DAMBROSE & PACETTI

[2019] FCCA 3320

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAMBROSE & PACETTI [2019] FCCA 3320

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

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Cases cited:

Marvel & Marvel [2010] FamCA 240

Eaby & Speelman [2015] FamCAFC 104

Banks & Banks [2015] FamCAFC 36

Applicant: MS DAMBROSE

Respondent: MR PACETTI

File Number: PAC 2061 of 2018

Judgment of: Judge Newbrun

Hearing date: 19 November 2019

Date of Last Submission: 19 November 2019

Delivered at: Parramatta

Delivered on: 9 December 2019

REPRESENTATION

Counsel for the Applicant: Ms Giacomo

Solicitors for the Applicant: Ms Shelly

Solicitors for the Respondent: Ms Khalil

Solicitors for the Independent Children's Lawyer: Ms Rutkowska

ORDERS PENDING FURTHER ORDER

1. The mother’s Application a Case filed 10 April 2019 is dismissed.

2. The mother’s proposed interim parenting orders in her Amended Response filed 30 October 2019, seeking to spend unsupervised time with the child, or in the alternative, her “alternate position” seeking to spend time with the child, initially monitored by either Ms A or Ms B, are dismissed.

3. The mother shall be permitted to spend supervised time with the child at the group playgroup at the Suburb M and Suburb C Children's Contact Centres, due to commence in late January 2020.

4. The mother is directed to request the Suburb C Children's Contact Centre to reinstate the child’s supervised time with her, at least pending the child beginning to spend supervised time with the mother at the above group playgroup.

5. Should the mother be unsuccessful in seeking to have reinstated the child’s supervised time with her at the Suburb C Children's Contact Centre, and/or she be unsuccessful in spending supervised time with the child at the above group playgroup, then the mother shall be permitted to spend supervised time with the child at a professionally recognised contact centre.

6. The mother shall attend upon her current treating health practitioners with respect to her mental health, and comply with her treatment and medication if so prescribed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2061 of 2018

MS DAMBROSE

Applicant

And

MR PACETTI

Respondent

REASONS FOR JUDGMENT

1. These Reasons relating to an interim parenting hearing held on 1 November 2019. The subject child is X born … 2016.

2. The primary issue at this interim hearing was whether or not the child should begin to spend unsupervised time with the mother.

3. The Court refers to previous interim parenting orders made in these proceedings.

4. On 31 July 2018, by consent and pending the hearing of the father’s Application in a Case filed 30 July 2018, the child was ordered to live with the father, and spend supervised time with the mother through the Suburb C Contact Service. The father’s Application in a Case was adjourned for hearing to 26 October 2018.

5. On 26 October 2018, the Court held an interim hearing in relation to, inter alia, the father’s above Application in a Case.  The Court made interim parenting orders confirming the continuation of its interim parenting orders of 31 July 2018. 

Proposals

1. The mother’s proposed interim parenting orders were set out in her Amended Response filed 30 October 2019, in particular in relation to the child spending time with her.  She sought interim parenting orders under the heading “Mother’s primary position”, whilst also setting out her alternate proposals set out under the heading “The Mother’s alternate position”.

2. The father opposed the mother’s proposed interim parenting orders set out in her Amended Response filed 30 October 2019. In submissions, the father informed the Court that there was a group playgroup service at the Suburb M and Suburb C Children's Contact Centre due to begin in late January 2020, and that the Court could consider ordering that the mother spend supervised time with the child at that service. In the meantime the mother could request the Suburb C Children's Contact Centre to reinstate supervised time pending the commencement of the group playgroup service.

3. The ICL formally supported for the time between the child and the mother to continue on a supervised basis at a contact centre, pending the release of the Family Report which had been ordered on 5 June 2019 (and which the Court notes was due to be released by about early February 2020; the proceedings had been adjourned for mention to 14 February 2020 following release of the Family Report). In submissions the ICL was also content for the mother to spend supervised time at the group playgroup service, with the mother being permitted to seek to reinstate supervised time at the Suburb C Children's Contact Centre in the meantime.

Materials

1. The mother relied upon her Amended Response filed 30 October 2019; her Affidavit filed 30 October 2019; the Affidavit of Ms A filed 6 December 2018; and certain subpoenaed documents (see exhibit A)

2. The father relied upon his Response to an Application in a Case filed 4 June 2019; his Affidavit filed 4 June 2019; his affidavit filed 30 October 2019; and Annexure B to the mother’s affidavit filed 24 May 2018 (a report of Dr E dated 17 May 2018)

3. The ICL submitted that she relied upon, in particular, the mother’s own evidence. 

Exhibits:

1. The parties relied upon the following exhibits:

   a)Exhibit A: the mother’s tender bundle of certain subpoenaed documents;

   b)Exhibit B: a letter from the Suburb C Contact Centre;

   c)Exhibit C: a report from Dr E dated 21 February 2019;

   d)Exhibit D: a Local Court Order from Suburb F Local Court.

Agreed facts unless otherwise stated

1. The mother presently aged 38 years.  The father is aged 31 years.

2. The parties commenced a relationship in about late 2015.

3. The child was born … 2016.

4. The mother was born in Country N.

5. The parties separated in late April 2018.

6. The Court refers to the helpful chronology of the ICL in her Case Outline.  The Court notes that many entries in this chronology relate to allegations of the parties against each other.

7. The Court refers to its interim parenting orders of 31 July 2018 (stated to be by consent) and its orders of 26 October 2018.  The latter orders confirm the continuation of its interim parenting orders of 31 July 2018 which provided that the child spend time with the mother supervised at the Region D Children's Contact Service and Suburb C Contact Service.  (The mother, in her Affidavit, states that she withdrew her consent to the Court’s orders of 31 July 2018 on 23 July 2018, and the Court refers to Annexure N to her Affidavit; the Court observes that the mother has made no application to the Court to set aside those orders.)

8. On 1 March 2019 the police charges against the mother (charges being assault occasioning actual bodily harm, destroy or damage property, contravene prohibition/restriction in AVO (domestic) were dismissed and the mother was discharged on condition: (that she be) subject to compliance with Treatment Plan conditions 1-5 set out in the report of Dr G as amended.  Such treatment plan conditions included that the mother see the doctor at least once a month for the next six months for ongoing monitoring of her mental state and medication treatment; that the mother should continue with the psychological counselling with Dr E; she should continue with the support of the Suburb O Family Centre (Catholic Care); she should abide by the conditions of her current AVO with the father; she should maintain therapeutic relationship with Dr H, Suburb J Medical Centre, and take medications as prescribed by Dr H and/or Dr G; and she should undertake any further appointments, assessment and treatment from time to time as recommended by her medical team. (see Exhibit ‘D’).

9. The above treatment plan of Dr G is contained within his report dated 17 October 2018 and attached as annexure H to the mother’s affidavit filed 30 October 2019.

10. Having set out his proposed treatment plan for the mother in the above report, the doctor states that in his opinion, if the mother receives appropriate medication, psychological, and social interventions, it will reduce the risk of further recidivism.  He states that in other words, optimal and firm treatment of the mother’s current mental condition and social issues is the best way to reduce her risk of future reoffending.

11. Following the above interim parenting orders, it is common ground that the child’s supervised time with the mother was spent positively with her (and see Annexure B of the father’s Affidavit filed 30 October 2019, and the documents tendered within Sleeve S 21, being documents from the Suburb C Children's Contact Service, being part of Exhibit ‘A’).

12. The father alleges in his Affidavit filed 30 October 2019 that on 24 September 2019 that he left the supervised centre at Suburb C at about midday with the child.  He came to be in his car with the child.  He was seeking to leave the Suburb C Westfield underground car park.  He alleges that as he was waiting to turn his vehicle he noticed the mother crossing lights and that she appeared to be angry.  He alleges that the mother was about 20m away from his car when the mother appeared to notice his car.  The father alleges that the mother started running towards his car.  He alleges that the mother ran across two lanes of traffic and that she was running towards his car.  The father alleges that he panicked as he had the child in the car and did not want to expose her to a potential altercation as had happened in the past.  The father alleges that he left the car park in his car.  He alleges that he reached the next set of lights, which were red, about 200m away from where the mother had allegedly just run towards his car.  The father alleges that he looked in the rearview mirror in which he could see the mother was standing in the middle of the road behind his car looking towards his car.

13. The father alleges that a short time later he had a telephone conversation with one of the supervising officers from the Suburb C Contact Centre.  He alleges that he told the supervisor that the mother had just chased him in the car when he had the child.  He asked if something had happened to make the mother angry.  The supervisor told the father allegedly that there was just an incident with the mother as she had been accumulating toys in a corner of one of the rooms and she became angry when she was told that she couldn’t take her toys.  She allegedly became erratic because she didn’t want to take them that day.  Allegedly the mother started screaming at the Contact Centre staff that they were treating her like a criminal and started recording the staff.  It was alleged she started throwing the toys and was abusive to the staff.

14. The mother did not refer to the above incident on the roadway in her Affidavit filed 30 October 2019. She did refer to certain alleged events occurring at the contact centre on 24 September 2019, although the Court notes that the father’s Affidavit, in which he makes the above allegations, was also filed 30 October 2019.  The Court observes that from Annexure B to the father’s Affidavit filed 30 October 2019, the mother states to the Contact Centre that the father’s allegations of the mother chasing him on the roadway were “not the case”; the Court infers that the mother denies the father’s allegations relating to the roadway incident.

15. The father alleges that on about 4 October 2019 a supervisor from the Contact Centre spoke to him stating, inter alia, that the mother had become very aggressive when the Contact Centre had informed her that they would no longer be supervising her time with the child.  The supervisor had allegedly told the father that the mother had threatened to commit suicide so they had called an ambulance.  The supervisor alleged to the father that they had a later telephone conversation with the mother wherein they told the mother that they had followed a protocol when people threatened suicide and that the mother had stated, “I didn’t threaten it, I will do it and the media will know about it.”

16. In Annexure B to the father’s Affidavit filed 30 October 2019, a supervisor from the Contact Centre informs the father, by email dated 4 October 2019, inter alia, that with a background of circumstantial factors, including repeated Court adjournments, and a change in schedule from 2 to one visit a week, the extended time in service has seen a change in the mother’s behaviour, with consequent breaches of the Contact Centre’s service agreement terms and conditions.  They state that the main issues of behavioural concern of the mother were demonstrated on:

    a)9 August 2019: the mother allegedly stared at the paternal grandmother with the mother being asked to leave the reception area by the program support worker, and thereafter the mother returning back again to that area;

    b)24 September 2019: when in the small office after the visit, the mother allegedly threw things around, and made banging sounds, she raised her voice in the hallway, shouting, causing alarm to the other clients and staff, and using her phone to video at the same time, shouting that “they are forcing me to be angry”;

    c)24 September 2019: (an allegation by the father as to the mother running on the roadway towards his car, which again, the court infers the mother denies).

17. The above email from the Contact Centre states, towards the end of the email, “in recent discussions with (the mother) on the phone, she has told me that she hasn’t been coping with the reduction in time.”

18. In Exhibit B, a letter from the contact centre dated 10 October 2019 to the ICL, it states, inter alia, “I’m writing to advise that the last two visits for 8 and 29 October were cancelled by the service due to concerns about escalation of the mother’s behaviour over the last few weeks, which were in breach of our supervised contact terms and conditions.”

19. Annexure B to the Affidavit of the mother filed 24 May 2018, is a report from Dr E, psychologist, dated 17 May 2018, which refers to the mother’s psychological counselling having commenced on 17 May 2018; the report refers to the psychologist’s clinical opinion referring to the mother experiencing elevated levels of stress, anxiety and depressive symptoms.  The report refers to the mother’s proposed treatment including skills training of emotion regulation and assertive communication, and an anger management plan “to anticipate the trigger, develop coping strategies, challenge irrational thoughts, learn from consequences, and change aggressive behaviours.”

20. Exhibit C is a letter from Dr E, psychologist, to the presiding Magistrate dated 21 February 2019, which refers, inter alia, to the mother’s treatment for anxiety and depressive symptoms, as well as anger management.

21. The Court has considered the mother’s tendered documents in Exhibit ‘A’.

22. The mother, in her material, alleges numerous stressors in her life prior to these proceedings including, inter alia, her Visa situation, alleged family violence perpetrated against her by the father, in particular alleged psychological abuse including verbal abuse, her alleged isolation living with the father’s family in Town K, her distress and frustration in spending limited time with the child post separation, and the health professional and other treatment she has received to date.

23. The mother, in her Affidavit, refers to the incident at the Contact Centre on 24 September 2019.  She states that she got rather upset after the Contact Centre officer asked her to take the children’s toys with her.  She admits being frustrated and raising her voice.  She regrets her actions.

24. The mother stated she contacted her psychiatrist Dr G on 25 September 2019 to arrange an appointment about her medication however he did not get back to her.  The mother stated she is planning on going back to her GP to get a fresh referral to a new psychiatrist.

25. The mother states in her Affidavit that she was diagnosed with depression and anxiety in about May 2018.  She states that she used her prescription medication “until recently, where I worked with my GP to wean off my medication.”  She refers to her resort to natural therapies.  Then she refers to taking prescription medication again and that she is currently taking a medication daily to relieve her anxiety.

26. Her treating GP, Dr H, in his report dated 14 October 2019, states inter alia that the mother has an anxiety disorder which is directly related to the current circumstances regarding access and guardianship of the child.  The doctor states that the mother’s prognosis also relates to these concerns.  He states that the mother will have exacerbations of her anxiety symptoms, including control of her emotions, when she experiences adverse outcomes regarding visitation, access or day court proceedings.  The doctor refers to the mother’s prescription of certain medications to alleviate her anxiety symptoms.  The report refers to a recent incident at the Suburb C Contact Centre (September 2019), and notes that at that time the mother was not taking any medications.  The report states that the mother will be able to wean, and eventually cease the medication.  The report states that the mother has been advised not to do this until the Court and access proceedings are completed.  The report states that the mother has been attending the GP’s medical practice since June 2018.

Legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   a)As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

2. In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

3. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

Best interests of children

Meaningful relationship primary consideration

1. The father has a meaningful relationship with the child and the child would benefit from a continuance of that relationship.

2. The mother has a meaningful relationship with the child and the child would benefit from a continuance of that relationship.  The Court observes that the mother has not spent time with the child since about late September 2019.

3. Should the mother continue to spend supervised time with the child, there is a significant prospect that the child’s meaningful relationship with the mother can be maintained.

Need to protect primary consideration

1. On the material before the Court, there is an unacceptable risk of harm posed to the child in spending unsupervised time with the mother.  The Court is concerned that there is a real risk that the child will be exposed to psychological and/or physical harm if spending unsupervised time with the mother.

2. The Court has concerns in relation to the mother’s ability to regulate her emotions if spending unsupervised time with the child.  Should the mother be unable to appropriately regulate her emotions if spending unsupervised time with the child, there is a real risk that the child may be exposed to psychological harm and/or physical harm.  In this context, the Court refers, inter alia, to the father’s previous allegations that the mother, whilst holding the child, acted violently; the mother’s conduct at the Contact Centre on 24 September 2019; and the Court refers to the father’s allegations relating to the mother on the roadway on 24 September 2019 (which the Court notes the mother denies).  The Court also refers in this context to the mother’s treating psychologist’s discussion (see below) of the context in which the mother experienced labile emotions at the incident on 24 September 2019, including ceasing medication, environmental factors, failed job interview, and the child’s mild tantrum.  There is force to the ICL’s submissions in this context that, in circumstances where the mother’s psychological treatment remains incomplete, the mother is still developing skills to behave appropriately, in the face of life’s usual stressors, when caring for the child.

3. The Court observes that the mother has made significant denials in relation to alleged family violence perpetrated by her against the father.

4. The Court also observes that the mother has made significant allegations of family violence, in particular psychological family violence, perpetrated against her by the father, to which the father make significant denials.

5. Whilst the mother has, to her credit, participated in, inter alia, treatment from her health professionals, in relation to, inter alia, adequately controlling her emotions, there is a significant suggestion on the material before the Court that her treatment is incomplete, and that there remains a not insignificant risk that the mother may not be able to control her emotions whilst that treatment is incomplete.  Again, should the mother be unable to control her emotions adequately if spending unsupervised time with the child, the child could be exposed to a risk of harm, whether psychological and/or physical harm. 

6. In this context, the Court refers to the treatment recommendations of Dr G of 17 October 2018.  The Court also refers to the report of the mother’s treating psychologist, Dr E dated 17 October 2019; inter alia, he states that the mother’s assessment results together with her reported symptoms meet the DSM 5 diagnostic criteria for adjustment disorder with mixed anxiety and depressed mood.  Importantly, the psychologist states that the mother needs to develop strategies to regulate her emotions and behave in a controllable manner with a rational mind.  He goes on to state, “This would include acceptance of the current parenting arrangement, and still commitment to act on her values including loving her daughter.  The treatment also requires anger management plan, interpersonal skills, stress reduction skills, and cognitive restructuring for dysfunctional thoughts, e.g., black-and-white thoughts and catastrophic thinking.  Treatment aims to result in her sense of control over her negative emotions such as agony/grief and anger, as well as improvement of reasonable decision-making and reliable behaviours.”

7. Dr E states that he can continue with psychological treatment for the mother.  He states that the mother requires general practitioner and psychiatrist for medication as well.  He states the mother would also benefit from community programs such as a group for mothers who are separated from their children.  He states that the mother’s motivation for treatment is a protective factor.  He states that risk factors are disadvantaged life circumstances, including currently not having a good familial/social support living in a foreign country, low socio-economic status, and elongated time of separation with the child.

8. Under the heading “An assessment as to the likelihood of relapse”, Dr E states, “(the mother) maintained the contacts with her daughter once and then twice a week for a long time since January 2019, without any significant emotional dysregulation like the incident in September.  That incident happened in the background of labile emotions, which may be due to stopping of her antidepressant medication, apart from environmental factors such as conflicts with the staff who restricted her parenting, failed job interview, and the baby’s mild tantrum.  If she continues treatment including medication and emotion regulation skills development, the likelihood of relapse would be alleviated.”

9. Dr E states that the mother would continuously comply with further treatment.

10. Under the heading “Any recommendations as to appropriate action to be taken by (the mother) or yourself as to her further treaters to assist in relapse prevention”, Dr E states that the mother would require to first admit her aggressive behaviour at the Contact Centre, rather than being defensive.  (The Court observes that the mother, to a not insignificant extent, admits such behaviour at the Contact Centre, in her Affidavit).  He states that it would be very difficult for the mother to take in the fact that she cannot see her daughter for indefinite time, but she has to accept what has been already happened.  He states that the mother needs to continue psychological treatment and resume medication.  He states it is also important for the mother to adjust her expectation about future parenting arrangement realistically.  He states that it was the mother’s perception that she could partly live with the child from November, which may not be possible at this point, “so resulting in her total hopelessness.”  He states that the mother needs a new realistic expectation with regard to the timeframe and nature of parenting arrangement in the future.

11. Under the heading “The impact of any mental health condition or impairment upon (the mother) current functioning and parenting capacity”, he states that the mother is experiencing difficulties adjusting with the life condition living separately with the child.  He states that as a result, the mother is experiencing significantly elevated levels of anxiety and depressive symptoms.  He states that it is the mother’s perception that the Independent Children’s Lawyer reasons that the mother cannot parent the child is due to her mental illness.  That is one of the reasons why the mother had stopped antidepressant medication, to prove she is not mentally ill.  He states that he would like to convince the mother that anxiety and depression cannot determine her parenting arrangement.  He states that the mother needs to understand that she can manage her anxiety/depressive symptoms and simultaneously do the duty of parental responsibility.

12. Further, the Court has a concern that whilst the mother’s treatment remains incomplete (and in this regard, the Court, inter alia, refers to the mother’s own evidence that her eating habits have deteriorated with loss of 15 kg in weight, and the negative impact upon her sleep “due to the stress of the separation anxiety that she is experiencing in relation to the child), there is a not insignificant risk that the mother may cease taking her medication, if only for a brief period, with resultant adverse effects upon her emotional state.

13. In this context, the mother’s solicitor referred to the mother’s evidence that she had been weaned off her medication the week of 24 September 2019, the mother having referred to that issue in the context of the incident on 24 September 2019 at the Contact Centre.  It was submitted that someone other than the mother had been weaning the mother off her medication.  Yet the Court observes that Dr H’s medical report of 14 October 2019 (page 73 of 73 the mother’s Affidavit) states, inter alia, that the mother “will be able to wean, and eventually cease the medication.  She has been advised not to do this until the Court and access proceedings are completed.”  Accordingly, there is a significant suggestion that Dr H did not advise the mother to wean herself off the medication prior to the incident on 24 September 2019. Further, there is a suggestion in the report of Dr E dated 17 October 2019, that one of the reasons the mother stopped taking her antidepressant medication was in response to her perception that the ICL had reasoned that the mother could not parent the child by reason of mental illness.

14. The Court acknowledges the mother’s treatment to date. The Court acknowledges the mother’s participation and completion of various courses.  The Court acknowledges the mother’s assertion that she receives emotional support from various persons.  The Court acknowledges the mother’s positive day-to-day activities, including her applications for employment.  The Court acknowledges the significant time already spent by the child with the mother supervised by the contact centre, and that such time was positive.  Nevertheless, the Court’s concerns remain.

15. The Court refers to the mother’s Affidavit in relation to the incident on 24 September 2019, in particular paragraph 126.  Whilst the Court acknowledges that this incident occurred within the context of the Contact Centre, including the mother’s apparent brief ceasing of medication, nevertheless there is a significant suggestion that contributing factors to the mother’s labile emotions at that time included life’s not unremarkable stressors such as failure to obtain employment and the mother being asked to take the children’s toys with her from the contact centre.

16. The mother’s solicitor made a submission in relation to the impact of cultural differences in this case, noting the mother’s Country N background.  The Court invited the mother’s solicitor to refer to relevant evidence in this context.  In this regard the Court itself has located evidence in this regard from the mother’s own Affidavit and which refers to the concession by the mother, relating to an allegation in the father’s earlier Affidavit filed 11 May 2018, that she had hit herself on the face, such action being “part of my Country N culture and I do it when I am angry or frustrated”.  Accordingly, such submission does not assist the Court.

17. The mother proposed, in the alternative, that her friend Ms A or Ms B at least initially could monitor her time with the child.

18. The Court has concerns in relation to this proposal of the mother in the alternative, and that the child may still be exposed to a significant risk of harm (see above) even if the child’s time with the mother was monitored by these persons.  There is force to the submissions of the father and ICL in this context that it is unclear whether these persons have knowledge of the mother’s mental health condition and treatment to date, her ceasing medication for a brief period, and the recent alleged behaviour of the mother, and that by reason of the mother’s mental health treatment needs, it would not be appropriate for there to be supervision of the child and the mother by non-professional persons.  There is some force to the ICL’s submission that if the mother was unable to adequately control her emotions on 24 September 2019 when at the Contact Centre, how could the Court be confident that the mother would be able to control her emotions if monitored by these third persons. The Court adds that there is no Affidavit from Ms B.

19. The mother’s solicitor submitted that should the Court make the mother’s proposed order 12 (that the mother shall attend upon her current practitioners with respect to her mental health and comply with treatment and medication as prescribed), and the mother thereby complies with such order, in particular the ingestion of prescribed medication, that such compliance would minimise the risk of the child being exposed to any significant risk of harm if spending unsupervised time with the mother (or if spending time with the mother monitored by Ms A or Ms L).  However, the Court’s concerns remain that the child would still be placed at an unacceptable risk of harm even if the mother was compliant with such proposed order 12 because the ingestion of medication, in circumstances where the mother had not adequately completed psychological treatment, would still, in the view of the Court, not minimise the risk of the child being exposed to the mother’s potential unregulated emotional behaviour.  In this regard the Court refers, inter alia, to the reports of Dr E and Dr G, and the Local Court’s orders of 1 March 2019.

20. The Court observes that the Suburb C Children's Contact Centre terminated the child’s supervised time with the mother.  In this context, the father’s Counsel informed the Court that there was a group playgroup at the Suburb M and Suburb C Children's Contact Centre starting in late January 2020.  The father’s Counsel (and ICL) also submitted that the mother should presently contact the Suburb C Children's Contact Centre and ask them to reinstate the child’s supervised time with the mother until the above group playgroup commenced. The father’s Counsel informed the Court that the father was not in a position to pay for a private supervisor in relation to the child spending supervised time with the mother.  On the other hand, the mother’s solicitor informed the Court that the Suburb C Children's Contact Centre had informed the mother that they will likely not reinstate the child’s time with the mother as the mother has already spent considerable supervised time with the child to date.  The Court is of the view that the mother should seek to have the Suburb C Children's Contact Centre previous supervised time reinstated, at least for a brief period, pending the group playgroup commencing, or otherwise seek to obtain the services of a professional organisation providing supervised time.

21. In passing the Court observes that a Family Report in this case is due to issue shortly prior to 14 February 2020.

22. The additional considerations under s60CC do not have significant relevance at this interim hearing.

23. Evaluating the above discussed primary considerations under section 60CC of the Act, it will be in the best interests of the child to make the following interim orders:

    (1)The mother’s Application a Case filed 10 April 2019 is dismissed.

    (2)The mother’s proposed interim parenting orders in her Amended Response filed 30 October 2019, seek to spend unsupervised time with the child, or in the alternative, her “alternate position” seeking to spend time with the child, initially monitored by either Ms A or Ms B, are dismissed.

    (3)The mother shall be permitted to spend supervised time with the child at the group playgroup at the Suburb M and Suburb C Children's Contact Centres, due to commence in late January 2020.

    (4)The mother is directed to request the Suburb C Children's Contact Centre to reinstate the child’s supervised time with her, at least pending the child beginning to spend supervised time with the mother at the above group playgroup.

    (5)Should the mother be unsuccessful in seeking to have reinstated the child’s supervised time with her at the Suburb C Children's Contact Centre, and/or she be unsuccessful in spending supervised time with the child at the above group playgroup, then the mother shall be permitted to spend supervised time with the child at a professionally recognised contact centre.

    (6)The mother shall attend upon her current treating health practitioners with respect to her mental health, and comply with her treatment and medication if so prescribed.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  9 December 2019