BENSON & JESS

[2015] FamCA 144

FAMILY COURT OF AUSTRALIA

BENSON & JESS [2015] FamCA 144

FAMILY LAW – CHIILDREN – Interim Orders – where mother recently reunited with child after significant absence – paternal grandmother previously removed child from father’s household and placed in mother’s care – where father seeks any order for time between mother and child be supervised – father concerned the mother’s psychological functioning may pose risk to child – where mother opposes order for supervision – best interests of the child – consideration of Family Assessment Report – wishes of the child – orders made for child to spend time with the mother unsupervised.

Family Law Act 1975 (Cth) s 60CC

Andrew & Delaine [2009] FamCAFC 182
Every & McNaught [2007] FamCA 626
Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Benson

RESPONDENT: Mr Jess

FILE NUMBER: ADC 4591 of 2014

DATE DELIVERED: 11 March 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 27 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: SPK Legal

COUNSEL FOR THE RESPONDENT: Ms Furtardo

SOLICITOR FOR THE RESPONDENT: Adelaide Lawyers

Orders

1. That the child B born … 2004 shall spend time with the mother each Sunday between the hours of 10am and 4pm commencing 14 March 2015.

2. That the handover arrangements in respect of the child spending time with her mother shall be effected by the child being delivered to and collected from the home of the paternal grandmother or at such other place as the parties may agree.

3. That the mother be restrained and an injunction is granted restraining her from discussing the proceedings with the child or allowing any third party to do so.

4. That the parties be restrained and injunctions are granted restraining each of them from denigrating, harassing or abusing the other party to the child or in the presence of the child or permitting any third party to do so.

5. That the mother shall within 24 hours of a request by the solicitors for the father provide a sample of her urine/blood to a qualified medical practitioner for the purpose of the administration of procedures to test for the presence of opiates, barbiturates, amphetamines, heroin, cannabis or any other derivative of those substances, such sample to be provided to the medical practitioner in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 such that the integrity and identity of the sample can be guaranteed, with the results of such testing to be made available to the father as soon as the results become available PROVIDED that the request for a drug test shall not exceed one request in each month and not more than three tests in total.

6. That the mother be at liberty to speak with the child each Wednesday between the hours of 5pm and 7pm NOTING that the father is to afford the child privacy during such calls and that otherwise the parties will facilitate and permit the child to contact the other party by telephone whenever the child expresses a wish to do so.

7. That further consideration of the matter generally and the appointment of an Independent Children’s Lawyer is adjourned to 24 April 2015 at 9am.

8. Liberty is given to either party to have the matter relisted upon two days’ notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Benson & Jess has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4591  of 2014

Ms Benson

Applicant

And

Mr Jess

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The matter was listed before me for a hearing in respect of interim parenting arrangements for B (“the child”) born in 2004.

2. On 20 January 2015 Registrar Paxton ordered that the Amended Initiating Application of Ms Benson (“the mother”) be adjourned for interim argument before me on 2 February 2015.

3. On that date the mother sought orders that the child live with her and spend time with the father as may be agreed between the parties, or in default of agreement as ordered.  For his part, Mr Jess (“the father”) opposed the orders sought by the mother and sought orders that the child live with him and spend time with the mother at such times as may be considered appropriate by the Court.

4. On 2 February 2015 and following extensive argument, the following substantive orders were made:-

   (1)That paragraph 2 of the order dated 24 December 2014 be discharged.

   (2)The child live with the father.

   (3)Further consideration of the matter generally but in particular the interim parenting proceedings be adjourned to 27 February 2015.

   (4)That the said child spend time with the mother on 8, 15 and 22 February 2015 between the hours of 10am and 4pm provided that such time be under the strict supervision of [Ms C], the paternal grandmother.

   (5)That handover arrangements in respect of the child shall be effected to and from the home of the paternal grandmother.

5. It was further ordered that there be a report prepared by a family consultant pursuant to s 62G (2) of the Family Law Act 1975 (Cth) (“the Act”). It is noted that at short notice and with some significant inconvenience caused to Child Dispute Services, the director very helpfully arranged for the preparation of the report and its’ publication to be arranged at short notice and in any event, in time for the adjourned date.

6. Whilst the history of the matter will be the subject of more detailed discussion, the mother obtained an ex-parte order on 12 December 2014 from Judge Simpson which restrained the parties from removing or attempting to remove the child from the Commonwealth of Australia.  Additionally and by way of ex-parte hearing, a further order was made on 19 December 2014 which provided for the child to live with the mother during the period of the adjournment.

7. The father exercised his entitlement to have the matter brought on at short notice and on 24 December 2014 his Honour required the mother to deliver up the child to the father on 25 December 2014 and that thereafter the child would live with the father and spend time with the mother as the parties may agree.  The mother was able to communicate with the child on two occasions per week, but importantly was subject to the following order of restraint and injunction:-

   (a)removing the child from the State of South Australia;

   (b)appearing on electronic media outlets such as television or the internet or otherwise and furnishing any details relating to the parties and the said child;

   (c)posting on social media or publishing any matters whatsoever in relation the said child or the parties;

   (d)bringing the child into contact with Mr D;

   (e)attending at or contacting the child’s school;

   (f)attending at the father’s home and place of employment; or

   (g)communicating with Ms E.

8. The mother complied with the orders and the child was delivered up to the father on 25 December 2014.  The child has remained in the father’s primary care since that order was made.

9. For reasons that will become apparent, all parties accepted that the input from the family consultant via the report was likely to have a significant impact on the orders that were to be made following the interim hearing.

10. Counsel for the mother filed an Outline of Argument document on 27 February 2015 and sought the following orders:-

    (1)That until further order the child live with the father.

    (2)That during the period of the adjournment the child spend time with the mother as follows:-

    2.1from the conclusion of school on Friday until 5pm Sunday, with such regime to commence on Friday 6 March 2015;

    2.2each intervening Saturday from 10am to 4pm with such regime commencing on 28 February 2015;

    (3)That the mother do all things necessary to obtain an independent psychiatric assessment from [Dr F] psychiatrist, or such other psychiatrist as agreed between the parties with such report to be obtained at the father’s expense of the parties and for this purpose, the solicitors for the parties be authorised to release to [Dr] F all materials filed in these proceedings (ADC9591/2014).

    (4)That the parties be restrained and an injunction granted restraining each of them from discussing the proceedings or the allegations with the child and from denigrating, harassing or abusing the other party to the child or in the presence of the child or permitting any third person to do so.

    (5)That the parties be at liberty to request from the other a sample of his/her urine/blood to a qualified medical practitioner for the purpose of testing for the presence of opiates, barbiturates, amphetamines, heroin, cannabis or any derivative of those substances.

11. The mother also sought the appointment of an Independent Children’s Lawyer and liberty to communicate with the child each Tuesday and Thursday between 4pm and 6pm subject to a condition of privacy between the child and the mother.

12. For his part, the father opposes the orders sought and seeks that the mother’s time with the child be curtailed and the subject of supervision (and in particular not by the paternal grandmother) until the mother presents evidence to the Court of her mental health and in particular, evidence that would confirm that she is psychiatrically stable and would pose no risk to the child, particularly but not exclusively a psychological or emotional risk.  It is conceded by the father that orders sought should be made that would ensure the child maintain a meaningful relationship with the mother, however the child is potentially at risk if appropriate supervision is not included.

DOCUMENTS CONSIDERED

1. As a result of the hearings on both 2 February 2015 and 27 February 2015, I have had regard to the documents comprising the Court file as and from the mother’s Initiating Application filed 12 December 2014.  In particular, I have had regard to the following specific documents:-

   (1)Amended Initiating Application filed by the mother

   (2)Amended Response filed by the father

   (3)Affidavit of the mother filed 23 February 2015

   (4)Report of family consultant dated 20 February 2015

   (5)Affidavit of father filed 24 December 2014

   (6)Affidavit of father filed 13 February 2015

BACKGROUND

1. In about November 2003 and following a friendship of disputed length, the parties commenced to cohabit in about December 2003.  The child was born in 2004 and the parties married in 2005.

2. Arising from the husband’s employment, the family moved to the Country G in about December 2005.  They remained in Country G until the husband’s employment was transferred to Country H in October 2007.  The child was three years of age.  Following a breakdown in the relationship, the parties separated in March 2008, with the mother leaving Country H to return to Australia.  The child remained in the care of the father. 

3. There remains a significant dispute as to the catalyst for the parties’ separation.  According to the father, the mother suffered from significant mental health issues and required professional intervention both in Australia, Country G and then in Country H.  Whether it was an exacerbating circumstance or a symptom of the mother’s deteriorating mental health, the father alleges that there was substantial misuse of alcohol and drugs. It is the father’s contention that the mother’s presentation was florid and in all respects she was entirely incapable of providing adequate or proper care for the child.

4. The mother disputes the broad thrust of the father’s allegations, but admits that as a result of the domestic stressors, she did suffer from mental health issues but not to the extent that it necessarily impaired her ability to parent.

5. In June 2008 the mother returned to Country H but according to her, was met with trenchant opposition by the father to her resuming any significant care of the child.  It is the mother’s position that the father raised child protection issues alleging that the child would be at significant risk in her care.

6. The mother then commenced proceedings in Country H and ultimately an order was made in favour of the father on 3 March 2011.  The terms of that Country H order have been the subject of some contention and whilst not directly relevant to the orders that I am required to consider, the interpretation of the Polish order may have significantly influenced the parties in their conduct.

7. Following the conclusion of the proceedings in Country H, the Court ordered that the mother would be deprived of parental authority over the child.  No evidence was presented as to how such an order would operate and/or be viewed in Country H and whilst there is some language similarity with the concept of parental responsibility, I am not able to determine the parameters of the order.

8. By application pursuant to Regulation 12 of the Family Law (Child Protection Convention) Regulation 2003, the Polish order was registered with this Court on 25 February 2013.

9. In late 2008 the mother returned to New South Wales and following a subsequent relationship she gave birth to J in 2009.

10. For his part, the father formed a relationship with a Country H citizen Ms E and in 2010 they married.  There are two children of that relationship namely K born in 2011 and L born in 2012.  There are significant health considerations affecting the younger child with a resultant impact on these proceedings.

11. The mother returned to the Country M in 2012 and remained there until she was advised that her daughter (and the father and his family) was now living in Adelaide and have done so since July 2013.

12. The father returns to Country H in July 2014 and the child was placed in the care of the paternal grandmother for an extended period.  The father returned to Australia in October 2014 and the mother returns on 11 December 2014.

13. As discussed, the mother commenced proceedings initially on an ex-parte basis and upon being served brought his urgent application before Judge Simpson on 24 December 2014.  The child lived with the mother for a period of about 12 days in circumstances where there has been no contact or relationship for the previous six years.

FATHER’S ALLEGATION

1. The father alleges that the separation of the parties at least in part, was the inevitable consequence of the mother’s abuse over a long period of alcohol and prescription substance abuse.  The consumption of alcohol and prescription medication resulted in “extreme psychotic episodes” and “physical and verbal abuse” from the mother. The father alleges that the mother made threats of self-harm but also threatened the life of the father and the child.  The father alleges that the mother took active steps to take her own life albeit, without success.

2. The parenting of the child was compromised by the mother’s substance abuse and the father alleges that from time to time the mother would “pass out” whilst caring for the child.

3. The mother was admitted to a drug rehabilitation facility where she would not remain.

4. So florid was the mother’s dysfunction that the father alleges she recognised that she was unable to parent the child and determined instead to return to Australia to undergo treatment.

5. It may not ultimately be controversial, but the father asserts that on her return to Australia the mother was involved in various rehabilitation programs focussing on alcohol and substance abuse.

6. The father alleges that the full extent of the mother’s deteriorating mental health has its cause in the sexual abuse of the mother by her father Mr D.

7. It is further alleged that following safety concerns in respect of the mother’s second child, she travelled to the Country M where she remained before returning to Australia.

8. The father’s youngest child was diagnosed in mid-2013 with a “rare form of eye cancer in both eyes”. Not surprisingly, this created significant disruption to the father’s household.  This child required significant and invasive treatment and not surprisingly, the father and his wife needed to be very focussed on her needs, treatment and emotional support.

9. The father requested that his mother assist in respect of the day to day household duties and activities of his home.  The father says that in July 2013, the paternal grandmother and his wife Ms E had “an intense confrontation”.  The result was that the paternal grandmother focussed her attention on the child and from January 2014 she took on a greater role in respect to the child’s care.  It was not uncommon that the child would be looked after by her grandmother for extended periods of time and it was during such an occasion that she contacted the mother in these proceedings, advised her that the child was in Australia and it is now common ground that the child then came into the care of the mother.

ALLEGATIONS OF MOTHER

1. For her part, the mother denies the father’s allegations.  She admits seeking counselling but this was because of relationship issues having been the subject of physical and verbal abuse by the father.  She considers that the father’s allegation that she suffered “extreme psychotic episodes” is a false and misleading allegation.  She says she was not admitted to a psychiatric facility, nor to a rehabilitation facility or clinic.  In short, she considers that the father has exaggerated issues in respect of her mental health and her day to day function to justify his retention of the child without making any real effort to contact her.  She considers that the father “abducted” the child and that she suffered stress, anxiety and depression as a result.  Whilst she agrees that at the direction of the father she undertook drug and alcohol testing, she says that the father was dismayed by any lack of corroboration of the matters complained of.  If anything, the mother alleges that she was the subject of family violence perpetrated by the father.  There is little that she and the father are able to agree upon.

2. In relation to the principal consideration namely, the circumstances around the mother not spending time with the child for a period of six years, the father alleges that he did all that he could to communicate with the mother, but that she would either not answer the phone and/or respond to any of his communication.  For her part, she says that she travelled to the Country M in order to elicit the help of an organisation that finds the whereabouts and assists in the return of abducted children.  When finally located in Country H, she says that she made attempts to contact the child through the father and spend time with her, but her requests were ignored and he did not allow her to see the child or form any relationship. She says that it was not from lack of desire but a denial of any opportunity to do so.

HEARING ON 2 FEBRUARY 2015

1. At this hearing the mother was represented by counsel and the father’s solicitor appeared on his behalf. The mother sought that the child return to her primary care.  The father opposed time with the mother, but if it was to occur, then it would have to be supervised.  The father promoted his Adelaide based parish priest to undertake the supervision.  The mother proposed the paternal grandmother as a supervisor (if supervision was required at all) and ultimately, over the trenchant opposition of the father, orders were made that the mother spend six hours with the child on three separate occasions in February 2015, supervised by the paternal grandmother.  Ex-tempore reasons were delivered at the time, but it is a reasonable summary to note that the issue of supervision was to ensure the safety of the child when in the care of the mother.  As highlighted, the circumstances of this case were unusual in that the mother had not spent the previous six years with the child.  There would have likely been some significant uncertainty on the part of the child, or perhaps even ambivalence as to the mother’s position.

1. As is not uncommon, the parties could not agree as to the attitude of the child either in terms of her continued residence with the father or for his part, whether the child wanted to spend time with the mother and if so under what conditions.

2. To some extent the Court was unlikely to be assisted by the evidence of the parties and given the ability of Child Dispute Services to facilitate the preparation of an early report, an order was made directing that a family consultant be appointed, that he prepare a family report and that it be made available no later than 25 February 2015.

CURRENT CONCERNS

1. The father currently remains concerned about the mother’s state of mental health and is troubled by what appears to be her denial of a long and complex psychiatric history.

2. Notwithstanding that the mother has little to do with the child since she was three and a half years of age, if he could be satisfied as to the stability of her mental health and that she had been able to successfully rehabilitate herself in respect of medication and alcohol abuse, if he could be satisfied as to the stability of her mental health and that she had been able to successfully rehabilitate herself in respect of medication and alcohol abuse, then this might represent an appropriate basis to slowly reinstate a relationship between the child and her mother, initially supervised but moving to unsupervised time if the child was able to cope with this subject to the child’s safety being considered.

MS C

1. It is a somewhat unfortunately consequence of these proceedings that the relationship between the father and his mother has completely broken down.

2. The paternal grandmother appears to fully support the mother’s application.  She acknowledges that she took steps to reunite the mother and the child and that she did so because of her own observations that the child was pining for her mother, that she was being treated differently by the father’s current wife to the other nuptial children.  This lead to what was apparently bitter and acrimonious  exchanges between the father’s wife and the paternal grandmother.  The breakdown of the familial relationship between the father, his family and the paternal grandmother is regrettable and demonstrably the source of much angst and distress.

3. Whilst it may seem to be unusual (Order 5.10 (2))following the oral evidence (and cross examination) of the paternal grandmother on 2 February 2015, I was satisfied that the child had a close and loving relationship with her grandmother and notwithstanding the change in allegiance of the paternal grandmother in support of the mother in these proceedings, I had no doubt that her primary focus would be to protect and nurture her granddaughter.  In the absence of a viable alternative and taking into account the circumstances that were impacting upon the child, I was satisfied that she would provide appropriate supervision notwithstanding the father’s misgivings.

FAMILY REPORT

1. The family consultant had the opportunity to consider documents forming the Court record and to conduct various assessment interviews with the parties, the father’s current wife, the paternal grandmother and a psychologist.

2. The family consultant correctly understood the application and proposals of each of the parties.  For the mother’s part, if she was unsuccessful in an order seeing the child reside primarily with her then she would wish for the child to spend time with her on alternating weekends and one overnight in the interim week.

3. For his part, the father wanted sole parental responsibility, that the child would live with him and any time spent with the mother was to be subject to him being at liberty to reside either interstate or overseas, that there be no overnight time and that supervision not be conducted by the paternal grandmother, but rather his parish priest or at a children’s contact centre.  Demonstrably, the father’s position had not altered notwithstanding the orders of 2 February 2015.

4. It appears that the mother disclosed to the family consultant that she had had a long involvement with alcohol and recreational drugs ceasing only when she was pregnant with the child.  It is recorded that:-

   Her drinking again became problematic for a few months when living in [Country G], and was allegedly related to [Mr Jess’s] infidelity and her isolation.  Drinking increased when living in [Country H] to half a bottle of gin or vodka daily, again trying to numb her pain regarding relationship issues.  After allegedly completing a rehabilitation program in Sydney in January/February 2009, she returned to [Country H] mid-year only to find herself essentially homeless and living in a tent in someone’s backyard.

5. She denies that she suffered from mental health issues or excessive alcohol abuse thereafter and any suggestion that she had moved to the Country M in order to avoid child protection proceedings was rejected by her.  The mother expressed a willingness to the family consultant to undertake a psychiatric assessment.

6. Both the father and his wife do not hold the mother in high regard.  They consider that she has “low maternal instincts”, is a sociopath and exhibits bizarre behaviour.

7. The paternal grandmother was also interviewed and spoke of her involvement with caring for the child over extended periods to enable her son and his wife to focus on the treatment of their youngest daughter.  She observed that the husband’s wife would treat the child badly “sometimes hitting her and doing family activities aimed more at her other children at the expense of the child”.

8. B was interviewed to good effect by the family consultant.  She is recorded as having a good command of English, developmentally tall and intellectually, “she appeared very inquisitive and bright”.  Importantly, the family consultant records there was no evidence that her views had been influenced or coerced.

9. At paragraph 73 the following appears:-

   [The child] expressed feeling good about resuming contact with her mother, and had many questions prepared for the report writer at the second interview.  Resuming contact was rated 9 out of 10 important and good for her, although some generalised fear and anxiety was associated with this, particularly regarding how her father would react to her feelings.  She did not want to get into trouble.

10. It is apparent that the child has worried about the history of the matter and how it is that she did not see her mother for an extended period of time.  It is a sign of the child’s maturity that the consultant records that:-

    After some discussion she appeared more content that both parents had differing points of view and that the truth may never be known.  She seemed to accept that whatever had happened in the past was historical, although she still considered her mother to more likely have misrepresented the truth on certain points.

11. Presumably her father had discussed with her his concerns as to the mother’s alcohol and drug use.  At paragraph 75 the family consultant records that the child had an understanding of the mother’s alcohol abuse issues, but that her recent contact with the mother was not such that the child observed any excessive alcohol abuse.

12. The child was also comfortable with her half sibling (the mother’s second child) and having given the issue some thought, was clear in her view that she would welcome overnight stays with the mother, but that the primary care should remain with her family.

13. The family consultant challenged the child in respect of a number of propositions put by the mother.  It is a reflection of the respect that the family consultant had for the child’s demeanour and maturity that he was prepared to engage in such a conversation with her child.  It is likely that he did so because he formed the view that the child was emotionally robust.

14. It is recorded that the child was not open to a week about arrangement and the level of insight was such that she considered even if the father’s family relocated interstate (or overseas), whilst she would remain with them, she would still wish to have some level of contact with the mother which she understood would most likely occur during school holidays or other special occasions.

15. It is important to note that the child did not support the allegations made by the paternal grandmother that she had been the subject of physical abuse by the father’s wife, that she received excessive discipline or that in the father’s home she was marginalised with the attention focussing on her step-siblings.

16. The child is clearly sensitive.  The family consultant records that she felt comfortable sharing her thoughts, wishes and worries with the psychologist, her father, her mother, paternal grandmother and lastly, her step-sibling.  All she wanted was for her parents to be friends and to be able to “interact with her (mother) such as going shopping, assistance with her homework and lastly to have sleepovers at her mother’s home”.

17. The family consultant conducted observed interaction and whilst with the father observed that the interaction was warm, tactile and child focussed, he was somewhat more guarded in his observations of the child and the mother.  It is recorded that the mother questioned the child as to what had been said to the report writer and the child, presumably in anticipation, responded with “a pre-scripted vague answer forged together with the report writer”. The family consultant observed that “interaction was primarily functional, age appropriate and with limited physical contact or emotional availability demonstrated”.

18. The family consultant recommended that whatever the historical foundation is for the allegations of the mother’s mental health, a cautious and proper approach would be to consider psychiatric assessment.

19. The family consultant was concerned as to the motivation of the paternal grandmother’s involvement in assisting the mother and opined that this may be an indicator that she would not be able to act protectively.  I had the advantage of evidence from the maternal grandmother and I remain confident that she is entirely focussed on the protection of her granddaughter.

20. There is no doubt that the child craves a relationship with her mother and that providing it is without risk, then the child will significantly benefit.  A cautious approach is recommended until psychiatric assessment is available.

21. Somewhat curiously, the family consultant has commented that whatever the interim arrangements are, they should be subject to the relocation of the family based on the medical needs of the father’s youngest daughter and that “relocation in this context is unequivocally supported”.

22. The final recommendation is that:-

    It is recommended that if in the event no significant mental health, alcohol misuse issues and child protection issues are determined then consideration is given to unsupervised time spending commensurate to [Ms Benson’s] “Option B”.

23. This relates to each alternate weekend and an overnight in the intervening week.

24. I am not so confident in the assessment of the family consultant that the mother’s time with the child should be so strictly controlled at first instance, or indeed should move rapidly to the mother’s proposed Option B once issues of the mother’s psychiatric and mental health are understood.

SUBMISSIONS OF COUNSEL

1. Counsel for the mother submits that the father is disingenuous in his asserted position that he supports a relationship between the child and the mother providing it is safe to do so.  It is noted that the father does not seek that there be any time between the mother and the child by way of final orders.

2. He emphasises the clarity of thought and wish of the child and that when faced with a range of options, had no difficulty in determining that the primary care should remain with the father in his household but that she would wish to maintain a relationship with the mother that would enable her to engage in common day to day activities such as shopping.

3. For his part, counsel for the father highlights that the mother poses a significant risk to the child.

4. Reference is made to the record of interview with the New South Wales Police taken on 24 December 2014 as a result of the attendance on that day and the mother taking the child to be interviewed.  In this respect, I find that the mother acted inappropriately in submitting the child for a police interview in circumstances where it was unnecessary to do so.

5. It was also strongly put that the mother and the paternal grandmother have effectively conspired to remove the child from his care without warning, notice or advice.  It was clearly intended to be a covert enterprise with little or no thought to the maelstrom that would inevitably result from the mother’s actions.  The remarks of counsel are perceptive in this regard and after such a long period of separation, there was no thought given to the dramatic impact that this would have on the child.  There is a regrettable lack of foresight on the part of the mother and it is likely that she was motivated by her own self-interest rather than any real consideration of how her daughter would react.  In short, it could have been an event of such trauma that the impact on the child may well have been long lasting.

6. The mother’s mental health was also emphasised by counsel and in particular the comments of the family consultant as to his perception of the mother’s reluctance to set out in detail her psychiatric and medical history do not instil confidence in the mother and her behaviour.

7. There is relevance to the Court having a better understanding of the mother’s psychiatric history, but this is a matter for the mother to put forward rather than the Court to order other than in circumstances where a psychiatric assessment and/or report is a pre-condition to a parenting order. See Every & McNaught [2007] FamCA 626.

8. Finally, counsel highlighted the observations of the family consultant as to the emotional detachment of the mother to the child.  In summary, it was suggested that if the mother does not continue with her relationship with the child once reunited with her mother, a disruption to that relationship would be highly damaging.

LEGAL PRINCIPLES

1. I have regard to the legislative pathway as set out in Goode & Goode (2006) FLC 93-286. At paragraph 82 of the judgment the following is stated:-

   In an interim case that would involve the following:-

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (c)identifying any agreed or uncontested relevant facts;

   (d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests or as a result of consideration of one or more of the matters in s 60CC, or impractical;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC or impracticable;

   (i)if neither equal time or substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of considerations of one or more of the matters in s 60CC;

   (j)if the presumption is not applied or is rebutted, then making such an order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither party has sought it, if the Court considers after affording procedural fairness to the parties it is to be in the best interests of the child.

2. In the current case, I consider it in the best interests of the child that there not be equal shared parental responsibility.  The child has been in the sole and absolute care of the father since 2008.  Whatever the circumstances were, the reality is that the mother has had no input in respect of major and day to day issues and at this stage it would be inappropriate and against the child’s interests to change the current status.  It is a matter of significant stability to the child in the father’s home that she understands who has the sole and absolutely ability to make decisions for her.

3. Demonstrably, consideration is not required as to whether there should be equal time and if not, then substantial or significant time.

4. The mother accepts that at this stage the orders sought by her are that the child live with the father and that she spend time with the child each alternate weekend, and overnight in the intervening week and at some point, significant and extended time during the school holidays.

5. Clearly, the focus must be in respect of the primary considerations as set out in s 60CC (2) namely:-

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. The submission of the father is that there are risks of psychological harm if not physical harm and accordingly, more weight should be given to this consideration than the benefits of the child having a meaningful relationship.

7. I do not consider that the risks to the child are as significant as the father would apprehend.  However it has come about, the child has spent some considerable time in the mother’s care and at the end of that time the child expressed a clear and unequivocal wish to the family consultant that there be no disruption to her newly formed relationship with her mother and indeed, that the experience be enhanced by overnight time.  It is obviously a matter of weight, but I consider that the child has demonstrated significant maturity and a level of understanding of the issues as carefully recorded by the family consultant.

8. The question of the child’s wishes is a matter of significance and I consider that the matters that fall from the child are reliable and should be given substantial weight.

9. The issue therefore is the extent of time that the child should spend with her mother and the circumstances in which that should occur.

10. At this stage I do not propose to order that the child spend overnight time with her mother.  I consider it too early to do so and whilst I am less concerned with the mother’s psychiatric presentation than is clearly the father (and to a lesser extent the family consultant) the full consideration of the mother’s preferred position is set out in “Option B” should be dependent upon psychiatric evidence being presented if the mother chooses to do so.

11. The child has a level of maturity that requires significant weight to be given to her wishes, but also has the advantage of the child being able to report accurately, carefully and clearly any adverse action or inappropriate conduct of the mother or those who may support her.

1. The paternal grandmother, whilst demonstrably supportive of the mother, should carefully consider her position and whether her continued involvement is warranted, or indeed is of benefit to the mother but in particular the child.  It is clearly an area of heightened emotion for the father and her continued involvement is likely to cause ongoing distress, anger and conflict.

2. The issue therefore is whether in the circumstances of this case, the mother should spend time with the child without supervision.

3. Whilst noting the recommendations of the family consultant, I propose to nonetheless order that the child spend time with the mother unsupervised but restricted to daylight hours.

4. I am mindful of the weight that should be given to the considered reports and I have regard to the decision of Andrew & Delaine [2009] FamCAFC 182 where the Full Court considered the treatment and weight to be given to the recommendations by a family consultant at paragraph [72]:-

   [72]It is not in doubt that an expert’s opinion, which is based on an appropriate foundation and given by a suitably qualified person, will carry substantial weight.  Departure from an expert report in such circumstance requires careful consideration by a trial Judge.  However, the ultimate decision still must be that of the trial Judge.  The weight to be given to a family report was explained by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819 as follows:

   In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.

   (a)There is no magic in a Family Report.  A Judge is not bound to accept and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities.  In Wood (1976) FLC 90-098 at p. 75,447; Harris & Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.

   (b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in informing his ultimate conclusions.  When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent, with the rest of the body of evidence before him.

   (c)While the counsellor’s views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witness in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor…

5. I consider that I am significantly assisted by the report of the family consultant, but in the circumstances and assisted by his comments in respect of the favourable disposition and presentation of the child, I am satisfied to give weight and effect to the child’s wishes, but to proceed cautiously.

CONCLUSION

1. The mother, through her counsel, submits that she will obtain a psychiatric assessment.  The matter has been adjourned to 24 April 2015 for further consideration.  I propose therefore to reinstate the mother’s time with the child on a weekly basis between the hours of 10am and 4pm, but absent any requirement for supervision.

2. I will give leave to the matter to be relisted before me at short notice.

3. Accordingly, I make orders as appear at the commencement of these reasons.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 March 2015.

Associate: 

Date:  11 March 2015