Browling and Browling and Anor

[2019] FCCA 679

FEDERAL CIRCUIT COURT OF AUSTRALIA

BROWLING & BROWLING & ANOR [2019] FCCA 679

Catchwords:
FAMILY LAW – Interim parenting – best interests of child – orders made.

Legislation:

Family Law Act, s.60CC

Cases cited:

Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729

Applicant: MR BROWLING

First Respondent: MS BROWLING

Second Respondent: MR SHAW

File Number: PAC 1676 of 2018

Judgment of: Judge Newbrun

Hearing date: 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Parramatta

Delivered on: 28 March 2019

REPRESENTATION

Counsel for the Applicant: Ms Breeze

Solicitors for the Applicant: Godden Lawyers

Solicitors for the First Respondent: Ms Di Marco of Heras Law

Counsel for the Second Respondent: Mr Rugendyke

Solicitors for the Second Respondent: Michael Lynch Family Lawyers

Independent Children’s Lawyer: Ms Shedden as agent for Ark law Lawyers

ORDERS PENDING FURTHER ORDER

1. Orders 1 to 7 within Exhibit A of the Court’s Orders of 25 July 2018 be discharged.

2. The child [X] born … 2017 shall live with the mother.

3. The child shall spend time and communicate with the father as follows:

   (a)For a period of seven (7) consecutive hours each weekend at times as agreed in writing via WhatsApp and in the absence of agreement from 9:00 am to 4:00 pm each Saturday;

   (b)On the child’s birthday, for a period of three (3) hours at time as agreed in writing via WhatsApp and in the absence of agreement from 9:00 am to 12:00 pm; and

   (c)At other such times as agreed in writing via WhatsApp between the parties,

   in the presence of the paternal grandmother, or in the event that the paternal grandmother is unable or unwilling to be present during the father’s time with the child or she fails to provide an undertaking as set out in Order 4, then such time shall occur in the presence of a qualified contact service provider.

4. Prior to the child spending time with the father, the paternal grandmother shall execute an undertaking that she will at all times be present during the father’s time with the child and the father shall do all things necessary to ensure the executed undertaking is filed and served to all parties.

5. The father keep the mother informed of his current residential address, mobile and landline telephone numbers and any available email addresses and advise the mother of any change thereto within seven (7) days of such change.

6. In the event of the child becoming unwell or an emergency the father contact the mother to inform her.

7. The father be permitted to receive information about the child from any child care or treating medical professional the child attends.

8. That the parties be hereby restrained by injunction from abusing,     insulting, belittling, rebuking or otherwise denigrating each other including via social media.

9. The mother is directed to forthwith cause the maternal grandmother to provide to the Court a written undertaking that, subject to her Australian visa entitlements, she will remain living with the mother and child and be present during the mother’s care of the child in that household.

10. The mother is directed to inform the father’s solicitors of the maternal grandmother’s proposed return to India (if any) at least 21 days prior to such proposed return. 

11. The father shall forthwith obtain a comprehensive mental health assessment and report from an independent psychiatrist, at his expense, with the report to address the following issues:

    (a)A review of his mental health history, including self-harming threats and behaviours;

    (b)A diagnosis for his current mental health;

    (c)Recommendations (if any) for ongoing treatment;  

    (d)Whether there may be any impact on the care of the child and how these impacts may be ameliorated.

12. The mother shall forthwith obtain a comprehensive mental health assessment and report from an independent psychiatrist, at her expense, with the report to address the following issues:

    (a)A review of his mental health history, including self-harming threats and behaviours;

    (b)A diagnosis for his current mental health;

    (c)Recommendations (if any) for ongoing treatment; 

    (d)Whether there may be any impact on the care of the child and how these impacts may be ameliorated.

13. The above psychiatrists are to be provided with copies of court documents, including affidavits.

14. The father and mother shall follow the recommendations of the respective said psychiatrists.

15. These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, and are listed for first return on 9 April 2019 at 9:30 am.

IT IS NOTED that publication of this judgment under the pseudonym Browling & Browling & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1676 of 2018

MR BROWLING

Applicant

And

MS BROWLING

First Respondent

And

MR SHAW

Second Respondent

REASONS FOR JUDGMENT

1. This interim hearing relates to the child [X] born … 2017.

2. On 25 July 2018, parenting Orders were made by consent in this Court providing, inter alia, that the child spend time with the father for a period of two hours each Saturday supervised by Connecting Families.

3. At this interim hearing the father sought interim parenting Orders, in accordance with the interim Orders sought in his Initiating Application filed 18 April 2018, inter alia, that the child live with him; that the child spend time with the mother three times per week, for a period of three hours per time, in the presence of the maternal grandmother, or by an independent supervisor as nominated by Connecting Families; that the mother provide to the father details of her current mental health treatment plan, including details of all medications prescribed; and that the mother obtain a comprehensive mental health assessment and report from a psychiatrist of her choosing, with such report to address, inter alia, her current mental health and any possible impact on such parties’ care of the child.

4. At the outset, the father contended that the maternal grandmother should provide an undertaking to the Court that she will supervise the child’s time with the mother (with the Court observing that the father had proposed in his Initiating Application that the child spend time with the mother “in the presence of the maternal grandmother or by an independent supervisor as nominated by Connecting Families”).

5. At the outset, the father submitted that a case guardian should be appointed for the mother, in view of the mother’s alleged incapacity to understand the nature of these parenting proceedings.

6. The mother sought interim parenting orders as set out in Exhibit B; inter alia, she sought Orders that she have sole parental responsibility for the child; that the child live with the mother; and that the child spend time and communicate with the father, in the absence of agreement, from 9 am to 4 pm each Saturday, but supervised at all times either by the paternal grandmother or by a qualified contact service provider.  She also sought interim Orders that she be permitted to take the child out of Australia for the purposes of a holiday to India, which application was opposed by the father.  The mother also sought an interim Order that the father forthwith obtain a comprehensive mental health assessment and report from a psychiatrist.

7. The material relied upon by the father was set out in his case outline dated 17 February 2019.

8. The material relied upon by the mother was set out in her case outline dated 30 November 2018.

9. The parties also relied upon numerous documentary exhibits, including a Child Dispute Conference Memorandum to Court, Exhibit D, dated 18 July 2018.

10. The Independent Children’s Lawyer (“ICL”) had prepared a case outline dated 18 February 2019.  In that case outline, the ICL did not support a change in the child’s residence; rather, the ICL supported the child remaining living with the mother.  Further, in this case outline the ICL supported the child spending unsupervised daytime time with the father for a few hours per day, with this time to gradually increase to overnight time within a period of three months.

11. However, at the interim hearing the solicitor appearing as agent for the ICL, having heard the parties’ submissions, revised the ICL’s proposals on an “interim” basis.  Her revised proposal was that the child’s proposed unsupervised daytime time with the father should not, at this stage, progress to overnight time, at least until an independent psychiatric or psychological assessment is obtained for the father.

12. The ICL also recommended that an independent mental health assessment be obtained for the mother.  The ICL did not support the child being taken out of Australia to India by the mother.

Agreed facts unless otherwise stated

1. The Court refers to the helpful chronology of the ICL contained in her case outline, noting that numerous events outlined in the chronology form the basis of allegations made by one party or the other, and are not agreed facts.

Legal principles

The best interests of the children

Section 60CC Considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship.  It would appear that the mother has been the child’s primary carer from birth to date, though there is a significant suggestion on the material before the Court that she has been receiving assistance in caring for the child from the maternal grandmother since the maternal grandmother arrived in Australia in 2017 (just prior to the birth of the child in … 2017).

2. The child was born on … 2017.  The father moved out of the former matrimonial home on about 22 November 2017, and from that time until about 4 August 2018 he did not spend time with the child.  Since early August 2018 the father has been spending supervised weekly daytime time with the child, for about two hours each visit, and it would appear that the child is developing a positive relationship with the father by reason of that time.

3. The father asserts that he pays about $1,337 per month to spend supervised time with the child.

4. The father alleges that during the parties’ relationship the child was primarily cared for by the maternal grandmother.  He alleges that when the parties separated, the maternal grandmother proposed to take the child to India and have the mother reside with family in Melbourne.

5. Should the child spend time with the child for such daytime times as proposed by the mother in Exhibit B, with such time to occur in the presence of the paternal grandmother, there is a significant prospect that the child’s positive relationship with the father will be maintained and, importantly, be enhanced. 

6. There is a real risk that if the father merely continues to spend supervised time with the child for only two hours each Saturday, the child’s positive relationship with the father will not be enhanced in a timely fashion.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. The father works in paid employment with his usual occupation being a professional.  He is aged 38 years.

2. The mother works in paid employment as a casual tradesperson.  She commenced working casually in employment in about November 2014.  The mother asserts that from November 2014 to February 2017 she worked about three to four shifts per week.  She is aged 31 years.

3. The father contends that the mother’s mental health is unstable, and that she poses a significant risk of harm to the child, such that the child should now, on an interim basis, live with the father.

4. It would appear that the mother suffers from Obsessive Compulsive Disorder (“OCD”) and that she has historically developed certain rituals within her household relating to this condition.  The father asserts and alleges that the child has been neglected by the mother in the context of the mother practising certain rituals (for example cleaning rituals) within the household. 

5. The father also refers to the material before the Court indicating that the mother has been dealt with by the Local Courts for shoplifting, at least in 2013 (when certain shoplifting charges were apparently dismissed by the Local Court Magistrate on the condition that the mother continue to seek treatment and follow the recommendations of her psychologist Ms B and psychiatrist Dr C) and April 2018.

6. The father is critical of the mother for not referring to a shoplifting incident in about April 2018 in her Affidavit sworn 21 May 2018.  In this Affidavit the mother only referred to the shoplifting incident in August 2013.  However, the mother did refer to the April 2018 shoplifting incident in her Affidavit of 28 November 2018.  In relation to this latter incident, the mother asserts that she was depressed and stressed about her financial situation and that she committed the offence of shoplifting a pair of shoes from a shoe shop.  She asserts that the charges were also dismissed on this occasion on the condition that the mother continue to take her medication for depression and anxiety. 

7. The father asserts and alleges that, inter alia, post separation, the mother had expressed suicidal ideation to him.  The mother concedes that she sent a suicide message to the father in November 2017 but alleges that she did this for attention.

8. In his Affidavit filed 18 April 2018, the father asserts that he has no faith that the mother can cope with the child without the assistance of the maternal grandmother.He asserts that the maternal grandmother is on a temporary Australian visa which expires in June 2019.  He asserts in that Affidavit that currently the child lives with the mother and the maternal grandmother, and he is concerned that once the maternal grandmother leaves to live in India the mother will not have the capacity to care for the child.

9. In the father’s above Affidavit, he asserts that he is seeing a psychologist, Ms B, who previously also treated the mother, to help manage the stress of not spending time with the child.  He refers to taking a mild antidepressant.

10. In the father’s above Affidavit, he asserts that he is fully capable of caring and raising the child in his new home.  He asserts that the paternal grandmother has also offered to assist him in taking care of the child.

11. In the father’s above Affidavit, he also asserts that he believes that the child is at risk when living with the mother by reason of the mother’s mental health and her unwillingness to follow up on treatment for her conditions.  He asserts that it would be in the child’s best interest to live with him. 

12. The father alleges that the mother was physically violent to him during the relationship, which is denied by the mother.

13. The mother asserts that she was diagnosed with OCD in about 2011 and has sought treatment for this condition, which is continuing.

14. The mother asserts in her Affidavit sworn 21 May 2018 that neither her past psychologist Ms B nor her current clinical psychologist Dr D have ever expressed concerns to her about her parenting capacity.  The mother asserts in her Affidavit that she is seeing this latter doctor regularly and that she takes medication for depression.

15. The mother asserts that on Sundays she and the maternal grandmother go to a friend’s home where a religious group meets.  The mother asserts that this group has been a strong support for her since the father left the family home.

16. The mother asserts in the above Affidavit that the child is a healthy child with no medical conditions and that he is growing well.  Attached to her Affidavit is a medical certificate from the family general practitioner dated 7 May 2018, which states that the child is growing normally and not suffering from any medical condition.

17. The mother, in her above Affidavit, states that the maternal grandmother has been a great support for her and assists her in caring for the child.  The mother denies that she is completely reliant upon the maternal grandmother in this context.

18. The mother asserts in the above Affidavit that she and the child are always together and that they have co-slept since the child was born.  The mother asserts and alleges that due to the closeness of her relationship with the child and the child’s young age, she believes that the child would likely experience distress if he was separated from her.

19. The mother asserts that the child and the maternal grandmother have a close relationship.

20. The mother asserts that she has a qualification in early childcare which assists her with her care of the child.

21. In the mother’s Affidavit of 28 November 2018, she concedes that when she gets highly stressed her symptoms flare up and she starts to feel desperate about her situation, particularly whether she can cope financially; she asserts that this is what has led to her shoplifting incidents.  She refers to taking medication for both depression and anxiety.  In this Affidavit she refers to the great support she receives from the maternal grandmother, her friends in her local social group and her work colleagues.

22. In the above Affidavit the mother concedes that she acted impulsively in February 2018, when she wrote to the father’s solicitor to ask the father to care for the child as the mother thought she might need to take the maternal grandmother to India to have surgery on her knees after a fall.

23. In the above Affidavit, the mother asserts and alleges that she has started bringing the child with her to work for about two days per week.  The mother asserts that the child is still a bit clingy to her and cries if she leaves him.

24. The mother asserts in her last Affidavit that she is seeing her psychologist Dr D on a regular basis and taking medication for depression.  In her Affidavit filed 13 February 2019 the mother asserts that since 7 December 2018 she has had two sessions with her clinical psychologist Dr D, including a consultation on 13 February 2019, and that she continues to take medication for depression.

25. The mother refers to the supportive Affidavits of her uncle, her partner in Victoria, and two friends.

26. The mother alleges that the father’s mental health is adverse, such that he poses a risk of harm to the child.

27. In particular, the mother refers to the father’s admission that he superficially cut his wrist with a knife in November 2017 within the parties’ household and in the presence of the child. 

28. In relation to this event, the father asserts and alleges that following an altercation with the mother he became very stressed and upset because of alleged threats by the mother to take the child away from the father, and he began to panic.  The father acknowledges that he called the police and his parents, and that he was taken by ambulance to hospital, where he was treated and was able to talk to a psychologist.  He asserts that that psychologist recommended that he leave the family home, which apparently occurred.

29. The mother completed a police statement in December 2017, alleging that the father had verbally threatened her, and that the father could be unpredictable when angry.

30. The mother asserts that it is not appropriate for the child to spend five days a week in childcare whilst the father works.

31. The mother asserts, denied by the father, that the father lacks parenting capacity for the child.  The mother asserts in her Affidavit of 28 November 2018 that she does not think that the father will be able to cope with the child on his own without someone there to assist him.  She alleges that when the father was residing with her and the child the father did not demonstrate that the child was his first priority.  She alleges that the father spent a lot of time playing online games when he lived with the family, and avoided spending time with them unless he had to.  The mother also alleges that she is concerned about the father’s self harming, which he has allegedly threatened a number of times in the past, and refers to the incident when he used a knife.  The mother asserts that she does not know if this is something the father would do if he was stressed or could not handle pressure, and that the child is a young child who needs lots of attention.

1. The mother alleges that between 2010 and 2013 there were occasions when the father, in the presence of the mother, threatened to hurt himself.  On one occasion he is alleged to have deliberately banged his head on the benchtop.

2. The mother asserted to the family consultant at the Child Dispute Conference in June 2018 that she was concerned that, if the child was to spend time with the father, the father might get angry, yell or hurt the child.  However, the mother stated to the family consultant that the father has not done so in the past.

3. The mother’s allegations of family violence perpetrated against her by the father during the relationship are significantly denied by the father.

4. Under the heading “Future Directions”, the family consultant stated, inter alia, that it may be a benefit to the Court if each parent obtains an independent mental health assessment.

5. The Court has considered the subpoenaed material tendered in evidence.  The Court does not propose to refer to all the subpoenaed material.

6. In the NSW Police material leading to the incident in November 2017, it is recorded that the mother requested the police to take the child so that she could leave the country.  It is stated that the father was not providing support and that he had verbally abused the mother.

7. In the Dr C subpoenaed material, a report from 18 June 2012 refers to the psychiatrist taking a history from the mother.  It states that the maternal grandmother’s recent stay with the mother was a tremendous emotional support for the mother.  In this report the psychiatrist states that she has explained the favourable prognosis with appropriate treatment for OCD.  The doctor makes recommendations for the mother’s treatment.

8. In the subpoenaed material, the report of the psychologist Ms B of September 2013 refers to recommendations for treatment of the mother.

9. In the subpoenaed material of Dr C, a report of that psychiatrist of 16 May 2018 refers to the doctor’s recent consultation with the mother and having last seen the mother in July 2014. She states that during mental state examination the mother presented as a highly distressed woman regarding her circumstances.  The mother reported depressed mood.  The mother denied self-harm thoughts, with her level of insight stated to be satisfactory.  The doctor states that the mother was committed to the child, but was having difficulties reconciling her differences with the father.  The doctor’s diagnosis, by reference to the mother’s clinical presentation, was Major Depressive Disorder, with relapse due to her predicament and the family law proceedings.  The doctor stated that she had asked the mother to increase her medication.  The doctor stated that she had encouraged psychological counselling for the mother.

10. In the subpoenaed material of Ms B, a report from the psychologist dated 21 December 2017 states, inter alia, that it is imperative that the maternal grandmother be given permanent residency as soon as possible so that the mother has some help in looking after the child.  It is stated by the psychologist that if the mother does not have the maternal grandmother’s continued physical and emotional support, it is possible that the mother’s pre-existing symptoms (an apparent reference to the mother’s OCD, depression, anxiety and sleep disturbance) may become worse.  The notes of this psychologist for 21 December 2017, inter alia, refer to the maternal grandmother looking after the child.

11. The subpoenaed records of Dr D, sleeve number 8, refer, inter alia, to a self-report document completed by the mother on 26 March 2018 in which, inter alia, she states that she would kill herself if she had the chance.  The mother, in this context, refers to the handwriting of the psychologist on page 2 of this self-report document which states, “situational, mind preoccupied.  Scared he may take baby away.”

12. The clinical notes of this doctor for 11 April 2018 refer to, inter alia, the mother requiring the assistance of the maternal grandmother in caring for the child.

13. The father refers to certain subpoenaed notes of Suburb E Hospital referring to his admission on 11 November 2017 for deliberate self-harm.  The notes state, inter alia, that he had used a knife to cut his wrist, that his wife had berated him the previous evening, and that the knife had been used to cut vegetables but not any raw meat.  He denies current intentions of self-harm and denies any suicidal ideation.  It is stated that he works as a professional at an Employer.

14. The father refers to the subpoenaed records, sleeve number 6, of Medical Clinic.  There is reference to a report of Ms B, psychologist, in relation to the father, dated 27 April 2018.  Inter alia, it states that the father had been referred to Ms B in relation to Adjustment Disorder with anxious mood and some suicidal ideation.   It states that the father’s adjustment disorder and anxiety had progressively reduced over the therapy.  It states that his suicidal ideation appears to have disappeared as soon as he was able to separate from the mother.  It refers to the father’s attendance at sessions with Ms B between November 2017 and April 2018 (eight sessions).  It states further that over the period that the father was seeing Ms B he was very proactive in sessions, and that he would complete his sessions very soon.  The report states that he would also be able to start reducing the antidepressants because he had shown that he was coping with the divorce preparations very well.  It states that he had even attained a promotion at work over the time that Ms B had seen him.

15. The “psychological report section 32 application” of Dr D, psychologist, dated 9 November 2018 (see sleeve 16, Dr D) inter alia, refers to the mother’s assessment and treatment by this doctor since late June 2018 to date.  It states that the mother continues to have close contact with her parents, brother and uncle, and that they have been a strong support for the mother.  The mental health examination, inter alia, refers to the mother’s insight and judgment appearing to be intact.  A risk assessment had been conducted with no risk identified.  It is stated that the mother denied current or previous suicidal thoughts or self-harm behaviours.  The mother denied any thoughts of self-harm and was able to guarantee her safety as she was stated to have a network of strong protective associates (her son, parents and work associates).  The diagnosis was stated in the report to be mixed anxiety and depression disorder, OCD and post-traumatic stress disorder.  The psychologist referred to the mother being under the care of the psychologist between March 2018 and October 2018 (having attended ten Medicare sessions).  The psychologist referred to the mother’s positive progress.  Continued medication was recommended.  Ongoing sessions with a psychologist were recommended.  It was stated that the mother was aware that she was required to be compliant with her medication regime for it to assist her.  It was stated that the mother was fully aware of her wrongful deeds (relating to the shoplifting in April 2018) and she acknowledged that she had not been in the right state of mind during this period.  She was emotional and very remorseful for her actions. 

16. The Court has considered the later psychological report of Dr D dated 3 December 2018 in relation to the mother, prepared for family law proceedings on 7 December 2018 (Exhibit A, tendered by the father).  Again the psychologist took a history from the mother. The mother denied previous suicidal thoughts or self-harm behaviours, which is arguably at odds with the sleeve 8 material of 26 March 2018, including the self reporting history at that time, in which the mother stated that she would kill herself if she had the chance (whilst noting the handwritten comments of the psychologist in the mother’s self reporting document, referred to previously in these reasons).  This report also refers to the psychologist having made observations of dimensions of the mother’s behaviour towards the child during sessions.  It states that the mother was observed to be responsive to the child’s needs.  She provided the child with affection, was responsive to the child’s initiations, cues and voice tone, and showed signs of understanding the child’s behaviour.  The child was observed to display a sense of ease around the mother.  He displayed affection towards the mother, responding with smiles and giggling when she spoke to him.  The psychologist states, under the heading “Parenting capacity”, that the mother poses to be a protective factor in the child’s life.  It is stated that no signalled areas of potential concern were noted or evidenced by the psychologist.  The report makes recommendations for treatment.  The Court takes into account the contents of this report, whilst noting that it is untested, and again, that it is arguable that an incorrect history was taken from the mother.

17. The Court has taken into account the Employer’s letter of 5 December 2018 from the director of that employer in relation to the mother’s employment, which states, inter alia, that the mother is an asset to the company.

18. In the view of the Court, at this interim stage, there will be no unacceptable risk of harm posed to the child if he remains in the primary care of the mother, provided that the maternal grandmother remains living with the mother, and that the mother’s care of the child occurs in the maternal grandmother’s presence, noting the significant childcare assistance and emotional support provided by the maternal grandmother to the mother since the maternal grandmother began living with the mother in Sydney. 

19. In the view of the Court, there is a significant suggestion on the material before the Court that such presence of the maternal grandmother will minimise any risk of the mother neglecting the child if she were to become mentally unwell whilst the child is in her care.

20. So as to remove the prospect of the maternal grandmother returning to India and leaving the child in the mother’s primary care, the mother should be directed to cause the maternal grandmother to provide to the Court a written undertaking that, subject to her Australian visa entitlements, she will remain living with the mother and child and be present during the mother’s care of the child in that household. The mother should be directed to inform the father’s solicitors of the maternal grandmother’s proposed return to India (if any) at least 21 days prior to such proposed return.  Further, the mother should be directed to obtain an independent psychiatric report in relation to her mental health (from a psychiatrist other than Dr C).

21. Noting that currently the maternal grandmother’s Australian visa expires in June 2019, and that this Court proposes to forthwith transfer these lengthy and complex parenting and property proceedings to the Family Court of Australia at Parramatta, the parenting proceedings should be listed for mention before the Family Court of Australia at Parramatta prior to June 2019, being the current date when the maternal grandmother’s Australian visa will expire.

22. In relation to the Court’s above view about the child remaining in the mother’s primary care, at this interim stage, the Court has taken into account and considered the father’s submissions and material relied upon by him in relation to his interim parenting proposals.  However, the Court remains unpersuaded that the child’s current living arrangements should be altered at this very early interim stage.

23. Inter alia, the Court has taken into account, in reaching its views, as referred to above, that:

    a)The mother has been the primary carer of the child from birth to date;

    b)The apparent close attachment of the child to the mother and the tender age of the child;

    c)The significant suggestion on the material before the Court that the mother has insight in relation to her mental health conditions;

    d)The mother’s treatment for her mental health conditions;

    e)The mental health treatment and other mental health reports relating to the mother, whilst noting that such reports remain untested at this interim stage;

    f)The child’s apparent good health in the mother’s primary care;

    g)Again, the significant assistance provided by the maternal grandmother to the mother whilst living with her, including emotional and practical support for the mother;

    h)The mother’s casual paid employment, apparently competently carried out by her, in childcare;

    i)The mother’s other emotional supports, including church group and extended family in Australia.

24. The Court refers to its discussion above under the meaningful relationship primary consideration in relation to the child spending daytime time with the father.

25. The Court is of the view, acting cautiously and conservatively at this very early interim stage, that there will be no unacceptable risk of harm posed to the child should he spend time with the father for such daytime times as proposed by the mother in Exhibit B, with such time to occur in the presence of the paternal grandmother.

26. In reaching the immediate above view the Court has taken into account, inter alia:

    a)The father’s admitted self-harming in about November 2017;

    b)The mother’s allegations of earlier threatening self-harm behaviour by the father in her presence;

    c)The mother’s allegations of family violence against the father, whilst noting the father’s denials in relation thereto;

    d)The child’s positive time spent with the father under supervision since about August 2018, including the father’s apparent appropriate responsiveness to the child’s needs at such supervised time;

    e)The report of psychologist Ms B dated 27 April 2018 in relation to the father’s psychological treatment with her (whilst noting that this report remains untested) which carries the significant suggestion that such treatment has been beneficial for the father. 

    f)The mother’s concession to the family consultant that the father has not been angry with or harmed the child in the past.

27. Further, as with the mother, the father should be directed to obtain an independent psychiatric report in relation to his mental health.

28. As to overnight time between the child and the father, the Court, again acting cautiously and conservatively, particularly in view of the father’s historical adverse mental health issues (both alleged and otherwise conceded), the child’s tender age and limited supervised daytime time to date, has some concern with such overnight time occurring presently.  The Court takes into account the fact that the Court proposes to direct the father to obtain an independent psychiatric report relating to his mental health. In this context, again, the Court has not overlooked the mother’s statements to the family consultant in relation to the father and the child.

29. The Court anticipates, at this very early interim stage, that the parties may well invite the Family Court of Australia at Parramatta to revisit the interim parenting Orders arising out of this interim hearing following the obtaining of the parties’ independent psychiatric reports relating to their respective mental health.

30. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - additional considerations

1. The parties are in dispute as to the extent to which each party took opportunities to participate in making decisions about decision making for the child; to spend time with the child and communicate with the child.

2. There is some dispute as to the father’s fulfilment of his obligation to maintain the child.

3. There should be no emotional detriment to the child or mother in the child spending time with the father as discussed above under the primary considerations.

4. Each party would appear to have the capacity to provide for the child’s emotional and intellectual needs, subject to its discussion above under the need to protect primary consideration.

m) Any other fact or circumstance that the Court thinks is relevant

1. At the interim hearing the father invited the Court to consider appointing a litigation guardian for the mother.  In support of such invitation, the father referred, for example, to a psychiatric report of Dr C of 16 May 2018 in which the doctor, having seen the mother and conducted a consultation, states, inter alia, that the mother has a poor understanding about the family law court and/or about the legal process, and that rather than the mother instructing her lawyer, she is dependent on the lawyer’s advice.  Under the heading “management strategies” this doctor states that she has explained to the mother the court process and issues relevant to the family law court, and that she has encouraged the mother to seek more proper advice from her lawyer.

2. At this interim stage, noting it was an oral application made by the father for a litigation guardian at the outset of this interim hearing, and in view of the Court proposing to transfer these lengthy and complex parenting and property proceedings to the Family Court of Australia, in the view of the Court the issue of whether order litigation guardian should be appointed for the mother should be left to the considerable expertise of the Case Management judge of the Family Court of Australia.

3. As to the mother’s proposed Order relating to travel to India with the child, the Court is not persuaded at this interim stage that it will be in the best interests of the child to make such an Order, even taking into account the mother’s extended family’s proposal to lodge a significant security with the Court.

4. The Court has considered relevant legal principle relating to such proposed travel order to a non-Hague Convention country such as India: see for example Kuebler & Kuebler (1978) FLC 90-434, and Line & Line (1997) FLC 92-729.

5. In reaching its interim decision in this context, the Court takes into account, inter alia, the fact that the parties are in significant conflict and there is a lack of trust between them; the potential difficulties in the father securing the return of the child from India, a non-Hague Convention country, and the lack of evidence as to the potential cost to the father in litigating in India a return of the child to Australia; the particularly young age of the child; and the significant assistance and childcare that the mother has received from the maternal grandmother who usually lives in India.  The Court has not overlooked the proposed hair cutting ceremony for the child in India, and the mother proposing to see her father.

6. Should the child not be returned to Australia, there is a significant risk that his developing positive relationship with the father would be adversely compromised.

7. Whilst the mother has connections with Australia, again the maternal grandmother, who usually lives in India, has provided significant assistance to the mother in relation to the care of the child and has a close relationship with the child.  Accordingly, whilst it might be reasonably predicted that the mother would return to Australia, it is not clear to the Court that there is no real chance that the child might remain in India with the maternal grandmother (and observing that presently the maternal grandmother’s Australian visa will expire in about June 2019).

8. The Court would assess the risk of the child not being returned to Australia from India, if allowed to be taken there, as moderate, even taking into account the proposed significant security.

9. The Court has considered all the material, submissions and contentions of the mother in relation to her proposed trip to India with the child.  However, again, on balance, having considered all competing contentions of the parties in this context, and having regard to legal principle, the Court remains of the view that it will not be in the best interests of this very young child to make an interim order permitting the mother to travel with him to India as proposed by the mother.

Parental responsibility

1. The mother seeks an Order for sole parental responsibility whilst the father seeks no interim Order in this regard.

2. The Court is not persuaded at this early interim stage that it should make an express Order for parental responsibility, particularly noting the child’s tender age and apparent satisfactory development.

Summary

1. Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be the best interests of the child to make the following interim parenting Orders:

   (1)Orders 1 to 7 within Exhibit A of the Court’s Orders of 25 July 2018 be discharged.

   (2)     The child [X] born … 2017 shall live with the mother.

   (3)The child shall spend time and communicate with the father as follows:

   (a)For a period of seven (7) consecutive hours each weekend at times as agreed in writing via WhatsApp and in the absence of agreement from 9:00 am to 4:00 pm each Saturday;

   (b)On the child’s birthday, for a period of three (3) hours at time as agreed in writing via WhatsApp and in the absence of agreement from 9:00 am to 12:00 pm; and

   (c)At other such times as agreed in writing via WhatsApp between the parties,

   in the presence of the paternal grandmother, or in the event that the paternal grandmother is unable or unwilling to be present during the father’s time with the child or she fails to provide an undertaking as set out in Order 4, then such time shall occur in the presence of a qualified contact service provider.

   (4)Prior to the child spending time with the father, the paternal grandmother shall execute an undertaking that she will at all times be present during the father’s time with the child and the father shall do all things necessary to ensure the executed undertaking is filed and served to all parties.

   (5)The father keep the mother informed of his current residential address, mobile and landline telephone numbers and any available email addresses and advise the mother of any change thereto within seven (7) days of such change.

   (6)In the event of the child becoming unwell or an emergency the father contact the mother to inform her.

   (7)The father be permitted to receive information about the child from any child care or treating medical professional the child attends.

   (8)That the parties be hereby restrained by injunction from abusing,    insulting, belittling, rebuking or otherwise denigrating each other including via social media.

   (9)The mother is directed to forthwith cause the maternal grandmother to provide to the Court a written undertaking that, subject to her Australian visa entitlements, she will remain living with the mother and child and be present during the mother’s care of the child in that household.

   (10)The mother is directed to inform the father’s solicitors of the maternal grandmother’s proposed return to India (if any) at least 21 days prior to such proposed return. 

   (11)The father shall forthwith obtain a comprehensive mental health assessment and report from an independent psychiatrist, at his expense, with the report to address the following issues:

   (a)A review of his mental health history, including self-harming threats and behaviours;

   (b)A diagnosis for his current mental health;

   (c)Recommendations (if any) for ongoing treatment; 

   (d)Whether there may be any impact on the care of the child and how these impacts may be ameliorated.

   (12)The mother shall forthwith obtain a comprehensive mental health assessment and report from an independent psychiatrist, at her expense, with the report to address the following issues:

   (a)A review of his mental health history, including self-harming threats and behaviours;

   (b)A diagnosis for his current mental health;

   (c)Recommendations (if any) for ongoing treatment; 

   (d)Whether there may be any impact on the care of the child and how these impacts may be ameliorated.

   (13)The above psychiatrists are to be provided with copies of court documents, including affidavits.

   (14)The father and mother shall follow the recommendations of the respective said psychiatrists.

   (15)These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, and are listed for first return on 9 April 2019 at 9:30 am.

2. The Court notes that there are outstanding interim property issues between the parties.  This interim parenting hearing was always confined to parenting issues. The parties can ventilate interim property issues in the Family Court of Australia at Parramatta, following the transfer of these parenting and property proceedings. 

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 28 March 2019