Bulmer and Bell (No 2)

[2014] FamCA 1063

FAMILY COURT OF AUSTRALIA

BULMER & BELL (NO. 2) [2014] FamCA 1063

FAMILY LAW – CHILDREN – where Independent Children’s Lawyer seeks orders be made only on interim basis – requirement for expert evidence as to mother’s psychiatric state – whether there is an unacceptable risk of harm to the child – whether the mother’s level of anxiety affects her parenting – best interests of the child.

APPLICANT: Mr Bulmer

RESPONDENT: Ms Bell

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: PAC 5716 of 2012

DATE DELIVERED: 2 October 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 2 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Fermanis

SOLICITOR FOR THE APPLICANT: Claremont Legal

COUNSEL FOR THE RESPONDENT: Ms Friedlander

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Snelling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bell

Orders

1. Following the evidence of Mr Bulmer this morning the proceedings today are adjourned to a date to be fixed in late November or early December for continuation of the hearing.

2. Pending further order, the child of the relationship L Bell Bulmer (“the child”) born … 2008 is to live with the mother.

3. The parties forthwith are to do all things and take all steps necessary to enrol in and attend the Keeping Contact Program at Unifam … for family therapy or such other therapy as recommended by the facilitator of the program.

4. The mother is to ensure that the child is in attendance at sessions of the program as directed by facilitator of the program or her designated counsellor or therapist.

Notation

1. It is unlikely that participation in the Keeping Contact program will have commenced by the time the matter is adjourned but these steps should be taken nonetheless so that when a place is available in that program the parties will immediately be able to participate in it.

IT IS FURTHER ORDERED

1. The child is to be provided with therapeutic or psychological support from a suitable agency to be determined following further enquires made by the Independent Children’s Lawyer, specifically for the purpose of assisting the child in rebuilding her relationship with her father and dealing with her current fears and anxieties associated with spending time with her father.

2. The issue of the child’s ongoing time with her father at the contact centre during the adjourned period, is stood down.

3. The mother is to attend upon Dr R for an appointment which has been arranged for her by the Independent Children’s Lawyer on 14 November 2014 for a psychiatric assessment noting that Dr R anticipates providing a written report within 2 weeks of the date of that assessment.

4. I will deliver later today my Reasons in respect of making that orders 1 to 7.

5. The Independent Children’s Lawyer is at liberty to discuss with any person who he may identify as appropriate the issue of continuing contact between the child and her father prior to that person being identified for therapeutic support.

6. The mother is to initially pay for Dr R’s assessment and any application for contribution, is adjourned.

7. The mother is to do all things to cause to be deposited into the trust account of the Independent Children’s Lawyer by close of business Wednesday 12 November 2014 the fees being $3,300.00 as advised by the Independent Children’s Lawyer in relation to Dr R’s costs for the preparation of the report and any application in relation to a sharing of those costs may be dealt with on the adjourned date.

8. The Independent Children’s Lawyer is to provide to Dr R the Reasons for the orders and is also at liberty to provide Mr G’s report to Dr R.

9. The Independent Children’s Lawyer is granted liberty to relist the matter on 48 hours’ notice by arrangement with my chambers in the event that the mother fails to comply with the orders 7 or 11.

10. By consent, and pending further order, orders are made in accordance with paragraph 1 to 4 of the Independent Children’s Lawyer’s draft Minute of Order as follows:

    (1)That the Independent Children’s Lawyer provide in writing to the parties details of appropriate psychologists or therapists selected by the Independent Children’s Lawyer for the child’s counselling and support and such details are to include the name, address, availability and costs if any of the chosen therapist.

    (2)That the mother will make the child available for therapy on the request of the selected therapist.

    (3)That the parties will comply with the selected therapist’s reasonable directions, including permitting the child to spend time with the father as the therapist may direct.

    (4)That if requested by the Independent Children’s Lawyer the mother will obtain a referral from the child’s GP for a Mental Health Care Plan for the child to obtain the therapeutic support from the chosen agency as recommended by the Independent Children’s Lawyer.

11. By consent, each party is to pay the costs of his or her own individual therapy sessions with the therapist referred to in order 6 above and any fees that may be payable with respect to therapy for the child referred to in order 6 above are to be equally shared between the parties.

Later

1. The interim arrangements with respect to the child spending time with her father are to continue unless the therapist appointed to assist the child informs the Independent Children’s Lawyer that in his or her professional opinion it is not appropriate for those visits to continue in which case the matter is to be relisted before the Court on 48 hours’ notice.

Notation

1. All parties have consented to the child spending time with her father during the adjournment.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5716 of 2012

Mr Bulmer

Applicant

And

Ms Bell

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns L (“the child”) who is six years old, the only child of Mr Bulmer (“the father”) and Ms Bell (“the mother”). 

2. The child’s parents were in a relationship and, although the nature of that relationship is very much in dispute, there is no doubt that it ended in late 2010.  Since that time the child has lived with her mother and elderly maternal grandparents in their home.  The child has spent very little time with her father and the mother contends that it is in the child’s best interest to spend no time with him or, if it is determined that the child should spend time with her father, that time should be supervised. 

3. The mother also seeks sole parental responsibility for the child.  It is the mother’s contention that there would be an unacceptable risk of harm to the child should she spend time with her father as a result of his violent behaviour. 

4. The father agrees that it is in the child’s best interests for her to live with her mother but seeks orders that he share parental responsibility for the child with the mother and that he spend time with the child.  According to his application the father seeks, initially, that the child spend time with him during the day for eight hours once per week and that this increase after a period of two months to each alternate weekend from after school on Friday to the commencement of school on Monday and half the school holidays.  It may be that, as a result of the evidence in these proceedings, the father may seek alternate orders. 

5. The Independent Children’s Lawyer is yet to formulate a position in relation to final orders that are in the child’s best interests and made application for these proceedings to be adjourned at this stage, although they are incomplete, for the purposes of obtaining a psychiatric assessment of the mother.  That order, that the mother be assessed by a psychiatrist and some other orders relating to the provision of therapeutic services for the child have already been made. 

6. Each of the other orders, other than the order for psychiatric assessment were made by consent.  The order for psychiatric assessment was opposed by the mother and these are my reasons for making that order. 

Background

1. The child’s parents, who are both 27, were raised in very different families and have differing lifestyles and many different values.  The mother is the only child of elderly traditional southern European parents with whom she and the child live.  According to her case she has lived with them at all times.  The mother is a practising Catholic and has enrolled the child in a private Catholic school.  The mother is currently pursuing tertiary education with the goal of achieving professional qualifications. 

2. The father was raised in a family, even on his own case, in which drug use and some antisocial behaviour was, at least, tolerated.  The paternal grandmother describes her sons as very naughty when they were young and would often get into mischief.  The paternal grandmother also concedes that she had no control over the activities of her children when they were living in a granny flat at the rear of the premises and concedes that she was aware of her children’s drug use in those premises. 

3. The paternal grandmother concedes that she used cannabis herself when younger and the father discloses quite significant cannabis use himself throughout the period of the relationship with the mother, though he maintains that he has been drug free for some time now.  The paternal family are not religious and also appear to have different ideas about parenting compared to the mother who has a particularly protective approach.  For example, the paternal grandmother left her 15 year daughter and her husband’s 15 year old son in the care of one of her other sons while she travelled overseas for six weeks and, during this time, police were called to the home as the daughter complained she had been assaulted by the brother who was supposed to be caring for her. 

4. Notwithstanding the differences in each of the parents’ extended families, which have been described by both parents as cultural differences, it is not suggested that either of the parents does not have an adequate parenting capacity to care for the child.  The evidence suggests that the child is and has been physically very well cared for.  In the Family Report it is noted that although the father had an overall negative opinion of the mother, he described her as a good mother.  The mother has also clearly met the child’s educational needs and particularly values education. 

5. When the elderly maternal grandparents gave evidence, they both spoke affectionately and warmly of the child.  The mother’s case that the child should have no contact or spend only supervised time with the father is based entirely upon her concerns that the child would not be safe with the father or the paternal family due to his violence and a lifestyle including drug use and other unsafe practices in the paternal household.  Although there is some dispute about issues of lifestyle, it is conceded that the paternal family lead a significantly different lifestyle to that of the maternal family. 

6. The main area of concern for the mother is that the father has been violent towards her and in the presence of the child, which is very much in dispute with the father denying all of the mother’s allegations. The issue of whether there is a significant risk of harm to the child should she spend unsupervised time with the father is a central factual matter which I must resolve in these proceedings. 

7. As indicated, the father has spent little time with the child since the parties separated.  It is common ground that the child spent time with her father in the presence of the mother on a few occasions in 2011.  There is no dispute that, following a family dispute resolution conference in November 2011, agreement was reached between the parties for the child to commence spending time with her father each fortnight at a supervised Contact Centre.  This time together commenced in May 2012 and continued until May 2013 when the mother withdrew the child from the centre. 

8. Records from the Contact Centre during this period indicate that the time spent between the child and her father, generally, went very well. 

9. Some of the mother’s allegations made during this period of contact with the father at the Contact Centre are very concerning, such as that the child had nightmares and night terrors and expressed the thought that her father was going to kill her and that she said, on many occasions, that the father was trying to hurt her or kill her.  The mother said that she had to buy the child presents and offer to take her out on outings to encourage the child to go with her father.  The mother also makes complaints about some occasions where she says she came into contact with the father in the vicinity of the Contact Centre and gave examples of contact that she regarded as intimidating both around the Contact Centre and on other occasions such as at shopping centres. 

10. As a result of her concerns the mother obtained a referral for the child to attend upon a child psychologist who the child saw, firstly, on six occasions between September and December 2012.  In a report dated 16 January 2013 the psychologist expressed the opinion that:

    [The child’s] lack of confidence in visiting her father seems to be dependant upon her recall of her father’s past aggressive outbursts and her mother’s uncertain sense of safety for both her and [the child].

    The psychologist was of the opinion that a sense of safety and trust would need to be established for future visits to be enjoyable for the child and said she: 

    …would like to continue working with the mother and daughter over the coming months to develop a more helpful philosophy around the restrictions on [the father’s] contact with [the child].

11. The Contact Centre records also indicate from at least December 2012, the mother began making complaints about the supervision of staff at the centre and was regularly engaged in email contact concerning these complaints.  The mother gave evidence of two particular incidents that occurred in May 2013 which she said resulted in her losing confidence that the staff at the centre could keep the child safe.  Even though these incidents did not relate to the father, the mother connects her concern that the staff could not ensure the child’s safety with statements she says the child made about the father making her feel sad or scared. 

12. In May 2013 the mother withdrew the child from the centre.  From January to July 2013, the child had a further six sessions with the psychologist and it was noted that her behaviour was becoming challenging with both the mother and at school. By the last session in July 2013, the child said she did not miss her father since visits to him had ended and that her three wishes were, “For [father’s first name] to go away, that she hated him and we don’t want to see him again.” 

13. In July 2013 orders were again made for the child to spend time with the father at the Contact Centre contingent on him providing three clear urine tests to indicate that he was no longer using cannabis.  As one of the tests taken by the father did not correctly comply with the appropriate chain of custody requirements and another was positive for cannabis in October 2013, the father did not recommence spending time with the child during the balance of 2013. 

14. In February 2014 the Family Consultant interviewed the parties and observed the child with the father.  The Family Consultant noted the mother’s history of allegations of severe family violence perpetrated by the father including episodes witnessed by the child and said that if they were substantiated, they raised questions about the father’s character and impulse control ability as well as his capacity to protect the child from future harm. 

15. The Family Consultant also raised concerns if tests for illicit substances were positive this may question the appropriateness of unsupervised contact with the father.  However, the assessment and especially the direct observation of the father with the child indicated to the Family Consultant that the child was attached to her father and not afraid of him.  He said that when they spent time together at the court building their interactions appeared spontaneous and mutually rewarding. So far as his observations were concerned the Family Consultant said whilst the child was initially pensive, she gradually opened up and started chatting naturally and after about ten minutes, she readily held her father’s hand at his request and their conversation became more spontaneous and they engaged in mutual play. 

16. Of note, he said that during the time at the doll’s house, the child, unprompted, placed three figures together in the same room, she nominated as herself, her mother and her father, indicating she perceives her parents similarly in this regard.  He said that by the end of the session, father and daughter were interacting naturally with much laughter shared between them.  The child had lost her earlier reticence and skipped around the room.  When it was time to part, the child gave the father a generous kiss and hug.  He said, “I love you,” she replied, “I love you too.” 

17. The father then told her he would see her in two weeks, to which the child replied, “Good.”  In May 2014 the child recommenced spending time every fortnight with her father at the Contact Centre.  As at the date of the hearing, there had been seven two hour occasions of time together.  The Contact Centre records indicate that, initially, these sessions went well with good engagement between the child and her father but that, from the beginning of July, the child started to express negative thoughts about her father, such as failing to acknowledge him and saying, “He’s not my daddy,” or saying that she wanted to play by herself.  The child also, on occasions, would not interact and participate with the father in activities. 

18. On 16 August 2014 the session was better with the child being described as being hesitant initially but warming up towards her father quickly.  On 31 August 2014 the mother cancelled the child’s session with her father at the centre.  Since that date, according to the mother, there has been one further session of the child spending time with her father at the Contact Centre.  That session, which was due to occur for over two hours, was curtailed after one hour as the child became quite upset and the mother was contacted and asked to pick the child up as she had had enough.

19. During the course of the mother’s evidence, it became apparent that the mother disputed the accuracy of the Contact Centre reports which, on many occasions, were very positive. She was also reluctant to concede that the psychologist to whom she had taken the child suggested that it was possible that a small part of the child’s preoccupation with her father as being scary may reflect some element of attention seeking.  Although the mother conceded that it may have been helpful for the child for the psychologist to have spoken to the father, she chose not to allow that to occur as she said she was scared.

20. The mother also constantly reiterated that she did not feel that it was safe for the child to spend time with her father and could not suggest how the child could develop a meaningful relationship with him.  Although the mother agreed that the father has persisted with trying to spend time with the child since he made his application, she did not think it was possible that the father may have matured since the time that she and the father were in a relationship or that, as a result of the maturity, it could be possible for the child to have a meaningful relationship with him.

21. The mother remained firm that, because the child kept expressing concerns that the father might hurt her mum and hurt her and that the child had fears based on incidents from years ago, including one which was said to have occurred when she was two and a half, the child still has current fears about her father.  She also remained adamant that problems with the child’s behaviour could only be attributed to the child’s fear of the father.  Of great concern was that the mother was extremely reluctant to accept the Family Consultant’s conclusions about the nature of the relationship between the child and her father and consistently avoided answering questions which would involve her acknowledging that in February 2014, the Family Consultant assessed that the child had a good attachment to her father.

1. She could offer no explanation as to why the child’s attitude may have changed in the past six months but said at one point, “I don’t know.  She has seen what dads are like.”  She also seemed to cast doubt on the value of the Family Consultant’s evidence and could not agree that, in light of his views about the strong attachment between the child and her father, that it would not be in the child’s best interests to sever that relationship.  The mother had not sought any treatment for psychiatric issues herself except counselling through Victim Services.

The mother’s mental state

1. Under further cross-examination, the mother gave some very concerning evidence.  When asked how she would respond if the Court ordered that the child was to spend unsupervised time with the father, the mother said that she could not cope knowing that the child was not safe.  She said she would be thinking that she would never see the child back again, that the father would kill the child to get back at her, and that he might kill her to get hold of the parents’ money.  She continually reiterated that her concern was the child’s safety and that she would not be satisfied that the child would be safe if she spent time with the father unsupervised.

2. Although I explained to the mother that the issue of safety or a risk of harm to the child was a matter for me to determine and that any such order would only be made if I was satisfied that there was not an unacceptable risk of harm, the mother still said that she could not cope with the orders and would continue to have fears.  Ultimately, the mother said clearly and emphatically that she would not accept it if the Court were to find that there was no unacceptable risk of harm.  The mother did not seem to have contemplated that it would be possible that the Court would make orders sought by the father or any other orders allowing the child to spend time with her father unsupervised.

3. When asked whether there were any orders that could be made to help her cope, the mother said there was nothing anyone could do to “get those fears out of me”.  The mother was very reluctant to agree to see a psychiatrist, psychologist or counsellor to assist her to manage her emotions and ultimately said she would do it but it would not fix anything.  The mother remained fixed in her view that she would not accept it if the Court made a finding that there was no unacceptable risk of harm to the child if she were to spend time with the father and orders consequent upon that finding.  She was adamant that she would not accept any orders other than the orders that she wanted.

4. I am of the view that the mother is displaying high levels of anxiety surrounding the issue of the child having a relationship with her father.  To date, the mother has been able to exercise control over the child spending time with her father and, on occasions, has simply taken steps to unilaterally cease the contact between the two, regardless of Court orders.  The clinical psychologist in January 2013, referred to her desire to continue working with the mother and daughter “to develop a more helpful philosophy around the restrictions on [the father’s] contact with [the child]”.

5. Since that time, it appears that the mother has not developed a more helpful philosophy around this issue and simply wishes to be the one who makes the decision about the child’s contact with her father.  On the current state of the evidence, whilst it is the case that I have not determined a number of critical factual matters including, in particular, the mother’s allegations concerning the father’s violence, I am concerned that the mother has closed her mind to the possibility of allowing and facilitating the child developing a meaningful relationship with her father and that if steps are not taken now, by the time the final judgment is delivered, that relationship may have deteriorated further.

6. It is also the case that whilst I am concerned that the mother is exhibiting high levels of anxiety, there is no expert evidence in relation to this issue.  Paradoxically, although it appears that the mother also wishes to contend that the father’s violence has caused her such high levels of anxiety that her parenting would be impaired if the child were to spend unsupervised time with him and acknowledged that, without an expert’s report, this evidence will not be available; the mother still opposed the making of this order.

7. In these circumstances, it is critical that evidence pertaining to the mother’s psychological and psychiatric functioning and, in particular, her attitude towards the child receiving the benefit of a meaningful relationship with the father is obtained.  It is a live issue in this matter as to whether the child will be emotionally harmed if her mother’s anxiety is such that the mother will not permit her to have a relationship with the father and will continue to believe that he presents a risk to the child, even if the Court finds otherwise.

8. Accordingly, Orders are made at the forefront of these Reasons for Judgment.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 October 2014.

Legal Associate: 

Date:  27 November 2014.