Beswick & Beswick
[2021] FedCFamC1F 265
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Beswick & Beswick [2021] FedCFamC1F 265
File number: BRC 2256 of 2016 Judgment of: CAREW J Date of judgment: 8 December 2021 Catchwords: FAMILY LAW – CHILDREN – Unacceptable risk – Whether the mother poses an unacceptable risk of harm to the children due to mental health issues, drug use or alleged inability to contain her negative views towards the father and his family – Whether the risk of harm to the children may be ameliorated by long-term supervision – Where long-term supervision may not be practical – Where the mother was found not to pose an unacceptable risk of harm to the children – Where the risk of emotional harm from the mother’s negative views remains a risk – Where long-term supervision would be detrimental to the children’s relationship with the mother. Legislation: Drugs Misuse Act 1986 (Qld)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton (2019) FLC 93-924
Briginshaw & Briginshaw (1938) 60 CLR 336
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655
Number of paragraphs: 82 Date of hearing: 21-22 October 2021 and 25-26 October 2021 Place: Brisbane Counsel for the Applicant: Mr Alexander Solicitor for the Applicant: Evans Brandon Family Lawyers The Respondent: Self-represented Counsel for the Independent Children’s Lawyer: Mr Hodges Solicitor for the Independent Children’s Lawyer: Barbara Fox Solicitor ORDERS
BRC 2256 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BESWICK
Applicant
AND: MS BESWICK
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
8 DECEMBER 2021
THE COURT ORDERS THAT:
1.The children X born … 2009, Y born … 2009 and Z born … 2013 (“the children”) live with the father.
2.The father have sole parental responsibility for the major long-term issues in relation to the children's health and in exercising his parental responsibility:
(a)The father is to email the mother setting out his proposed decision and the reasons for that decision;
(b)The mother is to respond to the father’s email within seven (7) days of receiving same advising the father as to whether she agrees with the father’s proposed decision and if not, setting out her reasons for her opposition and suggesting an alternative;
(c)The father is to give consideration to the mother’s response before making a final decision; and
(d)The father is to keep the mother informed about any medical, dental or allied health issues affecting the children by sending her an update once each month by email.
3.The mother be restrained and an injunction hereby issues restraining her from taking the children for any medical/dental/allied health appointment or assessment unless in the event of an medical emergency in which case she shall immediately notify the father of the circumstances including the location of where the child/children are being treated so that the father may attend.
4.Save as provided for in this Order, the mother and father have equal shared responsibility for major long-term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) for the children.
5.The children X and Y attend B School for their secondary education unless the parents otherwise agree in writing.
6.The mother spend time and communicate with the children at all such times as may be agreed between the parents and failing agreement as follows:
(a)From the date of the making of this Order until the beginning of term 2 in 2022, each alternate Saturday for up to four (4) hours supervised at C Family Services with the parents sharing the cost of supervision equally;
(b)For the period commencing from the beginning of term 2 in 2022 until the beginning of term 3 in 2022 on each alternate weekend, from 9.00 am until 4.00 pm on Saturday and Sunday;
(c)For the period commencing from the beginning of term 3 in 2022 until the beginning of term 1 in 2023, each alternate weekend from 9.00 am Saturday until 4.00 pm Sunday;
(d)For the period commencing from the beginning of term 1 in 2023 until the end of term 4 in 2023 each alternate weekend from after school on Friday until before school on Monday;
(e)Thereafter, during school term, each alternate weekend from after school Friday until before school Tuesday; and
(f)From the Christmas school holidays commencing at the end of 2023, one half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years.
7.Notwithstanding any other provision of this Order, the mother spend time with the children on special occasions (if the children are not otherwise in the care of the mother) at all such times as may be agreed between the parents and failing agreement as follows:
(a)Commencing in 2022, on each of the children’s birthdays (if the birthday falls on a weekend or holiday) from 9.00 am to 1.00 pm and if on a school day from after school until 5.00 pm;
(b)From 9.00 am until 5.00 pm on Mother’s Day each year;
(c)Commencing in 2022, from 9.00 am until 5.00 pm on Christmas Day in even numbered years and from 9.00 am until 5.00 pm on Boxing Day in odd numbered years; and
(d)By telephone/video call communication each Tuesday and Thursday between 4.00 pm and 4.30 pm.
8.Notwithstanding any other provision of this Order, the father spend time with the children on special occasions (if the children are not otherwise in the care of the father) as follows:
(a)On each of the children’s birthdays (if the birthday falls on a weekend or holiday) from 9.00 am to 1.00 pm and if on a school day from after school until 5.00 pm;
(b)From 9.00 am until 5.00 pm on Father’s Day each year;
(c)From 9.00 am until 5.00 pm on Christmas Day in odd numbered years and from 9.00 am until 5.00 pm on Boxing Day in even numbered years; and
(d)By telephone/video call communication each Tuesday and Thursday between 4.00 pm and 4.30 pm.
9.Unless otherwise agreed in writing, changeovers during school term occur at the children’s school and at all other times at C Family Services, Suburb D with any costs incurred to be shared equally between the parents.
10.Each parent be at liberty to:
(a)Attend all extracurricular activities in which the children are involved;
(b)Attend all school or extracurricular meetings, including parent/teacher meetings, which parents normally attend; and
(c)Obtain copies of the children’s school progress reports and school photographs at their own expense.
11.If the children’s school or organising body requests a parent not to attend a meeting or event or requests a parent to leave a meeting or event, that parent shall forthwith comply with any such request.
12.The mother continue to attend upon Dr E for a period of one (1) year from the date of this Order or for such period in excess of one (1) year as recommended by Dr E.
13.The mother submit to any request by Dr E or other treating psychiatrist from time to time that she undertake a drug test to determine the presence of illicit substances in her system.
14.The mother attend upon Ms F, psychologist, as and when directed by Ms F, or such other psychologist recommended by her, in order to assist the mother to come to terms with this Order and to gain insight into her personality vulnerabilities so as to avoid involving the children in the adult dispute and to enable her to separate her feelings from those of the children.
15.The mother provide a copy of the following documents to her treating medical and allied health professionals:
(a)Reports of Dr G dated 8 May 2020 and 22 September 2021;
(b)Family Report by Ms H dated 15 September 2021; and
(c)The Reasons for Judgment dated 8 December 2021.
16.The independent children’s lawyer is requested to provide a copy of the Reasons for Judgment dated 8 December 2021 to Ms J (the children’s counsellor) with a request that the Order be explained to the children.
17.The father be at liberty to provide a copy of the following documents to his treating medical and allied health practitioners:
(a)Reports of Dr G dated 8 May 2020 and 22 September 2021;
(b)Family Report by Ms H dated 15 September 2021; and
(c)The Reasons for Judgment dated 8 December 2021.
18.The father be at liberty to undertake overseas travel with the children during his time with the children PROVIDED THAT:
(a)He provides the mother with information relating to the travel at a minimum period of four (4) weeks prior to the intended travel period AND before discussing the intended travel with the children; and
(b)He provides the mother with copies of the itinerary, flight schedule and information about their contact details; and
(c)He makes appropriate arrangements for telephone and/or SKYPE communication between the children and the mother on two occasions each week.
19.From 2024, if the mother requests the father’s agreement to her travelling overseas with the children, the father shall not unreasonably withhold consent.
IT IS FURTHER ORDERED BY CONSENT THAT:
20.All previous parenting orders be discharged.
21.Each parent keep the other apprised of their current residential address and contact telephone numbers.
22.Each parent advise the other as soon as reasonably practicable should any of the children require emergency medical treatment while in their respective care.
23.Neither parent denigrate the other to or in the presence or hearing of the children.
24.Neither parent discuss these proceedings to or in the presence or hearing of the children.
25.The children continue to attend upon Ms J as and when directed to do so by Ms J.
IT IS FURTHER ORDERED
26.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
NOTATION:
A.It is noted that the mother proposed that an order be made in terms of paragraphs 12 and 14 of this Order.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beswick & Beswick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
Mr Beswick (“the father”) and Ms Beswick (“the mother”) have been in dispute about parenting matters since 2017. The parties have three children together: X and Y who will both turn 12 years of age in 2021 and Z who will turn 9 years of age in 2022.
Previous ‘final’ parenting orders were made by consent, (initially on 22 March 2016 and again on 26 November 2019), which provided for the parents to have equal shared parental responsibility and for the children to live in a week about arrangement. In early 2020 the mother suffered a drug induced psychosis and the children commenced to live full-time with the father and spend supervised time with the mother.
While it is common ground that the risk of the mother’s relapse into psychosis is low, the father contends that the mother continues to pose an unacceptable risk of emotional harm to the children because of her alleged inability to protect the children from her negative views about the father and his family, given her tendency to overreact to situations concerning the children. In particular, it is contended by the father, that the mother has an unwillingness and/or inability to protect the children from her misplaced fears about their health and safety while in the care of the father.
For the reasons which follow, while I accept the children remain at risk of exposure to the mother’s tendency to overreact to situations involving the father’s care of the children, I do not find the risk to be unacceptable. I nevertheless propose to order that the mother’s time with the children continue to be supervised for a period of about four months to provide sufficient time for the children to have the order explained to them by their treating psychologist, and for the mother to commence therapy to address the issues discussed in these Reasons with her treating psychologist. Thereafter, my order will provide for the mother to spend unsupervised daytime with the children for a period before gradually increasing to alternate weekends (Friday to Tuesday) and half holidays from the end of 2023. The father will have sole parental responsibility for major long-term health issues but otherwise the parents will equally share parental responsibility relating to major long-term issues.
ISSUES
The parties identified the following significant issues as requiring determination (although certain concessions were made during the trial):
(1)Does the mother pose an unacceptable risk of harm to the children by reason of mental health issues, drug use or an alleged inability to contain her negative views towards the father and his family?
(2)If the mother poses an unacceptable risk of harm to the children, can that harm be ameliorated by long-term supervision, and is long-term supervision feasible and in the best interests of the children?
(3)If the mother does not pose an unacceptable risk of harm to the children, should the order for equal time made on 26 November 2019 be reinstated and, if not, what live with/spend time with order should be made?
Before turning to consider the issues, it will be helpful to set out the proposals of each party, the background to the dispute and to identify the applicable legal principles.
PROPOSALS
The father proposes that the children continue to live with him and that he have sole parental responsibility. If the mother is found to pose an unacceptable risk of harm to the children, the father proposes that the mother spend long-term supervised time with the children. The precise terms of the order sought by the father, including in the alternative, are set out in his Case Outline filed on 15 October 2021.
The mother proposes that the parents have equal shared parental responsibility and after gradually increasing unsupervised time, a return to equal time by the end of 2022. The precise terms of the order sought by the mother are set out in Exhibit 1 (Exhibit 1 was substituted with an updated version at the end of the trial wherein the mother adopted some of the provisions contained in the minute of order recommended by the Independent Children’s Lawyer (“ICL”)).
The ICL recommends that the children continue to live with the father and that the father have sole parental responsibility for issues concerning the children’s health but otherwise the parents have equal shared parental responsibility. Further, the ICL recommends that the mother spend gradually increasing time with the children such that by 2023 the children are spending alternate weekends (Friday to Tuesday) with the mother. The precise terms of the order recommended by the ICL are set out in Exhibit 8.
BACKGROUND
The father and mother commenced living together in October 2007. They were married in 2009 and shortly thereafter relocated from Canberra to Region K. The parents have three children. X and Y were born in 2009 and Z was born in 2013 (“the children”). The parents separated on 7 October 2015 but continued to live in the same residence until 22 April 2016 when the father relocated from the matrimonial home. The parents are not divorced.
The father was born in Australia and is 38 years of age having been born in 1983. He is currently employed at a university, a job which he has held for over 10 years.
The mother was born in Country L and is 43 years of age having been born in 1978.[1] The mother moved to Australia when she was adopted as a baby. The mother is currently employed on a part-time basis in administration.
[1] The mother provides two different years for her birth: 1977 and 1978.
The children currently live with the father and attend N School. X and Y are in Grade 6 and Z is in Grade 2. The children are progressing well at school with Y and X holding leadership positions and receiving letters of commendation for their academic achievements. Y and X are about to commence high school and both the father and mother agree that they will attend B School. Z is also progressing well at school and is well liked by his peers and teachers, having received the Friendship Award for his class.
The mother believes that Z has Autism Spectrum Disorder (“ASD”) despite medical practitioners’ advice to the contrary. Z’s treating psychologist, Ms J addressed this issue in her report dated 14 October 2021 where she said the following:
… [the mother] raised concerns that he may have autism. He had been developmentally reviewed by the Multidisciplinary team at the M Hospital as well as privately by Paediatrician Dr O. Both reviews identified his speech and language delays as adversely affecting his social and emotional functioning, and that an autism spectrum disorder was not evident.
I recommended a cognitive and learning assessment to get a broader understanding of Z's functioning, which was completed by my colleague Ms P in September 2018. Observations were that he experienced significant difficulties with attention and concentration and required instructions to be repeated numerous times. His Full-Scale IQ of 80 was deemed as not indicative of his overall functioning. This was attributable to significant variability in his cognitive abilities with his verbal comprehension, visual spatial, and processing speed being most delayed, and placing him in the 5th and 6th percentiles. Z performed in the average range for fluid reasoning and the low average range for working memory. Recommendations were provided to his school and both parents.
…
In relation to the question of autism, I have not conducted a formalised assessment. When I first met Z, he exhibited a few behaviours that could be considered as on the Autistic Spectrum and presented as somewhat 'quirky' with some unusual social and repetitive behaviours. At that time, my opinion was that rather than being an indication of autism, these behaviours were likely linked to his delayed language development, anxiety associated with attachment issues, his parent's separation, and ongoing parental discord. He had also been assessed by several other health professionals who felt he did not meet criteria for a diagnosis of autism. In the last few years, he has made significant gains in his socialisation, language and academic skills. Based on my interactions with him over these last three years and improvements noted in school reports and reports of other professionals, my clinical opinion remains that he does not fulfil criteria for a DSM 5 diagnosis of Autism Spectrum Disorder. He does, however, continue to experience some speech and language difficulties for which he receives intervention at his school.
There has been a history of the mother making and then withdrawing allegations against the paternal grandfather and/or the father, accusing them of engaging in inappropriate sexual conduct with the children. There is no evidence before me that would justify any finding that the father or the paternal grandfather have engaged in inappropriate sexual conduct with the children or pose a risk of same in the future.
The parents initially agreed to parenting arrangements after separation and consented to a ‘final’ parenting order on 22 March 2016 providing for them to have equal shared parental responsibility and for the children to live in an equal time arrangement with their parents.
As a result of further allegations made by the mother against the father on 18 August 2017, the father commenced proceedings on 14 November 2017. The mother withheld the children from the father from November 2017 until March 2018. The mother subsequently withdrew the allegations and on 26 November 2019, another ‘final’ order was made by consent providing for equal shared parental responsibility and an equal shared care arrangement.
On 21 February 2020, while the children were in the mother’s care, the mother experienced an acute psychotic episode precipitated by illicit drug use. While in this state, the mother experienced hallucinations that the father was on television and connected to something evil. The mother engaged in very bizarre behaviour. The police and an ambulance were called by the maternal grandmother who had been refused access to the home. When ambulance officers arrived, they noted the mother was “yelling and screaming, writing all over the walls, saying things about black magic”. The three children were inside the home with the mother who was sobbing. When the ambulance officers did gain access, the home was in disarray. The mother was admitted to the M Hospital and after her discharge spent approximately two weeks in Canberra being cared for by her parents.
Since her psychotic episode, the mother has been under the care of a psychiatrist, Dr E and has undertaken substance abuse counselling with a psychologist, Mr Q.
On 5 March 2020 an interim order was made that the children continue to live with the father and spend supervised time with the mother from 9.00 am to 5.00 pm on Saturdays.
On 19 March 2020, the mother was interviewed by Dr G for the purpose of providing a psychiatric assessment. At that time, Dr G opined that the mother had “developed an acute psychosis with concerns about black magic on a background of a somewhat persecutory stance towards the father and recent substance misuse”.
On 14 May 2020, a further interim parenting order was made by consent which included a restraint on the mother bringing the children into contact with her former partner of about three years, Mr R (or sometimes called “R”) whom the mother described as “volatile and had anger issues” and that he was “very abusive towards her when the children were not there”. During her hospital admission earlier in 2020 the mother described Mr R as a “drug addict” and a “drug dealer” who was “verbally and physically abusive towards her”. While there is no evidence that Mr R remains on the scene, I note that on 31 October 2020 the mother referred to a concern that she was being stalked by someone.
Since the 5 March 2020 order, the mother’s time with the children has been supervised by either the mother’s friend, Ms S, the maternal grandfather, Mr T, the maternal grandmother, Ms T or a maternal uncle, Mr U and on occasions at V Contact Centre. Ms S supervised most of the time between the mother and the children but since August 2021 the mother’s time with the children has been occurring only at V Contact Centre.
From the beginning of 2021, the father started to receive numerous emails and text messages from the mother in which she alleged that the father was variously: not meeting the children’s nutritional and health needs; not having X’s dental needs appropriately met; in denial regarding Z having Autism Spectrum Disorder; forcing X to have a haircut against her will; and permitting the children access to inappropriate websites.
As a result of these allegations, the father commenced supervising the video calls between the mother and the children which he also reduced to 10 minutes with each child from July 2021. This has caused some friction between the father and at least one of the children.
The mother also commenced sending a large number of packages containing confectionary, clothing and toys for the children as well as hand written letters and cards and in August 2021, it came to the father’s attention that the mother was again placing almost daily lunch orders for the children at their school tuckshop, despite the father packing lunch for the children. This had also been an issue in 2020 which the father thought had been resolved by an agreement that the mother would limit her organisation of tuckshop to specific days. The issue was brought to the father’s attention by the school after Z became upset and revealed that the mother had told him to keep the tuckshop arrangement a secret from the father.
On 18 August 2021 the mother was reviewed by Dr G who remained concerned about the mother’s preoccupation and “ruminating concerns around the welfare of the children in the care of the father”, and opined that the mother “continues to demonstrate a propensity to jumping to conclusions”. The mother’s current challenges appear to be confined to personality vulnerabilities rather than mental illness or substance misuse.
The mother represented herself at the trial after her legal aid was withdrawn.
APPLICABLE LEGAL PRINCIPLES
Every parenting decision requires the application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[2]
[2] Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
‘Abuse’ is defined in s 4 of the Act and means:
(a)An assault, including a sexual assault of the child; or
(b)A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)Serious neglect of the child.
‘Family violence’ is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities[3] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[4] and proof to the reasonable satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[5] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[6] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[7] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[8]
[3] Evidence Act 1995 (Cth), s 140.
[4] M v M (1988) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).
[5] Ibid.
[6] M v M (n 4) at 77; N and S and the Separate Representative (1996) FLC 92-655.
[7] Johnson & Page (2007) FLC 93-344 at 81,890 – 81,891, [68].
[8] Ibid at 81,891, [71].
The Full Court of the Family Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[9] and said from [38]:
[9] (2019) FLC 93-924.
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court in Bant & Clayton[10] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[10] (n 9).
The Court is not required to make findings of fact on every factual dispute raised by the parties.[11] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion” [12] on each and every factual dispute.[13]
[11] Baghti & Baghtiand Ors [2015] FamCAFC 71.
[12] M v M (n 4) at 76.
[13] Ibid.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these Reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[14]
[14] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.
DOES THE MOTHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REASON OF MENTAL HEALTH ISSUES, DRUG USE OR ALLEGED INABILITY TO CONTAIN HER NEGATIVE VIEWS TOWARDS THE FATHER AND HIS FAMILY?
The mother suffered a very serious drug induced psychosis early last year which Dr G opines suggests “an underlying genetic predisposition to psychotic illness”. Historically the mother has also experienced significant depressive symptoms which have responded to treatment with anti-depressants, “suggesting some biological component to her depression and anxiety, at least to some extent, and not wholly situational”. I accept Dr G’s opinions.
According to Ms H, the family report writer, when the mother is unwell “her capacity to prioritise the children’s needs and provide them with security and stability is significantly compromised”. I do not think there can be any doubt that this is the case.
The mother’s treating psychiatrist, Dr E, opines that since commencing his treatment of the mother in June 2020, the mother has presented as increasingly well. She no longer requires anti-psychotic medication and has shown no signs of relapse or recurrence of any psychotic symptoms. The mother has also undertaken a number of drug tests organised by Dr E and all tests have been negative for illicit substances. Regrettably, Dr E had not read Dr G’s reports (or at least the most recent one). His ongoing treatment of the mother will be assisted by having a broader view of the mother and her functioning and it is to be hoped that he will in the future have regard to those reports and to these Reasons for Judgment.
The father does not suggest that the mother’s predisposition to psychotic illness, history of depression and past use of illicit substances represent a current unacceptable risk of harm to the children. He accepts that the mother has obtained appropriate treatment and that there is no evidence the mother continues to use illicit substances. His concessions are sensibly made.
However, the father submits that the mother’s personality vulnerabilities, described by Dr G as in the “cluster A (schizotypal/paranoid) and to a far lesser extent, potential cluster B personality traits (histrionic)”, expose the children to an unacceptable risk of emotional harm and requires the continuation of professional supervision at C Family Services in order to ameliorate the risk. I accept Dr G’s opinions that the mother has personality vulnerabilities and that the mother’s “overvalued ideas and preoccupations become more prominent” at times of stress. Being involved in litigation is certainly likely to be stress inducing.
The mother has a long history of jumping to conclusions and making unfounded allegations against the father and the paternal grandfather and later withdrawing the allegations or apologising, but not before causing the father and his family and the children considerable distress (including being interviewed by police and child safety officers). Dr G expressed the view that if the mother “was continuing to have difficulty … in protecting the children from concerns and anxieties … supervised contact should continue”. Dr G appropriately added a caveat that he would defer to the opinion of those more qualified than he on this issue. Ms H was strongly of the view that the children need to be protected from “one parent’s anxiety or inappropriate comments or behaviours”, describing that need to be “essential”. Ms H stated that any exposure of the children to conversations about Court; about one parent’s view of the other parent or vice versa; or indeed anything that could cause the children anxiety “needs to stop”. I agree with Ms H’s sentiments and I urge the mother to take that advice on board. While recognising the ongoing risk of emotional harm to the children (should the mother continue to obsess about the children’s health and care while with the father), Ms H appropriately deferred to the Court to assess the magnitude of that risk in the future. The nature of the risk relates to the mother projecting her anxieties and vulnerabilities towards the children thereby drawing them into the conflict.
Despite the mother no longer maintaining any serious allegations against the father in these proceedings, the mother has demonstrated a propensity to bombard the father with allegations of numerous parenting deficiencies. In the months leading up to this trial the father received hundreds of messages or emails from the mother taking him to task on all manner of things. By way of example, on 4 July 2021 the mother communicated with the father as follows:
4 July 2021
… The kids are sick again constantly sick in [the father’s] care which has been going on for quite some time as a matter of fact years…
… Y disclosed that Z has been unwell and that he’s skin and bone where you can see his bones more revealed through his skin.
Apparently Z eats roughly 10 mandarins a day …
… I’m an extremely disappointed with the constant lying that you feed me when ever I’m enquiring about my kids and when they are sick. … You never tell the truth…. I have heard through my children’s voices you have not been giving them anything vitamins which are needed. … Secondly I’m extremely disgusted that once again your father has been looking and viewing 15-20 yr Asian boys on the internet. … What kind of environment are you putting my children in. …
…
My kids are underweight, look withdrawn like the life is sucked out of them, and Z is refusing to eat meat where in my house hold I always established propper food each day and night and they had healthy fat on their bodies … They aren’t living in a stable environment.
(As per the original)
On that same day the mother sent the father seven text messages including the following:
8.16 am
… Stop lying about the health act when you know you haven’t been helping my kids … Your lies and cover ups will come out.
2.54 pm
… can you please give me an update on the kids and their health …
6.54 pm
… can you please give me an update on the kids and their health …
[The father responded at 9.46 pm informing the mother in a polite and measured tone that Z and X had a slight sniffle but otherwise all three children were fine and assuring the mother he would continue to monitor the children’s health and act appropriately]
11.02 pm
What part of the health and act. I will have a read of it too.
11.05 pm
When your daughter comes to you about paracetamol because she has headache X disclosed that you say we will see and never gives her any. That’s called neglecting a child …
11.14 pm
And sadly the lies have become more prominent over the years. … No one will ever ruin my life again … Because I know the truth and so do my kids …
11.21 pm
I’m disgusted with your comments about me personally, I raised my kids on my own while you drank and watched tv and was lazy through our marriage. … I just despise the lies you tell me. .. Don’t you neglect those kids when they come to you an say they are feeling sick and making them go to school or refusing paracetamol…
(As per the original)
Further examples include the following:
26 August 2021
4.30 am
… Don’t understand why you behave like a parent that is unkind to his children and never wants to see my children happy…I feel sorry for someone like you who will never have a relationship with the kids and who constantly wants to control everything and make their lives miserable… I know I married a narcissist who in the end has twisted everything around to punish me for your wrong doings. I pity you for being such a cruel human being.
[This message arose in circumstances where the father sought to adhere to an agreed arrangement where the mother would buy the children lunch from the school tuckshop once a fortnight and the mother ignored the agreement and repeatedly ordered tuckshop for the children without informing the father and telling the children to keep it a secret from the father]
3 September 2021
[In response to the mother’s message to the father that she had clothes for the children, the father thanked the mother for the offer but pointed out the children had plenty of clothes]
11.46 am
…
You can take it up with my lawyer. Go fuck yourself you nasty malicious human being.
In addition, the mother has sent many parcels to the children such that the father described there being no room in their bedrooms for the many items delivered and there being about 20 boxes of delivered items in the garage. Included in the parcels are notes to the children that undermine the father and place the children in the centre of the conflict. I set out below by way of example, some of the cards or notes sent by the mother to the children:
8 July 2021
… take [package] to your room. I Love you. … A mothers love is powerful and strong you never have to worry about me I have over 1000 supporters and friends that are behind us.
…
My darling sweethearts thank you for always being brave. Remember to always use your voice and if you cant speak to me you have your teachers to chat too using your voice you become strong and always speak the truth.
Explain to Z this was not my decision I cant come to the school or swimming. Sadly this has been taken away. I love you. You are strong and powerful like me. The four of us will forever be strong connected we have a love like no other…
21 September 2021
My darling X, Y and Z I love you so much. You will be back with me I promise you my darling babies. Just always remember to trust in what I say and trust in the process and trust in the universe my darling. My precious Angels. I bought you this to cheer you up as I’m not allowed to see you. We are the awsome foursome. You are my darlings […] xoxo
(As per the original)
During the trial, the mother did not seem to understand the potential impact of some of her interactions with the children and how the content of some of her messages draw the children into the conflict.
The mother also has a tendency to overreact, as demonstrated in some of her communications with the father set out above. Perhaps these are the histrionic personality traits identified by Dr G. Another example of the mother’s tendency to overreact is demonstrated by her allegation that the paternal grandfather “attacked” her at a changeover. Her friend, Ms S, put the incident into perspective, describing the incident as one where the paternal grandfather was “dismissive” of the mother’s views about a particular issue: a far cry from an “attack”. Although the mother’s more recent allegations against the paternal grandfather were withdrawn by her, her cross-examination of him was unnecessarily combative. The mother clearly disapproves of the paternal grandfather’s homosexuality, despite her denials.
Notwithstanding the mother’s conduct, as discussed, I do not conclude that the mother intends to harm the children. She is intelligent and has the capacity to take advice from a suitably qualified therapist and thereby gain insight into the unintentional impact on the children of comments made by her that may cause them to experience internal divided loyalties. The mother’s style of communication and reaction to the receipt of information about the children requires urgent attention in a therapeutic setting.
I appreciate that the father is somewhat sceptical about the capacity or willingness of the mother to change, given that she has undertaken counselling and parenting courses in the past. However, her attendance upon Ms W, a psychologist, occurred over four sessions between September and November 2018, and parenting courses are not sufficiently targeted to deal with the mother’s particular issues. Dr E’s focus is understandably on the mother’s mental illness. The mother will benefit from one on one therapy to challenge her about her approach with the children and the father and I note the mother’s willingness to attend upon the psychologist recommended by the ICL.
The children are understandably aware of their mother’s history of mental illness but are keen to spend more time with her, if she is well. The girls will be in high school next year and their wishes in relation to the mother will become more difficult to override. The father has already experienced resentment from at least one of the children over his imposition of supervision of the children’s video calls with the mother. I understand the father’s motivation but sometimes his stance may put his own relationship with the children at risk. The father would benefit from professional assistance in how best to respond to the mother’s communications and conduct and to understand the impact it has on the children and him. For instance, some of the father’s responses to the mother’s requests or communications are interpreted by the mother as controlling. That is not my view but it may help the situation if he can find an alternative means of expressing himself to take that potential into account.
Despite the mother’s perceptions of the children being unhappy with their current situation, the independent evidence suggests otherwise e.g. Ms S, Ms H and Ms J. The mother will have to accept that her perceptions are wrong and with professional assistance I am reasonably confident she will. While the children may well become upset if the mother is upset, according to Ms J they seem to be fairly settled unless there is conflict.
The children are well monitored by the therapist, Ms J, and this fortifies my view that if issues arise they can be appropriately addressed. Both parents are supportive of Ms J’s continuing involvement and have in the past jointly attended meetings with her, which proved beneficial to the children. I accept that the parents have the motivation to return to more helpful exchanges.
Accordingly, while I accept there remains a risk that the children might be exposed to the mother’s negative views about the father and his extended family and, in particular, her misplaced fears about their health and wellbeing in the father’s care, I do not find the risk to be unacceptable.
IF THE MOTHER POSES AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN, CAN THAT HARM BE AMELIORATED BY LONG-TERM SUPERVISION AND IS LONG-TERM SUPERVISION FEASIBLE AND IN THE BEST INTERESTS OF THE CHILDREN?
As I have found the risk posed by the mother is not an unacceptable risk, the prospect of
long-term supervision does not arise, but if I am wrong about the risk posed by the mother, I would be very hesitant to order long-term supervision as proposed by the father i.e. professional supervision.
Long-term supervision comes with obvious difficulties particularly as children get older. It runs the risk of causing resentment towards the parents and potentially damaging those relationships. It is also a very costly process ($77 - $99 per hour). Even professional supervision has not entirely protected the children from the mother’s ill-advised comments e.g. referring to the Court proceedings and her expectations about the result, and there are already signs the children are coming to resent the imposition of supervision and the restrictions that imposes. Even taking into account the possibility of off-site supervision, the girls (in particular) are acutely conscious of the presence of the supervisor and have attempted to have private conversations with the mother. In my view, long-term supervision would not only be detrimental to the children’s relationship with the mother but also so with the father e.g. the children do not understand why there needs to be supervision when the mother is well.
I nevertheless consider that a period of continued supervision will enhance the prospects of unsupervised time being successful. The family as a whole will hopefully see that progress is being made but it will require considerable commitment by the parents, and in particular the mother, to address the issues identified in these Reasons.
IF THE MOTHER DOES NOT POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN, SHOULD THE ORDER FOR EQUAL TIME MADE ON 26 NOVEMBER 2019 BE REINSTATED AND, IF NOT, WHAT LIVE WITH/SPEND TIME WITH ORDER SHOULD BE MADE?
The children are happy and doing well in their current situation. They have a settled and stable life living primarily with the father. They are well cared for and have their needs appropriately met. I do not think the mother should underestimate the impact on them of the exposure to her drug induced psychosis last year. I agree with Ms H’s opinion that the mother has “grossly minimised the concerns that led to the children living with [the father]”. While there is no doubt the children love the mother and want to spend time with her, she needs to accept they are well cared for and settled in their current situation.
The mother did not file a Response to the father’s Initiating Application (despite being ordered to do so) but certainly at the time the matter was set down for trial, the mother indicated an intention to press for an immediate return to the 2019 equal time order. I see it as a positive sign that the mother’s current proposal includes a gradual increase in time although still pressing for an eventual return to equal time.
I found Ms S’s evidence of particular interest when considering this issue. Until August 2021, she had been a regular supervisor of the mother’s time with the children. Ms S is clearly aligned with the mother, as evidenced by her permitting the mother to take one of the children to the pharmacy unsupervised on one occasion last year. Yet when asked open ended questions by the mother during cross-examination, she confirmed that while the children are “not always too eager to leave” at the end of their visits with the mother, they are “mostly relaxed”. Further, she opined that the children appear to have adjusted to living with the father. Lastly, she said the children had not indicated any anxiety about their current arrangements, although they seemed to want to see more of the mother.
Ms S’s impressions accord with those of the family report writer, Ms H. The children feel safe with the father and things are going well although they would like to see more of the mother. I accept Ms H’s opinion that the transition from supervised to unsupervised time and then increased time needs to be done quite slowly. Trust needs to be rebuilt not only between the parents but between the children and the mother and building trust takes time. In this case, that process also requires professional assistance for the parents individually and for the children. The parents and, in particular, the mother needs to gain insight into the inappropriateness of exposing the children to adult issues. The mother has the motivation to change i.e. she loves her children and does not want to cause them harm. I hope that the process of the trial has in fact helped her to realise the folly of her approach at times. A number of the mother’s criticisms of the father arise out of their very different parenting styles and values as explained by Ms H. The father is generally more structured and routine orientated and the mother more laissez faire. This is illustrated to some degree by Z’s comments to Ms H that he can do whatever he likes at his mother’s place, and to Ms H’s observations of the differences in Z when with the father to when he was with the mother.
Although I have found that the risk of emotional harm from the mother’s negative views is not an unacceptable risk, it remains a risk and the parents and the children need some time to adapt to the finalisation of these proceedings. The mother will no doubt be disappointed with the result and should therefore resume therapy, particularly with a suitably qualified psychologist, to assist her to come to terms with the outcome and to address some fundamental issues about her personality traits which cause her to jump to conclusions and react in unhelpful ways upon the receipt of information from the children and the father.
The children should have the order explained to them and the father should engage with a therapist to assist him in how to respond to the mother in a more helpful way that is less likely to be misinterpreted.
In order to allow time for these matters to be attended to I propose to order the continuation of supervised time between the children and the mother until April 2022, followed by the mother spending daytime with the children before moving to overnight and holiday time by the end of 2023. It will be a slower process than the mother wants but it is necessary so as to better ensure a positive experience for the children. It will not help the children if the mother exposes them to her disappointment.
The risks posed by the mother’s vulnerabilities including an increased risk of psychosis and depression and the children’s need for continued stability cause me to reject the mother’s proposal for an eventual return to equal time. I am of the view that substantial and significant time, after a gradual lead in period, will be in the children’s best interests.
CONCLUSION - WHAT PARENTING ORDER IS PROPER?
I have found that the risks posed by the mother’s history of and genetic predisposition to psychotic episodes, depression and personality vulnerabilities are not of such magnitude to be described as unacceptable. The risks nevertheless exist and inform the decision I have found to be in the best interests of the children, namely, to continue to live primarily with the father but spend gradually increasing time with the mother such that by 2024 they will be spending alternate weekends from Friday to Tuesday and half holidays with the mother.
The mother will be seeing the children more often, after an initial lead in time of continued supervision to allow sufficient time for the order to be explained to the children and for the parents to retain and attend upon suitably qualified psychologists to assist them to improve their communication and co-parenting skills. The mother also requires time to gain insight into the damaging nature of some of her behaviour on the children and to gain an acceptance of the outcome of these proceedings. I note that the mother adopted the proposals of the ICL that she continue to attend upon her treating psychiatrist and to engage with Ms F, a psychologist and I will so order.
Given the disagreement between the parents about some aspects of the children’s health e.g. whether or not Z suffers from ASD, I find that it is in the children’s best interests for the father to have sole parental responsibility for major long-term health (including dental) issues. I am more than satisfied that the father has at all times obtained appropriate medical and dental treatment for the children but he should keep the mother informed about health matters that pertain to the children. The mother will not be permitted to take the children for medical, dental or allied health appointments unless in a case of genuine emergency. The parents have already agreed about the secondary school the girls are to attend and I was not taken to any other major long-term issues that the parents are likely to have a dispute about. Accordingly, I propose to accede to the recommendation of the ICL and make an order for equal shared parental responsibility for major long-term issues other than health.
I do not propose to enjoin the mother in the other respects as sought by the father and I note that he abandoned some aspects of the restraints sought e.g. illicit drug use, given that s 9(1) of the Drugs Misuse Act 1986 (Qld) already makes possession of dangerous drugs a crime. Further, I am trusting that the mother will discontinue her ridiculous practice of secretly organising tuckshop for the children when they already have their lunch provided by the father.
The parents and the ICL had the opportunity to consider the order proposed by each other party and to make submissions as they wished. The parties agreed on some terms which will be incorporated in the order I propose to make.
Finally, the father seeks an order that he be at liberty to travel overseas with the children. The mother did not seek such an order for herself to be able to travel with the children. The ICL recommends both parents be at liberty to take the children overseas save that the mother’s ability to do so not occur until 2023. There were no submissions about this issue. In the absence of any proposed order by the mother to travel overseas with the children, and given the ongoing risks associated with the mother’s vulnerabilities, I do not propose to make an order for the mother to be able to travel overseas with the children. However, I will include in my order a provision that after 2024 the father not unreasonably oppose the mother’s travel overseas with the children.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 8 December 2021
0
9
0