Dansey & Dansey
[2023] FedCFamC1F 290
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dansey & Dansey [2023] FedCFamC1F 290
File number(s): SYC 3614 of 2021 Judgment of: CURRAN J Date of judgment: 24 February 2023 Catchwords: FAMILY LAW – parenting – interim hearing – application in a proceeding – unacceptable risk – amelioration of risk – supervision of time – where father seeks variation of previous interim parenting orders – where father seeks a change of residence for children to live with him – where father seeks children to spend supervised time with mother – where mother seeks children remain living with her – where mother seeks maternal grandfather to be discharged of undertaking in relation to supervision – where mother seeks children remain living with her with new supervisor – where there are competing allegations of unacceptable risk of harm to children in care of the other parent – where single expert opines risk of “psychological harm” to children living with mother – where single expert recommends immediate change of residence and professional supervision – where second single expert opines there is “a risk to the children of emotional harm” in mother’s care – immediacy of risk of harm – where matter is listed for expedited final hearing – whether children exposed to unacceptable risk in care of mother necessitating immediate change of residence and supervision – mother’s ongoing treatment providers opine that mental health is improving – adjournment application on day of interim hearing by mother – orders made for increased time with father – orders made releasing maternal grandfather from undertaking – orders made for supervision of time with father to continue – orders made for supervision of mother’s time with children pursuant to undertaking Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 60CA, 61DA, 64B, 69ZL, 69ZW
Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.08
Cases cited: Eaby & Speelman (2015) FLC 93-654
Goode & Goode (2006) FLC 93–296
Idanov & Dunstable [2019] FAMCA 77
Marvel & Marvel (No. 2) (2010) 43 Fam LR 348
Division: Division 1 First Instance Number of paragraphs: 125 Date of hearing: 17 & 24 February 2023 Place: Sydney Counsel for the Applicant: Mr Kearney SC Solicitor for the Applicant: Pearson Emerson Family Lawyers Counsel for the Respondent: Mr Othen Solicitor for the Respondent: Burgess Family Law Solicitor for the Independent Children's Lawyer: Mr Ulbrick of G & D Lawyers ORDERS
SYC 3614 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DANSEY
Applicant
AND: MS DANSEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CURRAN J
DATE OF ORDER:
24 February 2023
THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
1.Order 3 of the Orders dated 17 February 2023 be discharged.
2.Order 2 of the orders made by Justice Berman on 30 June 2021 be varied as follows:
(a)Pending further order the time the children spend with the mother will be supervised by Ms O.
3.Order 3 of the orders made by Justice Berman on 30 June 2021 be varied as follows:
(a)That the children spend time with the father supervised by either Mr Q and Ms R as follows:
(i)During term time:
A.Each Wednesday after school until the commencement of school on Thursday;
B.Each alternate Friday after school until the commencement of school on Monday commencing today 24 February 2023;
(ii)During the April school holidays:
A.For one half of the April school holidays as agreed, and in the absence of agreement for the first half of the school holidays being from the conclusion of school on the last day of term I to 12 noon on the middle day of the term I school holidays.
(iii)From after school Monday 10 March 2023 until return to school Thursday 15 March 2023 and the father’s time with the children pursuant to order 3(a)(i)(A) be suspended during that week only.
4.The mother shall continue to attend upon her treating psychologist Ms S and her treating psychiatrist Dr T at times and at frequencies as recommended by them.
5.By consent, the parties, Mr Dansey, born 1979, and Ms Dansey, born 1978, and their agents are hereby restrained from removing or attempting to remove the children, X born 2012 and Y born 2013, from the Commonwealth of Australia without first receiving the written consent of the other party, AND IT IS REQUESTED the Australia Federal Police give effect to this order by placing the child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Family Law Watchlist until the Court orders its removal or the parties agree in writing.
6.The parties are granted leave to provide a copy of the Report of Ms U dated 16 August 2022, and the Report of Dr V, dated 12 February 2023, to:
(a)Ms O;
(b)The mother’s General Practitioner;
(c)The mother’s treating psychologist; and
(d)The mother’s treating psychiatrist.
7.By consent, in the event Ms O becomes unavailable to supervise the mother’s time with the children, the children are to reside with the father pending the further hearing of this matter.
8.Where the Applicant Father’s time with the children does not commence or conclude at school, it shall take place by either of the Paternal Grandparents undertaking a changeover of the children with the Respondent Mother at the AA Store, Suburb E.
9.All outstanding interlocutory applications are dismissed.
THE COURT NOTES THAT:
A.This matter is listed for expedited hearing for the 8 allocated days commencing at 10.00am on 13 June 2023 before Justice Altobelli.
B.This matter is listed for further case management at 9.30am on 10 March 2023 before Justice Altobelli.
C.An undertaking has been provided by Ms O in relation to the supervision she will provide pursuant to the orders herein. A copy of the signed undertaking is to be filed by 4.00pm on 24 February 2023.
D.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dansey & Dansey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CURRAN J:
These reasons for judgment were delivered orally in court and have been corrected from the transcript.
Consistent with the provisions of s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) I set out my reasons in short form and given the nature of the late material that has come in yesterday and been admitted into evidence today I propose to read my reasons because there were a number of changes to what I had drafted and I will make them available.
INTRODUCTION
These proceedings concern the further interim parenting arrangements for the children X, born 2012 and Y, born 2013 (“the children”). Their parents Mr Dansey (“the father”) and Ms Dansey (“the mother”) seek to vary interim orders made on 30 June 2021 after a contested interim hearing before Berman J. These reasons need to be read in conjunction with the Reasons for judgment delivered by Berman J on 27 August 2021. I note that decision was upheld on appeal.
The history of the matter to the time of the orders of His Honour are as set out in his decision, and the procedural history since that time is agreed as set out in the Case Outline of the father (Exhibit 3) and the Case Outline of the mother (Exhibit 4). It is not in contest.
The father’s Application is for an immediate change of residence and for the mother’s time to be professionally supervised due to unacceptable risk identified in two single expert reports. The father also seeks to dispense with the order for his time with the children to be supervised, although his parents remain available to supervise in the event that order is not made.
The mother’s Response seeks that the father’s Application be dismissed and that initially, the requirement for her supervision when the children are with her by the father be dispensed with. She seeks that the father’s time continue to be supervised. The mother’s Application was amended on the day of the interim hearing last Friday, with a proposal that if required, the mother’s time be supervised by Ms J.
Today there has been an Application for the undertaking given by Ms J to supervise to be discharged and for the time if it’s required if to be supervised, to be supervised by her relative Ms O who is here in court today.
In effect, there are competing allegations of unacceptable risk of harm to X and Y in the care of the other parent.
Both parties and the Independent Children’s Lawyer sought that the matter be expedited. The order for expedition was made and the matter was allocated eight days for final hearing in June 2023, commencing on 13 June 2023 which is just under 4 months from now.
BACKGROUND
The father spent time with the children once the children returned to Sydney from 9 September 2021, initially supervised by his parents. The father’s time was then professionally supervised by BB Service from 17 October 2021 until 17 November 2021, following the mother’s allegation that X had reported that she had given her father a massage. After 17 November 2021 the paternal grandparents resumed their supervision of the father’s time with the children. The evidence from the tender bundle of the father is that the children missed their father and paternal family whilst living in the G Town region, they expressed to multiple third parties a wish to see and spend time with their father, they were excited and happy to see the father and paternal family, and the time spent was reported as being overwhelmingly positive.
Pursuant to orders made on 16 September 2021, Ms U, clinical psychologist, was appointed single expert.
Pursuant to an order made by consent on 22 June 2022, Dr V, psychiatrist, was appointed a single expert.
Ms U undertook assessment of the parties and children in May 2022 and a report was prepared dated 16 August 2022 (“the U Report”).
The U Report was released to the Independent Children’s Lawyer on 10 November 2022, and orders were made on 11 November 2022 by Altobelli J for the report to be released to the parties following their interviews with Dr V on 21 December 2022.
Following the release of the U Report in December 2022 the father filed the current Application in a Proceeding.
The U Report opined that the children were at risk of “psychological harm” in the care of the mother and opined that the mother’s self-reported symptoms raise “concern about the potential for exaggeration or fabrication” or indicated that “she is delusional and experiencing a range of serious psychological issues.”[1]
[1] U Report page 67.
I note her observations were in May 2022 and the Report completed in August 2022 and note her recommendations for immediate change of residence and professional supervision. Significant time has elapsed since her observations and report, and the children have remained primarily in their mother’s care, without any evidence of significant reported concerns of the care of the children by the father, their school, any professionals who have seen the children or any other source.
The father’s Application was listed for mention on 12 January 2023 and on that occasion Altobelli J accepted an undertaking from Dr CC (“the maternal grandfather”) that he would supervise the mother’s time with the children. On that same occasion counsel for the mother sought, and was granted, leave to provide the U Report to the mother’s treating psychiatrist, Dr T. It is not in evidence whether the U Report was provided to Dr T. The U Report was provided to the mother’s treating psychologist Ms S, and Ms S discussed the report and its recommendations with the mother on 11 January 2023.
A single expert report from Dr V (“the V report”) was received by the court on 12 February 2023. The matter had been listed before Altobelli J for interim hearing on 17 February 2023, but due to His Honour’s unavailability, it was transferred to me to hear the father’s interim application.
The maternal grandfather, filed affidavit evidence, as had the mother, seeking his release from the undertaking he had given. An order was made that the children be brought to the court on the morning of the interim hearing in circumstances where the availability of a supervisor was not known and opinion about an immediate change had been expressed in the U Report. Opinion about risk had also been expressed in the V Report.
The U Report opined that there was a risk of harm to the children in the care of the mother. That risk was described as “psychological harm”. It is obvious that issue of identified possible risk was of import at the directions hearing on 12 January 2023, where Altobelli J proposed and accepted the undertaking of the maternal grandfather to supervise the mother’s time with the children. I have carefully reviewed the report of Ms U and her recommendations. I note, importantly, the timing of the interviews and of the release of the report and the arrangements for the children from that time until now. I also note that the report is untested.
The V Report was released to the lawyers on 15 February 2023 and to the parties the morning of the interim hearing on 17 February 2023. The V Report identified risk of harm to the children in the care of the mother articulated as “emotional abuse”. Dr V did not articulate that risk as immediate, as had Ms U, but said “if the children were to continue living with the mother, the children will be exposed to an unacceptable risk of emotional abuse given the mother’s mental state and fixed false belief(s).” Dr V opined that it is likely the mother has psychiatric diagnoses “consistent with post-traumatic stress disorder and delusional disorder.” Both single experts opine that the mother likely experiences delusional thinking and beliefs.
The gravamen of the father’s interim application is that substantial weight should be afforded to both single expert reports, despite the opinions being untested, given the identified risk. I agree that significant weight should be given to the single expert reports as they identify the possibility of an unacceptable risk of harm.
The mother’s counsel submitted that the mother’s treating psychologist and psychiatrist opinions should be given substantial weight. The evidence is that both mother’s treating psychologist and psychiatrist are current and have been long standing treatment providers, they provide ongoing treatment including prescription of anti-depressant medication and ongoing therapy, and they both have recently provided opinion that the mother’s mental health is improving. The mother’s treatment providers opine that the mother suffers from complex post‑traumatic stress disorder (“PTSD”).
Neither the mother’s treating psychologist Ms S, nor the mother’s treating psychiatrist Dr T, provided an update addressing the opinion of Ms U, despite the court permitting the U Report to be released to both Ms S (23 December 2022) and to Dr T (12 January 2023). The mother did not have an opportunity to obtain any evidence in response to the V opinion. I refused the Application for a further adjournment last Friday as the issue of the possibility of delusional disorder diagnosis had been identified in the U Report which the mother had knowledge of since December 2022, and in circumstances where the court had permitted the U Report to be provided to Dr T on Application of the mother’s counsel on 12 January 2023, over a month prior to the interim hearing.
It is clear that the mother’s diagnosis, treatment, prognosis and any impact on her parenting capacity remains a significant fact in issue for the final trial. It is something that I cannot make findings about at this interim stage.
ORDERS SOUGHT BY THE PARTIES
The applicant father sought orders as set out in his Application in a Proceeding dated 24 December 2022. In effect, he sought to discharge the previous parenting orders, for the children to reside with him and for the mother to have professionally supervised time. He sought that the requirement of supervision of his time (by his parents pursuant to the orders of Berman J) be discharged. His application raised two questions; were the children exposed to unacceptable risk in the care of the mother that necessitated immediate change of residence and supervision; and whether there remained a basis for his supervision, or in other words, whether the unacceptable risk identified by Berman J (ameliorated by supervision when in the care of the father) remained.
The respondent mother sought orders as set out in her Response filed 24 January 2023. The mother sought the release of her father’s undertaking to supervise, and that her time no longer be supervised by her father, notwithstanding the opinion of Ms U. The maternal grandfather was unwilling to continue with the undertaking he had provided to Altobelli J on 12 January 2023. The mother also opposed the interim orders sought by the father.
The Independent Children’s Lawyer supported the orders sought by the father and submitted that the issues identified in the single expert reports were of significant concern. The Independent Children’s Lawyer stated from the Bar table that a change to the residence arrangements of the children would come as a “surprise to the children.” The impact of a change to the long standing arrangements for the children is a consideration I am most mindful of.
On the day of the interim hearing, in the event the court required the mother to be supervised, the mother proffered an alternate supervisor, Ms J, and provided an undertaking and affidavit from Ms J. Ms J is now seeking to be discharged from that undertaking and I will make that order that she is so discharged.
The father noted that the undertaking from Ms J was late-breaking and somewhat on the run, and certainly it was.
In the time between the interim hearing and the delivery of the judgment today, an Application in a Proceeding and affidavit have been filed on behalf of the mother on 22 February 2023; an affidavit by Ms J to be discharged filed 22 February 2023; and an affidavit of Ms O, the mother’s relative, filed 22 February 2023, to provide an undertaking to supervise if it is necessary.
I admitted, without objection, that material.
In reply the father filed a Response and an affidavit on 23 February 2023 addressing, in particular, the suitability of Ms O to undertake that role.
Ms O in her affidavit sets out her willingness and capacity to reside with the mother for the purposes of providing supervision and is prepared to give an undertaking to the court in the terms that are set out in her affidavit.
The father’s Response has identified a number of concerns in relation to Ms O as a supervisor. In particular, paragraphs 8 – 13 set out some concerns including the arrangements in the home and how that will be for the children, the fact that the children have not had, as far as he’s aware, any time with Ms O, and that their relationship with her is limited to perhaps video calls on a few occasions, and is no more than that.
The critical question in relation to the suitability of Ms O as a supervisor is helpfully identified in the case of Idanov & Dunstable [2019] FAMCA 77 by Cronin J at [57] where His Honour says:
The critical question is whether or not they understand the finding of the court and the importance of the type of protection of children under the orders and agree to comply with responsibilities under any undertaking they give.
It is also important that they understand that a contempt could arise from a breach of that undertaking and the importance of prioritising the welfare of the children.
MATERIAL RELIED UPON
Each of the parties filed detailed case outlines and further material today. Given the serious matters of risk asserted by each party in the care of the other party, I did not require the parties to comply with the relevant Rules under r 5.08 Federal Circuit & Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) which limit the parties to a single affidavit.
The father relied on the documents identified in his case outline including two affidavits and portions of a third affidavit, a tender bundle of material produced on subpoena and from the s 69ZW documents, and the U and V Reports. Today he also relied upon a further affidavit, Response to Application in a Proceeding and written submissions.
The mother relied on the voluminous documents identified in her case outline including five affidavits from her, two from her father, an affidavit from her treating psychologist Ms S filed 9 February 2023 which annexed a number of reports, and an affidavit from her treating psychiatrist Dr T filed 15 December 2022. The mother also relied upon a tender bundle of documents drawn together from the subpoenaed material, and the affidavit of Ms J filed that day. Today she also relies upon a further Application in a Proceeding, and an affidavit from herself, Ms O and Ms J.
The father’s Response and affidavit, in effect, oppose the suitability of Ms O as a supervisor. The Independent Children’s Lawyer submitted, on the evidence, if required Ms O would appear to be an appropriate supervisor.
I find that on the evidence Ms O is an appropriate supervisor, that she has indicated her understanding of the role and the priority of caring for and protecting the children from harm.
THE LAW
This is an interim hearing and there has been no cross-examination or testing of the evidence. By virtue of that fact I am unable to make findings in relation to disputed facts.
The procedure for conducting an interim hearing has been established by the Full Court in Goode & Goode (2006) FLC 93–296 (“Goode & Goode”). It is an abridged process where the scope of enquiry is significantly curtailed. The limitations applicable to interim hearings were acknowledged by all parties. Consistent with the guidelines set out in Goode & Goode, and to the extent relevant to this Application, I have identified the competing proposals of the parties, the issues in dispute and the contested facts. In this case, other than the procedural history, there is very little uncontested evidence; that is, almost everything is in dispute.
Given that so much factually is in contest at these interim proceedings, only those issues which in the best interests of the child require determination prior to a proper determination at trial in June, are required to be addressed. Accordingly I have not addressed every s 60CC factors in these reasons.
In the decision of Marvel & Marvel (No. 2) (2010) 43 Fam LR 348 (which has been cited with approval by the Full Court in Eaby & Speelman (2015) FLC 93-654), the Court observed:
122.In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] 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 [100] their Honours amplified their comments and said:
[100] 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.
Serious allegations cannot be ignored at an interim proceeding just because they have been put in issue.
In an interim proceeding, possibilities of unacceptable risk of harm are a legitimate basis for assessing risk, as long as there is a proper basis for those possibilities.
Parenting proceedings are governed by Part VII of the Act where the meaning of parenting order is defined at s 64B.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The issue of the presumption of equal shared parental responsibility was considered and orders made by His Honour Justice Berman. This is a further interim application where there are serious allegations of family violence and the existence of an Apprehended Domestic Violence Order (“ADVO”), albeit without admissions.
There are no parental responsibility decisions that have been identified as pressing or about which submissions were made, and there is a final hearing date allocated in June. The only issue that I am aware of from the material that is relevant to the exercise of parental responsibility that is coming up is in reference to the evidence about what high school X should attend in 2024, which can be determined at the final hearing. Accordingly I will not be varying the order made by Berman J in relation to parental responsibility.
BEST INTERESTS OF THE CHILDREN
Section 60CC(2A) of the Act identifies that greater weight is to be given to s 60CC(2)(b), that is the need to protect the children from harm. However, both of the primary considerations, that is, ensuring that the children enjoy a meaningful relationship with each parent and the need to protect the children from harm, have been considered by me.
Section 60CC(2)(a)
The evidence supports that the children both enjoy meaningful relationships with both of their parents and that they derive benefit from the relationships with each of their parents. The U Report identifies the close connection and the existence of a meaningful relationship between the children and each of their parents. The opinion of Ms U is that the children see the mother as primary attachment figure and the father as secondary attachment. In her report Ms U states:
… it seems likely that [Ms Dansey] has been the primary attachment figure for the children, given she was the primary carer while [Mr Dansey] worked full time. My view is that [Mr Dansey] has been their secondary attachment figure, and that they have maintained that emotional connection to him despite the parental conflict, despite the four-month separation from him, and despite the limited and supervised time they spend with him now.
The interim orders made by Berman J were for the children to spend quite limited day time contact supervised by the paternal grandparents. Since January 2023 that very limited time has been extended to overnight each Wednesday and Sunday.
The mother’s counsel at the conclusion of submissions last Friday, in response to a query from me about time with orders pending final hearing in June if I were not to grant the father’s application, handed up a document which set out her proposal for increased time. This time has today been put into the form of a proposed order by the mother. This is full alternate weekends and the Wednesday night in the off week. This is a 5/9 arrangement and is a significant change from what has occurred previously.
The father is seeking a change of residence and did not propose an increase of time in the orders sought, but I note that his previous Senior Counsel has sought leave to make an application for an increase in time at one of the directions hearings and that oral application was refused. His Senior Counsel when asked without instructions indicated that an order for substantial and significant time would be appropriate. Today the father’s counsel has submitted that the appropriate order for time if the father’s application was unsuccessful would be week 1 Wednesday and Thursday night, and week 2 Thursday through to Monday; being 6/8. The effect of that is that the parties’ applications in relation to time are quite close.
There can be no doubt on the independent evidence, which includes the comments of the children made to the NSW police, the observations of the family consultant in the CIC Report, the U Report, and the reported professionally supervised time, that the children were excited to spend time with their father, that they had missed him, that they were expressing a desire to spend more time with him, they missed their paternal family, including their grandparents, the paternal uncle and the uncle’s partner when they were in the G Town area. Despite the time in G Town, and the limited time the children have spent with their father, the children certainly have a meaningful relationship with him, and they have a meaningful relationship with their mother.
Section 60CC(2)(b)
The matter of great import in relation to this application is the issue of risk to the children and that is identified as s 60CC(2)(b). Greater weight is to be given to this consideration pursuant to s 60CC(2A). The mother has made and maintains very serious allegations about the father’s perpetration of family violence and child abuse. The allegations of physical and sexual abuse have been made to the NSW police and the Department of Communities and Justice (“the Department”). They were subject of investigation and on the evidence available, it seems no further action has been taken at this time. The allegations are denied by the father. They can be categorised as family violence, including sexual violence and coercive control against the mother, allegations of grooming and sexual abuse against X, and allegations of physical violence against Y.
The mother also reported her serious complaints to both single experts. Documents produced on subpoena were considered in detail by Ms U who, after consideration of the material, opined that the mother may be delusional and that the children are at risk of immediate psychological harm. The U Report provides significant detail by way of summary of the contents of the documents she reviewed and critiques carefully the nature of the mother’s reports leading to the opinion she expressed. I have carefully considered the U Report.
Ms U has undertaken a detailed report and analysed the material available from third party evidence produced on subpoena, the CIC report, and other material including the affidavits. Ms U concludes that there is an “appreciable risk” of psychological harm in mothers care and need to change residence immediately. That opinion, in reality, formed the primary basis for the Interim Application filed by the father.
Given the very serious nature of the allegations made by the mother of significant family violence and assaults, and the denials of the same by the father, it is quite simply not possible to make findings. The children according to mother, have been exposed to or are at risk of harm from the father due to her evidence about extreme family violence. There is at least the possibility of harm. The children according to the single experts, are at risk of harm in the care of the mother and need protection from the psychological harm by reason of their subjection or exposure to what they both opine is delusional thoughts and/or beliefs.
The opinion of Ms U at least is known to Ms S, the mother’s treating psychologist, who has treated and continues to treat the mother for PTSD and trauma. The mother is also under the care of, and is prescribed anti-depressant medication from her treating psychiatrist for PTSD. An order has been made for the V Report to be made available to both of the mother’s treating professionals.
Section 60CC(3) – additional considerations
The other relevant s 60CC considerations to which I have had some, although limited, regard given the untested nature of the evidence are as follows:
(a)s 60CC(3)(a): the views of the children as set out in the tender bundles of both parties;
(b)s 60CC(3)(b): the nature of the relationship between the children and their parents (and paternal grandparents, with whom they have a close relationship);
(c)60CC(3)(d) the likely effect of the changes in the children’s circumstances;
(d)60CC(3)(f) the capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs; and
(e)60CC(3)(j) & (k) the allegations of family violence and existence of the ADVO.
I do not propose to go through, in detail, the material that has been identified and highlighted in the U Report.
DISCUSSION
Through following the statutory pathway, considering the objects and principles of the Act and considering the s 60CC factors, I must consider the primary considerations: the benefit of the children having a meaningful relationship with both parents, and the need to protect the children from the risk of harm, the first and most significant of the two primary factors. I then need to consider any relevant s 60CC(3) matters, noting the evidence is untested.
The primary consideration here in this case that arises is the need to protect the children from physical and psychological harm caused by them having been subjected or exposed to abuse, neglect or family violence.
The first issue for interim determination is whether, arising from the opinions of the single experts, or either of them, or other evidence, there should be an immediate change of residence on the basis that the risk of harm is unacceptable and that it cannot be ameliorated pending the final hearing of this matter in June. The second question for this interim determination is whether the father’s time with the children should continue to be supervised by either of the paternal grandparents as previously ordered by Berman J due to unacceptable risk.
Risk of harm in Mother’s care as opined by the single experts
Do the continuation of the current arrangements of the children living with the mother expose the children to a risk of harm? Is that risk unacceptable and can the risk, if unacceptable, be ameliorated? In other words, should the father’s application to immediately change the residence of the children and for the mother to have professionally supervised time be ordered due to the unacceptable risk of harm to the children identified in the single expert reports?
The father’s application is that the children change their place of residence immediately. Senior Counsel for the father recognised in his oral submissions it was both an unusual application and a serious application, but one that he submitted accorded with both of the single experts’ respective opinions.
In balancing the issues of risk in each household, doing the best that can be done within the parameters and limitations of interim applications, I am mindful that caution must be applied in interim proceedings.
The risk of harm identified in the U Report is that there is an “appreciable risk” of psychological harm in mothers care and need to change residence immediately. Dr V concludes there is “a risk to the children of emotional harm” and concurs with many of the opinions expressed by Ms U.
The father submitted through Senior Counsel that a number other matters would also be persuasive in assessing the possibility of the risk of harm posed by the mother.
It was submitted that the risk was not limited to the risk on, or the impact on the relationship between the children and their father, but also of an actual risk of psychological or physical harm to the children arising from exposure to the mother’s possible untreated delusional disorder. I infer that submission was to include her words, actions and behaviour arising from her delusions, may cause harm to the children, and that harm is unacceptable.
The father submitted that the court could draw from the objective facts considerable conclusions as to the lack of insight on behalf of the mother. By way of example, her own position at the interim hearing, of submitting that she should not be subject to supervision despite the opinion of Ms U.
It was submitted that the mothers conduct in having unsupervised time with the children at the swimming carnival also pointed to a lack of insight and should raise doubt as to the confidence the court can have as to the sufficiency of supervision arrangements proposed by the mother. The mother’s previous failure to comply with orders of Berman J to return to Sydney, her conduct in requiring a professional supervision agency rather than the ordered paternal grandparents to supervise, and her conduct in having the children interviewed by NSW police on two occasions, after having the benefit of the CIC report, were also cited as examples of her lack of insight.
It was submitted that the mother reporting that the children have resisted time or that they are reluctant to spend time with their father, in contrast to the other objective evidence of their views and observed excitement to see their father, illustrates the mothers “disjunction” and goes to the heart of the conclusions of the single experts.
I find those matters persuasive in the analysis of the possibility of a risk of harm, despite the evidence being untested.
That evidence supports a finding that there is the possibility of risk of harm to the children in the mother’s care as found by the single experts, noting that that evidence is not tested. Is that risk of harm an immediate risk that requires an immediate change of the children’s residence? The opinion of the single expert Ms U, the only person who has had the benefit of assessing the family and reviewing comprehensively the material produced from third parties including the NSW police, the Department and other third parties, is that the mother presents as an immediate risk. Ms U’s opinion is informed by a variety of independent sources, including having spoken with Ms S, the mother’s treating psychologist.
I note however, and place weight on the fact that despite the concerns of psychological harm being identified in May 2022 and reported in August 2022, there is minimal evidence to which I have been taken of evidence of any harm being experienced, observed or expressed by the children. As referenced in recent material filed by the father about the way X was dressed, which was explained in a responding affidavit by the mother; that again highlights the level of dispute between the parties. The evidence to the contrary of there being observed any harm is that the times the children are spending with their father, they enjoy and are having positive time and there is no evidence before me that the children have reported anything of concern. The fact that the mother has had the primary care of the children from that time – that is the assessment in May – until now, is significant. To put it colloquially – the proof is in the pudding.
The mother relies on the evidence from her own treating psychologist and treating psychiatrist that the mother is suffering from, and is being appropriately treated for, PTSD. Her evidence and that of her treatment providers is she is having regular reviews with her psychiatrist, is medicated by him (and that medication has increased over the past few months with good effect) and that there is improvement reported by the mother in her symptoms. In November 2022, her psychologist Ms S reports a significant improvement over the past eight months, and her psychiatrist Dr T also reports that the mother has benefitted from her treatment under Ms S.
Senior Counsel for the husband persuasively and carefully critiqued the evolution of the opinion of Ms S – and submitted she had in effect become an advocate for the mother. Two matters, however, have assisted me to conclude that Ms S’s opinion should be given weight. One is that Ms U last saw the mother in May 2022, while Ms S has frequently and recently treated the mother; and two, that Ms S now has the benefit of the opinions of both Ms U (with the commentary and the detail about the third party evidence) and Dr V. Those opinions can be considered and acted upon, if appropriate.
I intend to order that the mother continue to engage with her psychologist and psychiatrist as recommended by them until the hearing of this matter.
The mother’s psychiatrist regularly sees her and is a specialist in severe mood and anxiety disorders, trauma related disorders, psychotic disorders and drug and alcohol related psychiatric conditions. He has seen and treated her on multiple occasions. His opinion is that the mother has complex PTSD. Similarly to Ms S, Dr T now also has the benefit of the opinions of the single experts and can factor that in to the mother’s ongoing treatment pending final hearing. I note that both Ms S and Dr T are mandatory reporters
Father’s submissions on the mother’s treatment providers
There are aspects of Ms S’s evidence in her affidavit of 9 February 2023 that the father submits do not address the risk issues set out in the U Report. Whilst the mother relies on the evidence of Ms S to assert that there has been a significant improvement in her mental health since the appointments with Ms U, the father asserts that Ms S’s reports indicate that, as at August 2022, “therapy is still at a very early stage” and that the mother reported an incident of high anxiety upon seeing the father as recently as 30 November 2022 at Suburb E.
The accuracy of the diagnosis of the mother’s mental health issues and any psychiatric conditions suffered by her is in serious contest, is a serious matter and will require determination at a final trial. Her prognosis and treatment, its impact on her parenting capacity and its impact on the children are all matters that cannot be determined here and will need to be determined at a final trial.
Despite this immediate risk being identified, as I’ve said earlier, in May 2022 and reported on in August 2022, there is very little evidence of any perceived immediate harm to the children.
Whether a possible diagnosis of delusion disorder however poses an unacceptable risk of harm to the children is an assessment of weighing the likelihood of the risk with the seriousness of the impact. I am satisfied that in accordance with the opinion of Ms U that the possible diagnosis and its consequences do pose an unacceptable risk of harm to the children and ought to be taken seriously.
What is the risk of harm?
The mother does concede through her counsel that it would be incorrect to say that there is no risk at all to the children, but she does not accept that it is an immediate risk. The mother framed her submissions as to risk as to the mother failing to support, or actively damaging the father’s relationship with the children between now and the final hearing.
The father framed his submission as more nuanced – that is, the risk to the children of psychological harm as a consequence of being cared for by a mother, who suffers from a possible undiagnosed (and not accepted) delusional disorder, and that is a risk that requires the immediate intervention of the court, for the children to reside with the father and for professionally supervised time with the mother to occur pending the trial. Further, the risk of the mother failing to support, or actively damaging the father’s relationship with the children between now and the final hearing would fortify the unacceptable risk.
The mother asserts that the nature of the children’s relationships with the father illuminates how unlikely it is the possible harm will come to pass. The mother asserts that the interviews with Ms U occurred in May 2022, and that date between then and now becomes pertinent to the assessment of the risk of harm arising from what the mother might say or do impacting the children. I agree with that submission.
The U Report outlines evidence of a close relationship between the children and their father, namely that “both children looked excited and happy in [Mr Dansey’s] company” and “the emotional atmosphere remained very happy.”
The mother submits that the observations of Ms U would give the court comfort and the court could infer that the mother has not exposed the children to negative attitudes about the father, and if she had, the relationship not be as positive as that observed by Ms U.
The father’s evidence is silent on the subject of harm to the relationship between he and the children in his affidavits. In his affidavit filed 22 April 2022 he discusses the positive nature of his relationship with his children. The mother also acknowledges that positive relationship, at least insofar as X is concerned. There is an absence of evidence of alienation from the father, whilst the children have been in the mother’s primary care, and an absence of evidence of any observations of matters of concern in relation to the children and I take that into account.
Amelioration of risk – supervision
Noting that I have found that there is an unacceptable risk, can that unacceptable risk be ameliorated. That is, by supervision as proposed by the mother from Ms O and through the ongoing treatment she is receiving from her treatment providers.
The matters relevant to considering amelioration of risk must be looked at in the context of the time between now and the trial, which is a little under 4 months.
Ms O is a person who has indicated to this court that she is willing to supervise and has indicated that she will give a written undertaking to that effect. I intend to make such an order that that undertaking be filed with the court.
Such an undertaking is a serious and solemn promise to the court. It is one that is relied upon in assessing the amelioration of unacceptable risk of harm to the children in this matter. It is one, in circumstances where two independent single experts have opined that the children are at risk. That risk is the exposure to the possible untreated delusional disorder, and that increases the children’s risk of physical and emotional harm arising from the possibility that the mother has an impaired capacity to provide for the children’s needs.
The mother has currently involved treating professionals. They have provided evidence in these proceedings. The father’s Senior Counsel, persuasively set out the limits of the treating professionals, including the limitations in the narrative that they were provided by the mother – that is, they only know what they are told by the mother. However, the mother has long engaged with these professionals and further, pursuant to orders made by this court, the opinions of both Ms U and Dr V should now have been made available to the mother’s treating professionals. This provides another set of “eyes” on the mother in the event of risk arising from her mental health declining or otherwise. The mother’s medication has been increased, I note, with positive effect, and it is reported by her that she has experienced improvement and this is supported by her own treatment providers.
The mother submits that the reports of the treating psychiatrist and treating psychologist should be given weight, because they are long standing therapists who have had involvement with her to assist her in therapy for her PTSD on the recommendation of her psychiatrist.
The conclusion that I have reached therefore, is that whilst there is the possibility of unacceptable risk of harm to the children in the care of the mother as identified by both single experts, I am satisfied that the risk is ameliorated in this case by a combination of the supervision and the undertaking given by Ms O to supervise and take action if necessary, the involvement of the mother’s treating psychologist and psychiatrist, and the relatively short period of time between this application and the final hearing which has been expedited and listed in June.
There is a further consideration that should be addressed and that is the impact on the children of such a significant change, as proposed by the father, in their living arrangements. Senior Counsel for the father submitted that there was no evidence before the court as to the impact of such a change on the children. There is certainly no direct opinion addressing the impact of the change on the children and I could infer from the recommendations from the two single experts that they would have taken that impact into account in reaching their opinions. I note, however, that the children have always lived with their mother and Ms U opines that the children’s primary attachment is to the mother and secondary attachment is to their father. Further the Independent Children’s Lawyer in submissions said he had spoken to the children who would be surprised by a change of circumstances. I take these matters into account in the arrangements that I propose to make pending the final hearing and I find that the arrangements I propose are in the best interests of the children on a further interim basis.
The regime the father proposes would constitute a significant change in the children’s circumstances. They are accustomed to the care of their mother having lived with her since separation and having had supervised time with their father. The children have not spent significant time away from their mother and it is not known how they would cope with separation from her. Given the trial is relatively close, this is another factor that does not favour the change. One must be cautious in interim proceedings about unintended consequences and the need to act with caution.
RISK TO CHILDREN IN UNSUPERVISED TIME WITH THEIR FATHER
Dovetailing with the father’s change of residence application was that father sought that his time no longer be supervised as the court would be “comfortably satisfied that supervision is not supported on any of the relevant possibilities”. Although that was his primary position, the father submitted that his parents remained willing to continue to undertake the role of supervisors if the court did not vary the order. I note that his parents are here again in court today.
When the court made interim parenting orders on 30 June 2021 in respect of the children, the issue of unacceptable risk that the court was grappling with in this contested parenting dispute was responsive to serious and untested allegations made by the mother that the father was physically, psychologically and sexually abusive and was coercive and controlling towards her. She made allegations in relation to physical abuse of Y, and grooming and sexualised conduct toward X.
The father’s Senior Counsel submitted that there is no risk, save for the mothers “varying, escalating and inconsistent” reports of risk. The reports of Ms U and Dr V, and the material produced by NSW police, the Department, and community organisations, provide evidence of the involvement, assessment and conclusions they have reached. When assessing possibilities, the evidence must be weighed against an analysis of the risk. In respect of the allegations insofar as they relate to the children, much of the evidence in my view weighs against the a finding of risk, but I must consider the possibility of risk; and in that regard I note the references in the material to the children describing the father as angry and the report made by X to NSW police of the event of a massage which the father denies.
There are, in effect, three classes of complaint made by the mother as to the father’s conduct and the risk he poses. The first is his conduct toward her including; 70-80 alleged incidences of physical and sexual violence as well as psychological abuse and coercive control. The second being the allegations of physical violence toward Y, where it is reported that she says half a dozen to a dozen times of physical violence towards Y, and the third being the grooming and sexualised conduct toward X. These are serious allegations. Each of these allegations, I note, is denied by the father and he has filed substantial evidence in response to the allegations.
Since they have been articulated and particularised by the mother there has been a substantial third party material available, including s 69ZW material received from NSW Police and Department, and subpoenaed material from BB Service and the mother’s treating medical professionals. The children have also been interviewed for the preparation of the CIC report, and by Ms U for her single expert report.
The limitations and constraints on the ability to make determinations on an interim basis on contested facts are well known and were acknowledged by counsel in their submissions. In interim hearings where evidence remains untested, disputed facts cannot be the subject of definitive findings, however, as articulated by the Full Court in Eaby & Speelman [2015] FamCAFC 104: “that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.” Findings in disputed interim proceedings “should be couched with great circumspection.”
The third party material certainly raises questions about the nature of the allegations that the mother makes particularly in relation to X. However, the claims she makes in relation to the significant family violence and sexual violence she experienced are unable to be tested until trial. Those allegations alone are sufficient for applying a cautious approach pending final trial, where all of the evidence will be tested. I have carefully considered all of the evidence and I am unable to make findings despite carefully considering the additional third party material that has been tendered in the Application. It is the fact that serious allegations of possible risk of harm have been raised and that risk is unacceptable but ameliorated by the supervision orders that are currently by in force as were made by his Honour Berman J.
INCREASE OF TIME FOR THE FATHER
Berman J determined the recovery application and ordered the children return from G Town to reside in Sydney and that the father’s time recommence, but be supervised. The events following that order and the period of professional supervision by BB Service are not in contest. The mother failed to return to live in Sydney, as ordered. The submission of her counsel from the Bar table is that she failed to do so on account of advice. Her counsel submits that the court should not criticise her in such circumstances. I agree with that submission.
The mother has complied with the orders for time since that time, and has agreed in January 2023 to a modest increase in time between the children and their father, including overnight time. That time, it appears on the evidence, is enjoyed by the children. They derive great benefit from it. In enquiring of the mother’s counsel, if the father’s application for a change of residence is not successful what orders for time would be appropriate, particularly noting that the case outline references “no application for an increase in time” had been made by the father. This was of course against the background that I referred to where the father was refused leave for his then Senior Counsel in the directions hearing to make an oral application for increased time, on 12 January 2023. Counsel for the mother, however, after a short adjournment handed up a proposed minute for an increase in time. That proposed minute has now been tendered today as the mother’s application for time between the father and the children. It is a significant change from the time that the father was having.
I am satisfied, based on the views that have been expressed by the children, the observations of their time, and the opinion of the relevant single experts, that it is appropriate to increase that that the children spend with the father pending further order to the arrangement proposed by the mother of each Wednesday night and alternate weekends. I prefer that arrangement to that proposed by the father as the children are already in a routine of having the Wednesday nights in the father’s care with the supervision of the paternal grandparents and the Sunday night. This increase merely extends the existing pattern. I will make those orders accordingly.
I note that such an increase in time gives the children more time for doing ordinary things with their father and it is not such a drastic change to their routine. I note that the mother’s counsel submitted that any concerns that she had are addressed by the supervision by the paternal grandparents.
CONCLUSION
In my view, for the reasons set out above, the evidence that I have considered does not warrant any other changes, other than to increase the time, and to set about a regime where the mother’s time with the children will be supervised.
I do not propose to make the orders sought for sole occupancy of the home because the children will remain living in the home with their mother.
I propose to make orders that the children spend one half of the school holidays with each of the parents.
I will be making an order that the time the children spend with the father from Friday after school to the commencement of school on the Monday will begin today, and that will therefore line up with the period of time when Ms O is unavailable for supervision.
I will make an order that if Ms O becomes unavailable to undertake the supervisory role that she has undertaken to be present for the children, that arrangements will be made for the children to reside with the father pending the hearing of this matter; and that is by consent.
The reports of each single expert are permitted to be made available to Ms O but also the mother’s treating providers, being Ms S and Dr T. I order that it be provided to her general practitioner.
I make by consent, an order that the children are placed on the Watch List.
I note that the matter is listed for an expedited hearing for 8 days commencing on the 13 June 2023 before Altobelli J, and the matter is listed for Case Management at 9.30am on 10 March 2023.
I note the undertaking provided by Ms O in relation to the supervision that she will provide and I direct that a copy of a signed undertaking is to be filed by close of business today.
Otherwise, I dismiss all interlocutory applications.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 31 May 2023
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