BULL & GIBSON
[2015] FCCA 1960
•21 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BULL & GIBSON | [2015] FCCA 1960 |
| Catchwords: FAMILY LAW – Parenting – child almost 6 years old – both parents’ mental health in issue – mother seeks father’s time be supervised. |
| Legislation: Family Law Act 1975, ss.60, 65, 68, 114 |
| Waterford and Waterford [2013] FamCA 33 Carnegie & Ginter [2013] FamCA 331 |
| Applicant: | MR BULL |
| Respondent: | MS GIBSON |
| File Number: | ADC 4386 of 2013 |
| Judgment of: | Judge Harland |
| Hearing dates: | 9, 10, 11 & 12 February and 13 March 2015 |
| Date of Last Submission: | 28 April 2015 |
| Place heard: | Adelaide |
| Delivered at: | Melbourne |
| Delivered on: | 21 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Britton |
| Solicitors for the Applicant: | Jane Ekin-Smyth |
| Counsel for the Respondent: | Ms Pyke SC |
| Solicitors for the Respondent: | Susan Litchfield Solicitor |
| Counsel for the Independent Children's Lawyer: | Ms Fuda |
| Solicitors for the Independent Children's Lawyer: | Legal Services Commission of South Australia |
ORDERS
That the mother have sole parental responsibility for the child X (“the child”) born (omitted) 2009 subject to order 2.
Prior to making any decisions as to the child’s education (both current and future) and child’s religious and cultural upbringing, child’s health, child’s name and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with the father, the mother shall:
(a)notify the father via email of the proposed change and the reasons why she considers such a change to be in the child’s best interests;
(b)invite the father to indicate his views by return email to the email address identified by her, such response to be provided by the father within seven (7) days;
(c)consider the father’s response in accordance with the child’s overall best interests prior to making any final decision; and
(d)upon reaching a final decision, advise the father by email within a further seven (7) days thereafter.
The child lives with the mother.
That the child spend time with the father as follows:
(a)In 2015 from 10am Saturday to 5pm Sunday of each alternate week with such time to continue during the school holidays;
(b)from the conclusion of school Thursday to 7.30pm on each intervening week and during school holidays this time will be extended to start at 10am;
(c)for the 2015 Christmas school holidays the father’s alternate weekend time shall be extended from 10 am Friday until 5pm Sunday and on the intervening week the time be extended as follows from 10am Thursday to 5pm Friday;
(d)as from the commencement of Term 1, 2016 from conclusion of school Friday to 5pm Sunday each alternate weekend;
(e)from conclusion of school Thursday to 7.30pm on each intervening week;
(f)for July and September/October 2016 short term school holidays for 3 consecutive nights such that the father’s alternate weekend time be extended from after school on Friday until before school on Monday noting the time in accordance with paragraph (e) herein be suspended;
(g)once the time set out in paragraph (f) commences, X will spend time with the father in the intervening week from after school on Thursday until before school on Monday;
(h)from December 2016 Christmas school holidays for 4 consecutive nights such that the father’s alternate weekend time be extended from 3.30pm Friday to 5pm Tuesday of each alternate week noting the time in accordance with paragraph (e) herein be suspended;
(i)thereafter as and from 2017 for one half of all short and long term school holiday periods subject to Order (5).
That within 42 days of the date of these Orders, the father will attend upon a GP for the purpose of obtaining a mental health plan to engage with a psychologist and the father shall do the following:
(a)within 7 days of receiving the mental health plan, make an appointment with a psychologist.
(b)attend all appointments with the psychologist for such period the psychologist recommends.
(c)provide the psychologist with the reports of Dr B dated 13 September 2014, 29 April 2015, report of Dr L, Exhibit D and the reasons for judgment.
(d)at the end of six sessions or at the end of the period of engagement (whichever occurs first) provide the mother with a letter from his psychologist confirming the father’s attendance.
That until 30 October 2015 the father’s overnight time shall take place substantially in the presence of the paternal grandmother.
On each Father’s Day with the father from 10am to 5pm UPON NOTING the child shall be in the care of the mother on each Mother’s Day from 10am to 5pm.
The father shall spend time with the child from 3pm Christmas Eve 2015 to 3pm Boxing Day 2015 and each alternate year thereafter.
The father shall spend time with the child from 3pm Christmas Day 2016 to 3pm Boxing Day 2016 and each alternate year thereafter.
The father spend time with the child on her birthday if a school day from the conclusion of school until 6.00pm and if a non-school day for a period of 4 hours by agreement between the parents and in default of agreement from 3pm to 7.00pm.
All handovers that do not take place at the child’s school to take place at the McDonalds section of (omitted) on school days and at (omitted) on non-school days or as otherwise agreed between the parents.
The father be at liberty to communicate with the child by telephone as agreed between the parents and in default of agreement on each Wednesday at 6.30pm with the father to telephone the child.
Both parents keep the other informed about X’s general activities, health, education, development and day-to-day care including any medications administered to her during her time with a parent through the use of a communication book to be exchanged between the parents each time X moves from the care of one parent to the other.
That within 7 days of the date of these orders the mother shall do all acts and things necessary to ensure that the father is placed on the school emergency contact details as the next of kin to be notified after the mother.
That the father be at liberty to attend all school functions parents are usually invited to attend including but not limited to school activities, school and extra curricular events, parent-teacher interviews, concerts and any other activities undertaken by the child.
The father be at liberty to obtain all school newsletters, information notices, school reports, photographs, school records and other information regarding the child’s progress at school, provided he meet any costs associated with obtaining this information from the child’s school.
That each parent keep the other informed as to residential address and contact details that the said child is residing in and is contactable on, including email addresses.
That each parent keep the other informed as to any medical emergency and the other parent be at liberty to attend upon the child being hospitalised.
That each parent keep the other informed as to any medical practitioner, counsellor or any professional person treating the said child and each parent be at liberty to speak with and obtain all information regarding the said child.
IT IS NOTED that publication of this judgment under the pseudonym Bull & Gibson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4386 of 2013
| MR BULL |
Applicant
And
| MS GIBSON |
Respondent
REASONS FOR JUDGMENT
Much of the focus of this hearing has been on the father’s mental health. It must have been very difficult for him to listen to the detailed dissection of his mental health history and clinical notes. It is important to understand the context of psychotherapy when quoting from clinical notes. Dr B was at pains to point this out. The mother also has a mental health history but her parenting capacity is not seriously in issue. The father’s parenting capacity is.
The parties were in a relationship for approximately 20 years. They separated on 12 May 2010. They have one child together, X born (omitted) 2009. She is almost 6 years old.
The mother’s case is that the seriousness of the father’s mental health history and his lack of consistent treatment means he is a risk to X if he spends time with her unsupervised. She seeks sole parental responsibility and seeks that his overnight time be supervised by his mother or if his mother is unavailable, his sister or some other person as agreed. She does not seek an end date to that supervision. She seeks various other orders including that the father attends on his former psychologist or another psychologist recommended by his GP and also seeks various injunctions.
The father’s case is that his mental health issues have resolved and there is no need for his time to be supervised. He seeks an order for equal shared parental responsibility and seeks to spend substantial and significant time with X.
The Independent Children’s Lawyer supports the mother having sole parental responsibility subject to her consulting with the father and taking into account his views. She seeks that the father’s overnight time be supervised by his mother until 1 July 2016.
The father’s evidence
The father relied on his trial affidavit filed on 25 September 2014. In para.5 of that affidavit he complains that the mother has made serious allegations about his mental health which he denies. He says “I have suffered from periods of depression during my lifetime due in part to long-term unemployment and childhood issues, the latter having been subsequently resolved. However my depression has never impacted on my ability to care for X.”
The father complains that he agreed to be assessed by Dr B at the mother’s insistence but then she rejected Dr B’s opinion. The father denies ever being psychotic and says that the mother never made allegations that he had been until after they separated. He says Dr W assessed him as being psychotic based on two 40 minute interviews. The father says he was open and honest with Dr B and agreed to see him for a second time but this still did not satisfy the mother.
It became clear during the hearing that the father’s mental health history was more extensive than the history he referred to in his trial affidavit and what he told Dr B. I do not accept the mother’s submissions that the father deliberately mislead the court and the experts.
The father says there were no mental health records for him from 2010 onwards because he was successfully attending university at the time and did not need any additional assistance.
At paragraph 150 of his trial affidavit the father says he has only ever been diagnosed with depression. He says whilst his medical notes may refer to other disorders such as personality disorder, delusions, avoidant personality or psychosis, he has never been diagnosed with any of those conditions.
The father expresses concern about the mother’s mental health and in particular about her obsessive-compulsive disorder (OCD). He dismisses her claims that her OCD was due to him and says that she shows a lack of insight into her own problems.
He refers to his concerns about the mother’s conduct towards X when she was a baby. He refers to this in detail in his affidavit and the steps he took contacting the Child Abuse Hotline, Centrelink and the police. He also refers to two specific portions of the subpoenaed records with respect to the mother’s mental health.
The father says that in the lead up to their separation the mother’s mental health conditions seemed to deteriorate. He says the mother was throwing physical tantrums. He also says that he was concerned that the mother would leave X alone in the presence of the two terrier dogs they had at the time. The father says that on the Monday of the week they separated he saw his academic counsellor about his academic progress. He said that things at home were making it difficult for him to progress. He says the counsellor raised the issue of needing to make a report if he had concerns about his daughter being unsafe at home.
The father says that on the way home he stopped at a phone booth and rang Families SA. He says he reported his concerns and was told by the phone operator that they could not get counselling assistance for over a month and that he should contact the Child Abuse Report Line (CARL) who may be able to provide earlier assistance. He said he contacted CARL straight away.
The father says that that night he was woken up at around 3 or 4 AM by X screaming. He says he saw the mother grab X by her legs and push her forcefully down. The mother was yelling and swearing at X. He says he contacted Centrelink the next day to try and arrange urgent counselling. He says he was told by the Centrelink worker that he needed to make a report to police and that if he did not he could be considered complicit in the abuse. He says he then went to (omitted) Police Station and said he wanted his presence recorded but he did not want further action taken. He said the police would not take him seriously without him saying why he was there. He says he explained his dilemma and was referred to the Family Crisis Unit at the (omitted) Police Station. He says he went to the (omitted) Police Station the next day. He says a senior counsellor came out and said to him that she was in an important meeting and that she asked a police officer to take a statement from him to see whether or not it would warrant her attention. The father says he was not aware that this would be considered a report.
The father says he tried to talk to the mother about his concerns but that she got very angry and told him to leave. The father says he called his aunt who could hear the mother swearing. The mother’s father arrived shortly after. The father says they were contacted by police officers who asked them to go to the (omitted) Police Station. He said he went with his father and the mother went with her mother. He says he later found out that they were police officers and were not from the Family Crisis Unit as he had thought.
He says the next day he was contacted by Acute Community Intervention Service (ACIS) and was asked to see a counsellor about his mental state. The father says he was interviewed again a couple of days later by Dr W. He says that when he denied the mother’s accusations, Dr W told him that she thought he was in denial and experiencing a mild psychosis.
The father says that after the separation until he made a formal request to spend time with X in 2013, he regularly visited X at the mother’s home several times a week and often stayed overnight.
The father says that during the interview with Dr W he was asked if he smoked marijuana. He says he told her that he had in the past and he was asked what was the most that he smoked a day. He said he had smoked as much as 15 cones of leaf in one day. He says he told her that he had not smoked any marijuana in the last 10 years or more.
The father says at paragraphs 75 and 76 of his trial affidavit that his depression was limited to the period of 2002 to 2006 which was indicated by him as being treated by clinical psychologist Mr M at the time. The father denies the severity of the behaviour that the mother alleged. The subpoenaed records show that he had contact with mental health professionals dating back to 1998 onwards.
The father denies ever being aggressive or controlling towards the mother, X or any other person.
The father says his brother lives in (omitted) and that he sometimes visits and stays overnight when X is there, staying in the spare room. He says his brother Mr W has not smoked marijuana for some time as far as he is aware.
The father lives in a three bedroom house at (omitted). It has a granny flat out the back which is where his parents stay when he has X. X has her own bedroom next to the father’s. Mr W sleeps in the spare room when he visits.
The father has stopped and started several courses of education over the years. The father obtained a (qualifications omitted) in 2010. He started a (qualifications omitted) in 2011 but withdrew from that course. He then started a (qualifications omitted) course in 2013. He deferred that course and then resumed it in 2014 but later withdrew saying he did not think he could see himself in (occupation omitted). The father is now studying (qualifications omitted). The father has also undertaken a course through the (omitted) Scheme and attempted to run a (omitted) business from home. The father has a poor record of employment. His parents provide him with financial and practical support.
X’s phone call to the mother
On the Saturday night before the hearing X stayed at her father’s home overnight. X was restless. She told her father that she missed her mother. The father says he told X that she could call her mother whenever she wanted and could go home if she wanted. The father says X has never said this before. It was about 8.30 or 9.30pm and the father said that X told him she was worried her mother would be in bed. The father reassured her and text messaged the mother to let her know X would be calling. He called the mother’s number and handed the phone directly to X. The father says he could hear the conversation because he remained in X’s room during the call. He said that the mother kept asking X if she was hurt and if the mother should be worried about her. This went on for about 10 minutes. X was quite upset. X told her mother she was upset because she missed her. They talked for another 10 minutes.
The father says this was the first time X has become sad and missed her mother while in his care. He says he thought it was because it was her first week of school and she had not seen her mother.
It is clear from the father’s evidence that he was concerned not to speak to the mother before putting X on the phone because the mother had made it very clear that she did not want any contact from him. The mother agreed with my proposition that it would be much better for X if the father could call her to say that he was putting X on the phone because she wanted to talk to her. She agreed that in the circumstances the father’s concerns were reasonable.
The family consultant was asked about the incident where X became upset at the father’s home. The father acted appropriately in having X call her mother. It was the end of X’s second week at school and this is a big transition for children.
The family consultant also said that it is important for the mother to recognise that it will be a good thing and positive if her father is involved in aspects of her life such as her schooling and other activities. The father’s conduct in helping X when she was upset and in saying that if she becomes distressed and wants to go home when staying with him that he will facilitate that shows that the father firstly, has insight into X’s needs and secondly, is willing to put X’s needs above his own.
The father’s proposal
Currently the father spends time with X every weekend, including overnight. The father said he thought that never getting a full weekend with her mother was taking a toll on X and that she has expressed a wish to do so. The father says that whilst he wants to spend more time with X, it is sensible if he sees X on alternative weekends. This is to the father’s credit as it again shows he has insight into X’s needs and can put those needs ahead of his own.
The father also wants to spend time with X for half of each of the short school holidays. He would like to be able to take X to visit family. He would like to have X during the long school holidays on a week about arrangement.
The father says he sees no need for his time to be supervised.
Cross-examination of the father about his mental health
The father agreed that he has a long history of depression going back to childhood. He says he told Dr B that. The father said that when he read the first report that documented him as only having had depression in 2004 that it did not concern him as being inaccurate as he had forgotten about it. He then said he had told Dr B that he had long term depression spanning back to his childhood.
The father said it is like being told by someone that you were at a certain place and you cannot remember it until you are shown a photograph. He said that he was shocked when he read the subpoenaed material. He agreed he could have been blotting it out from his mind.
The father said he could understand why the mother might be concerned about his failure to disclose a history of substantial depression prior to 2004.
The father denied ever being suicidal or having suicidal thoughts. He said he told Dr B that he had not wanted to live the way he was living. The father was careful to repeat that a couple of times in cross-examination. Dr E recorded in her notes made on 8 January 2004 the following: “felt profoundly suicidal on three occasions since last appointment”. The father said he could not recall that but conceded that the notes may be accurate. The father then said he did not think he would have said he was “profoundly suicidal” as he thought that sounded like a clinical expression. Dr E also recorded that the father “has felt suicidal a few times when this situation felt inescapable”.
The father conceded that he may not have wanted to live anymore and if that was what Ms P meant he would accept that. The distinction the father was making was that he had not tried to commit suicide and he did not plan for it. There is a distinction there but in either case it is indicative of someone dealing with major depression.
The father’s cross-examination resumed on the second day. It was apparent to me that he was trying to come up with an explanation for Dr E’s notes about the father’s mistreatment of animals. The father said he was not sure whether what he was thinking was real or a dream and that was why he went to see her. He also said that there were several inaccuracies in her report. He said that the nature of clinical psychology is that they often misreport things because they write things after the fact. If the father thought there were inaccuracies in her notes he could have addressed this in his trial affidavit. I do not accept the father’s evidence on this point.
The father had a Centrelink medical certificate for the period 15 September to 15 December 2005 when he could not work because of depression, social anxiety, and paranoid, delusionary thoughts. The father said that he signed the medical certificate because if he did not he would not have been able to obtain it.
Dr W records in her notes that the father was offended by her description of him as a psychotic. The father agrees that he was offended by this.
The father was cross-examined about the phone call X made to her mother while she was staying with him. He denied that X was hysterical. He says he did not talk to the mother first as she had made it clear that she did not want him to contact her.
The father’s medical records
The ICL prepared a tender bundle which is Exhibit D. It is a folder containing extracts from subpoenaed documents.
The father presented to South Australia Mental Health Services (SAMHS) in 1997 with anxiety, depression and social phobia but did not follow through with the appointments.
The father engaged with Dr E, psychologist, in 2003 for treatment for anxiety and social phobia and depression. He engaged with Dr E and then subsequently Mr M.
The (omitted) Hospital records note a phone call to Mr M on 19 May 2010 who noted he had reviewed the father the day before. He thought that maybe the stress of the birth had triggered past childhood traumas for the father. He observed that the father’s presentation was lucid and that no overtly delusional themes were present but the father does become obsessional and intellectualises as a defence.
Incidents involving cruelty to animals
The mother raises a concern about the father’s history of cruelty to animals being:
(a) swinging a cat when he was a child;
(b) killing rats when he was 21 or 22 years old; and
(c) microwaving a lizard when he was aged in his twenties.
He also denied the mother’s allegations about animal cruelty to the family consultant. The father says he never intended to kill the rat. He says when he was 21 or 22 he was holding the rat too hard and it died. He says this was accidental.
The father was cross-examined about Dr E’s notes with respect to this issue. She recorded the father telling her that he suffocated two rats so he could see what it looked like. One died. The father says he has no recollection of saying or doing that but does not dispute the notes. Ms P put to him that the concerns the mother raised in her affidavit are the same that are referred to in the clinical notes. The father’s response previously had been to say that the mother was lying.
Dr B said he did raise the issue of the father being cruel to animals with him when conducting the interview for the second report and that the father dismissed the allegations. He did not see it as a significant issue and did not explore it further. He agreed with the general proposition that cruelty to animals is something that is significant for a psychiatrist when they are making an assessment of someone’s mental health and particularly if it is not an isolated incident. He says he did not cover it in his report because he saw it as an incident of the father’s childhood. He said he did not comment on the cruelty because he dismissed it in his mind as having any impact on the current circumstances.
The mother said that the incident of the father microwaving the lizard was intentional. She says she did not tell the father that she found the dead lizard outside as he was already so distressed after telling her what he did. The incident with respect to the lizard happened 16 years before they separated She agreed that the parties had pets throughout the relationship including dogs.
Dr E’s notes mention the father on two occasions admitting to swinging a cat by its tail when he was a child. The father admitted doing that to Dr E and expressed distress about it. Dr B said it is part of the picture of an unhappy childhood.
Dr B did concede that if the father suffocated rats in his 20s that would be considered because he is acting on that as an adult and past behaviour is a strong predictor of future behaviour. If there are other incidents of harming animals that increases the risk because it is the father acting on abnormal ideas. If the father’s actions in harming animals were linked to childhood that would be less concerning.
The family consultant was asked if the incidences of animal cruelty caused her concern with respect to the father’s interactions with X given that the evidence was that the father had harmed a cat during his childhood and gassed rats and microwaved a lizard in his early twenties. She said they do not because they happened a long time ago. Also when the father talked about the incidences of animal cruelty he was aware that they were inappropriate and from the information she has the father has been moving in a positive direction in the past five years. He is undertaking study, he has become a parent that wants to be involved in X’s life and is not using marijuana anymore. She said they are concerning issues but the real issue is how to make sense of them in the general picture. She said that it is a fair enough question to be asking, but that you also have to pay attention to other information and what else has happened since then. It would be very different if there had been any incident with respect to animals in the past three years.
Ms H
The paternal grandmother gave evidence in support of her son. She is 71 years old and is retired. She lives with her husband at the property they purchased in (omitted). She has been supervising the time between the father and X since the arrangements were made after the family dispute resolution conference on 26 July 2013.
She says she takes her role as the supervisor very seriously and as a former (occupation omitted) she is very aware of her obligations. She says she has a close relationship with X.
She says that the father has suffered intermittently from depressive episodes as an adult but has never seen him behave in any way that she would describe as psychotic.
She says she has never seen her son act in any way that was cruel to animals.
The mother was critical of the father’s mother writing in the communication book. While on one level that is understandable as the purpose of it is to facilitate communication between the parents, on another, the mother has asked for the supervision, so it is understandable that the father’s mother may seek to involve herself in the communication.
The paternal grandmother says she wrote in the communication book because she was the one watching and supervising and she thought it was ok. She says she has tried to speak to the mother at handover but she will not speak to her.
She says she has never observed any conduct by her son which causes her any concern for the way he cares for X.
She gave evidence that the interactions between X and her father are positive and loving. She says they play all day together and also sit and chat like old friends.
Ms H said that on several occasions X has not wanted to leave the father at handovers and this has been about X not wanting the play to end rather than being about not wanting to see her mother.
She acknowledged that she and her husband were estranged from the father for some years and they did not restore their relationship until 2010. She acknowledges that she has little knowledge of the father’s psychiatric history.
She also said that she has lived with her son since the parties separated and has not observed anything that would concern her about his mental health.
She and her husband are in the process of selling their home at (omitted). As soon as that is sold they plan to live in (omitted) full time, some 2 ½ hours away. Once they have moved Ms H would prefer not to have to come back to supervise time but will if she is asked. She is also prepared to come down during the week but that would be hard because it would mean a lot of time away from her husband. And, if for example, she had to supervise on a Wednesday afternoon she would probably stay with the father if he was going to spend time with X on the weekend, rather than travel back and forward. Otherwise the travel would become too much.
I accept Ms H’s evidence. I find that she will act protectively in X’s best interests.
The mother’s evidence
The mother says the father’s behaviour was difficult throughout the relationship and that his behaviour was unpredictable and controlling. She says they separated because of the father’s psychotic episode in May 2010 and the false allegations he made that she was abusing their daughter.
The mother says that after X was born she was X’s primary carer as the father would stay up all night and then sleep until mid-afternoon.
She says after the separation she wanted the father to see X but in order for this to occur safely she had the father attend her house so she could be present. She says initially after the separation he spent little time with X and did not engage with her when he did see her. She denies that the father saw her regularly.
The mother says she was not happy with the first report from Dr B as there was no mention of the father’s long history with ACIS, his contact with them in May 2010 and his contact with Dr W.
The mother says she agreed to Dr B conducting a further assessment of the father and an assessment of her, with access to subpoenaed medical records being provided to Dr B.
In her affidavit the mother refers to her younger brother Mr R including his mental health problems and his criminal record and says that he has never met X and that she only goes to her parents’ home when she knows he is not there. She says she has no intention of allowing Mr R to come into contact with X.
The mother’s parents help her with handovers as the mother cannot drive. She says she is now learning to drive. The mother says she has a good relationship with her older brother Dr J who is employed and says he poses no risk to X.
The mother says her concerns about the father increased after she read the subpoenaed material which reveals the extent of the father’s mental health history.
When being cross-examined by the father’s counsel the mother said she is extremely concerned that the father could suffocate X and take her life because of his extreme mental health issues. The mother’s anxiety about the father appears to be out of proportion. She was unable to point to anything concrete to ground this fear. It certainly appears that reading the subpoenaed material has increased her anxieties about the father.
The mother thinks that the father’s time should be supervised because Dr B’s reports were inadequate with Dr B not having critically engaged with the subpoenaed material or with the family report writer and not having adequate psychiatric reports before her. The mother said she is adamant that supervised time is necessary.
The mother conceded that OCD is a condition that is controlled rather than cured.
The mother says that most of her interactions with the father tend to be toxic. She says the father tends to apply excessive meaning to everything and does not read facial expressions well. This is consistent with Dr B’s description of the father. The mother perceives everything that the father does negatively. The father’s complaint that the mother did not give him information about X is quite justified. He asked the mother to give him information in the communication book. She did not and she conceded that she could not tell the father about X’s problems with constipation. She figured that if it was solved by the time she went to him he would not need to know. However she conceded she could not be certain that it would not be a problem when X was in his care. Regardless of the issue of parental responsibility the mother is going to have to ensure that the father has the appropriate knowledge about X’s routine given that he is going to be spending regular time with her.
It is telling that the mother did not put the father’s name down on any of the school application forms. He is not on the school’s enrolment form and is not noted as an emergency contact. The mother conceded that she did not make an attempt to inform the father about schools or involve him in the decision. She said she will give him information in the future. She says she did not really understand her role. The mother says that she thought in part he did not want to be involved. It is quite clear that the mother would like to keep the father’s involvement with X to an absolute minimum. That is not in X’s best interests.
The mother saw a psychiatrist Dr G in 1997. She described a long history of obsessive compulsive symptoms dating back to when she was 12 or 13 and periods of depression. She had rituals centring on counting and checking. She felt her social avoidance was negatively impacting her.
In 2005 she described being extremely stressed because she was aware that after she finished her studies she would need to make decisions about the direction of her life. She agreed with the proposition that the father’s mental illness in 2004 together with her OCD and anxiety put enormous pressure on the relationship. She then qualified it by saying she thought that her illness was more reactionary to what was going on. To some extent I think the mother minimises her own mental health issues. It is convenient for her to associate her OCD with the father but the evidence does not support that. I certainly accept her evidence that her symptoms worsen when she is stressed. Her OCD predates her meeting the father and there is a family history with her own father also suffering from the condition.
The mother says she did not know she could ask the father to undergo drug testing. That is not very credible given that she has always had legal representatives throughout these proceedings. She says that having lived with him for 20 years; she could not really tell when he was taking marijuana and when he was not. She says she has only known him to be affected by drugs, but then acknowledged that there have been periods when the father has told various professionals that he stopped smoking marijuana for periods of time and she said maybe he did but she could not tell.
The mother said she did not have an issue with the father attending the school or extra-curricular activities. She did express the view that she hoped that the father would not approach her and follow her around but enjoy the event.
Handovers
Handovers received some attention during the hearing. The mother says that she began attending the handovers during the last weekend in November 2014, with a couple of exceptions.
The mother complains in the most recent affidavit about the number of people from the father’s family attending handovers. The father says that often they would be coming back from a family occasion and it would only be on those occasions that additional family members would be there. Given the fact that the father only sees X on Sundays his explanation seems perfectly reasonable.
The father complains that the mother’s father was aggressive at handovers. The mother denies this but did not call her father as a witness. Significantly, the mother did not call her father to give evidence. He conducted many of the handovers.
The father says that handovers are still difficult but are smoother as X does not cling to him but gives him a hug, says goodbye and goes to her mother.
The mother says that she wants the handovers to take place inside a police station. There is no justification for this Handovers at police stations (whether inside or outside) are not good for children as they perceive that someone in their family is in trouble and/or is dangerous. They should be a last resort.
The mother has accepted the benefits of handovers taking place at school which would mean the parents would not see each other but she said she did not want the father’s time extended on the basis that they could not conduct handovers. She says that handovers are getting better because they have been quicker. She reported that handovers previously took between 20 and 25 minutes and that X would become increasingly emotional when saying goodbye to her father. She said that handovers now take between 5 and 10 minutes.
The family consultant stated that they should not be drawn out but should only take a few minutes and that it is important that both parents give X the message that it is okay to transition to the other parent.
Dr B
Dr B prepared a psychiatric report of the mother dated 29 April 2014. The mother reported her concerns about the father having serious depression which develops into psychosis and his bizarre beliefs and her concern that he will act on them. She said he never bonded well with X. Dr B opined that the significant improvement in the mother’s OCD symptoms at the end of the relationship indicates that it is a coping strategy for her operating at an unconscious level. He said the counting and checking rituals are a way of avoiding dealing with emotions and that it could therefore be anticipated that the reduction in her stress given the end of the relationship resulted in a reduction in her symptoms. This is consistent with the mother’s evidence.
He did not have any concerns about her parenting capacity. His report is brief.
Dr B prepared two reports on the father. In the first report dated 14 September 2013, Dr B recorded the father expressing surprise when the mother raised her concerns that he had been psychotic in 2004 and that because of this his time with X should be supervised during mediation. He reported to Dr B that saw a doctor he did not normally consult with who asked him a series of leading questions, and that he felt obliged to answer affirmatively because he would otherwise not receive the medical certificate. The father said he experienced depression in 2004 following long-term unemployment and activation of childhood memories and that he saw a psychologist to seek short-term treatment with antidepressants. He said he was not suicidal; however he did have a single episode of head-butting the wall. He had passive thoughts of not wanting to live and had feelings of hopelessness and helplessness. He recovered from this and has not had a recurrence of symptoms despite the stresses related to the breakdown of the relationship and the restriction of his time with X. He referred to difficulties in his childhood.
He also referred to in some detail his attempts to seek help for the mother that would lead to the end of the relationship.
The father says that after separation he would visit the mother’s home three times a week to see X and sometimes overnight. He did not see X without the mother being present.
The father says he had been studying toward a (qualifications omitted) degree but that he was embarrassed by his current circumstances and has therefore stopped studying to pursue employment in the (omitted) sector in the short term.
The father acknowledged that he holds onto his ideas strongly and that this can cause arguments with people.
He says he has used a small amount of marijuana but that he has not consumed it for 18 months and rarely drinks alcohol. He said apart from the incident in 2004, he has no history of violence.
Dr B said:
“the opinion I formed after the interview after reviewing the available documentation was that the father’s unhappy childhood experiences have resulted in a person who thinks deeply about subjects, but is emotionally reserved…There seems to be some dispute about whether he had delusional ideas at the time. He doesn’t recall any, but there is the doctor’s certificate. Whether his explanation is a rationalisation after the event I cannot determine. If he had delusional thoughts it is somewhat surprising that he didn’t come to the attention of the mental health service or the psychologist that has provided clinical notes. It seems more likely that, as part of his depression, he thought excessively about the adverse childhood events.”
Dr B said he saw no reason to oppose unsupervised time on psychiatric or psychological grounds, but that he would be able to give a more complete opinion if he had access to the notes of the general practitioner treating the father. However, the events in 2004 were a considerable time ago and he has coped in recent times without decompensating.
Dr B concluded that there was no personality diagnosis and that there was likely a single episode of depression in 2004 but that there was no indication of any need for treatment or therapy.
This report is significant for what it does not reveal given the subpoenaed material. Some of the materials that Dr B did not have access to at the time paints a different picture of the father’s mental health history.
Dr B’s second report is dated 29 April 2014. In preparing that report Dr B had access to subpoenaed documents which included Dr W’s report.
Dr B said that in light of the subpoenaed material and the affidavits he tried to draw the father out with respect to his thinking and whether or not he had ideas that were not reasonable. The father expressed the view that such experiences of abnormal thoughts were a daily occurrence for him. Dr B noted that that was not his personal experience and was not the experience of thousands of people who he had interviewed. Nor is it the “part of accepted psychiatric understanding of how people think”. He appeared to be describing a pattern where he will think about a subject extremely intensely, including all the possible permutations of what could occur, and this can include what we would term bizarre ideas, which he considers in a serious manner. He gave an example of a National Geographic television program that spoke about the possibility of the reversal of the Earth’s magnetic poles. Such an eventuality he saw as unlikely, but possible. He said he hadn’t thought about that subject for 15 years, but was aware that it was one of the issues raised in the mother’s affidavits. The mother also raised the father’s belief that the world was going to end.
Dr B said that the father continued to minimise any past abnormal ideas although did acknowledge to having abnormal ideas which he keeps to himself.
Dr B referred to the (omitted) Hospital records which indicated that the father received extensive psychological intervention for depression and social phobia and that the father had persistent moderate depression, prominent avoidance behaviours, obsessional and analytic thinking style.
Dr B referred to the incident in May 2010 and quoted from Mr M’s phone call with the father on 19 May 2010. Dr B said in his report that the father was suffering from a psychotic illness that was likely to have been more chronic than had been identified previously.
Dr B disagreed with Dr W’s diagnosis that he thought it would have manifested previously given the long history. Dr B said that the father is more analytical than most people and that people like the father often demonstrate weakness in their emotional capacity but that is not usually enough to impair their parenting ability. Dr B also thought that the mother’s own need to control situations contributes to the differences in perception between the parents about what is safe for X.
Dr B noted that whilst the father has some odd characteristics and at times of stress may have abnormal ideas, he did not think that the father was an inappropriate or unsafe parent. He noted that both parents have illnesses and need to control others as a way of managing their own internal states which can make it difficult for them to negotiate. He did not think that supervision was warranted.
Dr B was cross-examined at length. In answer to questions put to him by counsel for the Independent Children’s Lawyer, Dr B expressed the view that whilst the father has odd ideas that he is not entirely in control of, he has some insight into this and knows other people do not agree with his views. He did not feel compelled to preach his views to others or to run away from it. He says that the father has not been damaged by his ideas as opposed to someone with psychosis because the person with the psychosis does not have the capacity to proceed if their ideas are different to others.
Dr B also expressed the view that it was possible that the father had mild psychosis that did not require hospitalisation. He thought that it was less likely that the father had experienced psychosis because most people with a psychotic illness present following an acute deterioration in their ability to care for themselves such that they come to the attention of health care professionals. Dr B said he would have expected the father to have come to the attention of health care professionals if he had been suffering from psychosis and that this has not occurred.
Arguably with respect to the May 2010 incident that is exactly what happened.
Dr B confirmed that after reviewing the (omitted) Hospital notes and the notes with respect to the May 2010 period he disagrees with Dr W’s assessment that the father has a primary psychotic illness. He said that he thought Dr W’s concerns that the father had been experiencing slow deterioration and that psychosis was driving that but Dr B disagrees and says he has the advantage of five years’ experience since then. Dr B also said that reviewing his childhood and the difficulties that the father had provides an understanding of why he presents the way he does.
Dr B said he thought both parents are somewhat rigid and excessive thinkers who are not as emotionally aware as they may think they are which causes problems in their interactions. People who are very analytical do not manage anxiety very well and they try to control their environment so that that world is more comfortable for them.
Dr B was cross-examined at length by the counsel for the mother. He confirmed that he interviewed the father for between 45 minutes and an hour for each report.
It is clear that the father did not tell Dr B that he had any history of depression prior to 2004 at the time the first report.
Included in the index of material given to Dr B to the preparation of the second report was a document from (omitted) Medical Centre dated 17 July 2002, being a document signed by a Dr J confirming the presence of a depressive illness in the father starting from 1978 with an exacerbation in 2000. Dr B agreed that he had made no mention of this in his report and had simply referred to the father having depression in 2004. Dr B said that he did not mention it in his report because he had the impression of long-term problems that climaxed in 2004. With respect to Dr B that is not how his first report reads. It reads as if it was a one-off incident and a one-off period of depression in the father’s life. Dr B said he gave more weight to the list that the father gave him than to the subpoenaed material. It seems clear that what Dr B was on the lookout for in particular was any history of psychosis as opposed to mental health issues generally.
Dr B also acknowledged that he did not refer to Mr M’s notes in any detail although he had those when he prepared the report. Mr M is a clinical psychologist who treated the father in 2004. His notes of 19 January 2004 prove the father having long-standing psychological and behavioural difficulties. He referred to the father being referred to Dr E for an assessment of personality problems and depression and a preoccupation with suicide. These are significant omissions in the report that Dr B did not ask the father about. Dr B acknowledged that in hindsight he should have gone into these matters in more detail with the father.
Dr B had made clear that there is a difference between someone having psychosis and exploring abnormal ideas in the context of a psychology session. There was also an earlier Centrelink certificate dated 15 June 2005.
Ms P also drew attention to the Centrelink medical certificate dated 14 September 2005 which under symptoms refers to depression, social anxiety, paranoia, and delusional thoughts. It also refers to the father seeing a psychologist for personality disorder. Dr B referred to the medical certificate in passing in his report but not the details of it.
Ms P put to Dr B that his reference to the events in 2004 being a long time ago is simply glossing over the other documents that indicate problems during other periods including in 2005. Certainly Dr B’s report is misleading in that respect as the reader is left with the impression that there was an isolated period in 2004 of mental illness, but in fact there is a more substantial history. This is evidenced by his reference to that being a single episode of depression in 2004. This cannot be reconciled with the other documents that Dr B had available to him.
He accepted the proposition that in order for Centrelink to provide a medical certificate for depression that the person would have to be unable to work which would indicate a major depressive episode. The documents indicate that the father had major depressive disorders in 2002, 2004 as well as 2005. The documents also show that the father was referred to Dr S, a psychiatrist on 26 August 1994.
With respect to the father’s marijuana use Dr B said he had the impression that the father has used small amounts on and off over the years. Dr B acknowledged that the consumption of marijuana can be a factor that impacts on a person’s mental health. It has a depressive effect when used long term and if someone is vulnerable to psychosis it can increase that vulnerability or lead to a psychosis. He agreed that marijuana use is not an insignificant issue but he did not feel it was a major factor for the father.
Dr B said he did raise the issue of the father being cruel to animals with him when conducting the interview for the second report and that the father dismissed the allegations. He did not see it as a significant issue and did not explore it further. He agreed with the general proposition that cruelty to animals is something that is significant for a psychiatrist when they are making an assessment of someone’s mental health and particularly if it is not an isolated incident. He says he did not cover it in his report because he saw it as an incident of the father’s childhood. He said he did not comment on it because he dismissed that in his mind as having any impact on the current circumstances.
Dr E’s notes mention the father on two occasions admitting to swinging a cat by its tail when he was a child. The father admitted doing that to Dr E and expressed distress about it. Dr B said it is part of the picture of an unhappy childhood.
Dr B gave evidence that many people are chronically suicidal but are capable of maintaining good function, and that tends to be a more existential type of depression when life is not experienced as being meaningful. In other words, not all suicidal thoughts are the same.
Dr B said that the concern about marijuana consumption would be if it causes the psychosis. Usually daily consumption of five cones a day would be of concern. He said whether the father was using five cones or eight or ten cones would not matter as it was the fact of harm in using it daily. In some cases the psychosis follows marijuana use however, in the father’s case given his long history of presenting with odd ideas he did not think it was just the marijuana.
Dr B reviewed the notes. He disagrees with Dr W and does not think that the father was psychotic although he acknowledges that Dr W had the advantage of seeing him at the time of the concerns and seeing him for more than the purpose of a medico legal report.
The (omitted) notes from 1998 document that the father was smoking between six and eight cones of marijuana a day. Dr B agreed that such significant intake of marijuana can have an impact on a person’s thinking and thought processes.
Dr B disagreed with Dr E’s assessment in 2003 that the father was at high risk of suicide. He says it is uncommon to see it, because the father with his analytical thinking time would have over endorsed those questions.
There was some considerable force in what Dr B said in needing to be mindful of the context of what comes up during the course of therapy sessions as opposed to presenting at an emergency room in a crisis. In therapy, people are asked to look back and speak in metaphors. It would be quite wrong to see these as indicators of psychosis. He went further to say this type of thinking is encouraged in psychotherapy sessions so it would be most unfair to then criticise someone for that.
Dr B did not agree with the proposition that regardless of what the symptomology is called the father’s thought processes and the way he acts are concerning. Dr B said that if abnormal thoughts are part of a depressive illness they can be associated with the capacity for someone to control themselves. On the other hand, if abnormal thoughts are part of a psychosis, that changes the equation and means that the person is likely to have all the other problems that are associated with psychosis.
Certainly the medical notes indicate that the father has had ongoing issues with depression. The father prepared a personal timeline that indicated as much and that between the ages of eight and nine years old he was severely depressed and had suicidal thoughts. At 31 he continued to experience depressive states and had a breakdown in the workplace. At 33 he attempted a university degree but failed because of depression and anxiety. Dr B did not say that these are completely resolved but that the father is functioning a lot better. He does not have depression. He has odd ideas and he can distance himself from them and does not appear to be influenced by them.
The last treatment note of Mr M on 30 March 2007 recorded the key issues as being depression, avoidance, relationship difficulties, complex trauma, bullying issues and emotional abuse. Ms P suggested that that indicated that the father stopped therapy at a time where he continued to have several serious issues including depression. Dr B says he saw that as part of the long-term problem, that often people at the end of therapy have a greater capacity to accept themselves and know that they are not going to change but learn how to deal with the symptoms. There is a distinction between chronic personality driven depression and major depressive episodes.
Dr B referred to the distinction between the types of depression. In particular, between long-term chronic and mild depression versus major depression with depressive episodes.
Dr W recorded speaking to Mr M at the time and Mr M noted that the father is highly obsessional and intellectualises as a defence, so he could be guarded and psychosis could occur at times.
Dr B opined that the father could have suffered from a drug induced inchoate psychosis which can exist over an extended period of time. He also accepted that it was reasonable as Dr W had concluded a reasonable interpretation of the father’s history that he is someone who has suffered psychotic episodes. The distinction that Dr B was keen to make was that there was no history of prolonged psychosis such that he was brought to the attention of mental health services and hospital that there was some paranoia but it was not sustained.
Dr B said the father has odd thoughts and continues to have them but he is not delusional.
Dr B said the father says that he has no memory of behaviour such as gassing rats. This can be a form of denial.
The family consultant
Dr L prepared a family report dated 9 July 2014 and an addendum to that report.
It is clear from the report that the mother thinks the father will always be a danger to X. The mother described the father as presenting well; as being smart and good at knowing what to say. She does not think his mental health will improve.
The mother told the family consultant that her OCD was stress related.
The mother told the family consultant that she knows what the father is capable of and thinks he is very disturbed. She says he has weird ideas, acts on them and engages in risk taking behaviour. However, for the most part the mother was pretty vague.
X told the family consultant that her mother and father are happy people. She said that they do not live together because they fight.
The family consultant noted that X had positive interactions with each of her parents and that she had a comfortable, warm and loving relationship with her mother and paternal grandmother. She observed that X ran into her father’s arms when she saw him and that he was warm, responsive to her and appropriate. She formed the impression that X has a warm and loving relationship with her father and was comfortable with him.
The father told the family consultant that Dr W only saw him for 40 minutes and put claims to him which he denied. He said it was the mother who was behaving erratically. What the family consultant records at page 8 of the report is similar to the details that the father provided in his trial affidavit.
The father also told the family consultant that it is the mother’s brother who acts out and is crazy and said he thinks the mother is making allegations about him to stop him spending time with X. He also spoke about the mother’s OCD and said that it controlled the relationship. He said the mother’s comments are not reliable and that her claims are escalating and it is very difficult for him to prove things that did not happen. It is clear from the subpoenaed material that the mother is raising legitimate concerns about the father based on his records rather than simply projecting her brother’s problems onto him.
The family consultant noted in her report that both parents were making the same claims that the other parent had serious mental health issues. She noted that Dr B is clear that there are no contraindications from a psychiatric perspective to the father spending unsupervised time with X and that reports indicate that he had considered the mother’s affidavit and the allegations that she made in that affidavit filed 29 January 2014. Dr B noted that although the father has some odd characteristics he was not a risk to X.
The family consultant formed the view that X’s good relationship with her father, in combination with Dr B’s assessment, points to unsupervised time. She understood that the father was living with his parents and that having to spend overnights at the paternal grandparents home provided built-in support for the father but also provides the mother some reassurance that the father was not on his own with X.
She observed that to some extent it was understandable that the mother did not accept Dr B’s assessment given her long history with the father and given that there were clearly times when he did have mental health issues but that the mother should also give consideration to the fact that, just as her mental health issues have largely resolved post the relationship that perhaps the father’s have as well.
She stated that given Dr B’s assessment and X’s good connection with her father she could not support the father’s time remaining supervised and suggested his time be extended to one overnight with a further review perhaps in six months’ time.
The family consultant was asked to provide an addendum report since the father’s living circumstances were different to what she had understood at the time she prepared her report. The father’s parents were in the process of selling their home at (omitted) and had purchased a home in (omitted), which is a 2 ½ hour drive away. Once their home sold they would no longer be living with the father.
In her addendum report dated 4 August 2014 she said she spoke to the father who told her that his mother would be able to stay overnight at his home when asked. He said he intended to have his mother stay overnight for the first few times he had X overnight as he thought that X would enjoy this and it was also to provide him with support. She recommended that the father’s mother stay overnight in the first three sleepovers and then on alternate sleepovers for a six week period and then every fourth sleepover until the arrangement could be reviewed in six months’ time.
The family consultant confirmed that she had the opportunity of re-reading the subpoenaed material before being cross-examined. She commented that there is a lot of information on the file which raises issues that have to be considered. It is important to consider how someone with a history of mental illness is coping and how that person relates to their child.
She acknowledged reading the early material, dating back to when there were significant concerns about the father’s depression and noted that her impression was that the father had made some steps forward in how he manages his mental health including that he had given up marijuana which can have a very positive effect. In her clinical experience when people stop using marijuana after long-term use they think more clearly, feel better and generally function better overall. She stated that it is essential for the father’s ongoing mental health that he not use marijuana at all.
She said one of the significant issues with the father is his cognitive style of focusing on particular thoughts. She said that that is very typical with people who have anxiety and that anxiety and depression often go together.
There was nothing in the material including the affidavits which concerned her about the father’s interaction with X, and she also had the benefit of seeing X interact with her father which she identified as being very comfortable.
She said anxiety and stress can exacerbate any vulnerability including OCD.
The family consultant expressed the view that the indicators are that the father is doing better. It is problematic to take one or two events and predict into the future with any great confidence. She said it is sensible to have concerns and it is important to think about having some safety mechanisms in place if there is uncertainty. She says there are safety mechanisms to make sure that the paternal grandmother is present for a reasonable period of time, not allowing the father to use marijuana, and making sure that the father sees a psychologist. Similarly to Dr B she said she would take a different view if the incidents of the father being cruel to animals were recent. Dr B’s caution about taking what is said during the course of therapy out of context is also relevant here.
The parents refer to asking X simple questions such as what she got for Christmas and her reply by saying I do not know. The family consultant said that this could be indicative of X picking up on the tension between her mother and father and having difficulty in navigating the transition between their two worlds. The mother says she has been anxious and recognised that children pick up on their parent’s anxieties.
In her report about the father, Dr W stated that she thought the father suffered from primary psychotic illness but as he had been a long term user of marijuana, the diagnosis was unclear. She suspected that his rigid personality traits together with the mother’s OCD had been challenged by the birth of their baby and that this had been a very stressful time for both of them. She assessed that the risk from the father to the mother and child as being low even at that point of time.
The family consultant said when reading Dr W and Dr B’s reports she also considers them in the context of all the information available to her which includes the positive interaction she observed between X and her father.
The family consultant was asked about the mother’s position, which is that the father’s time needs to be supervised at all times. She agreed that alternate weekends are a sensible option given the fact that X is now at school. Factoring in a few hours after school on the other week is also sensible. She does not support formal supervision as she does not see anything that warrants that and sees value in the paternal grandmother being around. X has a relationship with her grandmother and she continues being present to give the father some support and goes some way to address the mother’s concerns. She noted that the mother may be taking the view that the father is never going to change and that he is always going to be unsafe. Whilst that might be understandable because of her experience it is not helpful nor is it consistent with the information available. The mother could benefit from getting some assistance to help her manage her fears. It is also important that the mother protects X as much as possible from her own anxieties about the father. Given the lack of objective evidence to support the position, she will encourage the mother to challenge the position that she is taking.
Dr L thought it was reasonable to have the grandmother present for overnights perhaps into the middle of next year when X turns seven and will have had the opportunity to settle into the school and the overnight routines.
I have no doubt that the grandmother will continue to be a frequent presence in X’s life. The issue is to what extent it is necessary and in X’s best interests for the grandmother to be personally present for the visits.
The family consultant did not give much thought to the issue of parental responsibility. She raised the question of whether or not equal shared parental responsibility would place extra unworkable stress on the parties because of their inability to communicate but acknowledged that she had not thought this through. She was not optimistic about the parents being able to navigate their way through issues given her impression of the mother was that she was very rigid and set in her views.
The family consultant could see the positives of X being able to travel to (omitted) to spend time with her father and grandparents at the beach but was cautious about introducing two overnights straight away and thought that the sensible approach would be to move to alternate weekends with a dinner in between. She also saw the benefit of handovers taking place via school further down the track to avoid parties having to come into contact with each other.
The family consultant did not agree with the proposition put by Ms P that someone with a significant background of mental illness may improve for a while and then deteriorate and that one does not know when the next episode is going to happen. The family consultant disagreed because she said that by the person having strategies, supports in place and awareness of how things progress for them, they may be more resilient. She said she did not think it was possible to confidently predict unless you had someone who had been relentlessly oppressed with no relief and that is not the picture of the father.
There is no doubt that Dr W had significant concerns about the father in 2010. The family consultant came back to the father’s presentations with Dr B on two occasions. She acknowledged that the father may be lying and that there is no way of knowing that.
The family consultant also referred to her own clinical experience and said that it is plausible that people can make changes so she refused to predict from the father’s long history that he is inevitably going to go downhill. She also pointed out that this would be the case with both parents; as when people present for interviews there will be an element of highlighting what is working well and downplaying what is not.
She says that psychiatrists tend to talk a lot about insight whereas psychologists talk about strategies of identifying what is happening in managing those. She says you could legitimately argue that the father’s relationship with his daughter makes him more resilient and his connection with her helps him psychologically. She rejected the proposition that it be possible to equally argue that with a 27 year old with a history of major depressive disorder, psychotic behaviours and abnormal thought processes that it will happen again. She pointed out that not everyone agrees on the diagnoses for the father. She said she was cautious in her report and did not have anything solid to support the suggestion that the father should be supervised for a long time and still does not have anything to suggest that.
She was asked about whether the mother is concerned that the father will communicate his abnormal ideas to X causing her distress. She said that no one can offer the mother a complete reassurance but we can look at the way the father relates to X. The father seems reasonably attuned to X and is able to identify if she is in distress, she needs to call the mother. This is a good sign because it shows a normal capacity to put X’s needs first. The father could have an episode and that is why you have the grandmother present and why you have the father seeing his psychologist but there are no guarantees.
The family consultant indicated that in terms of the father, it depends on whether if abnormal thoughts are occurring, if he is expressing them and if X is taking them on board. Some adults can say things and children do not take them on board at all. X appears to be emotionally very well connected her mother and there does not appear to be any feedback that she comes back from spending time with her father distressed.
Ms P put to the family consultant that the mother’s position is that someone needs to supervise X’s time with her father all the time, not just intermittently. The consultant replied that she has a different view, because the people she works with can build on their strengths, develop skills and change. She says that others are able to look at this situation more objectively than the mother for obvious and understandable reasons. She said to impose a supervisor for every visit is very problematic. She thought that X is at an age that she would be able to tell her mother if something was upsetting her.
She applied the same analysis to the father’s history of suicidal thoughts and the head-butting incident in 2004 as she did to the incidents of cruelty to animals. Again, whilst these are very significant issues, it is important to look at the bigger picture and what has been happening more recently. She said too that for many people, including those suffering from mental illness, becoming a parent changes their perspective and this can be a positive thing for them.
The family consultant was of the view that it would be beneficial if the father re-engaged with Mr M because there has been a lot of information put forward, some of it contradictory and it better enable him to do what is best for his daughter.
Legal Principles
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). S.65D of the Act gives the Court the power to make a parenting order which is defined by s.64.
In deciding whether to make a particular parenting order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations and s.60CC(3) being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII, as stated in s.60B, that the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford and Waterford [2013] FamCA 33, Mazorski and Albright [2007] 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence the extent that doing so is consistent with the child’s best interest being treated as paramount. There are no issues of family violence in this case.
S.61DA(1) provides that when making a parenting order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the child to make an order to equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make orders that the child spend equal time and if not equal time then substantial and significant time with each parent.
For a parenting order to involve the child spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.
In MRR and GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a court to make an order for equal time. At paragraph [13] of the judgment the high court said:
“Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words in which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each court has the power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subs (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”
Injunctions
Each of the parties seek injunctions. The injunctions are set out below. Before considering the specific injunctions it is important to discuss the principles applying to injunctions.
None of the parties identify the source of power they rely on in support of the injunctions. There are two potential sources of power, s.114 and s.68B of the Family Law Act. Implicitly the orders sought are pursuant to s.68B given the nature of the proceedings. Section 68B provides that “the court may make such order or grant such injunction as it considers appropriate for the welfare of the child.” The court may grant an injunction if it appears to be just or convenient to do so and may grant it unconditionally or on such terms and conditions that the court considers appropriate.
The injunctions sought by the parties will potentially be in place for many years. The point of these injunctions are, in the main to restrict or direct the father’s behaviour. Injunctions, particularly permanent ones should not be made lightly. The Court should only make injunctions, especially at a final hearing if the evidence justifies it.
Injunctions sought by the ICL
The ICL seeks the following orders:
a)An injunction be granted restraining the mother from changing the child’s school without the written response of the father pursuant to para.2 herein.
b)An injunction be granted restraining the father from consuming any illicit substances.
c)An injunction be granted restraining each of the parents from approaching the other at any school or extra curricula events unless invited to do so.
The mother acted unilaterally with respect to X’s school. She said during her evidence that in the future she will consult with the father. For the reasons discussed above I am making an order in favour of the mother for sole parental responsibility subject to conditions which require the mother to seek the father’s input before making major decisions for X. In light of that order an additional order regarding the school is not necessary.
I am not satisfied that the father has been taking illicit substances in the recent past. There is no evidence before me to suggest that the father has been under the influence of illicit substances when caring for X. I am satisfied that if he was under the influence Ms H would have intervened. There is no evidence that the mother or her father has had any concern about the father being under the influence at handovers.
I am also not satisfied that the injunction restraining the parties from approaching the other at the school is necessary. Whilst the mother has expressed a concern about this there is no evidence to suggest that the father has approached her at other locations.
Injunctions sought by the mother
The mother seeks the following injunctions against the father:
a)That the father be restrained and an injunction is hereby granted restraining him from taking the said child to any medical practitioner, counsellor or professional person treating the said child save and except in the case of emergency or with respect to any day to day medical or dental issue which may arise during the time X spends with him and that the father do immediately inform the mother of such treatment and the name of the treating health professional.
b)An injunction be granted restraining each of the parents from approaching the other at any school or extracurricular events unless invited to do so and from allowing or permitting any other family member to do so.
No evidence was lead in support of the first injunction. The father has had little opportunity to take X to a doctor or a dentist. In the future when X is in the father’s care for longer periods, I cannot see how it would be in X’s interests for the father to be restrained from being able to take X to a doctor or a dentist particularly when he has care of X for longer periods of time. Injunctions should not be granted purely to reassure the mother. I have already discussed the second injunction.
Injunction sought by the father
The father sought the following injunction:
a)that the respondent mother be restrained and an injunction be granted restraining her from leaving the child alone in the presence of her brothers Mr R and Mr J.
The mother’s evidence is that Mr R has never met X. She says Mr R is dying. There is no evidence to suggest the mother has ever exposed X to Mr R or ever would. There is no evidence to suggest Dr J is an inappropriate person to spend time with X.
Parental responsibility
The mother seeks sole parental responsibility. The ICL supports this. The father seeks equal shared parental responsibility.
The parents are unable to communicate constructively. Exhibit C is a classic example of this. The evidence on that point is clear. The parents tend to be rigid in their views and it is difficult to see how they will be able to improve their communications. It is clear from the extracts of the communication book that that has not been an effective tool for them. X is not yet 6 years old so there are many years ahead where important decisions will have to be made for X’s care, welfare and development. After weighing up the evidence in this case I am not satisfied that it is in X’s best interests for her parents to share parental responsibility for her. However the mother should not have free reign to make decisions without seeking the father’s input and considering his views. The orders I have made provide for this. It is also important that the school has the father recorded as an emergency contact and that the father be able to contact her school and attend school functions.
Primary considerations s.60CC(2)
X enjoys a meaningful relationship with both her parents. She will continue to have the opportunity to enjoy this.
Additional considerations s.60CC(3)
It is clear that X enjoys spending time with her father. I do not have evidence about her views. Given her young age this is not surprising.
I find that X has a close and loving relationship with both parents and her grandparents on both sides of the family.
The parties are in dispute as to how often and under what conditions the father sought to spend time with X in the first couple of years after separation. It is not necessary for me to determine this. It was a difficult period after the parties separated. The father was clearly unwell. X was very young. The mother acted protectively. I am satisfied that the father wants to be actively involved in X’s life and that he has much to offer her. He has not had much opportunity to participate in decision making for X. The mother has not always consulted the father. The parties do not communicate effectively. The orders provide for a mechanism for the parties to do this but with the mother having ultimate responsibility. I am also satisfied that the mother now has a greater understanding of the need to seek the father’s opinion on important aspects of X’s development to keep him informed about other issues concerning X.
The orders I am making allow for a gradual increase in the father’s time. The shift to alternate weekends is in line with X’s wish to have weekend time with her mother and is appropriate now that X is at school.
Neither party raises any issue of practical difficulty or expenses.
I am satisfied that both parents are able to provide for X’s physical, intellectual and emotional needs.
There are no issues of family violence.
Mandatory psychological treatment
It is well established that the Court does not have power to make a freestanding order for a party to engage in therapeutic counselling or mental health treatment: see L & T (1999) 25 Fam LR 590, Jacks & Samson (2008) FLC 93-387 and Carnegie & Ginter [2013] FamCA 331.
The mother seeks the following order:
a)Within 42 days the father do all things necessary to attend upon Psychologist, Mr M, or such other Psychologist as recommended by his GP provided that the father do forthwith inform the mother of the name of the Psychologist he attends and that he do authorise such Psychologist to speak with the mother and provide her with information about the father’s attendance and in particular to address any issues which may impact upon his capacity to parent the child and the father to continue such attendance as recommended by such Psychologist provided further that the father shall attend upon the Psychologist prior to any extended school holiday periods if such periods are unsupervised or not taken in the presence of the paternal grandmother and upon further condition that the father do provide to the Psychologist Exhibit D together with the reports of Dr B dated 13 September 2013 and 29 April 2014 and the report of Dr L dated 9 July 2014.
The ICL seeks an order in the following terms:
Within 42 days the father do all things necessary to attend upon psychologist Mr M or such other psychologist as recommended by his GP and continue his attendance as recommended by such psychologist UPON NOTING the father is to provide to the psychologist Exhibit D, reports of Dr B dated 13/9/13 and 29/4/14 and report of Dr L.
In the father’s written submission he says he will comply with any order made for him to attend treatment but says there is no evidence that he has been mentally unwell since May 2010.
It is somewhat surprising that none of the Counsel referred to any authorities with respect to unacceptable risk and orders compelling a parent to attend for treatment for mental health issues given the amount of time the father’s mental health issues occupied the hearing.
The order the mother seeks is expressed as a conditional one. I have concerns about the mother’s order because of the amount of information the mother seeks. Any therapeutic process is going to be severely hampered by the father being aware that the psychologist would be discussing issues such as the father’s parenting capacity. The issue of the father’s parenting capacity is not an issue for a psychologist to determine. It is a matter for the Court.
The order that the ICL seeks is not expressed as a conditional order.
In light of the mother’s anxieties which I accept as genuine and Dr L’s comments, I think it is in X’s best interests that the father re-engage with a psychologist. The length of that engagement will depend on the psychologist. I will require the father to provide to the mother a letter confirming the father’s attendance prior to the father’s time with X including extended periods during school holidays.
Supervision and unacceptable risk
The Full Court has made it clear that orders requiring long-term supervision cogently need to be given: see. Moose v Moose (2008) FLC 93-375: Malburon and Anor & Waldlow [2013] FamCAFC 191: Slater v Light (2013) 48 Fam LR 573 The concern is, naturally enough, about providing some sort of mechanism for moving forward from supervision.
I have to consider whether or not X is at an unacceptable risk of harm if she has unsupervised time with her father. The mother seeks orders which would see the father’s time be supervised on a long term basis. The father’s time has already progressed from supervision.
Order 2 of the orders made on 12 November 2014 provides as follows:
That pending trial the child spend time with the father,
a)from 5.00pm Saturday to 5.00pm Sunday commencing Saturday 15 November 2014 and each alternate weekend thereafter with liberty to the father for such time to be unsupervised,
b)from 5.00pm Saturday to 5.00pm Sunday commencing Saturday 22 November 2014 and each alternate weekend thereafter with the paternal grandmother to be present with the father and the child overnight on the Saturday night on each such weekend,
…
She seeks orders that:
That the father’s overnight time with the child be supervised by the paternal grandmother save and except in the case of an emergency if the paternal grandmother is not available then such time be supervised by the paternal aunt or otherwise as agreed between the parties.
The ICL seeks order that:
That until 1st July 2016 the overnight periods be in the presence of the paternal grandmother save and except in case of an emergency then the overnight time be in the presence of the paternal aunt or as otherwise as agreed between the parties.
The father’s sister was not called to give evidence. There is no evidence that she is even aware that she has been proposed as a back-up supervisor let alone that she understands the obligations of supervision and is prepared to undertake that task.
There is no evidence to suggest that since X has spent periods of time supervised that X has displayed any concerning behaviours or reported any inappropriate behaviours by the father.
One risk the mother identifies is the father’s history of cruelty to animals. Whilst it is of some concern that his behaviour was not limited to childhood, there is no evidence to suggest that this is an issue that is ongoing and that anything has occurred since the father was a young adult.
By far the most significant issue of risk is the father’s mental health. Many people in our community have mental health issues. People may experience a one off incident, intermittent episodes or chronic illness.
The father clearly has a long mental health history. His records indicate that at times he has engaged with mental health services. At other times he has been inconsistent in his engagement with services.
His last contact with mental health services was in 2010. At the time he indicated he was going to follow up services privately but it appears he did not do so. It concerns the mother that the father has not engaged with any mental health services since 2010. This concern needs to be seen in the light of the events of May 2010 and Dr W’s report. It is clear from the evidence that:
(1) The father was mentally unwell at the time.
(2) The father did not follow up on treatment at the time or since.
Does this mean the father is currently mentally unwell and is untreated? Not necessarily. It is possible that the father has avoided treatment since then because of how he sees the consequences of receiving treatment, being the end of his relationship and only seeing X on a largely supervised basis.
The mother expressed her fear that the father may suffocate X because of what she says are the father’s extreme mental health issues. I accept that the mother is genuinely worried for X but the extent of her fear is not reasonable.
The father does have a long mental health history but that does not make it extreme. It is of some significance to note that the father has never been hospitalised for mental health issues voluntarily or involuntarily.
The father has shown some insight and sensitivity to X’s needs and an ability to separate X’s needs from his own. The evidence shows that X has a loving and positive relationship with her father. How can this deepen and grow if the father’s time is supervised indefinitely?
It is also possible that the father recovered from the episode in 2010 and has not had any further episodes. He may have better coping mechanisms. Dr B says he would expect that if the father had become seriously unwell he could have come to the attention of the medical profession or other professionals because of the decompensation that occurs when someone is seriously unwell.
There is some logic to that. If the mother had concerns the father was unwell again, I have no doubt that she would act quickly to protect X. I am satisfied that Ms H would too. The father has the support of his parents and has had this since the parties separated which he did not have during the parties’ relationship.
I am mindful that both parties have vulnerabilities. One concern about increasing the father’s time too quickly is the mother’s ability to cope with that. It is undisputed that the mother has been and will continue to be X’s primary carer. I accept that she is genuinely anxious about the father’s time with X. This is likely to be something that X is likely to pick up on from her mother’s emotions as children tend to be sensitive to that. The mother would benefit from receiving counselling to deal with her concerns about the father and I am confident she will do so in the future. The mother has shown that she engages with services when she feels she needs assistance. She will be dealing with the father for many years to come.
I am also mindful that this is an important year for X. The first year at school is a big adjustment for any child. I do not think the father’s time should increase too quickly when considering this.
The evidence does not support a finding that X is at an unacceptable risk of harm if she spends unsupervised overnight time with her father.
Supervision is an onerous requirement for a supervisor especially when it is for a long period such as overnight. An alternative to supervision is to require the father’s overnight time to take place substantially in the presence of the paternal grandmother. Due to the mother’s anxieties and to give them a period to adjust to the arrangement, I am prepared to order that the father’s overnight time take place substantially in the presence of the paternal grandmother for the next 3 months. This is in X’s best interests because X is likely to pick up on the mother’s anxieties.
This means that the paternal grandmother will be there overnight but does not have to be there the whole time and does not have to be in the same room which is what supervision requires. I do not think it is necessary to have such an order in place for any lengthy period of time and certainly not until July 2016. It is likely that the paternal grandmother will be there on most occasions in any event but she does have other commitments and once she and her husband are living in (omitted) full time, it will involve some travel for her.
For these reasons I am satisfied that the orders set out at the beginning of the judgment are in X’s best interests.
I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of Judge Harland
Associate:
Date: 21 July 2015
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