Earle and Earle
[2020] FamCA 272
•23 April 2020
FAMILY COURT OF AUSTRALIA
| EARLE & EARLE | [2020] FamCA 272 |
| FAMILY LAW – CHILDREN – Recovery Order – Where interim orders previously made that children live with mother and spend substantial and significant time with father – Where father withheld children from mother on the basis that she poses a serious risk of harm due to her mental health and the nature of her allegations made against him – Where mother seeks a Recovery Order as she contends she has been the primary carer of the children – Where in response father seeks new interim parenting orders – Where father also alleges members of the maternal family involved in the care of the children pose a risk of serious harm based on similar mental health concerns as mother and involvement in allegations made against him – Where expert previously opined that mother’s mental health is not a concern and immediate changes to children’s circumstances not recommended – Where weight attached to expert opinion and updated report ordered – Where Recovery Order made as sought by mother and appropriate that further restraints on mother including in relation to members of maternal family are made. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 67U, 67V |
| Deiter & Deiter [2011] FamCAFC 82 Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346 Mazorski & Albright [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92 SS & AH [2010] FamCAFC 13 |
| APPLICANT: | Ms Earle |
| RESPONDENT: | Mr Earle |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | PAC | 2016 | of | 2018 |
| DATE DELIVERED: | 23 April 2020 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 14 April 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Lioumis |
| SOLICITOR FOR THE RESPONDENT: | Coleman & Greig Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
That the father return the children X born … 2017 and Y born … 2016 (“the children”) to the mother’s home by 4.00 pm today, or as otherwise agreed between the parties prior to 4.00 pm.
That the father’s time with the children is suspended from today until 1 May 2020.
That Order 1 is conditional upon the mother’s cousin Mr B immediately vacating the mother’s household.
That in the event the father fails or refuses to cause the children to be delivered to the mother in accordance with Order 1, a Recovery Order pursuant to s 67U of the Family Law Act 1975 be issued directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia authorising and directing them to find and recover the children and return them to the mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the children may be found.
That pursuant to 67Y of the Family Law Act 1975 the mother notify the Court as soon as practicable the circumstances and time that the children are returned to her care.
That the father, or any person acting on his behalf is prevented from withholding the children further from the mother and that he otherwise comply with Orders dated 19 March 2019 and 10 April 2019.
That the mother is restrained from allowing her cousin Mr B to reside in her household or to play any role in the care of the children.
That the mother is restrained from allowing her brother Mr C to play any role in caring for the children.
That the parties are restrained from presenting the children to any general practitioner other than one agreed upon by them, noting that if that nominated general practitioner is unavailable the children are to be presented to the next available general practitioner from the same medical practice as the nominated practitioner.
That the children are to live with or spend time with each parent as specified in the current court orders even if the children or one of them are unwell, and it is the responsibility of the parent with whom the child is living or spending time to obtain medical attention if required. If there is a medical emergency and one of the children requires immediate presentation at a hospital then the parent caring for the child at that time is to present that child to hospital and immediately notify the other parent.
That the mother take is to take all steps to ensure that the children are enrolled in a child care centre as agreed between the parties and is to facilitate the children attending such child care centre subject to restrictions in place as a result of the COVID-19 crisis.
That the mother is to take all steps necessary to ensure that Y receives all services recommended for him by his NDIS funding scheme consultant.
That the Independent Children’s Lawyer forward to chambers as soon as practicable orders to be made with the consent of the parties in relation to obtaining urgently an updated report from the court appointed expert.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Earle & Earle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2016 of 2018
| Ms Earle |
Applicant
And
| Mr Earle |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a Recovery Order under Division 8 of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) sought by the mother against the father who in response to the mother’s application seeks new interim parenting orders.
The parties’ children, a boy aged four and a girl aged two (“the children”) had been living with the mother and for some time spending substantial and significant time with the father prior to him withholding them in his care from 28 March 2020. It is the father’s case that a deterioration in the mother’s health over the last few months has placed the children at a serious risk of harm in her primary care.
It is the mother’s case that she poses no unacceptable risk of harm to the children and that as she had been their primary carer prior to their removal by the father, it is in their best interests to be returned to her care.
The Independent Children’s Lawyer (“ICL”) agrees with the mother’s position that it is in the best interests of the children for the Recovery Order to be made.
After the children have been returned to her care the mother proposes a short suspension of the father’s time. The father seeks a dismissal of the mother’s application for a Recovery Order and Response and seeks a new interim arrangement for the children’s care which would see them live with him and spend limited supervised time with the mother.
The question for me to determine is whether it is in the children’s best interests for the Recovery Order to be made or for a new parenting regime to be instituted as proposed by the father.
Background
The parties married in 2013 and began living together from that date.
In 2016 their oldest child (“the son”) was born. Their second child (“the daughter”) was born in 2017.
As I understand it the parties’ relationship began to deteriorate from at least January 2018. At this time the mother made complaints about the conduct of the paternal grandfather and a police investigation was undertaken into that complaint without any further action.
In late February 2018 the mother left the home where the family had been living with the children and did not permit the father to spend any time with them for about a month.
The father commenced proceedings in the Federal Circuit Court in May 2018 initially seeking parenting orders only. The mother in her Response also sought financial orders.
The parties reached an agreement about interim parenting arrangements for the children and in July 2018 orders were made with their consent in accordance with this agreement. These orders provided for the children to live with the mother and have unsupervised daytime contact with the father twice each week.
In December 2018 the proceedings were transferred to this Court and subsequently an ICL was appointed.
In January 2019 each of the parents noticed a red mark on the son’s neck and each made allegations against one another about the likely cause for it. Staff at the hospital to which the child was taken were of the view that the mark was likely to have been caused by a rash shirt or flotation device.
In January 2019 the police issued a provisional Apprehended Domestic Violence Order (“ADVO”) against the father for the protection of the son (related to the mark on his neck) but this application was withdrawn by police a short time later.
The parties and children met with a family consultant for the purposes of the Child Responsive Program in March 2019 and the Memorandum to Court was released a short time later. At the time of this meeting the mother had unilaterally ceased the father’s time with the children for just over one month.
Both parents reported to the family consultant that the maternal grandfather was killed 30 years ago by persons unknown. I understand it to be the father’s case that a question remains as to the involvement of the mother’s cousin (“the maternal cousin”) in this death and the potential risk that may be raised by the maternal cousin as he lives in the same household as the mother and is involved in the care of the children. When seen by the family consultant in March 2019 it was the father’s proposal that the children live with him and spend two days per week with their mother including an overnight visit each fortnight and that he exercise sole parental responsibility for the children. It was at that time, and remains his case, that the children may be at risk of harm in the mother’s care due to difficulties with her mental health and due to the presence of the maternal cousin in her household.
It was then the mother’s proposal that the children live with her and spend supervised time only with the father. She raised questions about whether the father was using legal processes as a form of control over her and whether the paternal grandfather presents a serious risk of harm to the children.
When interviewed by the family consultant the father said that he did not have any concerns regarding the mother’s mental health when they were in a relationship and that those concerns first arose in September 2018 when the mother first accused him of speaking with police regarding their investigation of the maternal family. He reported that the mother indicated she believes he was working with police and had shut down all communication with him.
The mother denied to the family consultant that she was experiencing mental health concerns but told the family consultant that she believed Victorian Police who investigated the death of her father over 30 years ago are influencing the family law proceedings and that she has evidence the father has been in contact with police when he says he has not.
The father also expressed concern to the family consultant about the maternal cousin’s mental health saying that when he last saw the cousin in May 2018 this man was “off his tree” saying police were monitoring him and investigating him.
Neither parent expressed to the family consultant any concern regarding the children’s safety or wellbeing in the other parent’s care during the relationship but the mother reported there were three incidents at the beginning of 2019 that led to her withholding the children from spending time with the father. These incidents related to the presence of the red mark on the son’s neck and this child returning from a visit with the father on another occasion in January 2019 with a bruise on his forehead. Finally, the mother said she had made the decision to withhold the children from contact with the father when, two days after his last visit with the father in February 2019 the son began wrapping a tie around his neck and choking himself and when asked who had showed him this action the son kept saying “daddy, daddy”.
The father raised concern with the family consultant about the maternal cousin because he alleged this person has a bad temper and an extensive history of aggression. He also believed that the cousin had been named as the primary suspect in the maternal grandfather’s murder. The father also expressed concern about the children’s exposure to the mother’s “paranoid behaviours” and mental health concerns of the adults in the household in which they live.
In her Memorandum to Court the family consultant expressed some concerns about the son’s hyperactivity, speech development and social development and suggested that a paediatrician may be able to assist with such an assessment of this child. She also suggested that the court may be assisted by a report from an expert with suitable qualifications in relation to mental health.
In March 2019 a psychiatrist (“the expert”) was appointed to provide an expert opinion in the proceedings.
On 10 April 2019 following a defended hearing interim orders were made by a Senior Registrar (“the April 2019 orders”) that the children live with the mother and spend time with the father one weeknight per week, for a full weekend each alternate week and for a 24 hour period each other alternate weekend. In error the orders were published as having been made with the consent of the parties. The mother then filed an application seeking to review the parenting orders but it subsequently came to light that the only matter she wished to have reviewed was the question of whether or not the orders had been made by consent.
The parties were seen by the expert psychiatrist in June 2019.
From at least July 2019 the mother’s brother (“the maternal uncle”) also began involving himself in the proceedings by sending correspondence to the father’s solicitors accusing them of corruption. The mother has a close relationship with the maternal uncle, relies upon him for support and lives in his property with the children and the maternal cousin.
Later in July 2019 the mother refused to make the children available for their time with the father and made complaints about the care arrangements for the children to a number of agencies including the Department formerly known as Family and Community Services (“the Department”) and local police.
Throughout July and August 2019 the maternal uncle sent emails to a wide range of third parties accusing the father of child abuse and “corruption” and of having improper influence over the ICL and court appointed expert. These documents also allege that the complaint of physical abuse against the paternal grandfather was not investigated by police due to the father’s contacts and that the father also avoided “interrogation or prosecution” in relation to the red mark, described as a “rope mark” around the son’s neck for the same reason.
From August 2019 the mother also sent emails to a wide range of people including the Premier of Victoria, the Chief Commissioner of Victoria Police and the Police Minister making similar claims about corrupt activity in connection with the investigation of the maternal grandfather’s death.
From July to October 2019 the mother took the children, and in particular the son to a range of medical appointments with various health professionals without the knowledge of the father. On two occasions in October 2019 the mother did not make the son available for overnight time with the father due to claimed health concerns.
The expert’s report dated 7 November 2019 was released to the parties a short time later.
In late November and early December 2019 the mother withheld the son from the father on two occasions rather than make him available to the father for time on the basis that this child was unwell. On 6 December she presented the son to a hospital but he was not admitted. The diagnosis was considered by hospital staff to be likely viral gastroenteritis.
In mid-December 2019 the mother began complaining to the father in text messages and emails that the children had been experiencing diarrhoea after spending time with him on two recent occasions. In an email sent at around 11.30 pm on 16 December 2019 the mother wrote “I strongly suspect you are feeding them laxatives”.
Documents tendered in the proceedings from the hospital to which the son was taken on 17 December 2019 indicate that the child was presented by the mother and the maternal cousin, the latter who is described as “expressing agitated behaviour, pressured speech, intimidating nature” and was “requesting blood tests for laxatives”. It is recorded that the cousin was stating that the “father must be feeding them laxatives” and “mentioned multiple times that there is a current court case against the child’s father”. The records also indicate that there was an episode of diarrhoea with this child at the hospital and that the maternal cousin took a photograph of the soiling prior to it being cleaned. The records also note that the mother expressed the same concerns that “gastro symptoms have occurred as her ex-husband has been giving [the children] laxatives” to make them sick and requested a blood test to check for laxatives in the blood. This presentation did not result in the child being admitted to hospital.
In January 2020 the father filed a Contravention Application in relation to a number of occasions on which the mother had not made the son available to him in accordance with the interim parenting orders. As I understand it, the father contended that the complaints of ill health made by the mother about this child are spurious.
On 18 February 2020 the father’s Contravention Application was withdrawn and dismissed. The parenting and property proceedings were also bifurcated and directions were made for trial in relation to the parenting proceedings which are to proceed first.
After withdrawing his Contravention Application there were two further occasions where the mother withheld the son from the father due to health issues.
On 13 March 2020 the mother filed an Application in a Case seeking orders including that a vast list of third parties file affidavits in the proceedings relating to their corrupt activity, that the ICL be dismissed and that the orders providing for the father’s time with the children be suspended.
On 18 and 21 March 2020 the mother raised concerns about an alleged insect infestation in the father’s home based on the presentation of the daughter when returned from her father’s care.
On 28 March 2020 the father did not return the children to the mother when this was due to occur following his time with them as he asserted concerns about their safety and wellbeing in the mother’s care. The mother notified police who carried out a welfare check on the children.
The only contact between the children and mother after 28 March 2020 occurred on 1 April 2020 when the father facilitated a video telephone call.
On 3 April 2020 the father filed a Response to the mother’s Application in a Case including seeking orders for the children to remain in his care. The mother filed this Application for Recovery Order on the same date.
The Law
Section 67U of the Act provides that subject to section 67V the Court may make such Recovery Order as it thinks proper. Section 67V provides that, in deciding whether to make a Recovery Order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In addition to the Recovery Order, the mother seeks suspension of the father’s time with the children until 1 May 2020. She also seeks orders that the conduct of the father in withholding the children be listed for a contravention hearing and a contempt hearing though she did not press for these latter two orders on the hearing of this application. It is essentially her case that it is in the children’s best interests that they be returned to her primary care and that the future arrangements for their time with the father be revisited as soon as practicable.
The father seeks interim orders that would see the children live with him and spend supervised time with the mother each Sunday for a period of three hours. He proposes that the supervision be undertaken by a private supervision agency or his sister. He also proposes orders in relation to video communication between the children and their mother four days per week and a further assessment and updated report be obtained from the expert appointed in the proceedings.
Pursuant to s 65D(1), subject to certain provisions which are not relevant here a court may make such parenting order as it thinks proper.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In applying the law to the uncontested facts, the Court must also uphold the relevant objects and principles in the Act at s 60B that deal with parenting, which set out the ways in which the best interests of children are to be met and the rights of children underlying the objects.
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1].
[1] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346.
In Deiter & Deiter[2], the Full Court said when making an interim order a court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children.
[2] [2011] FamCAFC 82.
The circumstances in which this application is brought are extreme in that due to the Covid-19 pandemic there are special arrangements in place in New South Wales generally and in the Family Court. In these circumstances it is likely to be many months before a final trial date can be allocated to this dispute, even that part of it relating to parenting. It is also the father’s proposal that a further updated report be sought from the expert but no timeframe within which the expert could prepare such a report has been explored. In other words, the interim orders proposed by the father that would see the children spend limited and supervised time with their mother are likely to be in place for many months.
Best Interests Considerations
The primary considerations to which a court must have regard in determining the best interests of the child contained in s 60CC(2), are:
a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The expression “meaningful relationship” which is not defined in the Act has been interpreted in a qualitative rather than a quantitative sense as a relationship which is “important” or “significant”[3].
[3] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
Neither parent contends that the children do not receive a benefit from having a meaningful relationship with both parents. Both proposals will foster such relationships.
Although the children’s meaningful relationship with both parents is currently not being fostered as the children are not spending any time with or communicating with their mother, the father’s proposal for the mother to spend supervised time with the children purports to balance the two primary considerations. He does not contend that the children do not receive a benefit from having a meaningful relationship with their mother but says that the need to protect the children from harm requires that their time with her be supervised.
The other primary consideration to which I am required to give greater weight is the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
It appears from the written and oral submissions made on behalf of the father that he contends that the children are at an unacceptable risk of psychological harm in the mother’s care and for this reason the application for a Recovery Order should be dismissed and the interim orders sought by him should be made.
However, it became clear in the course of oral submissions that the father does not contend that the children are at risk in the mother’s care as the result of being subjected to or exposed to abuse or family violence. While the father does allege that the mother has neglected some of the particular health needs of the son, he does not contend that this matter gives rise to an unacceptable risk of harm in her care. Rather, it is his case that the mother’s capacity to meet the needs of the children is reduced as a result of the deterioration in her mental state and in particular in relation to delusional beliefs that she holds that are shared by both the maternal cousin and the maternal uncle who are involved in the care of the children. These contentions which form the heart of the father’s case will be matters relating to parental capacity to which I will return.
Many of the secondary considerations in relation to the best interests of the children are not relevant to this application.
Some of the relevant matters however are the nature of the relationships between the children and each parent, the likely effect in the change of the children’s circumstances which would be brought about as a result of the competing applications, the capacity of each parent to meet the needs of the children and the background or personal characteristics of the parents.
As these are interim proceedings although I am not able to make any findings I am required to “weigh the probabilities of competing claims and the likely impact on the children in the event that a controversial assertion is acted on or rejected”.[4] This requires in particular that I make an assessment about the likelihood of the father’s contentions regarding the risks posed by the mother being found proved at the final hearing. In making such an assessment the father relies in particular on material filed by the mother in support of recent applications, but I also consider the expert’s opinion (albeit untested) as a weighty factor.
[4]SS & AH [2010] FamCAFC 13.
By way of context, when the expert assessed the parties and children each parent’s respective proposals were very similar to that which they currently propose. The mother then sought that the children continue to live with her but have less time with their father than as provided for under the April 2019 orders and the father was seeking to have the children live with him though his proposal for the children’s time with the mother was unclear. At the time the parties were assessed in late June 2019 the mother and the children were then living with the maternal cousin in an apartment owned by the maternal uncle and that cousin, though the maternal uncle had moved out to make room for the mother and children.
In her report the expert opined that the mother “seemed convinced that [the father] had been conspiring with police and [the Department]” which the expert said the mother held “with a firm and unshakeable conviction” and opined that it was possible that the mother’s beliefs are delusional in nature. When asked, the mother also did not agree to her cousin being interviewed and did not believe that he had any bearing on the current issues. The expert noted that the mother said that she believed the father was bringing her cousin into the situation to influence the Court’s decision and was so agitated when the topic was discussed that the expert did not press the interview of the maternal cousin.
In relation to the additional considerations going to the best interests of the children the expert opined that both children appeared to demonstrate a secure attachment to both of their parents and a close bond with each other.
It was the expert’s opinion that the son was struggling with the current circumstances despite having a secure attachment to both parents. It was her opinion that this child’s externalising behaviour, particularly his oppositional behaviour that had been observed at the assessment is likely to be exacerbated by impaired attention or Attention Deficit Hyperactivity Disorder (“ADHD”) and probable Autism Spectrum Disorder (“ASD”). At that stage the expert assessed that it was apparent that this child missed his father and would like to spend more time with him but was also close to his mother.
Although the expert assessed that the father appeared to have “a more nuanced understanding of [the son]’s special needs”, she also assessed that the mother is aware of the importance of a better understanding of that child’s needs. The expert opined that the son “is likely to struggle if any change to his current circumstances is too precipitous”.
It was the expert’s opinion that the daughter is resilient and has a secure attachment to both parents and felt that it was likely that she would tolerate a change in her circumstances. The change that the expert specifically considered however, was one which would see the children spend an equal amount of time with both parents and would need to be brought about gradually and on the basis that both parents “are able to establish and maintain more effective communication with each other, in regard to co-parenting while separated”. On this basis the expert recommended equal shared parental responsibility and that the parents work towards the children living with each of them on a week about arrangement to be achieved in a gradual manner over the ensuing 12 to 18 months.
In submitting that a Recovery Order should be made and that it was in the children’s best interests to return to live primarily with her, the mother attaches particular weight to the fact that she had been the children’s primary carer throughout their lives. While she did not specifically refer to the expert’s opinion I attach weight to the expert’s concern (albeit untested) that the son would be likely to struggle with a sudden change in his parenting arrangement.
The expert expressed an opinion concerning each parent’s capacity to provide for the needs of the children and opined that “both parents have the best interests of the children at heart”. This was the expert’s view notwithstanding the concerns that each parent raised with her about the other parent which were very similar in nature to the particular concerns raised by the father in this application.
The expert described the mother generally as presenting as “a mature, considered individual”. She also opined with particular relevance to this application the following:
While this opinion is limited by the cross-sectional nature of the assessment based on a detailed clinical evaluation, and the available collateral information, I formed the view that [the mother]’s paranoid stance in relation to [the father]’s involvement with police and her belief that he is involved in a conspiracy, to be a consequence of her past experiences, incorporated into her world-view which appears to be shared by her brother, rather than a delusional disorder or a Folie-a-Deux (shared delusional disorder).
The expert likewise considered the father as presenting as a “mature and considered individual” though she did note his presentation demonstrated “some rigidity” in his thinking and that he did appear to be pre-occupied with his father-in-law’s murder and his perceived “dangerousness” of the maternal cousin. Noting the limitations of the assessment as was the case with the mother, and on the basis of her clinical evaluation and available collateral information, the expert formed the view that these pre-occupations were driven by “the [father]’s concern for the welfare for his children rather than by an underlying psychotic process”.
The expert was of the opinion that there was no current evidence (when the report was written in November 2019) to suggest that the mother had a delusional disorder. The expert was also of the view that each parent’s close nurturing relationship with each of the children indicates they are able to parent effectively. She also opined that the children were not at a risk of physical or psychological harm in either parent’s care and felt that both parents were in good mental health.
At that stage the expert was of the opinion that the son had a probable diagnosis of ASD and that his presentation also meets the diagnostic criteria for ADHD.
It is essentially the father’s case that the deterioration in the mother’s mental state occurred after the expert’s assessment. He notes that the contents of the mother’s affidavit in support of her Application in a Case dated 13 March 2020 and the orders sought in that application of itself indicate such concerns about the mother’s metal state that a real risk of harm to the children arises in the mother’s primary care and requires that her time with the children be limited and supervised.
In advancing his case about the risks posed by the mother, the father first attaches weight to the mother’s firm and unshakable conviction that was evident when she was seen by the expert in June 2019. He asserts that the mother’s uncompromised view that he had been conspiring with police (and that at that stage the Department) has now escalated to incorporate a very broad number of other people. I understand his case to be that while at that stage the expert only felt it possible that the mother’s beliefs are delusional in nature the breath of her unshakeable view and escalation of it would suggest that the expert would now find that the beliefs are delusional. Further, the expert formed the view that when she assessed the family the mother’s paranoid stance in relation to the father’s involvement with police and her belief that he is involved in a conspiracy is a consequence of her past experiences incorporated into her world-view which appears to be shared by her brother, rather than a delusional disorder. As I understand it the father also considers that the nature of representations and communications made by the maternal uncle and the behaviour of the maternal cousin suggest that both of them and the mother subscribe to the same delusional disorder.
The mother’s Application in a Case of 13 March 2020 (which has almost entirely been since dismissed) is an unusual application largely seeking orders for which the Court has no jurisdiction. It also appears to be clearly on its face a document that is consistent with the mother’s “paranoid stance” in relation to the father’s “involvement with police” and her belief that he is “involved in conspiracy”. In this application the mother sought orders restraining a named police officer, the Victoria Police, and the father’s “law firm” from “influencing any solicitors/barristers or individual or entity involved in these proceedings”. It also sought that Victoria Police disclose under subpoena “the names of its New South Wales agents” working with the named Victorian Police Officer in the homicide investigation (which is unspecified but presumably relates to the maternal grandfather) and requests that five police officers including the Chief Commissioner in Victoria and 14 police officers from New South Wales be required to swear affidavits in the proceedings in relation to “the complicity or non-complicity to the corruption of [the named Victorian Police Officer]”. The mother also sought orders in this application that various police officers and other people including the Victorian Police Minister, Premier and Attorney General “swear affidavits that they were or not instructed to NOT intervene or stop the corruption by Victorian Police” and that similar orders be made against officers of police integrity bodies in New South Wales and Victoria. Further, the mother sought an order that 54 lawyers (solicitors and counsel in New South Wales and Victoria) file similar affidavits “regarding their complicity or non-complicity” with [the named Victorian police officer] and/or his Victorian or New South Wales police agents.
I accept the submission made on behalf of the father that seeking these orders of themselves is a matter of concern and are likely to cause the expert to revise her view that the mother does not have a delusional disorder. Other aspects of the evidence to which I will return also indicate that similar views are held by the maternal uncle and maternal cousin. Both of these people I understand, have some significant involvement in the care of the children and support of the mother which may also cause the expert to revisit the possibility that the mother and maternal uncle share a delusional disorder.
However, there is little in the orders sought by the mother in that application, or her affidavit in support or documents filed with it (relied upon by the father in these proceedings) that indicate a clear connection between the further and escalating development of her paranoid stance and her capacity to care for the children or any risk of harm she may pose to them.
Further, the mother’s fixation on the father’s interest in the historical murder investigation into the death of her father is largely irrelevant to the proceedings. It is difficult to see how her delusional beliefs as to an irrelevant matter (even if found to exist which appears likely) provide evidence of any risk of harm that she poses to the children.
When asked to identify the nexus between the mother’s apparent developing delusion about the father conspiring or being an agent of corrupt police for the purposes of damaging the mother’s parenting case and her care of the children the father’s counsel identified the following:
·The escalation of the mother’s delusion “occurred alongside” an escalation in allegations made by the mother about the health of the children which the father appears to believe is a pretext for withholding the children from him.
·The escalation of the mother’s delusional beliefs have coincided with an increase in her complaints about the dangers or risks posed by the father or an emergence of old complaints
·The deterioration in the mother’s mental state and escalation in her delusional beliefs are also consistent with similar beliefs held by the maternal uncle and maternal cousin who provide support for the mother.
·In recent times the mother has failed to follow advice of the NDIS funding scheme consultant for the son and removed the son from pre-school on 18 March 2020 without consultation with the NDIS adviser or the father
·Other agencies such as New South Wales Police appear to be concerned about the welfare of the children as a consequence of the nature of the mother’s communication with those agencies (associated with her delusional beliefs that these agencies are also part of the conspiracy).
·As a result of the mother’s beliefs the children have been exposed to unnecessary investigations by medical staff and interruptions in the time they would otherwise spend with their father and exposed to a parent who is pre-occupied with delusional beliefs and reacting to the world in a paranoid manner.
I accept that the level of intensity with which the mother holds beliefs that are highly likely to be found delusional has escalated. It is clear from the expert’s report that the mother held the beliefs “with a firm and unshakable conviction” when interviewed and the content of that conviction was that “her husband was a police informant and that he had been colluding with various government agencies” and was involved “in a broad conspiracy to discredit [the mother] in regard to the matters before the Family Court”. These are the same beliefs that the mother appears to continue to hold with even greater conviction.
I do not consider on the material before me that the mother has been unnecessarily presenting the children to health professionals or has sought medical advice as a pretext to deny the father spending time with the children as a result of her escalating beliefs. There have only been two hospital presentations since June 2019 when the mother was assessed by the expert and records for both presentations in December 2019 confirm that the son likely had viral gastroenteritis. I accept that the suggestion made by the mother and maternal cousin to hospital staff and repeated in the mother’s most recent affidavit, that the father had deliberately given the children laxatives to make them unwell is concerning. It is also consistent with the mother’s expression of beliefs about risks posed by the father. However, there is no evidence to suggest that these presentations are part of a general pattern in which the mother suggests the father is harming the children. Both presentations appear to have been reasonable in the circumstances.
Since separation in February 2018 the mother has only made a limited number of complaints about the conduct of the father (or in one case the paternal grandfather) albeit that those complaints have persisted and have been to some extent incorporated into her likely delusional beliefs. These complaints are that the paternal grandfather shook the son in about February 2018, that the father abused the son by placing a rope around the child’s neck in about January 2019 and that the father intentionally gave the children laxatives in December 2019.
The father also submits that the mother’s complaints about an insect infestation at his home causing serious bites to the daughter in March 2020 are in a similar spurious vein and have no foundation. However, the mother’s concerns in this regard are based on a report from a dermatologist who examined the child and found that she appeared to have “an exaggerated/bullous insect bite reaction”. In his report which the mother provided to the father, the dermatologist reported that he and the mother “discussed the possible offending insects” and he “suggested that all the relevant homes be fumigated and that pets be inspected and treated as necessary”. Although the mother uses somewhat inflammatory language with the father relating to this issue (possibly due to her perception that he was dismissing it) her concerns appear to be well founded and not delusional in character or part of a general pattern of making unfounded complaints against the father.
There is also insufficient basis upon which I could find any substance to the father’s allegation that the mother has presented the children to a range of doctors and asked them to issue spurious medical certificates which she uses as a pretext to deny the father time with the children. As the mother explained, there are a number of medical practitioners at the practice she attends and as the practice bulk bills she is required to be seen by any available doctor. There is also nothing suspicious about a medical certificate issued by a doctor referring to a person suffering from “a medical condition”.
Further, it appears that after the son was apparently diagnosed with ADHD and ASD a range of medical practitioners have been involved in his care. While it certainly would have been more appropriate for the mother to have informed the father about these medical appointments that is not unusual given the nature of the dispute between the parties and does not, in my view, necessarily raise any matters of concern in relation to the mother’s capacity to care for the children.
It is also submitted by the father that other agencies have been sufficiently concerned about the mother’s presentation to warrant welfare checks on the children or mental health intervention. It appears however that these concerns were more directed against the maternal uncle who appears to have a more flagrant expression of similar delusional beliefs to the mother and do not relate to the mother herself.
In the course of the hearing I formed the view that real questions may arise about the risks posed by the maternal uncle and maternal cousin who appear to be involved in the care of the children and in the case of the maternal cousin live in the same house though the nature of his relationship with the mother is unknown. The expert thought it prudent to have included the maternal cousin in her assessment but the mother was adamant that this not occur. In these circumstances, and especially where this cousin showed apparently similar beliefs to the mother when the son was presented to the hospital in December 2019, I raised an appropriate alternate way to reduce the potential risk raised by both the maternal cousin and the maternal uncle to a complete change in the interim parenting arrangements as sought by the father. The option I raised was the imposition of a restraint by way of injunction on the mother from permitting either of these people (at this interim stage) to live in the same household as herself and the children or play any part in the care of the children. The mother agreed to such a restraint if the children were to be returned to her care and this approach was also supported by the ICL.
It appeared to me in the course of the hearing that there was also some substance in the father’s concerns about the mother presenting the children to a multiplicity of medical practitioners but more to her withdrawal of the son from his NDIS provider and pre-school. The mother also agreed to orders in respect of these matters and claimed that she had recently re-enrolled the son in the pre-school in any event.
In my view it is critical that an updated report is obtained from the expert as soon as practicable and in particular that she is asked to express a view about any concerns that arise from the conduct of the mother since her last assessment and that the maternal uncle be assessed if the mother’s proposal is that he is to be involved in the care of the children or live in her household.
At this stage however, I attach weight to the fact that the expert was aware of the conduct and beliefs of the mother when she was assessed (albeit at a lesser degree of intensity than later became the case) but considered that the mother did not pose a risk of harm to the children and was a capable parent. I also consider it of significance that the expert considered that the son in particular would experience difficulties with a precipitous change in his care arrangements and for these reasons I approach the father’s proposal with caution.
I am also of the view for the reasons given that although there have been some matters of concern relating to the mother’s conduct in recent months they are not sufficient to cause me to consider that it would be in the children’s best interests to make the dramatic changes entailed in the father’s orders at this interim stage without the benefit of all of the evidence being fully tested.
For the foregoing reasons I dismiss the father’s application for a change in the interim parenting arrangements and make the Recovery Order as sought by the mother together with the additional orders discussed in the course of the hearing for the purposes of providing additional protection for the children in the mother’s care. I also make an order suspending the father's time with the children until 1 May 2020 to allow them to resettle into the mother's household and lessen the impact of immediate changes upon them given the regularity of the father's time with them under the current orders.
As the father indicated that if a Recovery Order was to be made he would comply with it without the need for police involvement, I also make an order directing that he return the children to the mother’s home by 4.00 pm today, or as otherwise agreed between the parties prior to 4.00 pm.
I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 April 2020.
Associate:
Date: 23 April 2020
2
4
1