Dean & Austin
[2024] FedCFamC2F 1550
•5 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dean & Austin [2024] FedCFamC2F 1550
File number(s): PAC 6254 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 5 November 2024 Catchwords: FAMILY LAW – PARENTING – Interim hearing – Best interests of child. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) [2010] FamCAFC 101
Paterson & Hamdy [2022] FedCFamC1A 118
Division: Division 2 Family Law Number of paragraphs: 98 Date of hearing: 28 October 2024 Place: Parramatta Counsel for the Applicant: Mr Shaw Solicitor for the Applicant: Rams Family Lawyers Counsel for the First Respondent: Ms Gibbons Solicitor for the First Respondent: Stewart Law Pty Ltd Solicitor for the Second Respondent: PR Law Solicitor for the Independent Children's Lawyer: Hazim & Co Lawyers ORDERS
PAC 6254 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DEAN
Applicant
AND: MR AUSTIN
First Respondent
MS AUSTIN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
5 NOVEMBER 2024
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Application in a Proceeding of the father filed 23 September 2024 is dismissed.
2.The Application in a Proceeding of the paternal grandmother filed 10 October 2024 is dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INRODUCTION
These reasons relate to an Application in a Proceeding filed by the father on 23 September 2024 and an Application in a Proceeding filed by the paternal grandmother on 8 October 2024.
The parties married in 2022 and separated on a final basis on 6 November 2022 when the child was a year old.
X born in 2021 (“the child”) is currently three years old.
The mother lives with the child in Suburb B. The father and paternal grandmother live together in Suburb C.
The mother works part-time as a professional. The father works as a fitness instructor and is also a carer for his mother.
The mother commenced proceedings by way of filing an Initiating Application on 12 November 2022 after the father withheld the child from her on 6 November 2022.
Pursuant to Orders made on 29 November 2022, the child was returned to the mother’s care.
Interim parenting orders by consent were made on 7 December 2022 whereby, inter alia, the child was to spend supervised time with the father once per week for two hours at a play centre.
In July 2023 the court noted that the supervising service D Contact Centre were no longer willing to provide a service to the family and the mother and father agreed that the child’s time with the father be supervised by another supervising agency E Contact Centre.
In the Local Court in late 2023 the father was convicted of assault upon the mother. An ADVO for the mother’s protection was made. His all grounds appeal to the District Court of NSW is due to be heard in early 2025.
On 6 December 2023 a Senior Judicial Registrar suspended previous interim orders relating to spend time arrangements. A further order was made that the child spend no time with the father. The father’s relevant Application in a Proceeding filed 9 October 2023 had sought orders, inter alia, to change the supervision service to F Contact Centre to enable him to spend time with the child.
On 7 March 2024, the Court ordered that the father was not permitted to file any further Application in a Proceeding without leave of the Court first sought and obtained.
On 14 May 2024, the paternal grandmother was joined as a party to the parenting proceedings.
The final hearing was set to commence on 9 September 2024 but was adjourned. The Court granted leave for the father and the paternal grandmother to each file one Application in a Proceeding to spend supervised time with the child pending the final hearing only. A short time later the court fixed the final parenting hearing to commence on 3 March 2025.
PROPOSALS
The father and the paternal grandmother each seek to spend supervised time with the child pending the final parenting hearing, which is due to commence on 3 March 2025. The Court observes that they have each sought additional Orders relating to, for example, communicating with the child. The Court’s leave was not granted to the father on 9 September 2024 to seek such additional orders beyond supervised time and the Court will not consider those additional proposed orders. At the interim hearing the paternal grandmother made submissions in relation to proposed supervised time between the child and herself; she made no express submissions in respect to communication orders or orders that she be allowed to receive updates on the child’s health, welfare and education.
The father in his Case Outline sought the following orders:
1.That the child spends time with the father on a supervised basis at a contact centre with and [sic] that the paternal grandmother is permitted to attend.
2.That the father communicates with the child via telephone/video once per week.
The paternal grandmother in her Case Outline sought the following orders:
1.That the paternal grandmother be permitted to spend two hours per fortnight with her grandson [X] DOB: [2021] supervised or unsupervised
2.That the paternal grandmother be permitted to communicate with her grandson [X] via audio/video calls once per week and that she shall receive email updates on [X]’s health, welfare and education from the mother and any contact centre, and that the applicant's email [omitted] be added to '[…]'.
Both applications are opposed by the mother and the Independent Children’s Lawyer.
MATERIAL RELIED UPON
The father relied upon:
(a)His affidavit filed 27 September 2024;
(b)His affidavit filed 3 October 2024;
(c)Application in a Proceeding filed 27 September 2024 (this document in the father’s Case Outline is understood to be a reference to the Application in a Proceeding filed 23 September 2024);
(d)Application in a Proceeding filed 8 October 2024;
(e)Affidavit of the paternal grandmother filed 8 October 2024;
(f)Family Report of Ms G dated 20 November 2023;
(g)Case Outline filed 24 October 2024.
The mother relied upon:
(a)Response to an Application in a Proceeding (as per her Case Outline, however no such document was filed);
(b)Family Report of Ms G dated 20 November 2023;
(c)Notice of Child Abuse, Family Violence or Risk filed 25 June 2024 (this document in the mother’s Case Outline is understood to be a reference to the Notice of Child Abuse, Family Violence or Risk filed 28 June 2024);
(d)Orders of 6 December 2023;
(e)Her affidavit filed 22 July 2024;
(f)Case Outline filed 24 October 2024.
The paternal grandmother relied upon:
(a)Application in a Proceeding filed 8 October 2024;
(b)Her affidavits filed 29 July 2024 and 8 October 2024;
(c)Notice of Child Abuse, Family Violence or Risk filed 28 June 2024;
(d)Response to Final Orders filed 28 June 2024;
(e)Affidavit of Ms H filed 25 July 2024;
(f)Family Report of Ms G dated 20 November 2023;
(g)Case Outline filed 24 October 2024.
The ICL relied upon:
(a)Child Impact Report of Ms K dated 3 May 2023;
(b)Family Report of Ms G dated 20 November 2024;
(c)Case Outline filed 24 October 2024.
EVIDENCE
The Court does not propose to set out the entirety of the evidence, which evidence has not been tested yet at this interim stage. The Court has considered all of the material relied upon by the parties.
The father’s evidence
The father alleges that previously he had ADHD and was not medicated. He alleges that after seeing Dr J and complying with treatment he is a lot more focused and feeling better.
The father alleges that he has ongoing treatment with Dr L for PTSD and other conditions.
The father alleges that he undertook a Parenting After Separation course and learned a lot of new skills in order to have an understanding and structure for coparenting.
The father alleges that he has had no communication with the child for almost a year.
He alleges that he is not guilty of various criminal charges and false remarks from the mother, hence his all grounds appeal to the District Court of NSW.
The father annexes to his affidavit a letter from D Contact Centre stating, inter alia, that they can recommence his supervision services conditional upon their current availabilities, and an assessment of his circumstances, including why he is not currently engaged with E Contact Centre, or if there have been any other matters involving police to date.
In late 2023 the father enrolled in the course titled Advanced Certificate in Men’s Behaviour and Change, being an online course with the core modules being anger management of 100 hours’ duration, and stress management of 100 hours’ duration.
The father annexes to his affidavit a letter from M Centre dated 2 September 2024 in which it is stated, inter alia, that the father is participating in the Men’s Behaviour Change Program. The letter states that the father has completed one clinical intake via phone with the family safety team’s therapeutic case worker.The letter states that the program is an integrated format where men engage in individual men’s behaviour change sessions and group work sessions. The letter states that individual sessions vary according to the client’s needs and the safety issues involved. The letter states that usually this involves the client attending 6 to 12 individual sessions over a 3 to 6 month period. The letter states that finally the client completes the face-to-face group-based program called Taking Responsibility (18 session group).
The father attended a Parenting After Separation six-week program in mid-2024.
The father completed all the requirements of his community service work condition of his Intensive Correction Order made in late 2023.
The letter of psychologist Mr L dated 9 July 2024 states, inter alia, that the father was referred to him for the purpose of a psychological assessment in therapy. The father attended the most recent consultation on 8 July 2024 for a one-hour consultation. The letter states, inter alia, as follows;
The father told the psychologist that he married the mother in 2019 with the relationship ending in early November 2022. He told the psychologist that the relationship was toxic, manipulating and frustrating. He told the psychologist that the parties struggled with their communication, and has not had any contact with the child for about 12 months. The psychologist’s report further states as follows:
[Mr Austin] has indicated a desire to be closer to his three-year-old son, and re-ignite his relationship with him. [Mr Austin]'s mental will be greatly benefited should he again have contact with his son. It will not only improve [Mr Austin]'s mental health moving forward, but also provide his son access to his father which is also crucial during his formative years.
[Mr Austin] has previously consulted with [Dr J] on three occasions. He has been prescribed [medication] to alleviate symptomatology of ADHD. The prescribed medication has been helpful for [Mr Austin] and I envisage that continued use will help with his mental health moving forward. It must be noted that [Mr Austin] has been discharged from [Dr J]'s care as he no longer is required to consult with him. He is happy for him to have his medication be prescribed by his GP, [Dr N] at [O Medical Centre].
[Mr Austin] is currently receiving treatment on an ongoing basis from stress management, impulsivity management and for his symptomatology of Anxiety and Depression. [Mr Austin] also presents with symptomatology of PTSD (nightmares, flashback and lucid dreams) which he is also receiving treatment for through Trauma Related Cognitive Behavioural Therapy and solution focused therapy.
[Mr Austin] has also completed a Men's Behaviour Change Course [in early] 2024.
[Mr Austin] is currently enrolled in [M Centre] and is awaiting an additional Men's Behaviour Change Course (DCJ Approved). He has been on the waiting list for more than 12 months.
[Mr Austin] is willing to do further courses with [M Centre] to assist him with his parenting skills and enhance his ability to make positive decisions moving forward.
[Mr Austin] has been allocated by Community Corrections [Suburb P] and his Parole to commence EQUIPS Domestic Violence/Abuse Course which he is enrolled in, and will commence [in mid] 2024.
(As per original).
The father annexes to his affidavit the report of Dr J, psychiatrist, dated 6 March 2024 headed Medical Legal Report.
The doctor confirms that he has recently treated the father as a psychiatrist, and he has seen him on four occasions. He states that he expects the father to be discharged from treatment shortly and referred back to his GP. He states that the father was reviewed on 1 March 2024 for the purpose of the report.
The doctor referred to the history provided by the father of his traumatic developmental history, and significant behavioural difficulties throughout his childhood including at school. He left school without completing Year 11.
The father was charged with assaulting his girlfriend in 2010 and was incarcerated for the majority of the time between 2010 and 2018.
The doctor further stated:
With regards to treatment I recommended commencement of [prescribed] medication for adult ADHD. [Mr Austin] has commenced this medication and experienced no side effects so this should continue in the future. This can be prescribed by his general practitioner in the future if necessary. I also foreshadowed the possibility of commencement of an SSRI antidepressant for better control of his post traumatic stress disorder.
The doctor referred to a previous report of psychiatrist [Dr Q] in 2011. This latter doctor had opined that with regard to the father’s psychiatric diagnosis as including a psychotic illness, best described as [a mental health condition].
Under the heading Mental State Examination, the doctor stated, inter alia, that the father was quite hyperactive and fidgety and somewhat apprehensive in his affect. He stated that the father described his mood as mostly okay and was not pervasively depressed nor suicidal. There were no delusions or hallucinations. He had good insight into his symptoms of PTSD and ADHD.
Under the heading Psychiatric diagnosis and opinion, the doctor stated inter alia:
According to DSM-5 diagnostic nomenclature, [Mr Austin] satisfies the criteria for the following psychiatric disorders:
Axis 1 -- Post traumatic stress disorder, moderate severity, chronic
Attention deficit hyperactivity disorder, moderate severity.
Axis 2 - No diagnosis
Axis 3 – [a medical condition]
With regards to diagnosis. it is also important to discuss the possibility of a psychotic illness as per the report by [Dr Q]. Whilst it is important to be mindful of reports by [Mr Austin] about possible psychotic experiences such as "hear the voice of God" or his comments about discovering police corruption, it is also important to acknowledge alternative interpretations of this that [Mr Austin] has provided as documented in my comments above. In my opinion, rather than being symptoms of [a mental health condition] it is likely that these experiences in fact represent a reaction by a highly traumatised individual, whilst in stressful custodial settings.
Also it is important to note that further observation of [Mr Austin]'s behaviour in custody as per the report by [R Clinic] clinical nurse consultant [in early] 2012 suggested that [Mr Austin] has not been prescribed any antipsychotic medications, has been cleared from mental health accommodation area and has been seen by the Mental Health Review Tribunal [in late] 2011 and has been recommended as fit to be tried.
Of even greater importance is the fact that for the last 13 years since the report by [Dr Q], there has been no documented evidence of a psychotic episode either in custody or outside, there has been no documented evidence of psychiatric hospitalisation nor has he been prescribed antipsychotic medication. It is highly unusual that an individual with a psychotic illness such as schizophrenia or schizoaffective disorder or bipolar disorder would manage to remain stable and symptom free or with their symptoms completely undetected without being medicated for such a long time. It is also important to highlight that [Mr Austin] is currently working and is able to continue earning an income and manage his own affairs including managing complex legal issues that he is currently facing.
Thus, I am of the opinion that [Mr Austin] does not currently suffer from a psychotic illness either in the form of schizoaffective disorder or schizophrenia and nor is he likely to suffer from bipolar disorder. His symptoms at the time could be attributed to stress that he sustained considering his pre-existing post trauma stress disorder and ADHD, whilst further lengthy period of remaining well is also strongly suggestive of absence of psychotic illness.
(As per original).
As to the question related to the level of insight the father shows into any mental health issues he may have it was stated by the doctor:
[Mr Austin] has a relatively good level of insight into his mental health issues. Specifically, he acknowledges the diagnosis of PTSD as well as his symptoms and acknowledges the role of multiple traumatic events in his life and causation of his diagnosis. He acknowledges the ro1e for treatment. He acknowledges the diagnosis of ADHD and acknowledges his ongoing symptoms. He acknowledges the rote of ongoing treatment and is keen to trial medication. [Mr Austin] has not acknowledged the diagnosis of schizophrenia and does not believe he currently experiences psychotic symptoms. I agree with him on that issue. [Mr Austin] remains motivated to pursue improvements in his mental health for the sake of gaining and maintaining access to his child including occupational and relational aspects.
(As per original).
As to the father’s prognosis, the doctor stated:
Overall, it is difficult to make firm prognostic statements. However there is a number of positive prognostic factors worth highlighting including:
[Mr Austin]'s motivation to improve and maintain his mental health.
[Mr Austin]'s motivation to maintain contact with his son.
[Mr Austin]'s motivation to continue working and his ability to do so.
[Mr Austin]'s compliance with medication which has enabled him to avoid [a medical episode] for over a decade.
[Mr Austin]'s normal intelligence and good physical health.
Supports available to [Mr Austin], namely his mother.
Availability of treatments for his ongoing mental health, both pharmacological and psychological which he is motivated to pursue.
Abstinence from illicit substances and excessive alcohol.
Thus overall my view is that [Mr Austin]'s prognosis is positive with regards to being able to minimise the effect of his psychiatric illness on his future life and to maintain employment, improve his social functioning and maintain his rote as father to his 3-year-old son.
(As per original).
As to any recommendations for the father’s future treatment, the doctor stated:
[Mr Austin] requires ongoing psychological and psychiatric treatment as outlined above. Specifically, my recommendations are as follows:
Referral to a relevant psychologist for regular treatment of post traumatic stress disorder and in order to improve his affect dysregulation and impulsivity associated with ADHD. Cognitive behavioural therapy (CBT) and trauma 'focused therapy may be of significant benefit in that regard.
Pharmacologically, [Mr Austin] is to continue on [medication] daily and the dose of this may need to be increased further daily after he has taken it for a month, should there be insufficient progress.
Further pharmacological therapy for PTSD may be required in the future in the form of an SSRI agent should there be insufficient progress with psychological therapy. I discussed these treatment recommendations with [Mr Austin] who understands them.
(As per original).
Child Impact Report
The author of this report was Ms K, Court Child Expert.
The Court does not propose to set out the entirety of this report. The Court acknowledges that this report remains untested. The Court takes into account the contents of this report.
The Expert referred to the mother informing her that the child appeared traumatised when he was returned to her after spending 23 days with the father. The Expert stated that when the father was asked about the effect on the child being taken to his home the 23 days, he acknowledged that this may have been “confusing and overwhelming” for him, but added that he enjoyed his time with him and the paternal grandmother where he “wasn’t getting abused” (Court’s emphasis).
In relation to the observation session held between the child and the father, the expert stated that after the session she entered the room when the father said that the child “was shaking a minute ago” and asked if the mother had brought a jacket for him. The Expert stated that when she commented that the room was warm and that the child was adequately dressed, the father stated, “I’m just looking out for his safety.” (Court’s emphasis).
The Expert commented that the mother made allegations against the father of family violence. The mother reported a pattern to the alleged assaults, and said that they generally followed the father having arguments with the paternal grandmother with whom he has a volatile relationship.
Under the heading “Child impact analysis”, the Expert stated:
21.[X] would have experienced the sudden cessation of contact with [Ms Dean] at the age of [under 2 years old] as extremely traumatic. It appears that, up to this time, [Ms Dean] was his primary carer, and sudden changes in his care arrangements would have been extremely unsettling. [Mr Austin] appeared to have limited appreciation of the impact of this on [X].
22.It seems that, at the very least, [X] has experienced conflict between his parents and may have experienced violence perpetrated by [Mr Austin] towards [Ms Dean]. The experience of conflict is known to have an adverse effect on children’s development and their later mental health. If violence occurred as alleged by [Ms Dean], this is extremely serious and could have long-lasting implications for [X]. He will be at greatly increased risk of mental health difficulties as well as experiencing a parenting style from [Mr Austin] which is unlikely to be helpful for him. [Mr Austin]'s denial and minimisation of violence would be very concerning, and would increase the likelihood of such violence occurring again in future relationships. It will be of the utmost importance that [X] is not exposed to further conflict or violence.
23.The allegations made by [Mr Austin] concerning [Ms Dean]’s abuse of [X] are also serious. Physical punishment of children is not recommended, and [X]’s age would mean that he would be at risk of future relational and trust difficulties as well as an increased risk of aggressive behaviour. [Ms Dean] was adamant that no such incidents as described by [Mr Austin] occurred.
Under the heading “Parental understandings of the child/ren’s needs”, the Expert stated:
24.It is undisputed that both parents care greatly about [X] and recognise the importance of parents in a child’s life. [Ms Dean] acknowledged that [Mr Austin] is good at playing with [X] and said that, during the relationship she urged him to spend more time with [X]. However, she now has reservations about [Mr Austin]'s continuing allegations about her treatment of [X], and believes that this will make it impossible for [X] to have a safe relationship with him. This will also make it difficult for [Ms Dean] to facilitate any time for [X] with [Mr Austin].
25.[Mr Austin] was less complimentary about [Ms Dean]’s capacity as a parent, merely saying that she feeds [X] and takes him to childcare. He appeared concerned regarding possible abuse of [X], and said that he has told the childcare service to keep a close eye on any bruises. This attitude and behaviour may impact on [X] as he learns about [Mr Austin]'s attitude towards [Ms Dean], and would make any co-operative co-parenting relationship extremely difficult to achieve. If there is little or no foundation to [Mr Austin]'s allegations, and they represent his attempts to shift the focus of concern, then [X] is at risk of experiencing questioning from [Mr Austin] when he sees him as well as implied criticism of [Ms Dean]. Ultimately, this could lead [X] to believe that he is not safe in [Ms Dean]’s care, and could also damage his relationship with [Mr Austin].
Family Report
The Court acknowledges that the Family Report remains untested at this interim stage. The Court takes into account the contents of the Family Report.
The Family Report writer referred to the child and the father at paragraph 9 as follows:
[X] presented as a cautious child in the presence of the Court Child Expert, he appeared to be at ease and comfortable in the presence of [Ms Dean] when he was observed formally and informally. [X] appeared to show his excitement when he saw [Mr Austin] in the observation room as [X] ran to him appearing comfortable in [Mr Austin]'s embrace. During the formal observation with [Mr Austin], [X] remained quiet, and he did not engage [Mr Austin] in conversation as he did when he was observed in [Ms Dean]’s formal observation.
As to the father ceasing to spend supervised time with the child, the Family Report writer stated at paragraph 13:
Since the Consent Order made on 7 December 2022, [Mr Austin] consistently attended his scheduled time with [X] until August 2023. He reported that because [Ms Dean] had refused to change the supervising agency, and that he is financially impacted by the cost of having two supervisors, and in his belief [X]’s time with him should be unsupervised, he had not attended since.
Under the heading Evaluation, the Family Report writer stated, inter alia:
86.… The concerns with [Mr Austin] are that his behaviours are further exacerbated due the reported patterns of coercive and controlling family violence and his criminal convictions. This places significant risk to [X] and [Ms Dean] as the use of high-level family violence is also attributed to family suicide or homicide and poses a higher risk of lethality and the unacceptable risk of harm. It is likely that without demonstrated and genuine desire to change the behaviour, that [Mr Austin] will continue to pose a significant risk to [X].
87.While supervised time has its benefits as proposed by [Ms Dean], it is not a long-term solution when parents are unable to change their behaviour and the risk issues persist. If the Court determines that [Mr Austin] is unable to change his behaviour in the future and the risk to [Ms Dean] and [X] will continue where it significantly impacts [Ms Dean] and her parenting and [X]’s safety and wellbeing, then no time may need to be considered. It does not appear that [Mr Austin] has demonstrated any changes or taken any accountability for his behaviour in relation to his convictions, and this may be an indicator that there is a low possibility that [Mr Austin] is able to change his behaviour and the risk issues will continue.
…
90.The way [Mr Austin] presented to the Court Child Expert and the various allegations towards agencies is particularly concerning, and it may benefit the Court if [Mr Austin] completes a comprehensive mental health assessment.
RELEVANT LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
Particularly, the Full Court said at [68]:
…the procedure for making interim parenting orders will continue to an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
To assess what interim orders will be in the best interests of a child, the Court is required to adopt a conservative approach or one that is likely to avoid harm to a child (Marvel & Marvel (No 2) [2010] FamCAFC 101; Paterson & Hamdy [2022] FedCFamC1A 118).
The best interests of the children
Section 60CC considerations
(2)(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(2A)(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child)
(2A)(b) any family violence order that applies or has applied to the child or a member of the child’s family
The above considerations will be dealt with together.
The mother deposes that a provisional ADVO was made against the mother for the protection of the father and the child in late 2022 following allegations made by the father to the police.
The mother further deposes that an application for an ADVO against her was dismissed in early 2024.
In late 2022 the mother deposes that an ADVO was made against the father for the protection of the mother. In late 2023 the mother deposes that a final ADVO was made.
The Court deals firstly with the father’s interim application to spend supervised time with the child pending the final hearing due to be heard in early March 2025. The Court notes that the mother opposes any supervised time being ordered at this interim stage and at a final hearing will seek an order that the child spend no time with the father.
The Court has a significant concern that if it now orders that the child spend supervised time with the father pending final hearing, that the father may, during supervised time, seek to obtain information from the child which he can later use in evidence against the mother. The Court is concerned that the father, during supervised time, may act in an emotionally dysregulated manner in front of the child. In this context, there is a significant suggestion that at the supervised visit on 21 August 2023 the father, inter alia, questioned the child in a leading fashion as to whether the mother had hit him in the eye, and had later reported an alleged admission by the child in this regard to the police. There is a further suggestion that the father, despite being asked by the supervisor not to talk about the mother or question the child further, continued to raise his concern in the presence of the child with the supervisor, which to her appeared to be unsubstantiated.
It is also alleged by the mother that the father had sought during supervised time to look for bruises on the child’s body and take photos for the purpose of making reports to the police adverse to the mother. Such alleged behaviour should not occur during supervised time; it can be confusing for the child and may lead to the mother experiencing anxiety with resulting adverse effects upon her parenting capacity.
There is a further suggestion that the father at a supervised visit on 6 April 2023 talked over the comments of the supervising officer, became quickly annoyed and frustrated at the paternal grandmother, and had raised his voice, in the presence of the child. He had allegedly earlier at the supervised visit seemed to become agitated and irritated about a conversation he had with the supervisor about the child eating lollies.
The father does not address this alleged adverse activity by him in previous supervised visits in his affidavit or other evidence at this interim hearing.
The Court acknowledges that these allegations of behaviour by the father at previous supervised visits have not been tested yet; nevertheless, the Court is entitled to consider them for the purposes of risk assessment at this interim hearing.
Again, the mother seeks at the final hearing an order that the father spend no time with the child. She alleges that the father was violent towards her during the relationship, and points to the Local Court convictions of the father relating to assaults against her in 2021.
The mother submits that whilst the father has appealed his convictions, the fact is that these convictions presently stand and the father, through his present all grounds appeal and denials of these assaults, effectively lacks insight into the harmful effects upon herself and indirectly the child of such criminal behaviour. She submits that the father’s treating psychiatrist Dr J and treating psychologist Dr L, relating to their professional opinions in respect to the father, fail to meaningfully deal with the father’s adverse behaviour underlying these assault convictions upon the mother. (The Court observes that the father’s treating psychologist states in his July report that the father has taken responsibility for his actions and words that he did do however, again, the father has lodged an all grounds appeal which is due to be heard in early 2025.) Further, the mother submits that despite the interim direction of the Court of 18 December 2023 that the father’s treating psychiatrist be provided with, inter alia, all the parties’ material in these proceedings and the expert evidence (the Child Impact Report of 3 May 2023 and the Family Report of 20 November 2023), the treating psychiatrist has not indicated that they were provided with such material which reduces the efficacy of their opinions in relation to the father. There is force to these submissions.
The mother submits that the father’s mental health is of significant concern, in particular having regard to the fact of his assault convictions and prior adverse behavioural history and that until the father’s treating psychologist and psychiatrist’s evidence can be tested a final hearing, the positive opinions of those professionals in relation to the father cannot be properly assessed. There is force to these submissions.
The mother submits that the efficacy of the father’s completing a Parenting After Separation course, and an online Men’s Behaviour Change Course, and his prospective completion of the formal lengthy Men’s Behaviour Change Program, has to be considered in the light of the father denying significant family violence alleged against him by the mother including the assaults upon the mother which were the subject of the criminal convictions against the father in late 2023. She submits that the completion of such courses is of no significant utility if the father has not admitted the substance of his family violence behaviour against the mother because the father would lack adequate insight into the harmful effects of such adverse behaviour against the mother and indirectly the child. There is force to these submissions.
The father has a history of violence against a woman which led to his conviction and incarceration for a significant number of years. His childhood was traumatic and he developed significantly adverse behavioural problems which were discussed by his treating psychologist and psychiatrist. Again, his most recent convictions for assaults upon the mother were committed in late 2021 in relation to which he denies such assaults. These matters are of concern to the Court in the context of his present Application in a Proceeding, particularly taking into consideration, as discussed immediately below, the suggestion by the father’s treating mental health practitioners that his mental health issues have not stabilised.
The father’s treating mental health practitioners suggest that the father’s present mental health has not stabilised, in relation to which the Court has a significant concern at this interim stage, in the context of the father’s Application in a Proceeding.
For example, his treating psychologist refers to the deterioration of the father’s mental health over the last 12 months (see paragraph 6 of the psychologist’s report of July 2024), albeit said to be related to the separation from the child. His treating psychologist refers to the father’s present treatment on an ongoing basis for stress management, impulsivity management, and for his symptomatology of anxiety and depression, and for PTSD symptomatology (nightmares, flashbacks and lucid dreams).
Further, for example, in the father’s treating psychiatrist’s report of 6 March 2024, the doctor states, inter alia:
With regards to current symptoms, [Mr Austin] described ongoing difficulty with focus, poor concentration, difficulty with organising himself, difficulty communicating as he frequently interrupted, blurted out answers, difficulty completing some tasks and difficulty controlling his emotional state. He reported mood fluctuations and a high level of anxiety. He reported being hypervigilant and experiencing intrusive recollections of past traumatic events described above. He reported avoidance of reminders of traumas.
On my initial assessment of [Mr Austin] on 2 February 2024, I noted significant ongoing features of post traumatic stress disorder (PTSD) as well as significant features of ongoing attention deficit hyperactivity disorder.
The doctor further stated, in relation to the question being “The effect if any of any mental health issues our client may have on his social functioning”:
[Mr Austin] continues to experience some symptoms of PTSD and ADHD. These will be will partially ameliorated by medication as prescribed by myself recently but we are yet to monitor their full effect or lack thereof.
Specifically, one has to consider [Mr Austin]'s impulsivity, disorganisation and talkativeness as well as his hypervigilance. Those ongoing symptoms even though ameliorated by medication may be requiring of ongoing psychological therapy in order to help [Mr Austin] understand the effect of his symptoms on his ability to effectively communicate, allay his frustration and reach the desired results in an acceptable manner. On the other hand, it is important to highlight [Mr Austin]'s ability to maintain employment maintain relationships and otherwise conduct his own affairs. Therefore, the overall effect of [Mr Austin]'s symptoms on his social functioning and occupational functioning can be described as mild to moderate particularly if he is provided appropriate treatment in the future.
The mother submits and relies upon material that suggests that the father holds significant negative opinions of her parenting capacity and makes serious allegations against her in relation to adverse behaviour committed by her during the relationship and thereafter both in relation to the father and the child. The Court has a concern in relation to the father in respect to this submission.
The mother seeks an order at the final hearing for no time between the child and the father. Taking into account the above discussed matters, the Court is concerned that to order supervised time now between the child and the father pending final hearing carries the risk that should ultimately the court order no time between the child and the father, the child may suffer emotional harm through having further developed a relationship between himself and the father with that relationship only to be cut off through the Court’s ultimate order.
Accordingly, and again, without in any way seeking to predict the outcome of the final parenting hearing due to be held in early March 2025, but taking into account the above discussed matters, the parenting arrangements at this interim stage that would best promote the child’s psychological safety, would be not to order interim supervised time between the child and the father pending final hearing. The parties’ evidence, and the evidence of their witnesses including professional witnesses should be tested at final hearing before any time is potentially ordered between the child and the father.
The Court now turns to the Application in a Proceeding of the paternal grandmother.
There is force to the submission of the mother that there is a significant suggestion, on the material before the Court, that the paternal grandmother is significantly aligned with the father’s position in these proceedings, in particular his adverse position adopted against the mother. In this regard, the mother points to the paternal grandmother’s Notice of Child Abuse, Family Violence or Risk filed on about 25 June 2024 in which, inter alia, the paternal grandmother makes serious family violence allegations against the mother, including allegations that the child has experienced family violence at the instance of the mother and is at risk of experiencing family violence at the instance of the mother. She also alleges that the paternal grandmother sanctioned and was complicit in the forced removal of the child from her on 6 November 2022 (which ultimately led to the mother obtaining a recovery order on 29 November 2022).
Presently the father and paternal grandmother live together. Again, there is a significant suggestion on the material before the Court that the paternal grandmother is significantly aligned with the father’s position against the mother in these proceedings. Further, there is a suggestion, on the material before the Court, that the paternal grandmother may well be unable to control adverse behaviour by the father in the presence of the child (for example, see the supervised contact report dated 21 August 2023 at page 206 of the ICL’s tender bundle in Exhibit B).
Should the Court, following a final parenting hearing, ultimately order that the child spend no time with the father, then a real concern arises, if the Court was considering ordering some form of time between the child and the paternal grandmother, how such time could be spent between the child and the paternal grandmother which did not carry the risk of the child being exposed to the father, particularly within the context of unsupervised time. Long-term supervision is generally not an order that the Court is attracted to because, inter alia, it is difficult for the child’s relationship with the supervised parent (or grandparent, as the case may be) to develop within an artificial supervised environment. The Court has a concern as to these particular matters in relation to the paternal grandmother.
The Court observes that the Family Report writer did not interview the paternal grandmother nor consider her material which has now been filed in these proceedings.
The mother submits that there should be no supervised time ordered between the child and the paternal grandmother until cross-examination of the paternal grandmother can take place at the final hearing; such cross-examination could potentially deal with issues such as the attitude of the paternal grandmother towards the mother, both in relation to the latter’s parenting capacity for the child and otherwise. There is force to this submission.
The mother seeks an order at the final hearing for no time between the child and the paternal grandmother. Taking into account the above discussed matters, the Court is concerned that to order supervised time now between the child and the paternal grandmother pending final hearing carries the risk that should ultimately the Court order no time between the child and the paternal grandmother, the child may suffer emotional harm through having developed a relationship between himself and the paternal grandmother with that relationship only to be cut off through the Court’s ultimate order.
Accordingly, and again, without in any way seeking to predict the outcome of the final parenting hearing due to be held in early March 2025, but taking into account the above discussed matters, the parenting arrangements at this interim stage that would best promote the child’s psychological safety, would be not to presently order interim supervised time between the child and the paternal grandmother pending final hearing. Again, the parties’ evidence, and the evidence of their witnesses including professional witnesses should be tested at final hearing before any time is potentially ordered between the child and the father and/or the paternal grandmother.
(2)(b) any views expressed by the child;
The child is too young to express a relevant view.
(2)(c) the developmental, psychological, emotional and cultural needs of the child;
The Court refers to the contents of the Family Report. The child is developing well in the mother’s primary care. Inter alia, the child needs parenting that is loving and nurturing. Such parenting should be physically and emotionally safe for the child.
(2)(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
Significant family violence allegations have been made by the mother against the father in the context of the father having a significant past history of violent criminal behaviour and mental health issues. The Court refers to its discussions above under parenting safety arrangements for the child. There is a significant suggestion that the father may lack adequate insight into alleged family violence previously perpetrated against the mother.
The Court has discussed above issues relating to the father’s mental health, with the suggestion that the father’s mental health may presently not be adequately stable.
When the Family Report writer interviewed the family, she observed that the child had a positive bond with the father which suggests that the father may well have some ability to love and nurture the child.
The father makes allegations of family violence against the mother in relation to the child in particular. However, at this interim stage he is content for the child to remain living with the mother. The mother would appear to have such capacities as referred to in these s 60CC considerations.
(2)(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
Again, the Family Report writer observed that the child had a positive bond with the father in about October 2023. On balance, given the age of the child and the time that has elapsed since the child’s last time spent with the father and/or paternal grandmother, it is likely that the child presently has no relationship with either the father or the paternal grandmother. The child may benefit prospectively from developing his former relationships with the father and paternal grandmother if it is safe for him to do so.
The child has a meaningful relationship with the mother and will benefit prospectively from the maintenance of that relationship with the mother.
(2)(f) anything else that is relevant to the particular circumstances of the child.
Again, at the interim hearing the paternal grandmother made submissions in relation to proposed supervised time between the child and herself; she made no express submissions in respect to communication orders or orders that she be allowed to receive updates on the child’s health, welfare and education. In view of the Court’s discussions above under s60CC, it will not be in the child’s best interests to make such proposed Orders relating to communication and updates.
(3)(a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture.
The paternal grandmother deposes that she has Aboriginal heritage. The Court acknowledges the potential benefit to the child, prospectively, of engaging with his cultural heritage through time with either or both of the paternal grandmother and the father. There is little evidence as to these cultural heritage related matters presently before the Court and the primary concern of the Court at this interim stage is avoiding potential harm to the child. These cultural heritage related matters can be more appropriately explored at final hearing.
CONCLUSION
Evaluating the above discussed considerations under s 60CC of the Act, it will be in the best interests of the child to make the following interim parenting orders:
1.The Application in a Proceeding of the father filed 23 September 2024 is dismissed.
2.The Application in a Proceeding of the paternal grandmother filed 10 October 2024 is dismissed.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 5 November 2024
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