Brauner & Brauner (No 2)
[2024] FedCFamC1F 748
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Brauner & Brauner (No 2) [2024] FedCFamC1F 748
File number(s): MLC 14605 of 2019 Judgment of: STRUM J Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – PARENTING – Parental responsibility – With whom the children live or spend time – Where the children are fourteen and sixteen years of age – Where the children live with the father – Where there were Children’s Court proceedings relating to the children – Where there is evidence of the mother’s poor mental health – Where the mother has a history of denying her poor mental health – Where the mother has not engaged in recommended mental health treatment - Where the mother was previously represented by a litigation guardian – Where the children are aware of the mother’s poor mental health – Where the mother has spent minimal time with the children since separation – Where the Independent Children’s Lawyer supports the orders proposed by the father – Father to have parental responsibility for the children – Children to spend supervised time with the mother – Mother permitted to send letters and cards to children. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII, 4, 60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA, 67Z, 69ZT, 102NA
Family Law Regulations 1984 (Cth) reg 7
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited: Doherty & Doherty [2016] FamCAFC 182
Goode v Goode [2006] FamCA 1346
Hall & Hall (1979) FLC 90-713
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kennedy v Kennedy [2010] FamCAFC 195
M v M (1998) 166 CLR 69
Mallory & Mallory [2019] FamCAFC 221
Mazorski v Albright [2007] FamCA 520
Pruchnik & Pruchnik (No.2) (2018) 58 Fam LR 458
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 202 Date of hearing: 15-17 April and 10 May 2024 Place: Melbourne Counsel for the Applicant: Mr Murphy Solicitor for the Applicant: Sarah Lia Family Lawyer Counsel for the Respondent: Ms Foy (15-17 April 2024) Solicitor for the Respondent: TFA Legal
Litigant in person (10 May 2024)Counsel for the Independent Children's Lawyer: Ms McNamee Solicitor for the Independent Children's Lawyer: Melanie Wyatt Family Law ORDERS
MLC 14605 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BRAUNER
Applicant
AND: MS BRAUNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
STRUM J
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the children X born 2008 , and Y, born 2010 (collectively referred to as “the children”).
3.The children live with the father.
4.The children spend professionally supervised time with the mother at the C Family Services (or such other supervised contact service as the father may nominate in writing from time to time) as follows:
(a)In the case of X, on Friday, 15 November 2024, and thereafter on the first Friday of every second calendar month, commencing in January 2025 and bi-monthly thereafter, from 4.00pm until 6.00pm; and
(b)In the case of Y, on Friday, 22 November 2024, and thereafter on the third Friday of every third calendar month, commencing in February 2025 and quarterly thereafter, from 4.00pm until 6.00pm -
or such other like times as can be accommodated by the said contact service.
5.The Independent Children’s Lawyer be at liberty to provide a copy of this Order and a copy of the reasons delivered this day to C Family Services and the father have liberty to provide this Order and a copy of the reasons to such other supervised contact service as the father may hereafter nominate from time to time.
6.In the event that any occasion on which either of the children is to spend time with the mother pursuant to order 4 falls on a day when the contact service is closed, time be spent on the next day immediately available at the said service.
7.The mother otherwise be at liberty to communicate with the children by sending letters or cards to the children, as well as gifts for them, by delivering or causing the delivery of same to the office of the husband's solicitor, Ms M, or to such other address as the father may hereafter notify her in writing from time to time.
8.The appointment of the Independent Children’s Lawyer be discharged.
9.All extant applications be otherwise dismissed and the proceeding be removed from the docket of the Honourable Justice Strum.
AND THE COURT NOTES THAT:
A.Insofar as these Orders are inconsistent with any family violence order made in the Magistrates’ Court, pursuant to section 68Q of the Family Law Act 1975 (Cth), to the extent of the inconsistency, the family violence order is invalid.
B.In accordance with section 68P(3) of the Family Law Act 1975 (Cth), the Court will provide a copy of these orders to:
(a)Victoria Police; and
(b)The Registrar of the Magistrates’ Court.
C.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the fact sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brauner & Brauner has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
INTRODUCTION
These are proceedings for parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) ("Act") in relation to the children X, born 2008, and Y, born 2010.
The parents separated on 19 August 2019. These proceedings were instituted by the applicant father on 20 December 2019 in the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia, Division 2) and transferred to this Court by order of Judge Stewart made on 19 February 2024.
The trial of these proceedings commenced on 15 April 2024. On 17 April 2024, the trial was adjourned part heard to 10 May 2024, when it concluded. Accordingly, the trial having commenced prior to 6 May 2024, these proceedings are to be determined in accordance with the provisions of Part VII of the Act before the amendments thereto, which commenced operation on that date.
The father and the Independent Children's Lawyer ("ICL") were represented at all times at trial by counsel. The respondent mother was represented by counsel between 15-17 April 2024; however, she was self-represented on the last day of the trial, on 10 May 2024, the retainer of her counsel (by reason of an order previously made pursuant to s 102NA of the Act) having been terminated in the intervening period.
In their respective case outline documents, the father purported to rely upon his further amended Initiating Application filed on 12 April 2022 and the mother purported to rely upon her Response to Initiating Application filed on 6 May 2021. However, in those documents, they each sought orders different to those sought in their respective application and response. Importantly, each parent seeks an order for sole parental responsibility and the ICL supports the father in this regard, such that s 65DAA of the Act is not engaged.
At the commencement of the trial, the father further sought orders that the children live with him and spend professionally supervised time with the mother on four occasions per annum, for periods of two hours on each occasion. In closing submissions, he sought orders which essentially aligned with those then sought by the ICL to the effect that each of the children separately spend professionally supervised time with the mother for a period of two hours in June and September 2024 and January and April 2025 and thereafter on a quarterly basis.
At trial, the mother sought orders that the children live with her; that the father undergo or complete a psychiatric assessment; and that, "[o]nce the father is assessed as safe" [sic], they spend regular time with him, subject to their "views and wishes" (Mother’s Case Outline filed 16 April 2024, p.2).
For the reasons which follow, I shall make orders that, as proposed by the father and the ICL, the father have sole parental responsibility for the children; they live with him; and that Y spend a block of two hours with the mother, professionally supervised, on a quarterly basis. However, contrary to the proposal of the father and the ICL, I shall order that X spend a block of two hours with the mother, professionally supervised, on a two-monthly (rather than quarterly) basis.
EVIDENCE
In addition to his documents specified above, the father also relied upon his trial affidavit filed 9 February 2024; his counsel's written outline of closing submissions; and documents tendered by him, including orders made by the Children's Court in mid-2022.
In addition to her documents specified above, the mother also relied upon her trial affidavit filed on 18 February 2024; her further affidavit filed on 7 April 2024; an affidavit of her friend, Ms P, (who was not required for cross-examination) filed on 14 February 2024; her written outline of closing submissions (and an addendum thereto); and annexure MB-5 to her trial affidavit, which was tendered and accepted into evidence without objection. That document is a report by Ms B, who styles herself as a child and family neuro-psychotherapist and counsellor and other roles. No curriculum vitae or other evidence of her qualifications was tendered, nor was any explanation proffered as to the third of those roles; however, the family report writer, Dr D, clarifies that Ms B is not a trained and registered psychologist. Ms B’s report is dated 5 December 2019, more than four years prior to trial and less than four months after separation. It appears from the report that Ms B had some limited professional involvement with the parents and the children in the short period between August 2019 and early December 2019. Insofar as, in her report, Ms B described the mother as having presented to her in October 2019 as "dysregulated", that is at least consistent with the mother's presentation, both in her oral evidence, as well as in her closing submissions on 10 May 2024, by which time she was self‑represented. The mother, who was self-represented other than on the first three days of the trial, drew her case outline document and her affidavits. Unfortunately, they were of little assistance to the Court, as drawn, and therefore to her case.
The parents' respective affidavits were poorly drawn and lacking in detail, and such details as they contained, whilst largely admissible by reason of s 69ZT of the Act, are of little assistance in the determination of their competing applications for parenting orders. Further, and perhaps surprisingly, very few documents annexed to their affidavits were tendered in evidence at trial, contrary to the mandatory requirements of r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 ("Rules"). This is so, notwithstanding that the father was legally represented throughout the trial and the mother was legally represented at trial until well after the close of her case.
In addition to her case outline document, the ICL also relied upon affidavits of Dr E filed on 14 May 2020 and 8 February 2024, annexing psychiatric assessments undertaken by him of each of the parents in April 2020 and again in November 2023; a Family Report, dated 22 March 2023, prepared by Dr D (a family consultant appointed pursuant to reg 7 of the Family Law Regulations 1984 (Cth)); and an affidavit of, Ms F, the professional supervisor of the mother's time with the children (specifically, X) on 4 April 2024. Although not tendered, as required by r 8.15(3)(e), I consider those reports are qualitatively different to documents annexed to litigants’ affidavits generally and no issue was taken by the parents’ respective counsel therewith. The ICL also tendered, without objection, two Children's Court Clinic Reports prepared by Dr G dated June 2021 and November 2021.
Also before the Court, from the Department of Families, Fairness and Housing ("DFFH" or “the Department”), were: a response to the Federal Circuit Court of Australia (as it then was) to a Notice of Child Abuse, Family Violence or Risk, dated 7 May 2021; and a Confidential Court Report to the Children's Court dated May 2022.
Pursuant to s 140 of the Evidence Act 1995 (Cth), the standard of proof in this case is the balance of probabilities. That section provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
I have read the evidence, such as it is, contained in the parents' respective affidavits and considered it, together with their viva voce evidence in cross-examination.
I do not propose to repeat all of the evidence at length in these reasons for judgment. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard… Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
In relation to the expert evidence in the family report of Dr D, in Hall & Hall (1979) FLC 90-713 at 78, 819-78, 820, the Full Court said:
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 it 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 and 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 forming 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 witnesses 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.
(d)Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e)Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h)Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs. A. Marshall, Director of Court Counselling Sydney Registry - "Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia". The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:
"Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report."
(i)Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p. 289:
"It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done."
Similarly, in M. and M. (1978) FLC 90-429 at p. 77,182; (1978) 30 F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:
"If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial 'by report' rather than on the whole of the evidence."
This Court is in full agreement with the views set out above.
More recently, in Kennedy v Kennedy [2010] FamCAFC 195 at [77], the Full Court stated:
It must be remembered that while the recommendations of a report writer are of considerable weight ultimately it is the role of the judicial officer, who has the advantage of hearing all the evidence, and assessing the demeanour of parties and their witnesses, to determine what is in the best interests of a child. The role of the report writer was discussed by the Full Court in Hall & Hall (1979) FLC 90-713 at 78,819 and approved by subsequent Full Courts (see D & P [2006] FamCA 170 and Andrew & Delaine [2009] FamCAFC 182; Friscioni & Friscioni [2010] FamCAFC 108; Malak & Mairie [2010] FamCAFC 170).
At trial, I had the opportunity to hear the evidence of each of the parents tested in cross‑examination and to observe their demeanour in the course thereof. The father was calm and composed, answered directly, made appropriate concessions and appeared sensitive to the children's individual needs. Insofar as he is reported by Dr E, in his most recent psychiatric assessment at paragraph 16, as conveying "an underlying sense of perhaps justifiable irritation and annoyance at the ongoing false accusations by the mother", I concur both with the observation and the possible justification. Save for one incident in October 2019, shortly after the breakdown of the parents’ marriage, in respect of which the parent’s gave different accounts, but the relevance of which has receded with the passage of time and events since then, the father denied the mother's extensive allegations of family violence by him and was not otherwise substantially cross-examined in relation thereto.
In contrast, the mother, both in cross-examination, as well as in closing submissions, by which stage she was self-represented, was extremely agitated, dysregulated and immovable in her fixed ideas. The mother asserts, albeit unsupported by any medical evidence, that she suffers from hearing difficulties which, she says, explains her raised voice. However, her alleged hearing difficulties were not disputed. Even if that be so, it does not explain the substance and tone of what she said, and her agitation, both in cross-examination and, when self-represented, in her cross-examination of the family report writer and in closing submissions. Further, much of her evidence and her allegations are fantastical in nature, making wide-ranging allegations of poor mental and physical health on the part of the father, which is simply unsupported by any expert evidence at the present time.
The father tendered into evidence (marked exhibit B-2) a schedule annexed to the mother's trial affidavit, prepared by her, of alleged family violence incidents and breaches of intervention orders by him. That document, comprised of 50 pages, spans the period between September 2019 and July 2023. As referred to above, he denies the mother's allegations and, other than the incident in October 2019, to which I refer below, he denies them. He has not been convicted in relation to any of them and the children have been in his care and spent very limited, supervised time with the mother since March 2020. Indeed, save for one occasion of two hours of supervised time with X on 4 April 2024, shortly prior to the commencement of the trial, the children have not spent any time with the mother since a brief occasion in October 2022. Albeit that the mother's schedule was tendered by the father, for the purpose of demonstrating the mother's obsessive and misconceived approach to the dispute between them, she at no stage sought to tender the underlying documents on the basis of which that schedule was said to be prepared.
Much of the mother's evidence, both in chief and in cross-examination, and her conduct in Court, including in her written and oral closing submissions (both made when self‑represented), is consistent with, and explicable by, the expert evidence of Dr E and Dr D. Where there is a conflict in the parents’ evidence - and there is much - I generally prefer that of the father, for the reasons herein.
BACKGROUND
After the parents separated in August 2019, by agreement, the children initially lived with the mother and spent time with the father each alternate weekend. However, some two months later, in October 2019, an incident occurred between the parents which resulted in the mother applying for and obtaining an ex parte intervention order against the father in favour of the children and herself. As a result, the father's time with the children ceased. The parents have starkly differing accounts of this incident, each ascribing considerable fault to the other. The incident occurred in the aftermath of the parents' separation and, whilst it does not reflect well on either of them, it must be viewed in that context, when emotions ran high. However, after the passage of nearly five years and with subsequent, far more important, developments in this case, in particular, the deterioration in the mother’s mental health, for the reasons that follow, I consider the relevance of this incident to have receded into the mists of time.
DFFH INVOLVEMENT AND CHILDREN'S COURT PROCEEDINGS
In early 2020, the mother was involuntarily admitted as a psychiatric in-patient by H Service. On application by the Department of Health and Human Services (“DHHS”) (as it was then known, now the DFFH) the children were placed in the care of the father pursuant to an interim accommodation order made in the Children's Court in early 2020. They have lived with him since then. By reason of the proceedings in that court, and until the conclusion thereof, over two years later, the parenting proceedings in the Federal Circuit Court fell into abeyance. The property proceedings continued. I note parenthetically that, on 9 May 2022, an order was made by a judge in the Federal Circuit and Family Court of Australia, Division 2 that a litigation guardian be appointed for the mother. On 12 September 2022, the litigation guardian was granted leave to withdraw. On 19 February 2024, an order was made discharging the order previously made for the appointment of a litigation guardian, although I was not referred to the evidence in support thereof or reasons for judgment in relation thereto.
In May 2021, in response to a Notice of Child Abuse, Family Violence or Risk filed by the mother, pursuant to s 67Z of the Act, DFFH advised the Federal Circuit Court that it held "significant protective concerns" in relation to the mother, as follows:
Concerns primarily relate to [Ms Brauner's] deteriorating mental health, verbal abuse toward workers and children's exposure to same. [Ms Brauner] continues to denigrate [Mr Brauner] and continues to make allegations despite being Court ordered against this. [Ms Brauner's] contact with the children is to be supervised with two workers always present. Due to recent events, [Ms Brauner's] contact with children has been suspended temporarily due to potential safety concerns she poses to the children and Child Protection Practitioners.
Dr G's Report dated June 2021
The first Children's Court Clinic court report by Dr G, a forensic psychologist, dated June 2021, is comprehensive and detailed, albeit I note that the report writer advises (at paragraph 5) that the clinic "made numerous unsuccessful attempts to contact [Ms Brauner] to facilitate her participation in this assessment, to which she did not respond". Otherwise, a clinical assessment of the father was undertaken, as were observations of the children with him and interviews with each of the children.
Notwithstanding the mother's allegations about the father to the Department and in the Children's Court, Dr G, in her psychometric assessment of the father, did not generally express any concerns of note. Dr G reported that there were "no significant clinical elevations that would indicate the presence of clinical psychopathology, [the father’s] entire clinical profile being within normal limits" (at paragraph 59) and that he had "no significant anger pathology" (at paragraph 64). In her observations of the father with the children, Dr G reported that "overall, they generally presented as comfortable and familiar in their interactions" (at paragraph 73).
In relation to X, Dr G reported that X presented as "very sad (i.e., very tearful at times) and anxious. On occasions she also appeared distressed, to the degree that she was unable to respond to gentle questions" (at paragraph 83). Dr G also reported that X presented as "emotionally fragile and sad" and that "her anxiety and discomfort were highly apparent" (at paragraph 84). Further, at paragraph 83:
Themes around feeling unsupported and unheard by [Mr Brauner] at times were evident, so too confusion and loss in relation to the cessation of contact with her mother [Ms Brauner].
X admitted to Dr G that she very much missed her mother and made a point of saying that, whilst the mother had presented as angry at their recent DFFH facilitated visits, the mother had been "angry about me”, “not angry at me” (at paragraph 90).
In relation to Y, Dr G reported, inter alia, that he "appeared to be closely bonded" to the father (at paragraph 76) and that he "indicated that he was happy residing with [Mr Brauner]" (at paragraph 82). Regarding physical violence between his parents, Y recalled one historical incident where, contrary to the mother's assertions to him, "he did not think that [Mr Brauner] had hurt [Ms Brauner]" (at paragraph 78). Further, when asked about physical violence to himself, Y recalled an instance when he had been "being naughty", arguing with X, and that the father had pulled him out of the room by his arm and spoken to him about not misbehaving. He stressed that it "didn't hurt", but that after he told the mother what had occurred, she claimed the father had "broke my tissue" [sic] (at paragraph 78).
Dr G opined (at paragraph 123) that, at that stage, it would be in the children's best interests to remain in the primary care of the father but that the mother "should not be discounted as a future carer" and working towards shared care would be consistent with the children's identified goals, as well as meet their needs. She continued at paragraph 123:
However, given the current significant concerns in relation to [Ms Brauner's] mental health, inclusive of the recent termination of supervised visitation with the children due to her inappropriate and negative behaviours, it does not appear feasible at this time. Rather, it would appear appropriate, the child protection continue to seek to re‑establish contact between [Ms Brauner] and the children and engage in stepped planning with [Ms Brauner] and her treatment provider, with a view to mitigating the potential for any further adverse visitation or contact experiences for the children.
Notwithstanding "some indication of prior concerns related to potential anger management/aggression difficulties, as well as some issues with respect to attunement to the children's emotional needs", Dr G reported that the father presented as an appropriate carer (at paragraph 124). Further, she opined that contact arrangements with the children would likely be informed by the mother's "willingness and ability to address the concerns held by a Child Protection, most notably, with respect to her current mental health" (at paragraph 126).
Dr G's Report dated November 2021
The second Children's Court Clinic court report by Dr G, dated November 2021, is again a comprehensive and detailed report, in the course of the preparation of which the mother this time participated. Although occasionally incorrectly referred to as "[Mr Brauner]", when referring to the mother, it is clear from the context when such errors appear.
Dr G reported (at paragraph 19) that the mother presented as "defensive or agitated at times" and that:
Her speech oscillated between unremarkable, and loud, pressured and insistent, seemingly in response to her emotional state. Her speech also had a perseverative quality, in that specific phrases were often repeated. For instance, [Ms Brauner] repetitively stated that she had attended '40 courts', that [Mr Brauner's] 'brain' had been 'reversed', and that various individuals ([Mr Brauner, X, Y]) had 'lost' their 'memory'.
Dr G observed (at paragraph 20) that the mother's "affect (observed emotional expression) though reactive and initially appropriate, evidenced lability and dysregulation, wherein she would appear overtly emotional (i.e., agitated, upset, angry) in discussing certain subjects (i.e., [Mr Brauner], Child Protection)". Those observations of the mother concur with mine at trial.
At paragraph 21, Dr G reported that:
Themes involving disempowerment, desperation, and rigidity were evident, most notably in relation to her concerns about [Mr Brauner] (i.e., assertions as to his "dangerousness") and the children being in his care, as well as with respect to her interactions with Child Protection. There was a conspiratorial or persecutory flavour to her accounts, wherein she alleged lying, manipulation and collusion between multiple involved parties (i.e., Child Protection, [Mr Brauner], Victoria Police, [H Services] clinicians). Poor insight, minimisation and dichotomous thinking were also evident, most notably in relation to her own actions, as well as her relationship with [Mr Brauner].
Dr G observed (at paragraph 33) that the mother "often responded to questions about her own physical health, with information/allegations regarding [Mr Brauner]", which observations were not dissimilar to mine some 2.5 years later.
In relation to the mother's mental health history, Dr G reported at paragraph 37:
It was difficult to gather a coherent mental health history from [Ms Brauner], as she regularly diverted to detailing concerns/ allegations against [Mr Brauner] and Child Protection, as well as other agencies (i.e., [H Mental Health Services]) and individuals (i.e., Police officers [Mr J] and [Mr K]). For instance, [Ms Brauner] asserted that: [Mr Brauner] has "threatened to kill the children", her, and "himself", which is "going to happen"; psychotherapist, "[Ms B] notified [Ms Q] that [Mr Brauner] is extremely dangerous"; and that [Mr Brauner] "has two personalities”, “one for me, [X] and [Y]", and "one that everyone else sees". She also regularly refuted any concerns that had been raised by others relating to her own mental health and claimed that she had "done everything" (i.e., psychiatric assessments) and did not "meet criteria". [Ms Brauner] insisted that she had been "diagnosed by Child Protection and [Mr Brauner]", as "mental", "then delusional", "then fixated"; and that she is "sick of hearing about [Ms Brauner's] (her own) mental health". Generally, [Ms Brauner] exhibited a pattern of shifting the narrative away from any of her own mental health difficulties, past or recent, to making her case against [Mr Brauner]. She also made direct appeals to assist her children (i.e., "you are the only one who can help these children"), whom she insisted were in immediate peril.
In relation to the mother's views of the children, Dr G reported at paragraph 60:
Generally, in referencing her children, [Ms Brauner's] commentary centred around her fears for their safety in [Mr Brauner's] care. She asserted on multiple occasions that [X] and [Y] were in serious danger, and that all involved services and professionals had either overlooked the dangers [Mr Brauner] posed, been manipulated by [Mr Brauner], or actively colluded and conspired with him. [Ms Brauner's] concerns about her children included that [Mr Brauner] had: threatened to kill them (i.e., "he said he is going to kill me, kill [X], kill [Y]"); seriously assaulted [Y]; and gifted [X] a pair of shorts with the crotch cut out of them. She also made multiple references to [X] and [Y] having "lost" their memories, and being distressed or under duress in Child Protection supervised visitations. Finally, [Ms Brauner] claimed that [Y's] self-care had been poor (i.e., had "yellow teeth") on the last occasion that she saw him.
In relation to the mother's proposals for the children at that time (namely, in early November 2021), Dr G reported at paragraphs 63-64:
[Ms Brauner] expressed her wishes for her children to be returned "as an emergency". She stated that she was "hoping" to have [X] and [Y] in her full-time care, with [Mr Brauner] having them "every second weekend", which was "what it should be". [Ms Brauner] then expanded that every child should see their parent, "unless they are mentally unwell", which she felt [Mr Brauner] "is". She expressed that "at the end of the day", "the children want to live with mum" and that [X] and [Y] had "said that each time they have gone to Child Protection". She added that [Y] had been "asking for months and months", and that [X] had also said she just wanted to "go home to mum and […] (their dog)". [Ms Brauner] presented as distressed when discussing these issues. She complained that Child Protection had terminated a visit after only five minutes and also expressed that generally, Child Protection had been "very unfair" with [Y] and [X]. [Ms Brauner] expressed that she was "over it" and had been "traumatised", implying that this 'trauma' was due to the actions of Child Protection, as well as [Mr Brauner].
I note that Child Protection (DFFH, […]10.21), asserted that they have regularly discussed [X] and [Y's] wishes with them and both "continue to decline any contact with [Ms Brauner]" (face to face contact or virtual) (pg. 5). Further, that the children have been "observed to have a strong bond with [Mr Brauner]", "are very happy and content", and "speak fondly of weekends/ holidays away with their father and activities they enjoy together" (pg. 5). Child Protection (DFFH, […]10.21), noted that both children have explained that "it is annoying when they see [Ms Brauner] and she won't stop kissing them during contact and whispers in their ears" (pg. 5). Child Protection (DFFH, […]101.21), opined that "both children are able to show insight in to the current conflict between [Mr and Ms Brauner] and can see the negative impact [Ms Brauner] is having on their lives" (pg. 6). However, Child Protection stated that despite consistent attempts "to communicate and work with [Ms Brauner]", this "is not possible due to her aggressive and inappropriate presentation towards workers and fixation on unsubstantiated historical concerns" (DFFH, […].10 .21, pg. 6).
Psychometric assessment of the mother, undertaken by Dr G, disclosed, inter alia, that:
·"she displayed a tendency to portray herself as being exceptionally free of common shortcomings, to the extent that she may be reluctant to admit to minor faults (even to herself), blindly and uncritical of her own behaviour, and insensitive to the negative consequences and impact of her behaviour (on herself and others)" (at paragraph 66);
·she "described problems of greater intensity than is typical of defensive respondents in areas of: suspiciousness; stress in the environment; frequent routine physical complaints; unusual sensory-motor problems; and, preoccupation with her physical functioning" (at paragraph 67);
·she seemed "reluctant to admit to dysfunction or problems across many areas including: unusual thoughts or experiences; antisocial behaviour or empathy; undue suspiciousness or hostility; extreme moodiness and impulsivity; unhappiness, depression or anxiety; unusually elevated mood or activity; health or physical functioning" (at paragraph 68); and
·her "profile indicated the presence of a few interpersonal, behavioural and lifestyle features of psychopathy, however, her profile was not generally indicative of psychopathy" (at paragraph 73).
A Stalking Risk Profile undertaken by Dr G disclosed that the mother met the criteria for the Rejected Stalker sub-type and she was assessed against the risk factors for that profile. Dr G reported at paragraph 83 that:
In regard to the risk of persistence of stalking/harassment towards [Mr Brauner], [Ms Brauner] presented with evidence for Cognitive Distortions (i.e., misinterpreting events, refusing all evidence contrary to her beliefs), Refusal to Conform to Legal Directives, Refusal to Engage in Therapy (i.e., lack of progress, poor insight), Lack of Empathy for Victim (i.e., sees herself as the victim, closed to alternative viewpoint), and Sense of Entitlement (i.e., feels justified pursuing her ends irrespective of legal orders). [Ms Brauner] also presented with partial evidence for Personality Disorder/Traits […], Psychosis […], Current Social Isolation and Awareness of Victim Location and Willingness to Travel to Victim.
The mother was also reported (at paragraph 83) as presenting with evidence of poor resilience to stress, problems with anger, consuming preoccupation with, and likely to spend much time dwelling on, the father. Dr G opined (at paragraph 85) that it was possible that the mother might -
escalate her behaviours in response to unfavourable legal outcomes and a reduction in options by which she can pursue her desired outcomes. Alternatively, should circumstances become more strained or resentful between the parties, and they have contact, that she could engage in physical aggression (i.e., pushing, shoving) within the context of emotional dysregulation (i.e., anger, distress).
In relation to neglect and/or psychological abuse of the children, if they were to return to reside in the care of the mother, Dr G reported (at paragraph 87) that there was evidence of a number of factors. At paragraph 88, Dr G said that there was considerable evidence to suggest that the mother's ongoing mental health difficulties, and associated dysregulated emotions and inappropriate behaviours, had considerable adverse impact upon the children. At paragraph 89, Dr G said that X was negatively impacted by the presentation and behaviour of her mother, and that Y would also likely continue to experience a degree of distress and instability. At paragraph 90, Dr G reported that the mother believed the children to be in serious imminent danger from the father, "despite significant professional oversight and investigation (i.e., DFFH, Victoria Police) that does not substantiate such claims". At paragraph 91, Dr G opined that the mother's focus at that time appeared "consumed by proving her numerous accusations against [Mr Brauner], to the extent that she seems unable, or unwilling, to address any of the concerns raised in relation to herself"; that she had "demonstrated limited insight into the likelihood that her approach to these concerns may be causing, rather than resolving, a degree of harm to [X] and [Y]"; and that her reported behaviour was "suggestive of a lack of awareness as to the emotional impact to her children and poor insight as to the part she plays in their ongoing separation from her". At paragraph 95, Dr G referred to concerns that, whilst the mother had engaged in therapy, this had been "superficial and to some extent, motivated by her desire to 'prove' her accusations against [Mr Brauner] are 'right'" and "by a desire to garner support to her cause, and induce those services to advocate on her behalf", referring to the H Service and a private psychologist. Dr G continued that the current information was "suggestive of a pattern of [Ms Brauner] engaging with services, which at some later point cease their active involvement with her, including due to her 'inappropriate behaviour'".
In the circumstances, Dr G concluded at paragraph 96:
Based on information available, it is my opinion that [X] and [Y] would currently be at high risk of child maltreatment (emotional harm, isolation from [Mr Brauner]) were they to be returned to the care of [Ms Brauner]. Further that they would likely continue to be at risk of emotional harm, were they to have unsupervised contact with [Ms Brauner]. Although there is minimal evidence for historical concerns relevant to the care of the children by [Ms Brauner], as well as some evidence that [Mr Brauner] may have played a role in contributing to the current issues, [Ms Brauner]'s ongoing emotional dysregulation and inappropriate behaviour (i.e., aggression, hostility) in the presence of [X] and [Y] warrants concern. Her beliefs that her children are at ongoing peril despite all evidence to the contrary, hinders her capacity to manage herself and attune appropriately to their needs.
Whilst acknowledging that there were then multiple unproven allegations and cross-allegations between the parents, Dr G continued (at paragraph 96) that it was -
also of concern that [Ms Brauner's] accusations against [Mr Brauner] remain unwavering despite numerous Child Protection and Victoria Police investigations, and have expanded to incorporate professionals whom she has judged to be non-protective or actively colluding. The concern that her presentation and behaviour may be driven by acute mental health concerns that are fixated and delusional, are understandable within this context.
CONCLUSION OF CHILDREN’S COURT PROCEEDINGS
After Dr G's second Children's Court Clinic court report in November 2021, an updated confidential court report by DFFH to the Children's Court dated May 2022 records that all of its protective concerns remained unchanged since previous reports in October 2021 and February 2022, being:
·Exposure to significant parental mental health (mother);
·Parental alienation;
·Likelihood of significant emotional harm (mother);
·Family violence (perpetrated by the mother); and
·Cumulative harm.
Both children were reported to be progressing well at school, both socially and academically, and advised that they were happy residing with their father. Reference was made to the mother, during her admission to the H Service Psychiatric unit as an involuntary patient, having been diagnosed with a mental illness. It was noted that, within two hours of having been released therefrom, the mother, accompanied by a friend, apparently breached an intervention order protecting X from her by following her home from school, yelling at her. It was also recorded that:
[Ms Brauner's] psychiatric team have indicated to Child Protection that her prognosis for significant improvement in her delusional thinking is poor, however, some improvement has been shown on [medication treatment] in the past month.
It was further recorded (at p. 4) that both children indicated that they wished to continue to live with the father and did not wish to have contact with the mother at that time and that "Child Protection continue to support the children's wishes around contact".
The Department advised that it assessed the children to be in a safe and stable living arrangement with the father, who provided for all of their needs. At p.5, it recorded that the mother's presentation had not improved, which was "a cause for concern with regard to the children's wellbeing were they to be placed in her care". Further:
The Department have been consistent in trying to communicate and work with [Ms Brauner] however this is not possible due to her aggressive and inappropriate presentation toward workers and fixation on unsubstantiated historical concerns. [Ms Brauner's] diagnosis of [a mental illness] has not yet been managed to a point where she is able to logically demonstrate insight into how her behaviours are impacting the children.
Notwithstanding the passage of time since then, at trial, some two years later, the mother's noted "fixation on unsubstantiated historical concerns" remained prevalent. Further, in cross-examination in relation to being an involuntary psychiatric inpatient, she said:
…I’ve never been diagnosed with [a mental illness], delusional, or as everyone has called me, especially [Mr Brauner] to everyone, I’m mental. That’s a very horrible word to be called mental, and it has reverse effects of the brain. If you understand, everything has been reversed onto me. Everything he’s accusing me of is, in fact, what he’s doing.
(Transcript 16 April 2024, p.12 lines 9-14.)
She also said that the father "says I'm delusional, [have a mental illness] and mental. But I'm not the one making up documents and tampering with documents" (Transcript 16 April 2024, p.12 lines 29-30). At no stage was it put to the father in cross-examination, nor do I remotely accept, that he has done what the mother alleged.
In mid-2022, orders were made in the Children's Court bringing the involvement of DFFH to an end. In her brief reasons for judgment (exhibit B-1), the presiding magistrate recorded that DFFH considered the children to be settled in the care of their father and (at [3]) that the Department had "no protective concerns in that placement". Her Honour recorded that X's legal representative told the court that she did not wish to live with or have contact with her mother but was open to seeing her "sometime in the future". Further, Y's legal representative told the court that he did not wish to live with his mother or have any contact with her. In the circumstances, the presiding magistrate concluded at [7]:
Given the children's views, there is no possibility at all that the court would consider making an order which has the effect of placing the children in the care of the mother. As the Department has identified no protective concerns in the children's current placement, it is clear that the children are no longer in need of protection, and that the question of contact between the children and their mother can be addressed by parenting orders under the Family Law Act 1974 [sic]. Accordingly, I decided to grant the Department leave to withdraw the Protection Applications in respect of the two children.
Notwithstanding that, in cross-examination by counsel for the father, the mother suggested that she had "won" in the Children's Court and that there were no protective concerns regarding her (Transcript of mother’s evidence, 16 April 2024, p.5, line 38). Further, although the Department seemingly has not been involved with the family since the withdrawal of its Protection Application in August 2022, the mother referred to a recent meeting with the Victorian Minister for Children, in the weeks preceding the commencement of the trial, as well as to what she asserted to be an investigation by the Victorian Independent Broad-based Anti-corruption Commission ("IBAC") into police misconduct somehow involving the parents and the children. She made mention of police harassment, targeting, unlawful arrest, unlawful imprisonment and failure to charge the father with assault alleged by her. Later, she also asserted that matters somehow apparently involving the family had been referred to the Prime Minister and to the Premier of the State of Victoria; to the Attorneys-General of the Commonwealth and the State of Victoria; to the Victorian Police Minister; the Victorian Police Commissioner; and the Victorian Inspectorate which deals with complaints about IBAC. However, the Court was not in any way illuminated regarding these matters alleged by her.
But one example of the mother's evidence and comportment in cross-examination is the following exchange between counsel for the father and the mother:
[Counsel for the father]: The thrust of your complaint is that you have been wrongly characterised as a person who commits family violence?
[The mother]: I’ve never committed any family violence. I’ve – I’m a victim and a survivor of family violence.
[Counsel for the father]: That’s not the question I asked you?
[The mother]: I’ve never committed any family violence ever in my life.
[Counsel for the father]: And any suggestion that you have is wrong?
[The mother]: Well, you only have to read the documents. It speaks for itself. It’s very clear what’s happening.
[Counsel for the father]: Which document would you like to point to?
[The mother]: All affidavits. [Mr Brauner’s] has far-fetched stories, which was diagnosed by [Dr E].
[Counsel for the father]: Do you say [Dr E] has diagnosed him as a person with mental illness?
[The mother]: He hasn’t. In the first report, he did. He gave me a perfect report.
[Counsel for the father]: Right?
[The mother]: But cruelly, he put a medication that he knew that the magistrate would not read that document, and [Ms M] is well aware because this is what’s happening in this – and this is not an isolated case with [Dr E] and [Dr D]. You know, we’re here for the children. We’re here to protect innocent children, and this is why there’s open investigations. That’s why I’m at the County Court. Everyone has to be accountable for what has happened. I’m trying to protect my two children, the community and myself, and I’ve been failed by – by the departments.
[Counsel for the father]: So you’ve been failed by the departments, and you’ve been failed by the police?
[The mother] I’ve been failed by Child Protection. They favoured [Mr Brauner] with far-fetched stories. Child Protection withdrew seven unfounded allegations, and then, don’t forget, it’s never about my mental health. This was about I was accused of parental alienation and abuse, but [Mr Brauner] lost his memory and forgot to get the children.
(Transcript 16 April 2024, p.7 lines 17-46.)
She also alleged, in the absence of any suggestion previously made or evidence adduced in these proceedings, that she had been gaoled at some stage in 2022 and, in almost the same breath said: "I've been handcuffed and arrested by [Mr Brauner's] false allegations to the police. …I've never been handcuffed. I've never been put into the back of a divvies [sic] van…". (See transcript of the mother's evidence, 16 April 2024, at p.11, lines 20-28.) There was no acknowledgement by her of the contradiction between these diametrically opposed statements, nor was the latter made in correction of the former. It was bizarre, as was so much of her evidence.
After the conclusion of the Children's Court proceedings, the first orders of the Federal Circuit and Family Court of Australia, Division 2, for the mother to spend any time with the children were those made by Judge Stewart on 19 February 2024, namely, that:
Until further order, AND PROVIDED ALWAYS THAT the family is accepted by the [C Family Services] , the Mother spend time with the children for two hours once each calendar month at the [C Family Services] , at times to be directed by the [C Family Services] , AND IT IS REQUESTED THAT the Independent Children's Lawyer obtain a report from that Service prior to the time of the hearing.
A report was duly prepared by, and annexed to an affidavit of, Ms F, filed 14 April 2024, regarding her supervision of the mother's time with the children on Thursday, 4 April 2024, between 4.30pm - 6.30pm, to which I refer to below. Concerningly, albeit that it did not ultimately transpire, notwithstanding the clear terms of the order, namely, that the mother spend time with the children for two hours once each calendar month, provision was made by the contact service for her thereafter to spend such time with the children fortnightly, on 18 April; 2 May, 16 and 30 May; 13 and 27 June; and 11 July 2024. Ms F was not required for cross-examination and thus it was not possible to clarify how or why this occurred; however, it should not have occurred. It is trite to observe that, an order of the Court having been made, implicitly in the children’s best interests, it was not for the contact service to arrogate to itself the right to provide otherwise.
PSYCHIATRIC ASSESSMENT OF PARENTS
As referred to above, psychiatric assessments of the parents were undertaken by Dr E in April 2020 and again in November 2023, pursuant to orders of the Federal Circuit Court of Australia and then the Federal Circuit and Family Court of Australia, Division 2. Dr E was cross‑examined on the third day of the trial, on 17 April 2024, at which time the mother remained represented by counsel, who cross-examined him on her behalf. Dr E’s earlier psychiatric assessment of the mother was available to, and was referred to by, Dr G in her Children's Court Clinic court reports.
The psychiatric assessments of the father are generally unremarkable, in comparison with those of the mother, especially her second assessment.
In his first psychiatric assessment of the father, Dr E reported at paragraph 34, inter alia, that the father "did not appear particularly anxious or depressed"; that there was "an underlying tone of irritation, particularly in regard to any matters involving the mother and allegations against him"; that it was "very difficult to obtain a deeper psychological understanding of him"; and that he gave the impression of "suppressing underlying rage at the mother".
However, Dr E further reported that the father's affect was euthymic, neither being depressed nor particularly anxious (at paragraph 35); that there were no disorders of thoughts, such as flight of ideas or loosening of associations, but there was some preoccupation with the mother's allegations against him (at paragraph 36); and that there were some limitations of insight into his own contributions to the difficulties in the relationship with the mother (at paragraph 39).
In relation to the incident that occurred in October 2019, some two months after separation, when the father attended at the former matrimonial home to collect his belongings, Dr E relevantly recorded that the father stated that “the mother punched and kicked the father and whipped in with a cord and was intoxicated at the time. He denied assaulting her but admitted that she had fallen over in the scuffle” (at paragraph 40).
Dr E diagnosed that, as at April 2020, the father did not meet the criteria for any psychiatric disorder (at paragraph 49) but that he exhibited some signs of mild stress in the setting of the separation and the allegations of mental ill-health made against him by the mother (at paragraph 50). In relation to concerns raised regarding the father's aggression following separation towards the mother and, on one occasion, Y, Dr E reported at paragraph 52 that this "was not evident in the assessment, although there was underlying irritation". He continued, opining that the father's increased anger and frustration may have been due to difficulties adjusting to the separation, as well as the release of pent-up feelings relating to the marital difficulties; however, there was no evidence to suggest the presence of an underlying psychiatric disorder or organic mental disorder that would account for the alleged aggression.
In relation to the concerns reported by the mother that the father had suffered a change in personality, dating from around the time of separation, Dr E reported at paragraph 58:
Although he demonstrated a degree of irritability in the assessment, there were no signs suggestive of a psychiatric disorder or intoxication with drugs or alcohol. [Mr Brauner] demonstrated however a degree of superficiality in the assessment, such that it was difficult to gain an accurate estimation of his underlying emotional state.
In relation to concern regarding possible risk to the children, and the effect on them, of any possible irritability or increased frustration tolerance, Dr E opined (at paragraph 59) that the mother's accounts of these might be "coloured by her own mental state". He concluded (at paragraph 60) that, it was likely that the father had episodic irritability and anger, but at other times was calm, but noted that any possible increased aggression had not been severe enough to cause the loss of his job, or for police involvement, other than at the behest of the mother.
In his second psychiatric assessment of the father, Dr E this time opined (at paragraph 16) that there was "an underlying sense of perhaps justifiable irritation and annoyance at the ongoing false accusations by the mother". This concurs with my observations of the father in cross‑examination and, in the circumstances of this case, I concur with and accept Dr E’s opinion regarding the possible justification of the father’s presentation.
In relation to the father's affect, Dr E reported (at paragraph 18) that there were no signs of agitation, that the father did not appear to have any signs of overt anxiety and his mood was neither elevated nor lowered and was euthymic. In relation to the father's “talk” [sic], Dr E reported (at paragraph 19) that there were no signs of any loosening of associations or flight of ideas to suggest a formal thought disorder, nor were there any signs of any psychotic features, such as paranoid ideation or ideas of reference. On gross cognitive testing, there were no signs of any cognitive deficits (at paragraph 21), contrary to the mother's assertions. Dr E diagnosed (at paragraph 23) that, as at November 2023, the father did not suffer from any psychiatric disorder, and certainly not any that would impair his ability to care for the children (at paragraph 28).
In his first psychiatric assessment of the mother, Dr E reported (at paragraph 5) that, since separation in August 2019:
…[Ms Brauner] has continued to be worried and preoccupied about the mental health and stability of the father. She has been concerned that he might have an organic lesion as his behaviour changed abruptly, becoming aggressive toward her and argumentative.
[…]
Her concern has raised to a level where she has made multiple approaches to the local GP, local psychiatric service, and the Department of Health and Human Services (DHHS) regarding her concerns about the father's mental health. The father has had an assessment by the [R Service] in December 2019, and found not to be suffering from a psychiatric disorder.
Relevantly to the incident that occurred between the parents in October 2019, Dr E recorded (at paragraph 15) that the mother:
…described an incident where the father had assaulted her, pushed her against a wall and said that he had hated her and had caused injury to her by placing an electric cord around her wrists. He had also picked up a bottle and thrown it at the ground, narrowly missing the family dog. She described this behaviour is completely out of keeping with his normal pre-separation persona.
Under the rubric of "Impression and Mental State Examination", Dr E recorded (at paragraph 24) that:
In the initial stages of the assessment and right at the end, she was quite preoccupied about her concerns regarding the father's mental ill health and her worries that a professional would not believe her accounts about him. It was difficult, particularly at the end of the session, for her to be interrupted or directed to other questions. However for the overwhelming duration of the assessment, she calmed down and was able to attend to the questions put to her. She spoke in a very direct, loud and forthright manner, and was quite demanding about her requests for me to investigate the father's possible brain tumour. She gradually settled over the course of the interview and became warm and pleasant, often displaying a humorous and lively side to her.
Dr E also recorded that, in the initial stages of the assessment, the mother "was rather evasive and denying of her own psychiatric history of depression, in particular her treatment with antidepressants on a number of occasions as mentioned by the GP in his notes" (at paragraph 24). Further, in relation to the father's "rather abrupt declaration of separation from the relationship", Dr E further recorded that the mother "gave the impression of being perplexed and unable to make sense of" it and that:
Taken together with his aggression toward her, it seemed that the only possible explanation in her view was that he might be unwell. This belief was held in a rather rigid manner as she could not really contemplate other possible causes for his behaviour and desire to separate.
In relation to the mother's affect, Dr E opined that it appeared to be euthymic (at paragraph 25). In relation to her “talk” [sic], he reported that, at times, "she seemed unable to shift from her concerns about the father and could easily drift from questions about herself towards talking of the father" (at paragraph 26). In relation to her insight, Dr E reported (at paragraph 29):
There seemed to be a marked fixation upon the only possibility for the reason for father's change in behaviour being an organic one. She was not insightful that she had failed to recognise signs of his dissatisfaction in the marriage prior to the separation.
In his consideration of the mother's diagnosis, Dr E opined (at paragraphs 37–39):
There is a differential diagnosis of one of two types of disorder. Although [Ms Brauner] does speak with a increased tempo and can appear as preoccupied with the father’s alleged condition, there are no other signs of hypomania, such as speeded thoughts, excessive energy, poor sleep or excessive spending. Her fast speech and preoccupations settled in the assessment, once her anxiety reduced.
Although her preoccupation with the father’s mental state is not backed up by any evidence of substance, it has not impaired her capacity to function in daily life, and there are no other symptoms suggestive of a psychotic disorder. It is highly unlikely that she would have been discharged so speedily or taken off certificate if [Ms Brauner] was to have been found to be suffering from [either disorder]. Her treating psychologist has not observed a major change in her mental state consistent with major disorders.
It is more likely that her beliefs regarding the father are to be considered an overvalued idea, with contributory factors including personality factors e.g. a need to feel in control, and the series of overwhelming losses such as the deaths of both the maternal grandparents, the sudden death of the maternal aunt and the totally unexpected decision of the father to separate from her. I note the similarity of the cause of the aunt’s death and the attributed […] cause of the father’s alleged problems.
In relation to the mother's belief in an organic or psychiatric reason for what she perceived to be the father's altered behaviour at and after separation, Dr E opined (at paragraph 41) that:
Evidence for an organic or psychiatric cause for his altered behaviour is somewhat weak. Although the father might be demonstrating periods of increased frustration and anger, [Ms Brauner's] emotional and behavioural response is out of proportion to the objective level of risk.
At paragraph 43, Dr E opined that:
Although there exists the possibility of the diagnosis of a […] Disorder, it is more likely that there has been a decomposition in [Ms Brauner's] personality functioning, leading to a failure to be able to cope with the separation.
At paragraph 44, notwithstanding that the mother stated that she was able to function well in daily living activities, Dr E expressed "some concerns regarding her capacity to be emotionally available for the needs of the children. If she was to be so highly agitated in front of the children, they might well become concerned themselves for her welfare, and suppress their own needs". In cross-examination, Dr E expanded upon this, explaining that children, with parents who are either mentally unwell or are obviously quite distressed and emotionally fragile, can view their principal task to be to enable that parent not to decompensate and therefore "to not bring their own needs, their demands, just of being children” (Transcript 17 April 2024, p. 4 lines, 45–46).
Dr E also expressed concern (at paragraph 45) that the mother:
…remains highly agitated despite regular psychological treatment. She states that antidepressant medication has not been helpful and so has not been compliant. A trial of other medication such as antipsychotic, may be more efficacious.
Accordingly, as at April 2020, Dr E recommended, inter alia, that the mother be reviewed by a psychiatrist "with a view to commencing a trial of [a specific medication] or similar medication". That does not accord with the mother's statement, in cross-examination, that "[Dr E] gave me a perfect report in the first report" (Transcript 16 April 2024, p. 13 line, 26). That also does not sit comfortably with her evidence in cross-examination that:
[Dr E] has been [Ms M’s] [the father’s solicitor] doctor for [many] years, and I know for a fact that [Dr E] has done favour for [Ms M]. [Dr D] is very well known in [City O], and he has as a very bad name, and this is not an isolated case with [Ms M], [Dr E] and [Dr D]. And everyone is well aware in this case what is going on.
(Transcript 16 April 2024, p. 13 lines 43-47.)
In his second psychiatric assessment of the mother, some 3.5 years later, in relation to her then current psychological symptoms, Dr E reported (at paragraph 8) that it was "difficult to get a coherent history" from the mother and (at paragraph 10) that:
[Ms Brauner] described a number of paranoid ideas that I was colluding with the father's solicitor, [Ms M], to 'destroy my life'. She also stated the family report writer, [Dr D], had also lied and colluded with the father to write a biased report. She also stated that in March 2023 the father had threatened to kill her and had been outside her house stalking her.
For the purposes of these reasons for judgment, and the orders I shall make, it is necessary to cite, at some length, the following matters reported by Dr E, under the rubric of "Impression and Mental State Examination" (paragraphs 12-17):
12.The assessment was conducted by Zoom teleconference at the mother’s request, stating she was too unwell to come down. She had arranged for a friend of hers to be present and steadfastly refused my requests for the friend to leave the assessment. This friend, who was unnamed, very actively participated making unwanted comments to me, answering questions by myself addressed to the mother and asking me direct questions. The overall impression was that [Ms Brauner] was turning the assessment into a mockery and doing everything to convince me that she was mentally unwell even while steadfastly denying it.
13. Most of the assessment consisted of [Ms Brauner] directing a stream of invective directed chiefly against the father, alleging threats to kill her and stating that the father was suffering from [a mental illness], rather than herself. She was also quite aggressive in the interview towards me for having recommended antipsychotic medication in the prior assessment three years ago. By barraging me with thoughts and accusations, she made it very difficult to be able to think during the assessment. Her thought stream was a torrent of words but centred on specific themes of injustice done to her, through taking away her children. She was able to be interrupted with great effort but then she only answered questions in a highly perfunctory manner before quickly returning to her central theme and invective.
14. She had a bedraggled appearance and seemed to have not taken care of her grooming or appearance. She was markedly agitated, moving around the room frequently in the assessment showing me her crutches and photos of her children taken with a […] celebrity […]. There were continued highly persecutory themes throughout the assessment particularly in that the father was making false allegations against her and that I was colluding with the father’s solicitor and doing the solicitor favours by writing “lies” about [Ms Brauner], e.g., that she needed antipsychotic medication. There was an underlying sense of a systematised delusional system that others were in league with the father against her.
15. Appearance: She was bedraggled and had not taken much care at all of her grooming.
16. Affect: She seemed anxious, highly agitated and markedly irritable. There was a reduced range and modulation of affect in that she did not deviate from this agitated state. Her mood however did not seem either lowered nor elevated and was euthymic.
17. Talk: Her tempo of speech was elevated but her rhythm and prosody were normal. She displayed tangentiality of speech, often going off a topic to return onto the central theme about the father. There was a marked persecutory flavour with fixed paranoid delusions regarding different people colluding in order to deprive her of contact with the children. This persecutory idea dominated the assessment, and it was very difficult for her to discuss any other matters.
Further, in relation to the mother's insight, Dr E reported at paragraph 20 that:
She seemed completely insightless about there being any other possibilities as to why there had been no contact with the children for a number of years. Beliefs about the collusion of others seemed to be fixed in place.
In relation to his diagnoses of the mother, Dr E reported at paragraph 23:
Over the last several years, she has suffered from persecutory delusions regarding the father, which have resulted in bizarre behaviour (as exhibited in the assessment) and marked lack of insight, with a considerable impact upon her daily function. There are no signs of hallucinations or thought disorder however. These symptoms are consistent with the presence of a psychotic disorder. The most likely diagnosis is that of a […] Disorder but it is possible that she has a later-onset [mental illness], considering the deterioration in her functioning and interpersonal relationships.
(Emphasis in original)
In cross-examination, Dr E said that if the mother has a disorder, it is likely to remain static, whereas if she has schizophrenia mental illness, then it is more likely that she will deteriorate over time, and that a diagnosis might only become available over the course of time.
Again, for the purposes of these reasons for judgment, and the orders I shall make, it is necessary to cite further, at some length, the opinion reported by Dr E (at paragraphs 25-28):
25.[Ms Brauner] has had a tragic significant decline in her mental health since 2020, when she was last assessed. Although she had some persecutory ideation regarding the father at that time, the level of intensity of her beliefs and the manner in which they have disrupted her life have markedly increased. Her level of judgement is currently notably impaired, as demonstrated by her decision to ask another person to be present at the assessment, and not ask her to leave when requested. This bizarre behaviour seemed only to reinforce the given impression that [Ms Brauner] was in the grip of a psychotic process, despite her repeated denials of such delusions.
26.Although her treating psychiatric team was initially uncertain as to whether she was psychiatrically unwell (as I had been too in the original assessment), this seems to have shifted over time and the diagnosis of a […] disorder seems to have been made on a more consistent basis. [Mr L’s] conception of [Ms Brauner’s] mental state, and his recommendations of active treatment seem cogent. [Mr N’s] description of [Ms Brauner's] beliefs being “all-consuming” seems apt. Her lack of insight into her condition, and marked resistance to treatment have compounded the problem, resulting in her illness being essentially untreated. It is unclear, however, as to when treatment was last attempted, the exact nature of the treatment ,or the degree of response to it.
27. Another tragic aspect has been the severing of any meaningful relationship between [Ms Brauner] and the children, which has been largely the result of her unwillingness to consider treatment, and her inability to quarantine her beliefs regarding the father from her contact with the children. The children appear to have decided not to pursue a path of contact with the mother. It is a possibility that the loss of the relationship with the father has been so painful, that [Ms Brauner] has retreated into her delusional world, rather than attempt to pursue a shared relationship with the children. It would be difficult to imagine a sustained relationship with the children, given her seeming demands for others to share her views about the father, and delusional elaboration of reasons why others disagree with her (e.g. that I was in league with the father’s solicitor).
28. As her mental state appears to have stabilised over the last year or so, the prognosis for a clinically significant improvement must be rather grim. The second psychiatric opinion in 2022 suggests there had been a partial response to treatment, although the TAMIL details are not to hand. Assuming this is true, then [Ms Brauner] may benefit from an extended period of treatment with antipsychotic medication. However, this may not result in enough improvement for her to develop a relationship with the children, as [this] Disorder can be refractive to pharmacological treatment. Meaningful engagement with the children would only be of benefit to them, if [Ms Brauner] was able to accept the children’s different views and experience of the father. Judging on the assessment, this is not currently possible, and it is unclear whether this would ever be able to be achieved in the future.
Accordingly, as at November 2023, Dr E recommended (at paragraph 29) that an extended course of antipsychotic medication, for at least six months, should be attempted by the mother, to be managed by a psychiatrist. That has not occurred. Further, he opined that it would be helpful if a therapeutic relationship could be maintained with a single psychiatrist, in order to build a level of trust. That too has not occurred.
In cross-examination, Dr E confirmed that, in his opinion, there was nothing about the father that might impact on his parenting of the children or either of them. He also confirmed that the mother's presentation at the time of his first assessment, in April 2020 "was quite markedly different" to her presentation at the time of his second assessment in November 2023, which he said worried him. When asked by counsel for the ICL to explain the difference he observed in the mother between the two assessments, he said that, in the preparation of his first report, she did not convey to such a degree a sense of being paranoid; there was no sense of systematised beliefs that others were kind of really against her; and she seemed less agitated. In contrast, he said that, in the preparation of his second report, the mother was "markedly paranoid…markedly more angry and more aggressive", including to him, and that "it felt that the boundaries had just fallen apart" (Transcript 17 April 2024, p. 6, lines 4, 8-9).
When asked whether he would be concerned if the mother behaved in the presence of the children as she did with him, Dr E opined that they would be -
very frightened…frightened perhaps both of her but perhaps also frightened of feeling that…their mother, someone that they loved, seemed manifestly unwell, and…they would have been put in a position of hearing a stream of material, persecutory ideas about the father - that then they would not have been able to work out what - how to handle that.
(Transcript 14 April 2024, p. 6, lines 19-23.)
Dr E also agreed that the material he reviewed in the preparation of his second assessments, including from H Service, Victoria Police, T Service and Child Protection, did not show there was any foundation to the mother's allegations regarding the father. Dr E continued that the mother was of the “complete belief” that the father had been a perpetrator of violence and that she seemed to have no idea that possibly she might be wrong and that there might have been some degree of misinterpretation on her part. Dr E further stated:
There seemed to be not a – a shadow of a doubt in her mind about this, and if there was no – there’s a lack of evidence to support her contention, then that leads me to believe that her insight is impaired.
(Transcript 17 April 2024, p.7 lines 31- 37.)
It was put by counsel for the mother to Dr E in cross-examination that, rather than suffering from an underlying psychotic illness, she might actually be suffering immense grief at the loss of her marriage and children, leading to a greater degree of decompensation. He responded definitively: “No. Look, I'm afraid I - I can't agree with that. I don't think that the losses explain the extent of her paranoid symptoms and her level of disorganisation. They're…not congruent with it" (Transcript 17 April 2024, p. 30, lines 3-6).
When subsequently asked whether it was possible that the mother had adopted an explanatory model for herself, namely, that the father had caused her great loss, including the loss of her children, rather than suffering from a disorder, Dr E said (at Transcript 17 April 2024, p. 30, lines 35-40):
There…There is a difference. The difference is that once a belief starts to turn to delusion - when…its level of fixity becomes absolute and rigid there are no other possibilities. And…then the concern about this belief starts to invade and disorganise other aspects of functioning of the person's life which is really the distinguishing feature of a psychosis.
As to sub-paragraph (c), namely, the extent to which each of the children's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children and to spend time and communicate with them, I find that the father has taken such opportunity. Indeed, by reason of the children living with him and spending negligible time with the mother, he has had to do so almost singlehandedly. The mother has not had but, in the circumstances, has been unable to have any (or any significant) opportunity to participate in making such decisions or to spend any significant time and communicate significantly with them. Again, I am not critical of her per se; as I have observed above, she has been (and is) psychiatrically unwell, and increasingly so, and untreated therefor.
As to sub-paragraph (ca), namely, the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child, there was little by way of evidence or submissions in this regard. This is unsurprising, given the understandably primary focus of this case. I generally find that the children have been maintained solely (or almost so) by the father but accept that, in the circumstances, the mother has had little ability to do so.
As to sub-paragraph (d), namely, the likely effect of any changes in the children's circumstances including, particularly, the likely effect on them of any separation from either of their parents - on the evidence, I have no hesitation whatsoever in finding that, were the children to be separated from their father, who has been their primary (and, indeed, sole) carer since shortly after separation and placed in the primary care of their psychiatrically unwell mother, such change would have an extremely deleterious effect on their psychological (and possibly day-to-day physical) wellbeing. I also unreservedly find that, on the evidence, were the children to spend equal or substantial and significant time with the mother, even if supervised, such change would similarly have a deleterious effect upon their well-being in the foreseeable future.
As to sub-paragraph (e), namely, any practical difficulty and expense of the children spending time with and communicating with either parent and whether any such difficulty or expense will substantially affect the children's rights to maintain personal relations and direct contact with both parents on a regular basis, again, there was little by way of evidence or submissions in this regard, and unsurprisingly so, given the primary focus of this case. However, I note that the parents live in the same vicinity in the City O area.
As to sub-paragraph (f), namely, the capacity of (in particular) each of the parents to provide for the needs of the children, including their emotional and intellectual needs, on the evidence, I have no hesitation in finding that the father has, and has manifested, such capacity. In his initial psychiatric assessment of the father in April 2020, Dr E referred to his "anger and frustration" at the time. However, in his subsequent assessment in November 2023, Dr E reported (at paragraphs 52 and 27) that "the continual false allegations regarding his actions have been [sic] a toll on him, although they have not resulted in any psychological sequelae"; that "[h]is underlying irritation and sense of grievance against the mother…may be understandable in many respects"; and that "[t]his grievance does not impair his day-to-day functioning, or his capacity to be emotionally available to the children".
In contrast, however, given the totality of the evidence and, in particular, the expert evidence of Dr E and Dr D, I hold grave concerns regarding the capacity of the mother, by reason of her psychiatric ill-health, to provide for the needs of the children and, in particular, their emotional needs.
As to sub-paragraph (g), the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of their parents, and any other relevant characteristics of the children, there are no issues in this regard, and certainly none that are not encompassed within any of the other additional considerations.
As to sub-paragraph (h), it is inapplicable in this case; the children are not Aboriginal or Torres Strait Islander children.
As to sub-paragraph (i), namely, the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents, I refer to and repeat my findings in relation to others of the additional considerations relevant to this consideration. Certainly since the children were placed in the care of the father, with whom they have continued to live and relatively thrive (in the difficult circumstances of their mother's poor mental health) over more than the past four years, on the evidence, including that of Dr D, I find that the father’s attitude to the children, and to the responsibilities of parenthood, demonstrated by him, has been appropriate. Again, insofar as Dr E referred, in April 2020, to the father's "anger and frustration" and, in November 2023, to his "underlying irritation and sense of grievance against the mother", having carefully listened to the evidence, and observed the demeanour, of each of the parents, I accept, and concur with, his opinion that it "may be understandable in many respects".
Insofar as the mother is concerned, I accept she loves the children and wishes the best for them and that she subjectively believes that her attitude to them, and to the responsibilities of parenthood, has been appropriate. However, that subjective belief must be viewed in the context of her mental ill-health and is not objectively correct. For example, her failure to accept the diagnoses of Dr E and to abide by his treatment recommendations therefor have impacted deleteriously upon these considerations. Had she done otherwise, and her mental health hopefully improved, the result may well have been different.
As to sub-paragraph (j), namely, any family violence involving the children or a member of their family, each party alleges violence by the other party against him or her and the children or in their presence. Insofar as the mother alleges ongoing violence by the father, save in regard to the incident in October 2019, it is otherwise denied by him and he was not challenged in relation thereto in cross-examination. In relation to that incident, I have found that it reflects poorly on both of them, but I take into account that it was in the context, at the time, of their recent separation. Whilst the Court takes family violence extremely seriously, in this case, it is the mother's poor mental health, and the impact thereof on the children to date and likely into the future, that is of the greatest concern and which is ultimately determinative of what is in the children's best interests. There have been no allegations by the children and no concerns expressed by any of the experts or the Department or the Children's Court in respect of any family violence by the father.
Insofar as the father alleges violence by the mother, his allegations are very general, and largely unparticularised. Other than in relation to the incident in October 2019:
·The father refers at paragraph 31 of his affidavit to an intervention order against the mother, for the protection of the children and him, which was due to expire in early 2024. Although said to be annexed to his affidavit filed on 9 February 2024, it was not tendered in evidence at trial, as required by r 8.15(e) of the Rules. Further, no evidence was led at trial from him in relation to whether that order has since been extended or renewed.
·The father deposes at paragraph 56 of his affidavit that the mother has been charged on multiple occasions of breaching the intervention order against her and that there have been over 200 breaches thereof, including by stalking and following X home from school. However, he deposes that "every charge has been dismissed".
As to sub-paragraph (k), namely, any inferences that can be drawn from a family violence order that applies or has applied to the children or a member of the children's family - family violence orders have been made since separation, at various times, against each of the parents for the protection of the other and/or the children. In the case of the family violence order made against the mother, it is referred to in my consideration of the additional consideration in preceding sub-paragraph (j). Otherwise, the evidence in relation to such orders, in each party's affidavits and in their cross-examination, is somewhat, and surprisingly, opaque.
As to sub-paragraph (l), namely, whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children - the parents and the children have been mired in litigation since late 2019, both in the Federal Circuit Court of Australia (subsequently the Federal Circuit and Family Court of Australia (Division 2)) and, thereafter, in this Court, as well as in the Children's Court. I am satisfied, on the evidence and for the reasons herein, that it would be preferable to make such an order and the orders I propose to make will, I consider, most likely achieve that outcome.
As to sub-paragraph (m), there are no other relevant facts or circumstances in this case beyond those referred to above.
DISPOSITION
In closing submissions, a written outline of submissions on behalf of the father, prepared by his counsel, was tendered and to which counsel spoke. The mother also tendered a written outline of submissions and a supplement thereto, prepared by her and to which she spoke. The mother's submissions can best be described as a cri de coeur; they are emotive and emotional and, in the circumstances, understandably so. However, they do not materially advance her case on, or coincide with, the evidence. Further, insofar as, in her supplementary written submission, the mother asserts that "personal attacks against her" were made in Court on the final day of trial; that, somehow, counsel for the father and the ICL did not like how she sounded or looked or otherwise presented that day; that "attacks" were made against her in Court, designed to "intimidate…and re-traumatise" her; and that otherwise unspecified behaviour that day had been "terrible and personal", that was not so on the part of the Court, nor was it observed by the Court (Exhibit W-3, pp.1-2).
I have had regard to the written and oral submissions by and on behalf of the parents, as well as, of course, to the helpful oral submissions by counsel for the ICL.
The issues for determination are: which of the parents is to have sole parental responsibility for the children; with whom they are to live; and with whom they are to spend time, and the terms and conditions thereof.
On the evidence and my findings in relation thereto, which do not bear repetition, it is inconceivable that orders could, or would, be made for the mother to have sole parental responsibility for the children; for them to live with her; or for them to spend unsupervised time with her. The level of disharmony between the parents which, on the evidence, I find to be primarily attributable to the mother, albeit cognisant of the fact that it is likely by reason of her poor mental health, precludes them being able to share equally parental responsibility for the children, nor do either of them seek or propose such an order. I am, in any event, amply satisfied that the presumption in s 61DA(1) of the Act is rebutted by the evidence and that it would not be in the best interests of the children for the parents to have equal shared parental responsibility for them.
I am similarly satisfied that, on the evidence and my findings in relation thereto, and for the reasons herein, the children should continue to live with the father (as they each told Dr D they wish to do), with whom they have lived, without complaint or incident, and in whose care they have relatively flourished (in the difficult circumstances of their mother's poor mental health and the impact thereof on them), for the past four years. They have been well cared for whilst living with him in recent years and are settled in his care.
In the circumstances, the gravamen of this case is what time each of the children should spend with the mother, and whether such time should be supervised. Turning to the latter of those issues first, both the father and the ICL seek that the mother's time be professionally supervised. I take into account the mother's poor mental health and the outward manifestation thereof, to which the children were exposed soon after separation, which ill-health has only worsened over time, including between the first and second psychiatric assessments of her by Dr E, during which time they have spent little, if any, time with her. In the circumstances, I conclude that time spent between the mother and the children should be professionally supervised. I am fortified in so concluding by the reticence and reservations of each of the children, but especially Y, regarding time to be spent with the mother, expressed to, and reported by, Dr D. Further, in relation to Y, I take into account the recent evidence of the professional supervisor, Ms F, regarding his initial agreement, and subsequent refusal, to spend time with the mother. The mother's manifest inability to self-regulate, reported by the experts and heard and observed by the Court, renders professional supervision of her time with the children necessary. Having found that the mother's time with the children should be professionally supervised, it will necessarily not be overnight time. However, in any event, in the circumstances of this case, which do not bear repetition, the mother's poor mental health and the manifestations and ramifications thereof, together with the requirement for professional supervision at a contact centre, militate against anything other than short periods on each occasion the mother spends time with the children. That will minimise the risk posed by her behaviour.
Counsel for the father tendered an amended minute of the final orders proposed by him. In addition to orders for sole parental responsibility for the children and that they live with him, he proposes, in summary, after hearing the closing submissions for the ICL and after exchanges with the Court, that they spend supervised time with the mother at the C Family Services and otherwise communicate with her, in summary, as follows:
·In the case of X, for a block of two hours, in the first week of June and September 2024 and of January and April 2025 (or such like time as can be accommodated by the contact service) and thereafter on a like quarterly basis.
·In the case of Y, for a block of two hours, in the third week of June and September 2024 and of January and April 2025 (or such like time as can be accommodated by the contact service) and thereafter on a like quarterly basis.
·Where an occasion of time to be spent with either of the children falls on Christmas day or one of the days of Easter, such time occur on the next business day.
·By cards, letters and gifts to the children, delivered to the office of his solicitors.
Given the children's respective ages, wishes and needs, and that no contrary submission was made, I consider there to be merit in the proposal, and that it is in their best interests, that they spend time with the mother separately one from the other. It may enable each of them to develop or progress their relationship with the mother unimpacted by the other. There was no submission made that, in the particular circumstances of this case, it would be in the children's best interests for them to spend time with mother together, rather than separately.
In the case of X, there was no satisfactory explanation proffered of the rationale for the lengthy intervals proposed between occasions on which she is to spend time with her mother. Other than the mother's poor mental health and the ramifications thereof, which I do not minimise, it was not explained why less frequent, rather than more frequent, monthly occasions would be more in X's best interests. Nevertheless, I accept, inferentially, that the more frequently X sees the mother, the greater the possibility that she will be detrimentally exposed to the mother's poor mental health. However, that must be balanced against the expert evidence of Dr D regarding X's wishes and that of Ms F regarding her positive observations overall between the mother and X in early April 2024, albeit over a short period of only two hours. Balancing those competing factors, I consider that, as X's time with the mother will be professionally supervised, such time should occur every second (rather than every third) month, for a period of two hours. That will enable X to have a number of weeks to settle after any dysregulated outbursts by the mother which I find, on balance, are more likely than not to occur, even if any occasion of time spent between them is then immediately terminated by the professional supervisor. The damage will by then have been done and X should be able to settle again with the passage of some time; however, I consider a period of 12 weeks to be excessive and a period of 8 weeks to be appropriate in all the circumstances.
In the case of Y, I similarly take into account the expert evidence of Dr D regarding his more tentative wishes and that of Ms F regarding his initial agreement and subsequent refusal to spend time with the mother in early April 2024. When the father was asked in cross‑examination by counsel for the ICL and, subsequently, in re-examination, about Y's recent refusal, he said that he had wanted Y to spend time with the mother then, but that he could not persuade him to do so. He agreed that it would have been beneficial for Y to spend time with the mother on that occasion. Further, he said that he would "try to do better next time", by being more forceful in his insistence that Y spend time with her. He said that, in the future, he will tell Y that he wants him to spend time with the mother and that it will be good for him to do so. I accept that evidence. In all the circumstances, I consider it to be in Y's best interests to spend time with the mother less frequently than X, but similarly for blocks of two hours and professionally supervised, and will accede to the proposal of the father and the ICL that same occur on a quarterly (i.e. three-monthly) basis.
Given the advancing ages of the children - 14 years in the case of Y and, all the more so, 16 years in the case of X - as well as my assessment of the father generally (including his appropriately protective attitude towards time to be spent by them with the mother), it is possible that, if the time ordered progresses well, including by reason of any improvement in the mother's mental health, the children may wish to spend more professionally supervised time with her in the future, whether by increasing the length of the blocks of time or the frequency thereof. However, no orders to such effect were proposed or sought, nor will the Court make them of its own accord, in all the circumstances. I have confidence in the father to act as he deems appropriate.
Given the date in the month on which the orders are made, I shall order that the mother spend her first block of time with X on Friday, 15 November 2024 and with Y on Friday, 22 November 2024, being the third and fourth Fridays of the month. Thereafter, the orders will provide for the mother to spend her block of time with X on the first Friday of each second month and with Y on the third Friday of each third month. The orders will also provide for some flexibility to accommodate any exigencies of C Family Services , as well as in the event that another professional supervised contact service becomes necessary.
When raised with counsel for the ICL and thereafter in closing submissions on behalf of the father, there was no opposition to the mother sending letters or cards to the children, as well as gifts for them. Given the evidence, including as to the mother's inability to self-regulate, I cannot discount the possibility of inappropriate statements by her in any such letters or cards. However, as the father will have sole parental responsibility for them, I consider that it will fall within the purview of such responsibility to vet same and, accordingly, no further orders need be made in this regard.
I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 8 November 2024
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