issues which arose during the hearing and are described below at [30] to [31] of these reasons, he appeared and gave evidence on 15 February 2024.
[7] Exhibit A4.
The subpoenaed documents sought to be relied upon by the father had been compiled into an electronic court book and counsel sought to tender the documents in the book at the commencement of the hearing. It was unclear when the mother had been served with the father’s court book and she was vague about which, if any, of the documents she had read and seen before.
I was not prepared to receive the subpoenaed documents into evidence in-globo in view of the reasons given above at [15], so directed counsel to tender documents relied upon individually during cross-examination of the mother, who would need to be given opportunity to read the documents before or during cross-examination.
The mother cross-examined the father in person, indicating that she was comfortable and prepared to do so despite her allegations of family violence. Cross-examination was brief and in summary elicited the following evidence:
(a)Town K, where the father lives, has no local primary schools and so the child would have to travel for approximately 45 to 50 minutes to the nearest school in Town P or Town Q, this travel being by bus or driven by the father.
(b)The population of Town K is just over 100 people but there are children who live there and a playground near the father’s house.
(c)The father’s current employment is based in City B and if he had sole custody of the child, he would give up full-time employment and instead work casually as often as possible whilst relying on a single parenting payment. He said he didn’t want or expect to be on a parenting payment forever but agreed he had told Dr L that it would be difficult for him to manage financially as a single parent if he was the primary carer. He also agreed he had discussed seeking financial support from his family with Dr L.
(d)He denied driving dangerously or above the speed limit and said the “local wildlife” he had told Dr L about was an estimate of how many he would have hit over many years of driving in rural areas with a lot of unfenced properties.
(e)The father described different toys he had bought for the child as gifts.
(f)When shown a list of “instructions for [X]”[8] that the mother had written, the father said that, although he objected to some items on the list such as “no fast food” and “no heights”, he had complied with them.
(g)He agreed that he had sent the mother text messages referring to having “kicked her out” and calling her an “evil bitch”.[9]
[8] Exhibit A2, annexure T.
[9] Mother’s trial affidavit sworn 9 January 2024, annexure E.
The parties agreed that the mother’s case should begin before Dr L gave his evidence and his evidence could be interposed.
The mother’s case
The mother had filed an affidavit on 10 January 2024 in compliance with the trial directions made by the Court. Attached to the affidavit were documents marked as annexures A to K, with the final annexure consisting of five photographs.
Annexure A was a typed statement by the mother comprising 210 paragraphs that I accept is intended to be her sworn evidence as a Justice of the Peace witnessed her signature, although the statement and form of affidavit are not in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).[10] The way the affidavit is presented is irregular but excused by the Court and so the statement comprising annexure A has been read and considered in full.
[10] Rules 8.15 and 8.16.
Annexures B to J were variously statements of other persons, letters of support or character references as well as a letter from Dr R, a clinical psychiatrist. The annexures were not objected to by the father’s counsel, on the condition the authors were made available for cross‑examination.
If received without giving opportunity for cross-examination, the contents of the annexures constitute hearsay evidence. The hearsay provisions of the Evidence Act1995 (Cth) do not apply in parenting proceedings unless the Court orders as such,[11] and the Court may give weight to hearsay evidence as it sees fit.[12] However, the contents of annexures B to J are such that I considered it exceptionally difficult to assess what weight should be ascribed to them. Further, I considered it unfairly prejudicial and procedurally unfair to take the annexures into account if the father did not have opportunity to test their apparent contents.
[11] Sections 69ZT(1) and (3) of the Family Law Act 1975 (Cth).
[12] Section 69ZT(2) of the Family Law Act 1975 (Cth).
For the reasons referred to above at [22], I ordered that annexures B to J inclusive would not be considered and read in evidence unless the author of the annexure was made available for cross-examination.
The mother’s evidence
The mother’s affidavit evidence was extensive and the evidence adduced through a lengthy cross-examination was enlightening. It is unnecessary to address all the evidence and instead I summarise the evidence given such as it is relevant to the issues in dispute.
Ultimately, the mother only made available for cross-examination her sister, Ms S, Dr R, a consultant psychiatrist, and Ms T, a counsellor. They gave oral evidence at the hearing that is summarised below and has been considered along with the documents annexed to the mother’s affidavit authored by them.[13]
[13] Annexure I, being the letter of Dr R dated 17 October 2023 and Annexure H, being the letter of Ms T, undated. These documents were marked by the Court as Exhibits R1 and R3 respectively.
I gave the mother leave to give relevant additional oral evidence in chief, as I had permitted the father to supplement his oral evidence about matters of relevance to the making of parenting orders. The additional evidence from the mother was as follows:
(a)The child has a stable, established and loving home environment and resides with her, her parents, her sister and their pet, which he very much adores.
(b)They live in an area with a big park and playground nearby and he is very used to outdoor activities, which they do nearly every day, such as walks down by the river, feeding ducks, and going to the playground.
(c)The child has a relatively stable circle of friends including neighbourhood children aged between four and 13, with whom he plays and sees frequently.
(d)The child shares a bedroom with the mother but has his own bed.
(e)The child attends playgroups often, such as at a Suburb D Venue and previously at H Cafe.
(f)They live close to all necessities, as well as medical and shopping centres.
(g)The child is learning multiple languages and can read and count in four different languages.
(h)She plans to enrol the child at U School for kindergarten but did not actually know whether the school would enrol him at this time. She had attended the school but had not been in contact with the Principal or anyone else about enrolment for early learning.
(i)There is benefit in the child being in her care because her family can help care for him when she is at work. Her family are stable and reliable, and the child is attached to them.
The mother was properly cross-examined about many topics. She often did not give a direct answer to questions but instead made self-serving statements or qualified her responses to justify a position or action.
In summary and in substance, the mother’s evidence in cross-examination was as follows:
(a)She agreed that sleeping with the child made her feel secure, adding that she meant both her and the child felt secure.
(b)She conceded that U School was an out of area school and that they may not have capacity to take his enrolment, in which case she was considering V School.
(c)She personally has about five good friends, who she tries to see weekly or fortnightly.
(d)She did not disclose her psychiatric history to the father or the Court because she said it wasn’t relevant.
(e)Her memory of the events that were summarised by Dr L from her City B Hospital records were “very foggy”.
(f)She denied she had been told she was suffering from a mental condition and said she had not been diagnosed with any psychiatric condition apart from major depression and anxiety.
(g)She denied she had obsessions in relation to two males, who for context were referred to as Mr W and Mr Y. Further, she had not told Ms T, her counsellor, about these males but said she may have briefly mentioned her past relationships.
(h)She agreed she had instructed numerous lawyers during the proceedings and was disappointed with them, including one who had not explained the interim consent orders, and she said she blamed her lawyers for the deficiencies in her case.
(i)She did not appreciate that it was inconsistent to say that she made her own decisions after receiving legal advice whilst also blaming lawyers for not subpoenaing the father’s medical records.
(j)She agreed that post-separation she and the father were able to, and did, exchange text messages, but she had not advised the father that the child had covid, and other medical conditions.
(k)She agreed that she had not responded to the father about attending mediation when he had invited her to do so before the commencement of proceedings.
(l)She accepted that there were arguments between her and the father at least once per week in the last six months of their relationship but denied these had been about baseless accusations relating to the father being unfaithful or having sex with “prostitutes”.
(m)She did not accept that the father experienced the accusations as harassing but agreed he would become frustrated by them. She disagreed that she was preoccupied by beliefs that the father was unfaithful but said she did not exclude the possibility he was.
(n)She maintained that the arguments were about the father’s use of drugs and alcohol, which she said was almost daily if not daily.
(o)She denied the accuracy of the reports contained in the City B Hospital records about her presenting in late 2017 and 2018 for psychiatric symptoms and management.
(p)She felt anxious and upset when she came from Melbourne to Tasmania but she denied feeling depressed.
(q)She agreed she had been prescribed medication in Melbourne, which she believes she took.
Partway through cross-examination of the mother, it gradually became clear that although the mother and her solicitors had been given access to the subpoenaed records counsel was cross-examining about, the mother had not seen them all. She said her solicitors had not made her aware of them and she had only received the father’s exhibit book a short time ago.
The mother could not explain to me why she had not read the records properly when the father’s solicitor said they were sent to her on 17 January 2024. Nevertheless, to ensure the mother, as a now self-represented party, was afforded fairness and to hopefully expedite the protracted cross-examination, I determined that the hearing had to be adjourned, part heard.
The hearing resumed on 13 February 2024 and concluded on 16 February 2024, with the balance of evidence and submissions being received in this period.
Evidence of Dr R, consultant psychiatrist
Dr R’s evidence was brief. She identified and adopted her letter dated 17 October 2023 and it was marked as Exhibit R1. Dr R explained during cross-examination that the mother’s general practitioner, Dr Z, had referred the mother to her for an opinion and management. Further, that she had seen the mother only once on 17 October 2023 and had not seen any of the mother’s prior medical or mental health records. Dr R confirmed that the only document she had for the consultation was a referral letter from Dr Z. All history and information used for the opinions expressed in her letter were obtained solely from the mother.
Critically in my view, Dr R stated in her report that the mother did not require psychotropic medication or other treatment but should anyone ever question the veracity of such an opinion then further discussion was welcome (emphasis added).
Dr R stated in cross-examination that the mother had not mentioned participating in an assessment with Dr L, a Psychiatrist, but she had since been made aware of this. She had read Dr L’s report dated 8 January 2024 shortly prior to appearing in Court as the mother had caused a copy to be provided to her. Importantly, Dr R described the detailed history summarised in the report as “enlightening” and accepted that a qualified colleague had expressed the view that there were significant mental health and personal issues for the mother.
Asked to assume that Dr L had accurately summarised the mother’s mental health history, Dr R agreed that the mother would do well to engage with a psychiatrist and that she could accept her as a patient if she attended voluntarily.
Dr R was also asked about Dr L’s view that the child may be meeting the mother’s attachment needs. She agreed that if that was the case, when the child commenced school it would definitely be a potential time of distress for the mother and she should seek psychiatric support.
Dr R also said she did not dispute Dr L’s opinions and formulations.
In examination by the mother, Dr R was asked to agree with the propositions that the mother had good insight, and that there were cultural differences and stress may explain some of the presentation recorded in her psychiatric history. Dr R stated that she did not have knowledge of how loss of a relationship was culturally expressed by Country N people.
However, on the Court questioning Dr R about the mother’s insight concerning her contravening conduct as found in the first and second contravention judgments, she stated, in effect, that insight is time specific. Further, that if there were no reasonable excuses at that time then the mother’s insight was questionable.
Evidence of Ms S
Ms S is the mother’s sister. With the Court’s leave and without objection, she gave evidence in chief about ten photographs that were annexed to an affidavit of the maternal grandmother, Ms AA, sworn 8 January 2024.[14] The ten photos were identified and described by Ms S and received in evidence as Exhibit R2. The photos and oral evidence conveyed a very nurturing, attentive and whole-of-extended-family contribution to giving the child a high level of care.
[14] An affidavit of Ms S dated 28 July 2023 had been filed by the mother but it was not relied upon or read into evidence at the hearing.
Ms S was cross-examined about various entries in the mother’s medical records where she is identified as the person making reports to health professionals about the mother or otherwise being present when the maternal grandmother has made such reports. While she variously recalled her sister being upset at times in late 2017, 2018 and 2019, she diminished the nature and picture of the upset in the records, stating she was only aware of some of the facts and events because her mother told her about them.
In answer to many questions about the presenting history in the records, Ms S stated she could not recall or remember being present at the attendances on health professionals, yet also flatly denied making the reports or statements attributed to her or her mother at those times.
When asked about the maternal grandmother’s specific concerns at the time as recorded in the medical notes, Ms S stated that Country N mothers were over-protective and prone to exaggerate, adopting a similar theme to the evidence given by the mother.
The maternal grandmother, Ms AA, was not made available for cross-examination and so her affidavit has not been read or considered.
Evidence of Ms T
Ms T gave evidence as the author of the letter annexed to the mother’s trial affidavit as annexure H. After it had been identified and adopted by Ms T, it was received and marked as Exhibit R3. Although not dated, Ms T said the letter had been prepared in mid-2023.
In cross-examination, Ms T stated that she had been asked by the mother to provide a “support letter” for use in the dispute about the father’s time with the child and the proceedings before the Court.
Ms T said that she had commenced seeing the mother in mid-2020 during the last trimester of her pregnancy after the mother’s sister enquired whether she could see the mother, who was having issues with a man who was “a druggie”. She said she continues to see the mother regularly and saw her the week prior to giving evidence.
When asked if the mother had told her about her mental health history and issues in the past regarding the two males who are mentioned in her medical records,[15] Ms T did not answer. Instead, she stated that she had been asked to counsel the mother for worry and anxiety and that she had no official psychological diagnosis. Ms T added that the mother had told her about an episode of hospitalisation when she was extremely stressed and had a lot going on and was not coping, so had a meltdown. When asked to clarify what the mother had said about “a lot going on”, Ms T stated that she could not recall and would need to check her notes. However, she did not have these with her and would have difficulty accessing them through the BB Health Centre.
[15] See [28](g) of these reasons.
Ms T stated that she had not been given a copy of Dr L’s report but was aware that the mother was participating in an assessment by him. Concluding sections of Dr L’s report were read to Ms T and a summation of [392], [393] and [396] was given to her. When asked to comment, she stated that it would have been helpful if she had been given a copy of the report, but added that:
·“We’re talking about ten years ago”, “people change” and people “under great stress may act in certain ways because of that”; and
·She had not observed any obsessional thoughts, just that the mother was solely focused on being a good mother. Ms T said that the mother’s anxiety heightens when she is trying to “prove” that she is a good mother.
I raised with Ms T that during the time I had presided over two contravention hearings and case management of these proceedings, the mother appeared to be fixated on safety concerns for the child and I asked if she had worked with the mother to address these. Ms T said that the mother had concerns about the father’s drug taking, life choices and whether he would feed the child, give him water, and know how to manage his day to day and sleep routines. She added that these are very important to the mother and she did not consider the concerns to be excessive. In response to a question from the mother, Ms T clarified that the mother’s concerns regarding the father’s “life choices” included his driving and alcohol use.
Evidence of Single Expert – Dr L
Dr L, a consultant psychiatrist, appeared as the Court-appointed Single Expert and gave oral evidence at the hearing. His report dated 8 January 2024, which was annexed to an affidavit of the same date, was marked as Exhibit C1.
Dr L’s evidence when questioned by counsel for the father is summarised as follows:
(a)His reasoning for why it had been difficult to obtain a detailed account of the mother’s present or past psychiatric health was that she may not have been good at reflecting on her internal state and was being guarded. He agreed it was possible she may have been guarded because she thought it could damage her case in this Court.
(b)Dr L explained the difference between mental conditions and an “overvalued idea”, although he noted that distinguishing between the two can be very difficult. He stated that an overvalued idea is a belief someone develops that is still subject to reasonable consideration and has developed for rational reasons, although that belief may be so strongly held it doesn’t change. In contrast, a mental disorder often develops for psychotic reasons, is held with stronger conviction and does not change when evidence to the contrary is provided.
(c)He stated that the mother’s lack of insight and inability to shift perspective even when presented with evidence, such as a negative test result from a supervised test, means her belief that the father poses a serious risk to the child because of his alleged drug use is likely to be persistent.
(d)He noted that the mother didn’t remember details of her own psychiatric history that he would expect her to remember, referring to her involuntary admission to hospital as an example.
(e)He considered it unlikely that the father was using drugs in the way described by the mother, noting the absence of any drug offences in his criminal record and his negative test results.
(f)He agreed that the majority of people would be frustrated by consistent and frequent allegations being made against them by another person, such as those made by the mother about the father’s alleged drug use and unfaithfulness. Dr L went on to say that whether asking someone to leave a home was a reasonable response to such frustration would depend on the context.
(g)When asked about the likelihood of the mother returning to her previous conduct of not facilitating time with the father after the suspended sentence imposed on her lapsed, Dr L stated that behaviours changed under duress will generally revert back to the original behaviour once the duress is removed.
(h)He considered it likely that the mother has a mental disorder, and hypothesised that her attachment needs were currently being met by the child and had been since his birth.
(i)He opined that that mental disorder was a more likely diagnosis than schizophrenia.
(j)The personality traits he identified in the mother from the collateral history provided to him included fear of abandonment, difficulties with self-esteem, and problems with emotional regulation under stress.
(k)He recommended that the mother should receive, and actively engage in, treatment from a psychiatrist for the mental disorder for a period of six to 12 months, as well as with a psychologist, and that any such treaters should be provided with a copy of her psychiatric history.
(l)He said that the requirement to engage in treatment can assist in a person gaining insight. He also noted that gaining insight was far more likely in a person with a mental disorder where they responded positively to antipsychotic medication.
(m)He agreed that any order by the Court to increase the father’s time with the child could affect the mother’s attachments and be stressful to her. He went on to state that this stress may manifest as increasingly intense beliefs and concerns about risk until a point at which the mother may feel her only option is to flee the situation and take the child with her. This hypothesis was based on her past history of traveling when she becomes stressed by a situation.
(n)Dr L said that an order changing the child’s residence to live with the father or to spend overnight time with him would be more of a stressor for the mother than the child commencing full-time school. He stated that a graduated increase in time towards overnight time may minimise the mother’s stress, although he noted previous attempts at such an approach had not been particularly effective.
The mother questioned Dr L and a summary of his evidence under cross-examination was as follows:
(a)When asked about the text messages from the father annexed to the mother’s affidavit and whether they amounted to verbal abuse and domestic violence, Dr L stated this was outside his expertise as a psychiatrist but then said it would depend on context and seeing more than just the final message in a conversation. He later agreed that the father had acknowledged that he had sometimes sent the mother derogatory messages.
(b)He agreed that the father had told him he was using drugs three or four years ago, which would be around the time the mother was pregnant.
(c)When asked why he had not investigated the father’s medical history as thoroughly as the mother’s, Dr L replied that the father’s history – attending a counsellor a few times 20 years ago and being prescribed a medication he only took twice – didn’t seem relevant to the questions he was being asked, or warrant further investigation.
(d)He disagreed with the mother that the father’s “medical condition” which he had reported was the result of drug or alcohol withdrawal, instead stating it could be caused by caffeine or nicotine withdrawal.
(e)When questioned about whether the father’s planning or lack thereof gave rise to any concerns in terms of his parenting capacity, Dr L said that he found it odd that the father had purchased a property in rural Tasmania because of the difficulty this could cause in terms of co-parenting logistics. He agreed that the Court Child Expert seemed to share this view and as a result, questioned the father’s capacity to reflect on the child’s best interests.
(f)He initially stated that he was not concerned that the father’s short sleep patterns, on average three to five hours per night, posed a risk to the child but later clarified that he had not taken a specific enough history to be able to draw that conclusion and so withdrew it.
(g)He disagreed that having any amount of drugs in your system necessarily posed a greater risk of neglect by the person of someone in their care. He gave the responsible consumption of alcohol as an example of something that did not adversely affect many people’s parenting abilities.
(h)The mother repeatedly put to Dr L that it didn’t “make sense” to diagnose her with a mental disorder when there was evidence that showed the father posed a risk to the child, being evidence of domestic violence, reckless driving, and drug and alcohol use. When she asked him if he had taken this “evidence” into consideration when writing his report and diagnosing her, he said he had.
When asked by the Court to interpret the test results for the hair follicle test annexed to the father’s trial affidavit,[16] Dr L explained that the “insufficient hair provided” was a problem caused by the person conducting the test in not collecting enough hairs, and not the fault of the father. Accordingly, he opined the test had not been run and agreed it therefore didn’t provide any information on the father’s illicit substances use at that time.
[16] Exhibit A2, Annexure E, p 38.
I asked Dr L where the concept of obsessional thinking fit in the context of his distinction between overvalued ideas and mental beliefs. He said obsessional thinking usually occurred around an overvalued idea but that it could reach the level of psychotic when the way reality was interpreted changed as a result of it. When I asked whether the categorisation was important if, ultimately, the Court found there was no objective or rational basis for the belief, Dr L stated that it was not significant except that mental conditions tended to respond to antipsychotics whereas overvalued ideas do not.
Dr L agreed that it may be more difficult to change the mother’s beliefs if they are in fact overvalued ideas. However, he then stated it was possible that when faced with a situation that contradicts a belief, such as the child being safe with the father and benefitting from spending time with him, the mother’s concerns may decrease and hopefully alter her perception of risk. Dr L said that this was more of a possibility if the mother’s beliefs were obsessional thoughts or overvalued ideas.
LEGAL PRINCIPLES – PARENTING
In parenting proceedings, the paramountcy principle applies and the Court is required to make orders that are in the best interests of the child/children.[17] Express direction is provided in s 60B(1) of the Family Law Act 1975 (Cth) (“the Act”) that this object is to be achieved by ensuring that the child has the benefit of both of their parents having meaningful involvement in their life, to the maximum extent consistent with the child’s best interest. The Court is to inform itself of the child’s best interests by the considerations in ss 60CC(2) and (3) of the Act.
[17] Section 60CA of the Act.
Section 60CC(2) of the Act requires the Court to make orders that are conducive to a child having a meaningful relationship with both parents, but not if this would detract from necessary protection of the child from physical or psychological harm or exposure to abuse, neglect or family violence. The assessment required also involves consideration of the many considerations in s 60CC(3) as relevant to the circumstances of any given case, but there is no ranking of importance or order of consideration of the relevant considerations.[18]
[18] See Aldridge & Keaton [2009] FamCAFC 229 and Slater & Light [2011] FamCAFC 1.
The Court is also to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility.[19] This presumption accords with the objective referred to in s 60B(1) of the Act. The meaning of parental responsibility is expressly but not exhaustively provided for in the Act.[20]
[19] Section 61DA(1) to 61DA(4) of the Act.
[20] Sections 61B and 65DAC of the Act.
Except in the case of consent orders, if the Court is satisfied that the presumption of equal shared parental responsibility applies and is not rebutted it must first consider if the child spending equal time with each parent would be in their best interest and if practicable, make such an order.[21]
[21] Section 65DAA of the Act.
If not persuaded to make an equal spend time with order, the Court must then consider whether the child spending substantial and significant time with each parent would be in the child’s best interests and if so and it is reasonably practicable, an order for substantial and significant time should be made. The meaning of “substantial and significant time” is provided for in s 65DAA(3) of the Act.
In MRR & GR [2010] HCA 4, the High Court provided guidance in relation to how the provisions in s 65DAA of the Act are to be applied and I have had regard to that authority. I am also mindful of the required decision-making pathway established in Goode & Goode [2006] FamCA 1346. All the considerations in s 60CC of the Act are to inform what is in the best interests of a child, which is relevant to making an order for equal shared parental responsibility if the presumption in s 61DA(1) of the Act does not apply by virtue of s 61DA(2), or making orders about equal or significant time when the presumption has been rebutted.
The approach to be taken in applying s 60CC(2) of the Act was discussed in detail in the first instance and appeal judgments in Isles & Nelissen[22] in the context of the assessment of risk where the mother of a child alleged that the father had sexually abused the child. The principles stated in my view are applicable to assessment of the nature and extent of risks to the child in these proceedings.
[22] [2021] FedCFamC1F 295; and [2022] FedCFamC1A 97.
DISCUSSION OF EVIDENCE AND FINDINGS
In the father’s case, great significance was placed on the contention that the mother was obstructing the child from having a relationship with the father and that this resulted from the mother suffering from a mental disorder, meaning that the court should make parenting orders that the child live with the father and be in his primary care.
The mother disputed that she suffered a mental disorder or any mental health condition other than situational anxiety or stress related to these proceedings.
In view of the issues referred to at [8] of these reasons, it is necessary to make a finding as to whether the mother historically suffered a mental disorder or other mental health symptoms and/or if she continues to do so. This finding being highly relevant to a number of the s 60CC(3) considerations informing the best interests of the child and the reliability of her evidence and whether it should be accepted.
Although the mother sought to undermine and discredit the views of the single expert Dr L that she likely suffered a mental disorder type, she failed to do so either in cross-examination or by the psychiatric evidence that she called from Dr R.
Based on the totality of Dr L’s evidence and the fact that Dr R did not dispute the formulation of the mother’s diagnosis by him, I have no hesitation in finding that the mother now experiences mental symptoms and/or overvalued ideas when it comes to any issue of the child’s relationship with the father and the father’s capacity to parent and care for the child.
Any suggestion that Dr L’s opinion is flawed is firmly rejected because:
(a)He is eminently qualified as a psychologist and meets the requirements of an expert witness with qualifications to assess and diagnose psychological symptoms and psychiatric disorders;[23]
(b)He had access to all of the mother’s historical mental health records and gave them detailed consideration;[24]
(c)He had access to all the records in these proceedings; and
(d)He had assessed the mother in person.
[23] Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 and Dasreef v Hawchar (2011) 243 CLR 588.
[24] In contrast to Dr R and Ms T.
Although Dr L expressed the view that the mother likely had a mental disorder which was partly in remission, his views did not exclude the possibility that she may not fully meet the diagnostic criteria for a mental disorder. This alternative does not assist the mother’s case because it is clear from Dr L’s evidence that the mother holds overvalued ideas, a conclusion that is demonstrated by her disproportionate or skewed perceptions of the father and risk to the child which are contradicted by objective evidence.
Having heard and observed each party give evidence and accepting Dr L’s opinion, I find the mother’s evidence to be unreliable for these reasons and those that follow. Where the parties’ evidence conflicts, I prefer the evidence of the father because it is supported or corroborated by objective contemporaneous records. Further, the mother gave evidence in a histrionic manner, was guarded explaining away facts unhelpful to her case and tended to exaggerate about the father’s conduct.
The evidence of the father about the frequent arguments between the parties is consistent with the relationship failing due to what I consider were different expectations of the parties about the nature of their relationship and personal values.
The mother’s evidence was that she expected a very close relationship, did not want the father to consume alcohol or drugs and was suspicious of the father’s absences from her. The father came to be frustrated and angry about the demands or accusations made by the mother and the relationship ended when he insisted on the mother leaving and not returning.
The father’s account is consistent with the nature of information contained in the text messages annexed to the mother’s affidavit,[25] and reports the mother made to Tasmania Police months after separation.
[25] Annexure “E”.
I do not accept the mother’s claim that she reported to police that she had been threatened with a weapon by the father. Police records do not refer to her being threatened with a weapon, assaulted or abused.[26] Furthermore, it is telling that the mother only sought to report illicit drug taking activity and not family violence when she attended City B Police Station in early 2021, nine months after the relationship had ended and after these proceedings commenced. The vagueness of the allegations was noted to be of concern to police and they questioned the mother’s motive for reporting.[27] I do not accept that the police failed to note a report the mother says she made about being threatened. A concern or action of this level would likely be noted by police who attended the parties’ residence in early 2020 or who took the mother’s report in 2021 about what she alleges occurred in mid-2020, if it had been made.
[26] Exhibit A8, p 77.
[27] Exhibit A8, pp 73-74.
Instead, the police records corroborate the father’s account of what occurred both in early 2020 and separation in mid-2020. It is highly unlikely that this would not be noted by police who attended the parties’ residence in early 2020 or at the time of the 2021 reporting to police.
I accept that there were likely to have been raised voices and agitation on the part of both parties, but this does not constitute family violence. While the father admits to sending abusive messages, they were confined and limited to the period when he was seeking to ascertain the wellbeing of the mother and child in circumstances where the mother was not informing him. I am not persuaded that the father perpetrated family violence within the meaning of s 4AB of the Act.
To the extent that the mother repeatedly referred to being “kicked out” while pregnant, I accept that she would have felt vulnerable at the time, but do not accept that the father used unreasonable physical force to exclude her from the rental property he was occupying. It is regrettable that the end of the relationship did not occur in less emotionally charged circumstances, particularly because the mother was pregnant. However, preferring the father’s evidence at [44] to [51] of his trial affidavit, which is corroborated by police records, what likely occurred does not meet the definition of family violence in the Act but reflects colloquial language used by the father.
Adding to the reasons for rejecting the allegations of family violence by the father is the apparent willingness of the mother to communicate and engage with the father face to face during the limited period when he spent time with the child at DD Play Centre and other public places. If the allegations of family violence by the father and fear of him were genuine, I fail to see why the mother would seek to be present and oppose changeovers at City B Contact Centre.
I find that it is quite possible that the father consumed alcohol and illicit substances recreationally, but I cannot accept that he abused either substance. If it were otherwise, it is unlikely that the father would have maintained his employment.
Further, if there was any semblance of truth in the allegations of substance abuse, it is to be reasonably expected that there would be a corresponding record of offending or at least intelligence reports in police records. No evidence of this nature has been put before the Court and the father’s record of prior convictions is innocuous and confined to four speeding infringements between 2016 and 2018.
In addition, the father has submitted himself to various drug and alcohol testing during these proceedings, with the results not supporting the mother’s allegations that he was abusing either alcohol or drugs.
The mother disputed the accuracy of the test results or argued that they did not exclude the possibility of alcohol or drug use. I do not accept her contentions as they are fundamentally flawed, being illogical and not based on any expert knowledge. I accept that the testing was undertaken in accordance with accepted chain of custody requirements and recognised protocols, including that samples were taken with necessary supervision. To the extent the mother criticised the reliability of the hair follicle test result because of the hair sample taken in mid-2021,[28] I accept the explanation of that result from Dr L as it not being the “fault” of the father. It was simply the case that an insufficient hair sample was taken for analysis and that was not of the father’s doing.
28 Exhibit A2, father’s trial affidavit, p 38, Annexure E – Toxicology report.
As relevant to the considerations and principles of law discussed above at [57] to [63] of these reasons, I make the following findings for the reasons stated below.
There was no challenge to the evidence about the nature and degree of involvement of the mother and her immediate family in the child’s various day to day activities and care. I have no hesitation in finding that his physical and intellectual needs are being met. Further, I find that there is a loving and strong bond between the child and the maternal family members.
I find that the father has a bond with the child, which is likely to strengthen by spending more time together. That there is a bond at all is of significance because the father’s time has been severely restricted and opposed by the mother from the time the child was born. Despite this, the objective reports from City B Contact Centre demonstrate a mutually loving relationship and importantly, demonstrate that the child recognises the father as his “dad”.
There is no evidence of the father having exposed the child to a risk of harm, whether physical or emotional. I find that he has not done so. To the extent that the mother complains in her affidavit of unsatisfactory care or attention given by the father to the child’s physical needs, her views are obviously subjective and fictitious because I have found that she suffers from either mental traits or has overvalued ideas. Claims by the mother that the father left the child in wet nappies or did not ensure he was hydrated lack plausibility and I prefer the father’s evidence that he checked the nappy.
The mother’s baseless allegations relating to inadequate care demonstrate that she obstructs facilitating the child spending time with the father, consistent with her failure to facilitate time from his birth by ignoring requests to attend mediation or attempt to come to an agreed arrangement. The father’s actions, demonstrated by text messages and the institution of these proceedings when the mother failed to attend mediation or engage in discussions, are reasonable. The father has demonstrated a strong commitment to wanting to care for the child and has gone to great lengths to spend time and communicate with him.
The child is of an age that his views cannot be easily obtained and would be of little weight due to his immaturity. Despite this, there is no evidence of the child being resistant to spending time with the father, rather he appears to embrace and enjoy it. This weighs in favour of the father’s time progressing and increasing.
It was apparent that the father was not paying assessed child support for the child pursuant to an administrative assessment. The mother alleged that he had failed to provide financial support for the child but then agreed that she had not applied for an administrative assessment of child support.
I accept the evidence of the father that he has purchased toys and some items for the child, but the evidence leads me to infer that he has not made a meaningful contribution to the costs of raising the child. This weighs against the father somewhat but in all the circumstances, it was likely to be difficult for the father to arrange payment of child support on a private basis.
The orders sought by the father involve a complete change in the child’s day to day care and living arrangements and a change in the parent who provides primary care and makes major decisions for him. The mother’s evidence about the close, protective and comfortable urban lifestyle in City B that the child has had since birth was not challenged. Based on the evidence before the Court, I find that a change in residence to live with the father at Town K would entail a radical change to living in a small, regional town with no school, medical centre, and limited services and social interaction. It would also cause difficulty in ensuring the child maintains current friendships.
The orders proposed by the father would fracture the nurturing and bonds the child has experienced not only from the mother but also his aunt and grandparents, neighbourhood friends and neighbours. The mother’s evidence about these connections was not challenged. While the father gave evidence of some neighbours with children at Town K, it was vague and generalised. I was not persuaded that the child would have the same social and childhood friendships in Town K or the same developmental and social opportunities. Rather, the impression gained from the father’s evidence was that he and the child would have quite an isolated life, relying on an hour or more of travel to visit larger towns, such as Town Q to access activities, schools and services.
The child’s physical and emotional wellbeing has been wholly satisfied by the mother and her family to date and I can infer that a sudden and immediate change in primary care to the father and living in Town K would have grave negative impacts on the child.[29] Notably, I have no evidence about how these impacts could be minimised or managed to be in the long term best interests of the child.
[29] Family Report dated 10 October 2022 at [89], which was tendered by consent and marked as Exhibit A4; and the evidence of Dr L, transcript dated 15 February 2024 at p 26, lines 28-35.
If the Court were to make an order that the child live primarily with the father, he has made it plain that he would live in Town K and there is no evidence that the mother has capacity or desire to live there. This causes major practical difficulty in her spending time with the child and expense that neither parent will be able to readily afford, noting the father said he would be largely dependent on social security and the mother only works limited hours.
The mother has proven her capacity to care for and raise the child, but she has compromised his ability to have a meaningful relationship with his father and fails to appreciate the importance of their relationship to the child, noting the unchallenged views of the Court Child Expert at [90] to [91] of Exhibit A4. This raises the possibility of emotional harm for the child, but the evidence does not allow any specific findings about this.
The father has never cared for the child for longer than four hours at a time and has had limited and fractured time with the child due to the mother’s actions. He frankly admitted that he had not put the child to sleep and his description of what a day with the child would be like in Town K was overly simplistic and failed to persuade me that he could cope with the load of being the primary carer on his own.
I have rejected the contention that the father perpetrated family violence and so this claim by the mother has no relevance in assessing what is in the child’s best interests, except that it demonstrates that the mother has made false claims causing alienation of the child from the father without proper cause.
As both parents have demonstrated a strong desire to have the primary carer role in the child’s life, the Court will need to carefully balance the relevant considerations to mitigate against ongoing parenting proceedings.
EVALUATION AND DETERMINATION
Contravention application filed 22 September 2023
By the father’s contravention application, he alleges one breach of Order 17 made by the Court on 9 June 2023. Namely, that the mother without reasonable excuse failed to contact City B Contact Centre by 16 June 2023 as required by the Order to enable supervised changeovers so the father could spend time with the child.
At the hearing of the application, the mother admitted that she had not made contact with the City B Contact Centre by 16 June 2023, but stated that she had a reasonable excuse for her failure to do so.
Counsel for the father had tendered the records from City B Contact Centre,[30] which demonstrated that the mother in fact contacted the service and met with them to discuss the terms they would provide services on 14 August 2023. On the same date, she authorised another person as required by City B Contact Centre to do the drop-off and collections of the child.[31]
[30] Exhibit A7.
[31] Exhibit A8, p 84.
On behalf of the father, it was submitted that the mother had taken almost two months to comply with the Order made on 9 June 2023 and that this was an important matter demonstrating the Court could not rely on the mother’s willingness to comply with Orders. Further, that the only reason she complied with Order 17 and began complying with the interim spend time with Orders was because on 9 August 2023, the Court had imposed a suspended sentence for earlier contraventions and required her to enter into a bond that she comply with Court Orders. Consequently, the mother was acutely aware that she was at risk of incarceration for continuing contraventions.
Counsel for the father submitted that it could be readily imagined that once the suspended sentence expired the mother would cease complying with parenting orders, because as recently as during the final hearing she continued to make unfounded statements about family violence, drug use and other threats the father poses to the child.
If satisfied that Order 17 of the 9 June 2023 Orders has been contravened without reasonable excuse, counsel for the father submitted that the suspended sentence should be extended in duration as the mother had not paid the fines previously imposed against her. The inference from the submission was that the mother had modest means, was supporting the child and that the fine had not been an effective deterrent.
In her submissions relating to the contravention application, the mother stated that after the incident in early 2023 when she, the maternal grandmother and a third person, Mr C, had attended City B Contact Centre, she felt scared and uncomfortable going back there because she had not done anything but was “banned” after Mr C spoke to staff. Rhetorically, she asked “what can I do in this situation” and then added that she had offered the father multiple alternate arrangements.
In the second contravention judgment, the reasons given at [26] address early 2023 incident to which the mother refers in her submissions. The mother was not “banned” from using the City B Contact Centre as a result of the incident. Instead, she misunderstood how changeover arrangements occurred at City B Contact Centre and she had not taken steps to properly inform herself of the City B Contact Centre's processes for supervised changeovers.
In any event, Orders 17 and 18 of the 9 June 2023 Orders were made with her consent and their plain objective was to ensure that the mother gained a proper understanding about the terms of the service agreement so that changeovers could occur at City B Contact Centre.
There is no rational, reasonable or logical merit in the mother’s submissions summarised at [106] of these reasons. I am satisfied that the mother contravened Order 17 made on 9 June 2023 without reasonable excuse and eventually complied with it on 14 August 2023, only after the Court made Orders on 9 August 2023 in the earlier contravention proceedings.
I consider the circumstances of the contravention of Order 17 made 9 June 2023 are serious and justify an order for further suspended sentence with a further bond, as they have served as an effective means of ensuring the mother complies with parenting orders. Lesser sanctions have not served that purpose.
The mother is currently subject to a sentence of imprisonment which has been suspended on condition she remain on good behaviour and not breach Court Orders for 12 months.[32] The period of good behaviour and the suspended sentence will expire in mid-2024, assuming the mother does not commit further breaches of parenting orders made by the Court.
[32] Order 3 of Orders made 9 August 2023.
In all the circumstances, for the contravention of Order 17 made on 9 June 2023 I will impose a period of imprisonment to be served after the expiry of the earlier sentence but will be suspended on condition that the mother be on good behaviour for a period of three years. These sanctions are reasonable and proportionate to the seriousness of the contravention, the past history of contravention, the cumulative alienating effect of the mother’s breach of parenting orders and necessary to encourage the mother to comply with orders of the Court.
Parental responsibility
Neither party’s evidence about major decisions required to be made for the child was particularly convincing. The mother’s evidence lacked some forethought but was reasonable in relation to the considerations that would guide the decision making. For example, in relation to the decision about a primary school for the child, she considered proximity to home, friendships and facilities were important, but had identified a preferred school that was out of area.
The mother has also been satisfactorily managing the child’s health and medical appointments although she has failed to keep the father informed about these.
The father’s evidence revealed a complete lack of thought about what school the child would attend if he and the child lived in Town K and the fact that the remoteness of that location involves a number of disadvantages and more limited choices of school, medical and other services. Indeed, the limited evidence he gave was only elicited during cross-examination by the mother or after I recalled him because his evidence in chief was silent about these topics.
The mother has clung to her role as the parent with sole decision-making responsibility but there have been limited decisions to make, largely confined to his medical conditions. There is no particularly persuasive evidence that she has failed to properly manage the child’s medical appointments and medical conditions and I consider she is capable of properly doing so as there is no evidence of the child presenting with impaired or neglected health.
Although the mother may not give due consideration to the father’s views about major decisions for the child, I do not consider that she would make decisions contrary to the child’s best interests, and she has indicated a willingness to agree to an order restraining her from changing the child’s residence to another State.
The father has failed to persuade me that it is in the child’s best interest for him to have sole parental responsibility for the child. There is no evidence that satisfies me that he would be more capable of making decisions in the child’s best interests and his decision to purchase a residence in Town K suggests to me that his priorities are not always aligned to the child’s best interests. Indeed, this was subject of comment by Dr L also.
It is apparent that the parties have not cooperatively and jointly made decisions or cared for the child, largely due to the mother excluding the father from spending significant time with the child. But there is evidence that they communicate relatively well about the child when they do communicate. For example, the parents have been civil and spoken respectfully at changeovers at DD Play Centre and the mother has provided instructions relating to care which the father has accepted and followed, despite considering some of the instructions unnecessary.
On balance, the best interests of the child will be served by the parents having equal shared parental responsibility and prescriptive orders made as to how they exercise major decision making. I have given considerable weight to the fact that the presumption of equal shared parental responsibility is not rebutted in this case because I have rejected the allegation that the father committed family violence. Further, because Dr L gave evidence that the mother could experience heightened psychological symptoms when the child commences fulltime school, it will be in the child’s best interests to have balanced input about major decisions to be taken in connection with this change.[33] Additionally, the Court Child Expert opined that there were benefits for the child if both parents were involved in joint decision-making to avoid exclusion of the father’s views and involvement in the child’s life.[34]
[33] Dr L oral evidence, transcript dated 15 Feb 2024, p 16 at lines 23-25.
[34] Exhibit A4 at [96].
Live with and spend time with Orders
In view of the findings above at [66] to [91] and the totality of the reasons expressed above, the child’s best interests weigh against a change in primary care and residence of the child. I consider the child would more likely suffer greater risk of emotional harm if the Court made the orders sought by the father, than if it made orders for the child to remain living with the mother but spend significant time with the father.
In view of the conclusion about the mother’s mental health, it is predictable that the mother may abscond with the child or could act irrationally putting the child at risk, if the Court ordered that he live with the father. Alternatively, deterioration in the mother’s psychological health because of separation from the child is foreseeable if the Court ordered that the child live primarily with the father. This is likely to lead to escalation of conflict and even greater dispute between the parties to which the child will most certainly be exposed and be more aware of as he ages. This conclusion is drawn from the evidence of Dr L and the likelihood that the mother suffers mental traits or symptoms relating to interpersonal relationships. That is, she likely suffered a mental disorder or at least overvalued ideas regarding the father which are unlikely to change.
Moreover, the nature of the child’s life would be markedly different to that he has enjoyed to date. I infer that he would likely not cope well with a move to Town K, where his life would largely be centred around the father alone with whom he has not yet had opportunity to strongly bond. I consider this would expose the child to a not insignificant and likely risk of emotional harm and possible physical harm due to separation from the maternal family and lack of parenting experience, planning and parenting skills on the father’s part.
It is notable that I received no satisfactory evidence about the plans and arrangements for the child if he lived in Town K in evidence in chief. There is bare evidence about these matters, consequent to cross-examination and my questioning of the father. The father did not call any of his own family to give evidence to the effect that they could and would spend periods of time in Town K to assist the father while he developed parenting skills and became experienced and capable of providing care.
Counsel for the father submitted during the hearing that this failure was not due to the father’s failing in any part, but the result of legal advice given or not given. But, the fact remains that this highly relevant evidence is not before the Court and means that I have not been persuaded that a radical change in primary care is in the child’s best interests.
Additionally, I can infer that the types of parenting support services available in City B are not available in Town K and there is no evidence before the Court about them being available to the father from Town Q, City CC or elsewhere.
On balance, it is in the best interests of the child to remain living in the mother’s primary care. However, it is essential that the child be given the opportunity to spend more time with his father and that the mother be prevented from continuing to alienate the child from the father. The mother’s proposals about progressing the child’s time with the father are unnecessarily constrained, unjustified, and slow. They are not supported by the findings I have made as I have rejected the mother’s allegations of family violence, neglect, or inadequate personal care of the child by the father.
The child should immediately spend overnight time with the father in the City B area and this time should gradually progress so that by five years old he is spending at least three nights in one week with the father and one afternoon in the alternate week.
It is necessary to order that the father’s time with the child occur in City B because of the practical difficulties of facilitating his time in Town K due to distance of travel, the child’s young age, lack of services and supports to the father to assist him in managing the child’s care including overnight time, which he has not yet experienced.
As the father’s family reside in the Greater City B area, I can infer that the father will have family support when he spends time with the child if it occurs in proximity to City B and this is also consistent with the benefit of the child having a relationship with his wider extended family.
Final orders
Counsel for the father provided a minute of the precise terms of final orders he sought. These were the subject of comment or discussion during the closing addresses of both parties. The parties agreed in substance to those orders relating to trips interstate and the giving of notice of such trips. On the basis of my conclusions and the weight I give the views of Dr L, I consider that orders should be made in accordance with paragraphs 8-11, 13, 14, and 16-21 inclusive of the minute.
The stated orders are in the child’s best interests as they are designed to ensure that:
·Communication is respectful and child focused;
·Each parent is fully informed about the child’s circumstances;
·One parent does not unreasonably interfere with the other’s time with the child; and
·The mother has necessary and appropriately qualified expert psychiatric and psychological management and treatment.
The parties each wanted orders made about the child’s passport, and I agree that an explicit order for passports is necessary to promote the best interests of the child as it will enable the child to benefit from experiences of travel overseas and avoid future disputes and the need for proceedings in the future.[35]
[35] Relevant considerations pursuant to s 60CC(3)(l) of the Act.
The parties will be ordered to obtain the child’s passport now and it will be held in the Hobart Registry and only released upon written confirmation from both parties that an intended travel journey is consented to and upon written undertaking filed by the parent travelling with the child that prior to departure that the passport will be returned to the Hobart Registry upon completion of travel.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 13 May 2024
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